1.�������� The
Appeals Chamber of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory
of Neighbouring States between 1 January 1994 and 31 December 1994 (�Appeals
Chamber� and �Tribunal� respectively) is seised of an appeal by Eli�zer
Niyitegeka against the Judgement rendered by Trial Chamber I in the case of Prosecutor
v. Eli�zer Niyitegeka on 16 May 2003 (�Trial Judgement�).
2.�������� The
Appellant, Eli�zer Niyitegeka, was born on 12 March 1952 in Gitabura Secteur,
Gisovu Commune, Kibuye Prefecture in Rwanda. He is married and has five
children. The Appellant is a former journalist at Radio Rwanda. In 1991, at the time when multi-party politics were inaugurated in Rwanda, he was among the founding members of the MDR opposition party (Mouvement
D�mocratique R�publicain). He assumed the Chairmanship of the MDR for the Kibuye Prefecture from 1991 to 1994.
3.�������� Following
the death of the then President of Rwanda in a plane crash on 6 April 1994, an
Interim Government was sworn in on 9 April 1994, including the Appellant as
Minister of Information. The Appellant remained in that position until the
second half of July 1994 when he fled Rwanda.
The Appeals Chamber notes that the indictment, which forms the basis of the
convictions, does not charge the Appellant for the 1994 genocide in Rwanda in its entirety, but for his individual criminal responsibility relating to selected
incidents.
4.�������� The
Trial Chamber found the Appellant guilty of the following crimes: genocide
(Count 1); conspiracy to commit genocide (Count 3); direct and public
incitement to commit genocide (Count 4); and murder (Count 5), extermination
(Count 6), and other inhumane acts (Count 8) as crimes against humanity. The
Trial Chamber sentenced the Appellant to imprisonment for the remainder of his
life.
5.�������� The
Appellant is appealing against the convictions and the sentence. In his Appeal
Brief (�Appellant�s Brief�), the Appellant challenges all the findings and
decisions of the Trial Chamber as findings or decisions that could not have
been reached by a reasonable Tribunal and submits that �on every count, his
trial was manifestly unfair in breach of his statutory right to a fair trial.� The Appellant seeks the reversal of the
convictions and sentence, and the issuance of an order directing his immediate
release.
6.�������� For the
purposes of the present Judgement, the Appeals Chamber has divided the
Appellant�s grounds of appeal into eight categories which can be summarized as
follows:
(i) that the
integrity of the trial process was undermined by the participation in the trial
of a staff member of the Office of the Prosecutor who, at the time, was
suspended from practice in her home jurisdiction, the State of New York;
(ii) that the
Trial Chamber erred in treating the first-made records of questions posed by
Prosecution investigators to witnesses, and the witnesses� answers, as
privileged under Rule 70 and that the Prosecution should not have been
permitted to call witnesses without providing a reasonable explanation for the
unavailability of their original witness statements;
(iii) that there
existed the possibility of bias on the part of the Trial Chamber due to a
statement made during trial by counsel for the Prosecution, and that the statement
was so prejudicial that the Trial Chamber breached the Appellant�s right to
trial by impartial judges when it declined to recuse itself;
(iv) that the
Trial Chamber erred in its interpretation of the specific intent requirement
for the crime of genocide;
(v) that the
Trial Chamber applied the wrong burden of proof in assessing the alibi; that
the Trial Chamber applied a more demanding standard in assessing the
credibility of alibi witnesses than it did with regard to Prosecution
witnesses; and that the Trial Chamber erred in finding that the alibi did not
raise a reasonable doubt as to guilt;
(vi) that the
Trial Chamber made general errors of law in its approach to the evidence of
several witnesses, such as relying on uncorroborated testimony, accepting
in-court testimony despite inconsistent prior statements, accepting testimony
of accomplices, and accepting evidence with regard to witnesses� identification
or recognition of the Appellant;
(vii) that the
indictment upon which the Appellant was tried did not give sufficient notice of
several of the allegations against him; that this absence of notice was not
cured by subsequent communication of information; and that the Trial Chamber
erred in dismissing his motion to exclude the testimony of one Prosecution
witness, Witness GK, due to alleged untimely disclosure of a witness statement;
and
(viii) that the
Trial Chamber erred in its consideration of the evidence he offered in
mitigation and gave insufficient weight to the mitigating circumstances.
In addition to the above, a number of
other individual grounds of appeal have been presented by the Appellant and are
considered separately.
7.�������� The
Appeals Chamber recalls the requisite standards for appellate review pursuant
to Article 24 of the Statute. Article 24 addresses errors of law which
invalidate the decision and errors of fact which occasion a miscarriage of
justice. The ICTY Appeals Chamber has stated that:
A party alleging that there is an error of law
must advance arguments in support of the contention and explain how the error
invalidates the decision; but, if the arguments do not support the contention,
that party does not automatically lose its point since the Appeals Chamber may
step in and, for other reasons, find in favour of the contention that there is
an error of law.
8.�������� As
regards errors of fact, �[i]t is well established that the Appeals Chamber will not lightly
overturn findings of fact made by a Trial Chamber. Where the Defence alleges an
erroneous finding of fact, the Appeals Chamber must give deference to the Trial
Chamber that received the evidence at trial, and it will only interfere in
those findings where no reasonable trier of fact could have reached the same
finding or where the finding is wholly erroneous. Furthermore, the erroneous
finding will be revoked or revised only if the error occasioned a miscarriage
of justice.�
9.�������� A party
cannot merely repeat on appeal arguments that did not succeed at trial, unless
that party can demonstrate that rejecting them constituted such error as to
warrant the intervention of the Appeals Chamber. Arguments of a party which do
not have the potential to cause the impugned decision to be reversed or revised
may be immediately dismissed by the Appeals Chamber and need not be considered
on the merits.
10.������ In order
for the Appeals Chamber to assess the appealing party�s arguments on appeal,
the appealing party is expected to provide precise references to relevant
transcript pages or paragraphs in the Judgement to which the challenge is being
made.
Further, �the Appeals Chamber cannot be expected to consider a party�s
submissions in detail if they are obscure, contradictory, vague or suffer from
other formal and obvious insufficiencies.�
11.������ Finally,
it should be recalled that the Appeals Chamber has inherent discretion in
selecting which submissions merit a reasoned opinion in writing. Therefore, the Appeals Chamber will
dismiss arguments which are evidently unfounded without providing detailed
reasoning.
12.������ The
Appellant submits that the Trial Chamber erred when it convicted and sentenced
him �while under a delusion as to the integrity of its trial process.� The Appellant asserts that the integrity
of the entire trial was undermined by the fact that he was not prosecuted by
professional lawyers in good standing who are licensed to practise law and
whose integrity and ethical standards are above reproach. The Appellant further asserts that the
integrity of the trial was undermined by the fact that Prosecution Counsel
Melinda Pollard falsely represented herself as a person entitled to the
presumptions normally accorded to Prosecution trial attorneys, leading the
Trial Chamber to rely upon her representations and undertakings. Because of these factors, the Appellant
claims, he was denied the right to a fair trial.
13.������ The
Appellant submits that Prosecution Counsel Pollard had been suspended from the
practice of law in the State of New York on two occasions because of a serial
pattern of professional wrongdoing, including fraud, dishonesty, and
deliberately giving false and misleading testimony, and that she was under
active suspension during the course of some of the Appellant�s pre-trial
proceedings and all of his trial. The
Appellant contends that because Counsel Pollard failed to notify the Tribunal
of her disciplinary record and her active suspension, the Trial Chamber and the
Appellant were �deluded� into believing that she met the minimum professional
and ethical standards, qualifications, and experience required of Prosecution
counsel appearing before the Tribunal.
Consequently, in the Appellant�s view, he was denied �an essential
pre-requisite for a fair trial, namely that he would be fairly tried before a
court where he would be prosecuted by professional lawyers of good standing,
licensed/permitted to practice law and whose integrity/bona-fides/professional/ethical
standards were above reproach.� The
Prosecution concedes that Counsel Pollard�s licence to practise law in New York was suspended.
14.������ The
Tribunal�s instruments do not prescribe qualification requirements for members
of the staff of the Office of the Prosecutor appearing before it. While Rule
44(A) of the Tribunal�s Rules of Procedure and Evidence (�Rules�) stipulates
that a counsel engaged by a suspect or an accused �shall be considered
qualified to represent a suspect or accused, provided that he is admitted to
the practice of law in a State, or is a University professor of law,� the Rules
and other instruments of the Tribunal contain no corresponding qualification
provision for Prosecution counsel. In consequence, the integrity of the trial
process before the Tribunal cannot be undermined, per se, by the status
a Prosecution counsel may or may not have as a member of the bar in any State.
15.������ Pursuant
to Rule 37(B) of the Rules, the Prosecutor�s powers in respect of individual
cases may be exercised by staff members of his office authorized by him or
acting under his direction. In exercising such powers, Prosecution counsel must
adhere to standards of professional conduct set out in Prosecutor�s Regulation
No. 2. In
accordance with Regulation No. 2, during investigations and judicial
proceedings, Prosecution counsel are required to adopt the highest standards of
professional conduct and are expected to follow the prescribed standards in
order to safeguard the interests of justice, including �the fundamental rights
of suspects and accused.�
Notably, the Prosecutor has the right and duty to deal with any failure of
Prosecution counsel to observe the standards established in Regulation No. 2.
16.������ Consequently,
irrespective of Counsel Pollard�s standing to practise law in New York, under
the Tribunal�s regulatory regime she was entitled to exercise such powers of
the Prosecutor as have been entrusted to her under Rule 37(B) of the Rules. In
the exercise of such powers, Counsel Pollard was required to adhere to the
standards of professional conduct set out in Regulation No. 2. In addition, as
a staff member of the United Nations, she also had a duty to act in accordance
with the Charter of the United Nations, its Staff Rules and its Staff
Regulations, which include a duty to act with integrity and honesty. Similar standards are imposed upon
defence counsel appearing before the Tribunal who have a duty to �act honestly,
fairly, skilfully, diligently and courageously�. However, the Appeals Chamber stresses
that the integrity of the judicial process demands that these ethical standards
be applicable to all counsel appearing before the Tribunal. All counsel have a
duty to adhere, as a minimum, to these ethical standards. This is independent
of formal provisions or counsel�s membership of a national bar.
17.������ The
Appeals Chamber also notes that Counsel Pollard was not the only Prosecution
counsel on the case and that she operated under the supervision of a Senior
Trial Attorney during the trial. It has not been argued, nor does it appear,
that the suspension of Counsel Pollard�s licence to practise law in New York was in any way related to her conduct in the Appellant�s case. Additionally,
beyond making mere allegations about Counsel Pollard�s possible misconduct in
the proceedings against him, the
Appellant has not shown how Counsel Pollard�s past conduct in New York affected
his trial or rendered it unfair.
18.������ In view
of the foregoing, it has not been established that Counsel Pollard�s past
professional conduct in the State of New York, the status of her licence to
practise law there, or her alleged untimely disclosure that her licence to
practise law in New York had been suspended, has undermined the integrity of
the Appellant�s trial or deprived him of the right to a fair trial. This ground
of appeal is accordingly dismissed. However, the present finding is strictly
limited to the matter considered here. It is not for the Appeals Chamber to
comment on Counsel Pollard�s past conduct in her home jurisdiction or her
employment in the Office of the Prosecutor.
19.������ The
Appellant further submits that the Trial Chamber erred in law when it accepted
Counsel Pollard�s representations and undertakings while under the �delusion�
that Counsel Pollard could be relied upon as an officer of the court to carry
out her professional duties with a minimum acceptable standard of professional
ethical conduct, requiring the Appellant to do likewise. This, in the Appellant�s view, resulted
in his being denied any opportunity whatsoever to challenge Counsel Pollard�s
representations and undertakings to the Trial Chamber in an effective manner. More specifically, the Appellant argues,
he was denied the opportunity to challenge the truthfulness of the
Prosecution�s representations relating to the non-existence of material which
may have benefited his defence, as well as the opportunity to seek an
independent inquiry into the existence of investigators� first-made records of
interviews with witnesses.
20.������ As noted
in the foregoing section, Counsel Pollard, like all Prosecution counsel, was
required to follow the standards of professional conduct expected of all
counsel appearing before the Tribunal in addition to those prescribed in
Regulation No. 2, which include the duty to demonstrate candour before the
Tribunal and not knowingly to make incorrect statements of material facts to
the Tribunal. It
is, of course, essential that the Chambers of the Tribunal be able to rely on
the integrity of counsel on both sides and that counsel be able to rely on each
other�s statements.
Dereliction in the duty of honesty may, in appropriate cases, be cause for
sanctions or for contempt proceedings. Such dereliction by Prosecution counsel
may also be contrary to the Charter of the United Nations and a breach of the
relevant Staff Regulations and Staff Rules. The Appeals Chamber, however, finds
no concrete evidence of a violation of the duty of honesty in the present case.
In the absence of any showing of Counsel Pollard�s breach of the prescribed
standards, the Trial Chamber was entitled to accept and rely upon her
representations and undertakings.
21.������ With
respect to the Prosecutor�s duty to disclose to the Defence the existence of
exculpatory evidence, pursuant to Rule 68 of the Rules, the Appellant has
failed to identify any specific instance where the Trial Chamber erroneously
relied on Counsel Pollard�s representations concerning such evidence. In fact,
the Appellant did not point to any instance where the Trial Chamber relied on
Counsel Pollard�s representation as to exculpatory evidence. In these
circumstances, this Chamber is forced to disregard the present argument as
unfounded.
22.������ Moreover,
the Appellant�s argument that the Trial Chamber was �deluded� into relying on
Counsel Pollard�s representations about the non-existence of first-made records
and that he was therefore denied the opportunity to challenge such
representations is without merit. It has not been shown that Counsel Pollard�s
representations were factually incorrect; indeed, the Senior Trial Attorney
confirmed them during the appeal hearing.
23.������ It has
not been established that the Trial Chamber erred in law when it relied on
Counsel Pollard�s representations and undertakings. Therefore, the appeal on
this point is dismissed.
24.������ The
Appellant submits that the Trial Chamber erred in law when it permitted the
Prosecutor to rely upon Rule 70 of the Rules to claim privilege over the
first-made records of the questions that Prosecution investigators put to
witnesses and of the answers given. The
Appellant pleads that in order to be able to challenge the testimony of
witnesses against him fully, in accordance with the fair trial requirements of
Articles 19 and 20 of the Statute, he should have had access to the
investigators� notes.
25.������ The
Appellant also submits that the Trial Chamber erred in law in permitting the
Prosecution to call witnesses in circumstances where no reasonable explanation
was given for the unavailability of the original statements made by the
witnesses to the Prosecution investigators. The Appellant claims that the
unavailability of the original statements deprived him of the opportunity to
cross-examine the witnesses effectively.
26.������ Finally,
the Appellant argues that the Trial Chamber erred in law in convicting and
sentencing him when on 27 February 2001 it issued an order directing the
Prosecution to make a full disclosure, which in the Appellant�s view has not been
made.
27.������ The
Appellant cites cases from the European Court of Human Rights (�ECourtHR�) as
well as the Trial Judgement in the case of Prosecutor v. Kayishema and
Ruzindana in support of the contention that �documentary material created
at the time of the interview of Prosecution witnesses is relevant material that
the Prosecution has an obligation to obtain, secure and make available to the
Defence.�
28.������ The
Prosecution responds that the factual circumstances of those cases from the
ECourtHR cited by the Appellant are not relevant to the present case. The Prosecution submits that none of the
cases cited by the Appellant support the contention that the principle of
equality of arms and the right to a fair trial are infringed by not disclosing
handwritten notes taken by an investigator. The Prosecution further submits
that, on the contrary, an accused�s right to disclosure is not absolute and
that in any criminal trial there will be competing interests at stake which
must be weighed against the rights of the accused.
29.������ A review
of the cited jurisprudence reveals that the cases from the ECourtHR are not on
point and that nothing in the Kayishema and Ruzindana Trial Judgement
supports the Appellant�s contention. Nowhere in the relevant passages in that
case did the Trial Chamber state that the Prosecution has an obligation to
obtain, secure or make available to the Defence its own internal material
created at the time of the interview.
30.������ Pursuant
to Rule 66(A)(ii) of the Rules, the Prosecutor has a duty, inter alia,
to make available to the Defence copies of the statements of all witnesses whom
the Prosecutor intends to call to testify at trial. The Appeals Chamber notes
that neither the ICTR nor ICTY has provided a clear definition of the term
�statement.� In particular, the jurisprudence has not made a clear distinction
between �statements� and �internal documents prepared by a party [which] are not subject
to disclosure or notification�
under Rules 66 and 67 of the Rules.
31.������ A record
of a witness interview, ideally, is composed of all the questions that were put
to a witness and of all the answers given by the witness. The time of the
beginning and the end of an interview, specific events such as requests for
breaks, offering and accepting of cigarettes, coffee and other events that
could have an impact on the statement or its assessment should be recorded as
well.
32.������ Such an
interview must be recorded in a language the witness understands. As soon as
possible after the interview has been given, the witness must have the chance
to read the record or to have it read out to him or her and to make the
corrections he or she deems necessary and then the witness must sign the record
to attest to the truthfulness and correctness of its content to the best of his
or her knowledge and belief. A co-signature by the investigator and
interpreter, if any, concludes such a record.
33.������ Records
of questions put to witnesses by the Prosecution and of the answers given
constitute witness statements pursuant to Rule 66(A)(ii) of the Rules. It is
necessary to disclose the questions put to the witness in order to make the
statement intelligible. This obligation also follows from the fair trial
guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an
accused must have access to the questions put to the witness in order to be
able to prepare for cross-examination properly. At times, it may be impossible
to assess the probative value of the witness�s answer without juxtaposing it
with the relevant question. This may also affect a Chamber�s assessment of the
credibility of the witness and the reliability of a testimony in its
development. The record of the first interview with a witness is of the highest
value because it is most likely to capture the witness�s recollection
accurately, being closest in time to the events and less vulnerable to any
subsequent influence.
34.������ Questions
that were put to a witness � thus being part of the witness
statement � have to be distinguished from �internal documents
prepared by a party�,
which are not subject to disclosure under Rule 70(A) of the Rules, as an
exception to the general disclosure obligation pursuant to Rule 66(A)(ii) of
the Rules. A question once put to a witness is not an internal note any more;
it does not fall within the ambit and thereby under the protection of Rule
70(A) of the Rules. If, however, counsel or another staff member of the
Prosecution notes down a question prior to the interrogation, without putting
this question to the witness, such a question is not subject to disclosure.
Similarly, any note made by counsel or another staff member of the Prosecution
in relation to the questioning of the witness is not subject to disclosure,
unless it has been put to the witness.
35.������ The fact
that a particular witness statement does not correspond to the standard set out
above does not free a party from its obligation to disclose it to the other
party pursuant to Rule 66(A)(ii) of the Rules. Furthermore, a witness statement
which does not correspond to the standard set out above does not necessarily
render the proceedings unfair. The Prosecution is obliged to make the witness
statement available to the Defence in the form in which it has been recorded.
However, something which is not in the possession of or accessible to the
Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no
one is bound to an impossibility).
36.������ Also, a
statement not fulfilling the ideal standard set out above is not inadmissible
as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant
evidence which it deems to have probative value. However, any inconsistency of
a witness statement with the standard set out above may be taken into
consideration when assessing the probative value of the statement, if
necessary.
37.������ In the
present case, the Appellant has not sufficiently demonstrated that additional
records exist that have not been disclosed to the Defence. Without a showing of
the availability of such records it has not been established that the
Prosecution did not fulfil its duty to disclose pursuant to Rule 66(A)(ii) of
the Rules. On the contrary, as discussed above, the Senior Trial Attorney confirmed
that the Prosecution has no such documents in its possession, and the Appellant has shown no reason to
doubt this representation.
38.������ Furthermore,
the Defence has not in concreto demonstrated that the Appellant has
suffered prejudice by the way statements have been disclosed to him. The
Appeals Chamber notes in this context that neither during the trial nor during
the appeals proceedings has the Appellant tried to call an investigator as a
witness to testify to the full content of a first-made statement in order to
try to show such prejudice.
39.������ The
Trial Chamber also did not err in law when it permitted the Prosecution to call
witnesses for whom first-made records were unavailable. Furthermore, the
Appellant did not demonstrate that he has suffered prejudice.
40.������ The
related grounds of appeal on this point are therefore dismissed.
41.������ The
Appellant submits that the Trial Chamber erred in law �by deciding that the
Prosecutor had not failed in her duty to preserve all the evidence as obliged
by virtue of Rule 41.� The
Appellant posits that fair procedure requires the Prosecution to record what
the witness first says to its investigators, that such a notation be
transcribed and signed by the witness, and that it then be translated and made
available to the Trial Chamber and to �legal-teams.� The Appellant argues that the
Prosecution�s failure to obtain and preserve evidence in this way has deprived
him of his right to challenge the testimony of Prosecution witnesses fully.
42.������ The
Appellant did not identify the instance when the Trial Chamber decided that the
Prosecutor �had not failed in her duty to preserve all the evidence as obliged
by virtue of Rule 41.� Additionally, it is not obvious that the Chamber in fact
considered this matter or that it reached the decision asserted by the
Appellant. Consequently, this ground of appeal is dismissed on grounds of
vagueness.
43.������ The Appellant
submits that the Trial Chamber erred in law when it decided not to recuse
itself after Counsel Pollard made reference to a �highly prejudicial matter�
which, in his view, is impossible to expunge from the minds of the Judges, and
when it failed to order Counsel Pollard to retract her statement. Specifically, the Appellant notes that
in cross-examining Defence Witness TEN-16, Counsel Pollard sought the witness�s
opinion on the Appellant�s character, alleging that the Appellant had
implicated himself in the commission of rapes.
The Defence objected to this assertion and moved the Trial Chamber to recuse
itself. The Chamber refused the application.
The Appellant argues that Counsel Pollard�s statements were so highly
prejudicial as to be impossible to expunge from the minds of the Judges and
that, as a result, his right to be tried by impartial judges was breached,
rendering his convictions and sentence unsafe.
44.������ In
denying the Defence application that the trial Judges recuse themselves, the
Trial Chamber stated: �It is also recalled that the judges are professional
judges, and we will certainly disregard any element of information or any
element adduced in the case which has not been proved in the courtroom.� The Trial Chamber returned to this
matter in the Judgement where it stated that it had not been influenced by the
impugned comments.
45.������ Following
the Judgement of the ICTY Appeals Chamber in the case of Prosecutor v.
Furund`ija, the Appeals Chamber held in Akayesu that �there is a
presumption of impartiality that attaches to a Judge or a Tribunal and,
consequently, partiality must be established on the basis of adequate and
reliable evidence.� On
appeal, it is for the appealing party to rebut this presumption of impartiality.
As stated in Furund`ija in respect of a reasonable apprehension of bias,
the Appellant bears the burden of adducing sufficient evidence to satisfy the
Appeals Chamber that the Judges were not impartial. In Furund`ija the ICTY Appeals
Chamber held that there is �a high threshold to reach in order to rebut the
presumption of impartiality� and recalled that �disqualification is only made
out by showing that there is a reasonable apprehension of bias by reason of
prejudgement and this must be �firmly established��. The
Appeals Chamber recently confirmed this position in the Judgement in the case
of Rutaganda v. Prosecutor.
46.������ In the
present case, the Appellant has not shown evidence of bias on the part of the
trial Judges. On the contrary, the fact that the Trial Chamber found the
Appellant not guilty of rape as a crime against humanity suggests that the
Chamber was not affected by Counsel Pollard�s statement. The Appellant has not rebutted the
presumption of impartiality and, consequently, this ground of appeal is
dismissed.
47.������ The
Appellant submits that the Trial Chamber erred in law by expanding the
definition of genocide and deciding that he had the specific intent necessary
for a finding of responsibility for genocide.
Specifically, the Appellant contends that the Trial Chamber erred in failing to
interpret the words �as such� contained in Article 2(2) of the Statute as
meaning �solely.� The
Appellant argues that the Trial Chamber�s interpretation of the words �as such�
to mean that �the act must be committed against an individual because the
individual was a member of a specific group and specifically because he
belonged to this group, so that the victim is the group itself, not merely the
individual,� fails to give the words their full and true meaning and effect. In the Appellant�s view, the words �as
such� should be interpreted as referring to a situation �where the specific
intent was to commit the specified acts against the group solely because
they were members of such a group� rather than a situation where the
specific intent �was to commit the specified acts against a gathering of
persons because they were believed to be the enemy or supporters of the enemy.� The Appellant submits that in
misinterpreting the words �as such,� the Trial Chamber, acting ultra vires,
expanded the definition of genocide to include acts which reasonably could not
have been foreseen as falling within its ambit, and that this offends the
principle of nullum crimen, nulla poena sine lege.
48.������ Article
2(2) of the Statute states, in part: �Genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such�.�
This provision mirrors Article II of the Convention on the Prevention and
Punishment of the Crime of Genocide of 9 December 1948 (�Genocide Convention�).
49.������ It may
be recalled that during the drafting of the Genocide Convention, the delegates
debated whether to include the element of motive in the definition of the crime
of genocide.
After extensive discussion, the words �as such� were introduced into the draft
document to replace an explicit reference to motives made in an earlier draft. Venezuela, the author of this amendment, stated that �an enumeration of motives was useless
and even dangerous, as such a restrictive enumeration would be a powerful
weapon in the hands of the guilty parties and would help them to avoid being
charged with genocide. Their defenders would maintain that the crimes had been
committed for other reasons than those listed in article II.� The Venezuelan delegate continued that
�it was sufficient to indicate that intent was a constituent factor of the
crime.� He
observed that replacing the statement of motives with the words �as such�
should meet the views of those who wanted to retain the statement, noting that
motives were implicitly included in the words �as such�.
50.������ The
Trial Chamber in the Akayesu case interpreted the concerned provision in
Article 2(2) of the Statute to mean that �the act must have been committed
against one or several individuals, because such individual or individuals were
members of a specific group, and specifically because they belonged to this
group.� This
interpretation was adopted by the Tribunal in subsequent cases, including by
the Trial Chamber in the present case.
51.������ The
Appellant proposes that the correct interpretation of the words �as such� is
�solely,� so that a finding of the requisite specific intent would be
predicated on proof that the perpetrator committed the proscribed acts against
members of the protected group �solely because they were members of such a
group.� This
proposal, if adopted, would introduce into the calculus of the crime of
genocide the determination whether the perpetrator�s acts were motivated solely
by the intent to destroy the protected group, in whole or in part, or whether
the perpetrator was motivated by that intent as well as other factors.
52.������ In Kayishema
and Ruzindana, the Appeals Chamber cautioned that �criminal intent (mens
rea) must not be confused with motive� and stated that �in respect of
genocide, personal motive does not exclude criminal responsibility� provided
that the genocidal acts were committed with the requisite intent. This position was reinforced in Prosecutor
v. Jelisić, where the ICTY Appeals Chamber observed that �the
existence of a personal motive does not preclude the perpetrator from also
having the specific intent to commit genocide.�
53.������ The
words �as such,� however, constitute an important element of genocide, the
�crime of crimes.� It
was deliberately included by the authors of the Genocide Convention in order to
reconcile the two diverging approaches in favour of and against including a
motivational component as an additional element of the crime. The term �as
such� has the effet utile of drawing a clear distinction between mass
murder and crimes in which the perpetrator targets a specific group because of
its nationality, race, ethnicity or religion.
In other words, the term �as such� clarifies the specific intent requirement.
It does not prohibit a conviction for genocide in a case in which the
perpetrator was also driven by other motivations that are legally irrelevant in
this context. Thus the Trial Chamber was correct in interpreting �as such� to
mean that the proscribed acts were committed against the victims because of their
membership in the protected group, but not solely because of such
membership.
54.������ Finally,
it has not been shown that the Trial Chamber erred in deciding that the
Appellant had the requisite specific intent for a finding of responsibility for
genocide. In determining whether the Appellant had the requisite specific
intent, the Trial Chamber carefully considered his actions during attacks on
Tutsi refugees.
55.������ The
present ground of appeal is dismissed.
56.������ Under these grounds of appeal, the Appellant challenges the legal
approach adopted and the burden of proof applied by the Trial Chamber in its
assessment of the alibi evidence. In sum, the Appellant presents three main
arguments: first, that the Trial Chamber applied the wrong burden of proof in
assessing the alibi; second, that the Trial Chamber failed
to apply the same standards in assessing Defence and Prosecution evidence; and
third, that the Trial Chamber erred in finding that the alibi evidence for 28
June 1994 did not raise a reasonable doubt.
57.������ As a first argument, the Appellant contends that the Trial Chamber
erred in law by requiring the Appellant to prove his alibi beyond reasonable
doubt, whereas his evidential burden was only to show that, on the balance of
probabilities, he was where he says he was. The Appellant submits that once he has
met this burden, there must necessarily be a reasonable doubt that he was not
where the Prosecution alleged him to have been. He submits that no adverse
inference can be raised from his failure to discharge his evidential burden,
and that the Prosecution�s case should be considered afresh. According to the
Appellant, the Trial Chamber erred by failing to direct itself properly in
these matters.
58.������ With
reference to the Kayishema and Ruzindana and Tadić
Trial Judgements, the Appellant submits that it
is nearly impossible for an accused to provide a twenty-four hour, day by day,
week by week account of his whereabouts for an alibi defence covering several
months. He argues that where the Prosecution was unable to prove with any
degree of accuracy the precise date on which he is alleged to have committed an
offence, the Trial Chamber should have given him the benefit of doubt by opting
for the date of occurrence of the incident alleged by the Prosecution as being
the day on which the Appellant had an alibi. The Appellant submits that in
failing to do so, the Chamber erred in law and deprived him of a fair trial.
59.������ In
response, the Prosecution submits that the Trial Chamber applied the
appropriate legal standard when assessing the Appellant�s alibi and correctly
stated the law on alibi as set out in Musema. In the view of the
Prosecution, the Appellant thus fails to identify an error of law invalidating
the decision.
60.������ The
Appeals Chamber recalls that where a defendant raises an alibi �he is merely
denying that he was in a position to commit the crime with which he was
charged,� specifically that he was elsewhere than at the scene of the crime at
the time of its commission. It
is settled jurisprudence before the two ad hoc Tribunals that in putting
forward an alibi, a defendant need only produce evidence likely to raise a
reasonable doubt in the Prosecution�s case.
The burden of proving beyond reasonable doubt the facts charged remains
squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the
Prosecution to establish beyond reasonable doubt that, despite the alibi, the
facts alleged are nevertheless true.
61.������ In the
view of this Chamber, the Trial Chamber correctly stated that the Prosecution
bears the burden of proof and that an alibi defence does not bear a separate
burden. The Trial Chamber affirmed that the alibi would succeed if it is
reasonably possibly true. It added that even where the alibi is rejected it
remains the task of the Prosecution to establish the offences charged beyond
reasonable doubt:
In Musema, it
was held that �[i]n raising the defence of alibi, the Accused not only denies that he
committed the crimes for which he is charged but also asserts that he was
elsewhere than at the scene of these crimes when they were committed. The onus
is on the Prosecution to prove beyond a reasonable doubt the guilt of the
Accused. In establishing its case, when an alibi defence is introduced, the
Prosecution must prove, beyond any reasonable doubt, that the accused was
present and committed the crimes for which he is charged and thereby discredit
the alibi defence. The alibi defence does not carry a separate burden of proof.
If the defence is reasonably possibly true, it must be successful.�
���������������������������������������������������������������������������������������������������������
The Accused does not
bear the burden of proving his alibi - if the alibi raises a reasonable doubt,
the Accused must be acquitted. Where the alibi is rejected, a finding of guilt
does not automatically follow; the evidence must be assessed and a conviction
entered only if the allegation has been proved beyond reasonable doubt.
62.������ There is
therefore no merit in the Appellant�s argument that the Trial Chamber failed to direct itself properly as to the applicable
legal standards and evidential burden when considering the alibi. The approach
articulated by the Trial Chamber conforms to that previously set forth by the
Appeals Chamber.
63.������ Regarding
the Appellant�s general submission that where the Prosecution failed to
establish the precise date on which an event occurred, the Trial Chamber should
have granted him the benefit of doubt by opting for a day for which he had an
alibi, the Appeals Chamber dismisses it to the extent that it is unsupported by
any specific examples of when, according to the Appellant, the Trial Chamber
should have so acted.
64.������ Finally,
the Appeals Chamber notes that the Appellant also states generally that the
Trial Chamber�s finding that the alibi does not raise a reasonable doubt that
he was in Bisesero (Muyira) committing crimes is against the weight of
evidence. He advances no arguments in support, except for those reviewed above. This argument will therefore not be
considered.
65.������ As a second
argument, the Appellant submits that the Trial Chamber
failed to apply the same standards in assessing Defence and Prosecution
evidence. The Appellant contends that the Trial
Chamber, in rejecting the evidence of Defence witnesses, noted that certain Defence
witnesses were unable to provide �details� about the
Appellant�s activities during the relevant period, could not provide �the exact number of days� on which they
saw the Appellant, progressively changed their evidence, and were unable to
confirm the lengths of time during which they saw the Appellant at Muyira. The
Appellant submits that, by contrast, the Trial Chamber excused Prosecution
witnesses� forgetfulness due to lapse of time, allowed inconsistent evidence of
Prosecution witnesses, and convicted him on the basis of vague and unspecified
Prosecution evidence.
66.������ In
support of this contention, the Appellant refers to the following findings:
�
the Trial Chamber rejected the alibi evidence of
Defence Witnesses TEN-10 and TEN-22 on the basis that neither witness was able
to provide �details� about the Appellant�s activities during the relevant
period, whereas the Trial Chamber excused Prosecution Witness HR�s lack of
memory as to details due to lapse of time;
�
the Trial Chamber noted that Witness TEN-22 could not provide �the
exact number of days he saw the Accused�, whereas Prosecution Witnesses
GGH, HR, KJ, GGY, and GGV did not specify exact dates of their sightings of the
Appellant, yet the Trial Chamber accepted and relied on their unspecified
evidence;
�
the Trial Chamber noted that Defence Witness
TEN-10 �changed his evidence, as his testimony progressed, concerning the
frequency�[with which] he saw the Accused� and considered
this a �significant factor� in assessing his alibi evidence, whereas the
Trial Chamber found Prosecution Witness GGR to be reliable despite the fact
that his evidence changed in relation to the frequency with which he saw the
Appellant; and
�
the Trial Chamber rejected Witness TEN-9�s
testimony that he was certain he saw Bernard Kouchner, a former French
Secretary of State, on 14 May 1994, whereas it accepted Prosecution
Witness HR�s identification evidence, on the basis that the witness was �certain�
he saw the Appellant and maintained his position throughout his testimony, and
relied on the sole testimony of Prosecution Witness GGY, although he only
indicated seeing the Appellant on the �morning� of 14 May without providing any
other details.
67.������ The
Prosecution submits that there is no support for the Appellant�s argument that
the Trial Chamber rejected his alibi because it applied a different standard
when assessing the credibility of his alibi witnesses. The Prosecution recalls
that the Trial Chamber rejected other aspects of the Appellant�s alibi on a number
of grounds. The Prosecution submits therefore that there is no showing that the
Trial Chamber would have accepted the Appellant�s alibi but for the alleged
errors.
68.������ In light
of the issues raised, the Appeals Chamber will consider seriatim the
Appellant�s examples of instances where the Trial Chamber is said to have
applied different standards in assessing the evidence of Prosecution witnesses
and of his alibi witnesses.
Witness TEN-10
69.������ The
Appeals Chamber is of the opinion that the Appellant�s reference to the Trial
Chamber�s finding of �lack of details� in the evidence of Witness TEN-10 does
not support his argument that the Trial Chamber applied a different evidential
standard in evaluating the Prosecution and Defence evidence. It is clear from a
review of the Judgement that the Trial Chamber reached the conclusion that
Witness TEN-10�s evidence was of limited value and lacked detail only after
having given full consideration to Witness TEN-10�s evidence. The Appellant has not shown that the
Trial Chamber erred in so doing.
Witness TEN-22
70.������ Witness
TEN-22, who was in Murambi from about 12 or 13 April to 20 May 1994, testified
that he saw the Appellant on either 12 or 13 April 1994 and in mid-May during
the visit of Kouchner. The witness explained that thereafter he �would see him
pass by� and that �sometimes [the Appellant] would drop by to greet us.�
The witness provides no specific dates or details about these occasions. The
Appellant conceded that he was not in a position to say that he was in the
witness�s company �on a specific date at a specific time.� The Trial Chamber took note of the fact
that the witness could not provide the exact number of days on which he saw the
Appellant, or the frequency of his sightings, and that he did not present any
further details about the Appellant�s activities during the relevant period. This is consistent with the evidence.
71.������ However, the Appellant argues that
the Trial Chamber applied a different standard by requiring Defence Witness
TEN-22 to provide exact dates whereas it convicted him on the vague testimony
of Witnesses GGH, HR, KJ, GGY, and GGV. In support, the Appellant refers to the
findings of the Trial Chamber in paragraphs 155, 130, and 232 of the Judgement,
which, it should be noted, concern only the evidence of Witnesses HR, KJ, and
GGY.
72.������ On the basis of Witness HR�s
testimony, the Trial Chamber found that on a day �sometime between 17 and 30
April 1994�, at between 9.30 a.m. and noon, the Appellant participated in
attacks at Muyira Hill against Tutsi refugees. Based on the testimony of
Witness GGY, the Chamber found that �sometime between the end of April and
beginning of May 1994, from between 8.30 a.m. and 9.30 a.m. to 3.00 p.m.,� the
Appellant led a large-scale attack against Tutsi refugees at Kivumu in
Bisesero.
Finally, on the basis of the evidence of Witness KJ, the Chamber found that
�sometime in June,� at approximately 5.00 p.m., the Appellant spoke at a
meeting at Kibuye Prefectural Office during which he specifically encouraged
the audience to combine their efforts in overcoming the enemy, that is, the
Tutsi, �and promised they would get his contribution,� including Interahamwe,
in due course.
73.������ The Prosecution witnesses were
therefore unable to testify with precision as to the day on which they saw the
Appellant participate in the alleged offences and were able to indicate only a
range of dates, �between 17 and 30 April 1994,� �sometime between the end of
April and beginning of May 1994� and �sometime in June.� However, those
witnesses were able to provide specific details about the events, including the
identity of the persons present and the number of refugees, and were able to
describe the unfolding of the events. Witness TEN-22, by contrast, provided no
such details.
74.������ The Trial Chamber noted that even
were it to have accepted Witness TEN-22�s evidence, as it contained so few
details, it would not have been inconsistent with the possibility that the
Appellant could have been elsewhere during the relevant period. Although the Appellant need only raise a
doubt in the Prosecution case, the Appeals Chamber is of the view that it was
within the discretion of the Trial Chamber to accept the evidence of Witnesses HR,
KJ, and GGY, despite their failure to specify dates, and not that of Witness
TEN-22, whose alibi evidence was very limited. The Appeals Chamber finds that
the submissions of the Appellant do not show that the Trial Chamber failed to
apply the same legal standard when assessing the evidence of Witness TEN-22 and
the evidence of Prosecution witnesses.
Witness TEN-9
75.������ Witness
TEN-9 testified that Kouchner visited the Interim Government at Murambi in Gitarama Prefecture on 14 May 1994. He indicated that Kouchner met with the Appellant and
with journalists who were to interview Kouchner at Radio Rwanda�s mobile studio in the centre of Murambi. The witness testified that he saw the
Appellant on that occasion, although this appears to have been a short
sighting, and explained that he was told that Kouchner�s convoy had been shot
at by the Rwandan Patriotic Front (�RPF�) in Kigali. In cross-examination, the witness
maintained that Kouchner had visited Murambi and met with the Appellant on 14
May 1994, and not on 15 May 1994, as suggested by the Prosecution. The Prosecution referred to a press
article by journalist Mark Huband of the Guardian Newspaper in London, who travelled with Kouchner, to show that Kouchner was in Murambi on 15 May, not 14
May.
76.������ The Trial Chamber concluded that
the evidence of Witness TEN-9 did not raise a reasonable doubt as to whether
the Appellant was present at Muyira Hill on 14 May 1994. It found that there
was no evidence in Witness TEN-9�s testimony as to whether Kouchner�s visit
occurred in the morning of 14 May at the time of the attack or as to the length
of time for which the witness observed the Appellant. The Chamber noted that
the witness�s evidence was not �inconsistent with the possibility that the [Appellant] could have left
Murambi for Bisesero, and returned the same day, unobserved by the witness.�
77.������ The Appellant argues that the Trial
Chamber erred in so concluding by not taking into consideration the
�distance/difficulty of movement prevailing at that time� and because it was
not even-handed in assessing Defence evidence. The Appeals Chamber notes that
although the first aspect of the Appellant�s argument is not articulated or
explained, he does provide two apparent examples to show how the Trial Chamber
is said to have applied differing standards in assessing the evidence of
Witness TEN-9 and Prosecution evidence.
78.������ First, the Appellant notes that the
Trial Chamber rejected Witness TEN-9�s evidence even though he was certain that
he saw the Appellant on 14 May 1994, yet it accepted the evidence of
Prosecution Witness HR on the basis that he was certain that he saw the
Appellant on an occasion between 17 and 30 April 1994. The Appeals Chamber
considers that this reference adds little to the Appellant�s argument. Indeed,
unlike Witness TEN-9, the certainty expressed by Witness HR related to his
actual sighting of the Appellant, not so much to the exact date, whereas
Witness TEN-9�s certainty relates to the day on which he saw the Appellant. In
addition, the Appellant fails to address the fact that the Trial Chamber�s
findings took into account the press article which suggests that Kouchner�s
visit occurred on 15 May 1994 and not on 14 May 1994. Moreover, the Trial
Chamber did not effectively reject Witness TEN-9�s evidence; rather, having
considered it, it found it insufficient to create a reasonable doubt as to
whether the Appellant was present at Muyira Hill on 14 May 1994.
79.������ Secondly, the Appellant notes that
the Trial Chamber accepted the evidence of Witness GGY that he saw the
Appellant on the morning of 14 May 1994, despite not specifying at what time
and for how long he saw him. Although the Appellant suggests that in the
absence of such details he should be afforded the benefit of the doubt, he does
not develop his argument to show error on the part of the Trial Chamber in
relying on the evidence of Witness GGY.
80.������ The Appeals Chamber finds therefore
that the Appellant has not shown that the Trial Chamber failed to apply the
same standards in assessing Defence and Prosecution evidence.
81.������ The
Appellant refers to Defence Exhibit D-17 which states that on 26 June 1994 the
French Special Operation Forces were engaged as far as Kibuye and had put an
end to the massacres in the built up areas. According to the Appellant, this
evidence, along with the alibi evidence provided by Defence Witness TEN-6
establishes that the French forces were in Kibuye by 22 June and had put an end
to the massacres by 26 June. He submits that this evidence raises a reasonable
doubt that the Appellant was in the Kibuye area on 28 June giving orders to
commit offences, as testified to by Prosecution Witness KJ.
82.������ The
Appellant also argues that the Trial Chamber erred in law and in fact in
finding that the evidence of Defence Witnesses TEN-22 and TEN-10 did not raise
a reasonable doubt as to the presence of the Appellant in Kibuye on 28 June
1994 and that this resulted in a breach of the Appellant�s right to fair
procedures and a fair trial.
83.������ For
events on 28 June 1994 the Trial Chamber concluded:
Based on the totality of the evidence, the
Chamber notes that the witness did not see who fired the gun, or the direction
the gunshot came from. His evidence is that at the time he heard the gunshot,
he was 15 metres away from the vehicle in which the two people were. He did not
see who killed these two people. Consequently, the Chamber finds that there is
insufficient evidence in support of the allegation that the Accused killed the
man and woman. The Chamber�s findings with respect to the alleged sexual
violence committed on the body of the dead woman will be set out in II.7.2.4
below.
�
Although the witness did not see the act of
inserting the piece of wood into the woman�s genitalia, he heard the order
being issued by the Accused and later saw the woman lying on the road with wood
sticking out of her genitalia. Based on the totality of the evidence,
the Chamber finds that on 28 June 1994, near the Technical Training College, on
a public road, the Accused ordered Interahamwe to undress the body of a woman
who had just been shot dead, to fetch and sharpen a piece of wood, which he
then instructed them to insert into her genitalia. This act was then carried
out by the Interahamwe, in accordance with his instructions. The body of the
woman, with the piece of wood protruding from it, was left on the road for some
three days thereafter. The Accused referred to the woman as �Inyenzi� which the
Chamber is satisfied was meant to refer to Tutsi.
84.������ In making its findings, the Trial
Chamber considered the evidence of Witnesses TEN-6 and KJ and the proposition
that it was unbelievable that such acts occurred despite the presence of French
troops in Kibuye on 28 June. The Trial Chamber found the evidence of Witness
TEN-6 to be of �questionable veracity� and chose not to rely upon it. The
Appellant has not addressed this finding to show that it was one that no
reasonable trier of fact could have reached.
85.������ The Trial Chamber made no specific
reference to Defence Exhibit D-17 in its findings, as cited by the Appellant in
this ground of appeal. The exhibit, a �Rapport d�information� before the French
Assembl�e Nationale on French military operations with the United
Nations between 1990 and 1994, explains only that as of 26 June 1994 French
troops had secured the Kibuye agglomeration and ended all massacres in the
area. In the mind of the Appellant this report creates a reasonable doubt that
the events of 28 June 1994 occurred as testified to by Witness KJ.
86.������ The
Appeals Chamber recalls that pursuant to Rule 89(C) it is within the Trial
Chamber�s discretion to admit any relevant evidence which it deems to have
probative value, and that the Trial Chamber, as trier of fact, is in the best
position to evaluate the probative value of evidence and to determine which
evidence it will rely upon in making its findings. Defence Exhibit D-17 was
placed on record during the cross-examination of Witness KJ on the events of 28
June 1994 in Kibuye. The witness was extensively cross-examined on the killing
of the man and woman, and on the subsequent insertion of a stick in the dead
woman�s genitalia. He was also questioned about the feasibility of the
Appellant ordering Interahamwe to commit criminal acts given the French
presence in Kibuye at the time. The Appeals Chamber notes that the witness
affirmed that the French did not put an end to the genocide and were unable to
prevent the Interahamwe from killing. He testified that all the French �could do was to pick up survivors here and
there during the massacres.�
87.������ In his
submissions, the Appellant argues only that Defence Exhibit D-17 and the
evidence of Witness TEN-6 establish that there were no more massacres in Kibuye
on 28 June 1994. He does not address the findings of the Trial Chamber or
attempt to show why the Trial Chamber should have attached more weight to
Defence Exhibit D-17 and less to the evidence of Witness KJ. In the view of the
Appeals Chamber, it was within the Trial Chamber�s discretion as trier of fact
to accept the evidence of Witness KJ for 28 June 1994, evidence which had been
tested during his examination before the Trial Chamber. The contents of the exhibit
were before the Trial Chamber and Witness KJ was questioned about the presence
of French troops in Kibuye. The Appellant has not shown how the Trial Chamber�s
finding was one that no reasonable trier of fact could have reached in relying
on the evidence of Witness KJ, and not on that of Witness TEN-6 or on Defence
Exhibit D-17.
88.������ In
relation to Defence Witnesses TEN-22 and TEN-10, the Appellant argues that the
Trial Chamber erred generally in finding that the evidence of Defence Witnesses
TEN-22 and TEN-10 did not raise a reasonable doubt as to his presence in Kibuye
on 28 June 1994. Aside from the submissions addressed in section VI.B above,
the Appellant advances no specific arguments in relation to the alibi evidence
presented by the Witnesses TEN-22 and TEN-10. These submissions are therefore
unsubstantiated.
89.������ The
Appeals Chamber therefore dismisses the appeal related to the alibi on all
grounds.
90.������ The
Appellant raises numerous issues under multiple grounds of appeal concerning
the Trial Chamber�s assessment of the credibility of Prosecution witnesses and
the reliability of their evidence. These issues relate to the Trial Chamber�s
approach to assessing uncorroborated evidence, inconsistencies in evidence, and
accomplice and identification evidence. In the interest of clarity, the Appeals
Chamber considers these submissions first according to the legal issues that
they raise and then on a witness by witness basis.
91.������ The
Appellant submits that the Trial Chamber erred in law in accepting and relying
upon uncorroborated evidence of Witnesses GK, GGH,
KJ, HR, GGY,
GGV,
GGM,
DAF, and
GGO.
92.������ Rule
89(C) of the Rules allows a Trial Chamber to �admit any relevant
evidence which it deems to have probative value.� The Appeals Chamber has consistently held
that a Trial Chamber is in the best position to evaluate the probative value of
evidence and that it may, depending on its assessment, rely on a single
witness�s testimony for the proof of a material fact. Accordingly, acceptance of and reliance
upon uncorroborated evidence, per se, does not constitute an error in
law.
93.������ The
Appellant submits that the Trial Chamber erred in law �in deciding that the
explanations given to it for the discrepancies existing between the stated
facts recorded in prior statements/testimonies and the testimony before it,
were sufficient to justify giving it a probative value sufficient to prove
beyond a reasonable doubt, the guilt of the Appellant.� In this regard, the Appellant
particularly refers to testimonies of Witnesses GGH, KJ,
and HR.
94.������ Additionally,
the Appellant argues that the Trial Chamber erred in law in giving insufficient
weight to Defence Exhibit D-15 in which the Appellant is not named as having
been involved in attacks in Kibuye Prefecture. Furthermore, the Appellant submits,
without pointing to any specific error, that Witnesses DAF, GGM, and GGR testified
along with others in the Kayishema and Ruzindana trial about an attack
on Tutsi refugees at Muyira Hill and that, while the Judgement in that case
mentions the names of assailants and responsible officials, it does not name
the Appellant among them.
95.������ The
jurisprudence of both the ICTR and the ICTY shows that Trial Chambers have the
primary responsibility for assessing and weighing evidence, determining whether
a witness is credible and the evidence reliable, and according the tendered
evidence its proper weight. The
following statement of the ICTY Appeals Chamber in Kupre�kić is on
point:
As the primary trier of fact, it is the Trial
Chamber that has the main responsibility to resolve any inconsistencies that
may arise within and/or amongst witnesses� testimonies. It is certainly within
the discretion of the Trial Chamber to evaluate any inconsistencies, to
consider whether the evidence taken as a whole is reliable and credible and to
accept or reject the �fundamental features� of the evidence. The presence of
inconsistencies does not, per se, require a reasonable Trial Chamber to
reject it as being unreasonable.
96.������ It is
not a legal error per se to accept and rely on evidence that varies from
prior statements or other evidence. However, a Trial Chamber is bound to take
into account inconsistencies and any explanations offered in respect of them
when weighing the probative value of the evidence. The Trial Chamber in the present case
noted that it considered all discrepancies and corresponding explanations. The
Appellant has not shown that the Trial Chamber committed any error in doing so.
97.������ The
Appellant submits that the Trial Chamber erred in law when it decided not to
categorize certain witnesses as accomplices and when it failed to give itself
�the necessary warnings� with regard to accepting and weighing their evidence. The Appellant submits that Witnesses
GK, KJ, and GGV fall into the category of accomplices and that the Trial
Chamber was required to treat their evidence with circumspection.
98.������ The
ordinary meaning of the term �accomplice� is �an associate in guilt, a partner
in crime.�
Nothing in the Statute or the Rules of the Tribunal prohibits a Trial Chamber
from relying upon testimony of those who were partners in crime of persons
being tried before it. As stated above, a Chamber may admit any relevant
evidence which it deems to have probative value. Accomplice testimony is not per se
unreliable, especially where an accomplice may be thoroughly cross-examined. However, considering that accomplice
witnesses may have motives or incentives to implicate the accused person before
the Tribunal, a Chamber, when weighing the probative value of such evidence, is
bound to carefully consider the totality of the circumstances in which it was
tendered. In
the view of the Appeals Chamber, reliance upon evidence of accomplice witnesses
per se does not constitute a legal error.
99.������ The
Appellant submits that the Trial Chamber erred in law in accepting and
assessing identification/recognition evidence because the investigators failed
to obtain and record from witnesses a description of the person they saw and
believed to be the Appellant, or explanations of how they could recognize and
identify him, their prior knowledge of him, and the circumstances of their
observation. The
Appellant further submits that the Trial Chamber erred in law in deciding that
in-dock identification was sufficient to prove beyond reasonable doubt that the
person the witness saw was the Appellant.
According to the Appellant, the Trial Chamber further erred in law by failing
to take into account the totality of the circumstances surrounding such
evidence.
Finally, the Appellant submits that the Trial Chamber erred in law in failing
to give itself a warning before considering the identification/recognition
evidence. The
Appellant points to the assessment of identification or recognition evidence of
Witnesses GGH, KJ, HR,
GGY,
GGR,
GGV,
GGM,
DAF, and
GGO, as
instances in which the Trial Chamber erred.
100.���� The
Appellant argues that the Trial Chamber erred in assessing
identification/recognition evidence. In relation to the Defence assertion that
identification evidence triggers a warning that the Judges must give to
themselves, the Trial Chamber stated in its Judgement:
The Chamber accepts that identification
evidence has inherent difficulties due to the vagaries of human perception and
recollection. Therefore, the Chamber has carefully assessed and weighed the
identification evidence adduced, taking into account the following factors:
prior knowledge of the Accused, existence of adequate opportunity in which to
observe the Accused, reliability of witness testimonies, conditions of observation
of the Accused, discrepancies in the evidence or the identification, the
possible influence of third parties, the existence of stressful conditions at
the time the events took place, the passage of time between the events and the
witness�s testimony, and the general credibility of the witness.
101.���� This
methodology reveals no error of law; indeed, it conforms to the cautious
approach endorsed by the Appeals Chamber in other cases.
102.���� Having
reviewed the submissions and applicable law related to uncorroborated evidence,
inconsistencies in evidence, and accomplice and identification evidence, the
Appeals Chamber shall now proceed to examine the credibility and reliability
issues raised by the Appellant on a witness by witness basis. Trial Chambers
are accorded a high degree of deference in respect of factual findings. The
Appeals Chamber is only entitled to substitute its assessment for that of the
Trial Chamber if no reasonable trier of fact could have arrived at the Trial
Chamber�s conclusion and only if the error has occasioned a miscarriage of
justice.
103.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness GK, given that he was the sole witness to testify to
what happened at a certain meeting on 3 May 1994 and considering that his
testimony was otherwise flawed.
Additionally, the Appellant submits that the Trial Chamber erred in law and in
fact in relying upon Witness GK�s uncorroborated, non-expert opinion evidence
as to the meaning of words spoken at the 3 May 1994 meeting in Kibuye. Finally, the Appellant submits without
elaboration that the Trial Chamber erred in law in failing to exercise a
sufficient degree of caution when considering the evidence of Witness GK and
that, had it done so, Witness GK�s testimony would have been held incapable of
providing proof beyond reasonable doubt as to the facts to which he testified.
104.���� The
Appellant further submits that the Trial Chamber erred in law in failing to
categorize Witness GK as an accomplice, in failing to exercise extreme caution
in considering his evidence and in failing to give itself the necessary
warnings with regard to accepting and weighing his evidence. The Appellant posits that Witness GK
has been detained in Rwanda on suspicion of having committed genocide and
argues that the Trial Chamber erred in law and in fact in failing to take into
account Defence and Prosecution submissions that the witness was charged with
genocide and with being an accomplice of a person who had been convicted of
genocide.
105.���� The
Appeals Chamber shall now consider these submissions. The Trial Chamber
addressed the Appellant�s arguments in respect of the evidence of Witness GK in
the Judgement.
Upon a Defence submission, the Trial Chamber considered whether Witness GK was
an accomplice whose evidence should be viewed with caution. According the term �accomplice� its
ordinary meaning and considering the record, the Trial Chamber found that the
witness was not an accomplice whose uncorroborated evidence was subject to
special caution. On
appeal, the Appellant has failed to show this to be an erroneous finding.
Despite finding that Witness GK was not an accomplice of the Appellant, the
Trial Chamber expressly noted in the Judgement that it exercised caution when
deliberating on and evaluating the witness�s evidence. Consequently, even if the Trial Chamber
had erred in finding that Witness GK was not an accomplice, the Appellant has
not shown that he suffered any prejudice, as the Trial Chamber explicitly
stated that it exercised caution when evaluating the witness�s evidence.
106.���� The
Appellant objects to the Trial Chamber�s reliance upon Witness GK�s evidence as
to the meaning of the words spoken at a meeting on 3 May 1994 in Kibuye. The
Trial Chamber considered this issue and stated its view that the witness �was
testifying to his personal understanding of the words used in their
context and his impression as a member of the audience how that audience
would have understood those words.� It
is therefore clear that the Trial Chamber was well aware of the limitations of
this evidence. The Appellant has failed to demonstrate that the Trial Chamber
gave �undue weight� to the witness�s evidence on this point.
107.���� In the
view of the Appeals Chamber, the Trial Chamber�s assessment of the credibility
of Witness GK shows that the Trial Chamber treated that evidence with great
caution. Nothing has been shown on appeal to indicate that the Trial Chamber
erred in finding the witness credible and relying on his testimony. The appeal
on these grounds in respect of Witness GK is therefore dismissed.
108.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness GGH concerning the events of 10 and 13 April 1994,
given that this evidence was not corroborated and was otherwise deficient. The Appellant also submits that the
Trial Chamber erred in law by disregarding material discrepancies between the
witness�s prior statements and his testimony.
109.���� The
Appellant notes that in his testimony concerning the events of 10 April 1994,
Witness GGH did not indicate the distance from which he saw the Appellant, how
long he observed him, and how far he was from the vehicle in question when he
observed guns. The
Appellant points out that the witness testified that he had been drinking at
that time and argues that given the circumstances, there was reasonable doubt
that Witness GGH had been in a position to see what was inside the vehicle. The Appellant further argues that the
witness�s identification of the Appellant on 13 April 1994 is not reliable
because he made the identification during nightfall from a hiding position in
the bushes some one hundred meters away when there was a crowd of people and
the person he identified as the Appellant was wearing a hat. Finally, the Appellant submits that the
witness�s identification of the Appellant on 13 May 1994 cannot be relied upon,
given that it was made at a distance of one hundred meters, on hilly territory,
while the witness was trying to hide.
The Appellant submits that the Trial Chamber erred in law in accepting and
relying on the evidence in such circumstances.
110.���� The
Appellant further submits, without elaboration, that the Trial Chamber erred in
law and in fact in deciding that Witness GGH was a credible witness and that he
had not mistakenly identified the Appellant as being present at Gisovu on 10
April 1994, and at Bisesero on 13 April 1994 and at the end of May 1994.
111.���� Finally,
the Appellant submits, again without elaboration, that the Trial Chamber erred
in law in failing to exercise a sufficient degree of caution when considering
the evidence of Witness GGH and that, had it done so, Witness GGH�s testimony
would have been held incapable of providing proof beyond reasonable doubt as to
the facts to which he testified.
112.���� The Appeals Chamber shall now consider these submissions. The
Appellant highlights several discrepancies between Witness GGH�s testimony and
his prior written statements as well as his evidence tendered in the Musema
case. As noted above, the Trial Chamber, as the trier of fact, has discretion
in evaluating and resolving evidential inconsistencies. The Trial Chamber
assessed the inconsistencies alleged here in the Judgement. On appeal, the Appellant has failed to
demonstrate how the Trial Chamber erred in this assessment. Similarly, the
Appellant has failed to demonstrate that the Trial Chamber�s acceptance of the
witness�s explanation regarding the commencement of massacres and the date on
which the witness went into hiding was a finding that no reasonable trier of
fact could have reached.
Finally, in response to the Appellant�s claim of tampering with Witness GGH�s
13 October 1995 statement, the Trial Chamber noted that, upon examination, the
alleged insertion matched the rest of the text and did not appear to have been
improperly added.
Again, the Appellant has failed to show how the Trial Chamber erred in reaching
this conclusion.
113.���� The Appellant challenges the Trial Chamber�s reliance on
identification/recognition evidence of Witness GGH. It should be recalled that
the Trial Chamber expressly stated in the Judgement that it had carefully
assessed and weighed the identification evidence adduced, taking into account a
host of factors derived from the jurisprudence of the Tribunal. As the Trial Chamber recalled, when
evaluating identification evidence, the Trial Chamber should consider factors
such as prior knowledge of the accused, the conditions under which the
observations were made, possible discrepancies, influence, and extenuating
circumstances.
114.���� The Trial Chamber noted in the Judgement that Witness GGH had
known the Appellant as a member of Parliament and as a radio journalist and
that he used to see him often before 1994 because of their mutual involvement
in politics. The
Trial Chamber therefore took account of facts demonstrating the witness�s prior
knowledge of the Appellant. Furthermore, a review of the Judgement shows that
the Trial Chamber was careful in assessing and weighing the identification
evidence given by Witness GGH. Thus, for example, the Trial Chamber decided not
to rely on Witness GGH�s testimony that he heard the Appellant from 250 meters
away, although the witness explained how this was possible.
115.���� The Appellant argues that the witness did not provide details
of his observation of the Appellant on 10 April 1994. This submission lacks merit. The record
shows that the witness testified that the Appellant �parked his vehicle at
the location where we were� and provided other details of the situation. In respect of the witness�s
identification of the Appellant at Rugarama on 13 April 1994, the Appellant
contends that the Trial Chamber failed to take into account that it was
nightfall when the witness saw him and that he was wearing a hat. A review of the record shows that it
was around 4 p.m. when the witness saw the Appellant. It cannot be said on the basis of this
that the Trial Chamber did not correctly assess the identification evidence. A
Trial Chamber is not obliged to expand upon every factor that goes into making
its decision. The
Trial Chamber did note the distance between the witness and the Appellant and
the fact that the Appellant was hiding at the time of the recognition. Finally, the Appellant contests the
Trial Chamber�s reliance upon the witness�s identification of the Appellant at
Rwirambo Hill on 13 May 1994 because the identification was made at a distance
of one hundred meters on hilly territory while the witness was hiding. The Trial Chamber noted the detailed
circumstances of this identification in the Judgement, clearly showing that the
Chamber was aware of its circumstances.
116.���� In addition to the foregoing factors, when weighing the
identification evidence, the Trial Chamber also considered that it found
Witness GGH to be credible and took into account his demeanour and conduct
during the part of his testimony related to the identifications made on 13
April and 13 May 1994. On
the basis of the foregoing review, the Appeals Chamber finds that the Appellant
failed to demonstrate that the Trial Chamber erred in relying on the
identification evidence of Witness GGH.
117.���� The Trial
Chamber�s assessment of the credibility of Witness GGH was detailed and
careful. The Appellant has not shown that the Trial Chamber committed a legal
error or acted unreasonably in finding the witness credible and in relying on
his testimony. The appeal on these grounds in respect of Witness GGH is
therefore dismissed.
118.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness KJ relating to meetings held on 16 April 1994 and in
June 1994 and to an unspecified �incident� on 28 June 1994, given that this
evidence was not corroborated and was otherwise deficient.
119.���� The
Appellant also submits that the Trial Chamber erred in law by misapplying the
burden of proof in finding the witness credible on the basis that the
inconsistencies in his evidence were minor and were adequately explained by him
and by disregarding certain material inconsistencies. Further, the Appellant submits, the
Trial Chamber erred in law in failing to give �any/sufficient� weight to the
material discrepancies between Witness KJ�s statement and his testimony in
other cases before the Tribunal and his testimony in the present case regarding
the presence of Kayishema at a certain meeting. The Appellant also points out that
Witness KJ ought not have been deemed credible and reliable, particularly given
that he is detained, that he believes that testifying before the Tribunal is a
mitigating circumstance, and that he admits to having been �controlled� by
�outside forces� in Rwanda.
120.���� The
Appellant also submits that the Trial Chamber erred in law in deciding not to
categorize Witness KJ as an accomplice, in failing to exercise extreme caution
in considering his evidence and in failing to give itself the necessary
warnings with regard to accepting and weighing his evidence. The Appellant notes that although the
Trial Chamber stated that the witness has not been charged with any crime and
that he is being held in a military camp among witnesses, in his written
statement the witness described himself as a �detainee,� a fact to which he
admitted during trial where he also stated that he knew that testifying before
the Tribunal amounted to a mitigating circumstance. The Appellant also recalls the
witness�s evidence that he was in a military camp and that he had been told
what information he cannot provide for security reasons.
121.���� The
Appellant argues that Witness KJ�s identification of the Appellant on 16 April
and 28 June 1994 was unreliable and that the Trial Chamber erred in law in
relying on it. The
Appellant observes that, in respect of 16 April 1994, there was no evidence of
how far away the witness was when he heard the Appellant speak and how he
recognized his voice. As
to an unidentified meeting in June, the Appellant argues that Witness KJ�s
evidence was unreliable given the stressful conditions, distance, the large
crowd, obstruction due to a large number of buses, and the time of night. Similarly, the Appellant points out in
respect of an event of 28 June 1994 that the witness did not testify to his
distance from the Appellant when he observed him, the duration of his
observation of the Appellant, the location from which he observed the
Appellant, and whether he had an unobstructed view of the Appellant. The Appellant also submits, without
elaboration, that the Trial Chamber erred in law and in fact in deciding that
Witness KJ was a credible witness and that he had not mistakenly identified the
Appellant as being present in Kibuye town on 28 June 1994.
122.���� Finally,
without elaboration, the Appellant submits that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the
evidence of Witness KJ and that, had it done so, Witness KJ�s testimony would
have been held incapable of providing proof beyond reasonable doubt.
123.���� The
Appeals Chamber shall now consider these submissions. The Appellant submits
that the Trial Chamber erred in finding that discrepancies between the
testimony of Witness KJ and his prior statements and his testimony in the Musema
and Ntakirutimana trials, were �minor� and �adequately explained.� As previously noted, the Trial Chamber
has the discretion to evaluate and resolve evidential inconsistencies. In the
instant case, the Appellant raised the issue of inconsistencies in his Final
Trial Brief and the Trial Chamber specifically addressed the inconsistencies in
the Judgement. In
the view of the Appeals Chamber, the Appellant has not demonstrated either a
factual or legal error in the Trial Chamber�s findings concerning the
inconsistencies.
124.���� However,
while the Trial Chamber expressly addressed in the Judgement a number of
alleged inconsistencies, it did not discuss the Appellant�s contention, raised
in the Final Trial Brief and again on appeal, that Witness KJ testified in the
present case and in Musema that Kayishema was present at a certain
public gathering in June 1994, whereas in the Ntakirutimana trial he
testified that Kayishema was not there.
It should be recalled that a Trial Chamber need not articulate in its Judgement
every factor it considered in reaching a particular finding and the fact that
the Chamber did not discuss this matter in the Judgement does not constitute an
error. A
review of the transcripts from the cases in question shows that the record is
not clear as to whether Kayishema was present at the meeting in question. This
lack of clarity stems, to a large extent, from the fact that the date of the
meeting is not specified and it is therefore not possible to ascertain whether
the evidence highlighted by the Appellant relates to the same meeting. In the
present case, the witness testified about a meeting which took place at the
prefecture office in June 1994 without specifying the date further. In Musema, the witness testified
about a meeting which took place at the same location at the end of May or the
beginning of June. In Ntakirutimana,
the witness testified about a meeting which took place at that location
�towards the end of June.�
125.���� On the
other hand, the enumeration of the participants in the meeting mentioned in the
three cases reveals a significant overlap, and the purpose and context of the
meeting referred to in the three cases is similar. As to Prefect Kayishema�s
presence at the meeting, the witness�s testimony from the three cases may be
summarized as follows. In the present case, Witness KJ stated that the
Appellant spoke to those gathered and that �the pr�fet came subsequently�,
which indicates that Kayishema was not present during the Appellant�s speech
but was present at some later point during the gathering. Additionally, the witness testified
that he left the meeting after the Appellant�s speech. In Ntakirutimana, the witness
testified that he stayed at the meeting until the Appellant spoke and
congratulated the authorities, noting that Kayishema was �not present at the
time� and that the speaker said when he started to speak that Kayishema was
on a mission.
Provided that it is the same meeting being described in both instances, the
evidence is not contradictory as to Kayishema�s presence or absence. The
testimonies indicate that Kayishema was not present during the Appellant�s
speech and that the witness left the meeting at some point after the
Appellant�s speech. Kayishema may have arrived after the Appellant�s speech or
after the witness left. While the witness�s evidence in the present case is not
inconsistent with his evidence in Ntakirutimana, it is difficult to
reconcile it with his testimony in Musema where the witness stated,
albeit without much clarity, that Kayishema introduced the authorities when
they arrived in the prefecture office for the meeting. Assuming that this is the same meeting
as that described in the other two cases, the witness�s testimony in Musema
indicates that Kayishema was present at the beginning of the gathering.
126.���� However,
due to the lack of clarity as to whether the witness�s testimony in the three
cases concerned one and the same meeting, it is difficult to reach any
conclusion about the possibility of a discrepancy in the witness�s evidence on
this issue. In finding Witness KJ credible, the Trial Chamber carefully
considered a host of factors, both positive and negative. In the view of the Appeals Chamber, the
Trial Chamber�s finding cannot be disturbed on the uncertain ground that the
witness�s testimony concerning a peripheral issue may have varied. The finding
of credibility is based on an assessment of the totality of the evidence and
circumstances, and in the present case it has not been shown to have been made
erroneously in respect of Witness KJ. The Trial Chamber�s assessment of
discrepancies reveals careful consideration and caution and is not a finding
that no reasonable trier of fact could have reached.
127.���� The
Appellant submits that the Trial Chamber erred in law in deciding that Witness
KJ was not an accomplice or by not exercising extreme caution in considering
his evidence. The Trial Chamber addressed this point in detail in the
Judgement. On
appeal, the Appellant has failed to show the Trial Chamber�s finding that the
witness was not an accomplice to be legally erroneous or one that no reasonable
trier of fact could have reached. Moreover, despite finding that the witness
was not an accomplice, the Trial Chamber decided to exercise caution in
evaluating his testimony.
Consequently, the Appellant could not have suffered prejudice from the Trial
Chamber�s decision that the witness was not an accomplice.
128.���� The
Appellant argues that the Trial Chamber erred in accepting and relying on
Witness KJ�s identification evidence. As already noted, the Trial Chamber
recognized that identification evidence must be assessed and weighed carefully. The Appellant bases this challenge, in
part, on the fact that the witness did not know the Appellant prior to �the
events of 1994.�
This argument is irrelevant. The question is not necessarily whether Witness KJ
knew the Appellant prior to the events, but rather whether and how the witness
could recognize and identify him during the events. The witness explained how
he was able to recognize the Appellant: in April 1994 the Appellant came to the
witness�s workplace and presented his identification to him. After that, the witness saw the
Appellant several times. The
Trial Chamber noted this evidence in the Judgement.
129.���� The
Appellant argues that the witness did not provide details of how he came to
hear the Appellant speak about a certain attack on 16 April 1994. This argument
is wholly without merit. As the Trial Chamber noted in the Judgement, much of
Witness KJ�s testimony was given in closed session in order to protect his
identity. For
this reason the Chamber omitted certain details from the Judgement, as is
explained therein.
This cannot be taken to mean that the Chamber did not consider the evidence led
in closed session. The closed session transcript clearly sets out the
circumstances in which the witness heard the Appellant speak about the given
attack. In
light of this evidence, the Trial Chamber�s acceptance of the witness�s
identification of the Appellant on 16 April 1994 is not unreasonable.
130.���� In regard
to the witness�s June 1994 identification of the Appellant at the Kibuye
Prefectural Office, the Appellant contends that the Chamber failed to consider
the stressful conditions, obstructions, and time of night. However, a review of the record from
the closed session shows that the witness placed the event at around 5:00 p.m.,
that he was present at the gathering, that he saw the Appellant arrive, and
that he listened to the Appellant�s speech.
In the view of the Appeals Chamber, on the basis of this evidence, the Trial
Chamber�s acceptance of the witness�s identification evidence relating to this
event does not constitute either a legal error or a factual error.
131.���� The
Appellant also submits that Witness KJ did not give certain details relating to
his identification of the Appellant on 28 June 1994. This submission is not borne out by the
record. The identification in question here was made in connection with the
alleged killing of a man and a killing and subsequent mutilation of a woman
that, according to the witness, occurred near the Ecole Normale Technique.
The witness described the situation, including his identification of the
Appellant. For example, contrary to the Appellant�s submission, the witness did
specify how far he was from the Appellant when the Appellant ordered mutilation
of the woman�s corpse: five meters. The
Trial Chamber outlined the evidence relating to this event in the Judgement and
considered it at some length. The
Appeals Chamber finds that the Appellant has failed to demonstrate that the
Trial Chamber�s acceptance of the witness�s identification was a finding that
no reasonable trier of fact could have reached.
132.���� The Trial
Chamber�s assessment of the credibility of Witness KJ shows an abundance of
caution. Nothing has been shown on appeal to indicate that the Trial Chamber
erred in finding the witness credible and in relying on his testimony.
Accordingly, the appeal in respect of Witness KJ on these grounds is dismissed.
133.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness HR concerning an incident at Muyira Hill between 17
and 30 April 1994, given that the evidence was not corroborated and was
otherwise deficient. The
Appellant also submits that the Trial Chamber erred in law when it found
Witness HR credible, given the discrepancies between his testimony in the
present case and his testimony in other cases before the Tribunal, as well as
his prior statement in which he did not mention the Appellant as a leader of
the 13 May 1994 attacks at Muyira Hill.
134.���� The
Appellant further submits that the Trial Chamber erred in law in relying on
Witness HR�s uncorroborated identification of the Appellant during attacks
between 17 and 30 April 1994 and on 13 May 1994 in circumstances in which there
were large numbers of people and given that the observations were made under
chaotic and stressful conditions. The
Appellant further submits, without elaboration, that the Trial Chamber erred in
law and in fact in deciding that Witness HR was a credible witness and/or that
he had accurately identified the Appellant as being present during attacks at
Muyira Hill between 17 and 30 April 1994 or on 13 May 1994.
135.���� Finally,
the Appellant submits, again without elaboration, that the Trial Chamber erred
in law in failing to exercise a sufficient degree of caution when considering
the evidence of Witness HR and that, had it done so, Witness HR�s testimony
would have been held incapable of providing proof beyond reasonable doubt.
136.���� The
Appeals Chamber shall now consider these submissions. The Appellant contends
that the Trial Chamber erred in law in accepting and relying on the evidence of
Witness HR given the discrepancies between his testimony and his prior
statements and between his testimony and his evidence in other cases before the
Tribunal. The Trial Chamber considered this matter in the Judgement. On appeal, the Appellant fails to
identify any specific error in the Trial Chamber�s evaluation of his submissions
on this matter. The Appellant merely contests the conclusions reached by the
Trial Chamber in respect of the effect of the discrepancies on the weight of
the witness�s evidence. In the view of the Appeals Chamber, a review of the
Trial Chamber�s approach to assessing the alleged discrepancies does not reveal
any error.
137.���� The
Appellant challenges the witness�s identification evidence relating to the
attacks at Muyira Hill between 17 and 30 April 1994 and on 13 May 1994, again
relying on the same arguments presented in his Final Trial Brief and failing to
identify any error on the part of the Trial Chamber. In assessing the identification
evidence, the Trial Chamber noted the basis of the witness�s prior knowledge of
the Appellant as well as the conditions under which the identification was
made, following the factors that the Trial Chamber set out as relevant when
considering and weighing identification evidence. The Trial Chamber also took into
account its finding, based on the totality of the Witness HR�s evidence, that
he was a credible witness.
Considering the foregoing and the evidence that the witness identified the
Appellant on three occasions during the attacks at Muyira Hill from distances
of fifteen, twenty, and about twenty-two meters, and that these identifications
occurred during daytime, the Trial Chamber�s acceptance of the identifications
has not been shown to be one that no reasonable trier of fact could have
reached.
138.���� The Trial
Chamber�s assessment of the credibility of Witness HR was detailed and careful.
The Appellant has not demonstrated on appeal that the Trial Chamber erred in
finding the witness credible and relying on his testimony. Accordingly, the
appeal in respect of Witness HR on these grounds is dismissed.
139.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the testimony of Witness GGY that the Appellant participated in an attack at
Kivumu between the end of April and the beginning of May 1994 and that he was
present at a 14 May 1994 attack at Muyira Hill because this evidence was not
corroborated and was otherwise deficient.
The Appellant argues that Witness GGY�s testimony that he saw the Appellant
shooting at refugees on 14 May 1994 at Muyira Hill is contradicted by
testimonies of Witnesses GGH and HR who did not see the Appellant at that time
(HR) and who did not see him �do anything� on that date (GGH) and submits that
the Trial Chamber erred in law when, despite these discrepancies and the other
deficiencies, it accorded probative value to Witness GGY�s evidence.
140.���� The
Appellant also submits that the Trial Chamber erred in law in accepting Witness
GGY�s identification in circumstances in which the witness, while running and
engaging in an attack at Kivumu, saw the Appellant from a distance of up to one
hundred meters in a crowd of 300 attackers and in which he observed the
Appellant for a minute or less from a distance of ninety to one hundred meters
at Muyira Hill on 13 and 14 May 1994.
The Appellant further submits, without elaboration, that the Trial Chamber
erred in law and in fact in deciding that Witness GGY was a credible witness
�and/or� that he had accurately identified the Appellant as being present
during an attack at Muyira Hill on 13 May 1994.
141.���� Finally,
the Appellant submits without elaboration that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the evidence
of Witness GGY and that, had it done so, Witness GGY�s testimony would have
been held incapable of providing proof beyond reasonable doubt.
142.���� The
Appeals Chamber shall now consider these submissions. The Appellant avers that
the evidence of Witness GGY that he saw the Appellant shooting at refugees on
14 May 1994 at Muyira Hill is contradicted by testimonies of Witnesses GGH and
HR.
Indeed, the Trial Chamber was aware of Witness GGH�s testimony that he did not
see the Appellant do anything on the day in question as well as that of Witness
HR that he did not then see the Appellant.
Nevertheless, the Chamber found that the Appellant shot at refugees. In the view of the Appeals Chamber, the
Trial Chamber�s finding was not shown to be one that no reasonable trier of
fact could have reached. Clearly, three witnesses making non-simultaneous
observations from differing vantage points may observe three different
situations. To say that Witness GGH did not see the Appellant �do anything� on
a particular day at a particular place and that Witness HR did not see the
Appellant at all does not exclude the possibility of Witness GGY observing the
Appellant shoot refugees.
143.���� The
Appellant also argues that the Trial Chamber erred in assessing the
identification evidence of Witness GGY. As already noted above, the Trial
Chamber recognized that identification evidence must be assessed and weighed
carefully. The
Appellant asserts that during the attack at Kivumu, the witness, while running
and engaging in an attack, sighted the Appellant only once and then only
briefly at a distance of up to one hundred meters, making his identification of
the Appellant doubtful. The
Trial Chamber considered this matter in the Judgement and, on appeal, the Appellant has not
identified any specific error in the Trial Chamber�s holding. Moreover, the
Appeals Chamber notes that the Appellant�s argument on this point is partly
founded upon a misrepresentation of the evidence. As the Trial Chamber noted in
the Judgement, Witness GGY observed the Appellant during the attack not once,
but on several occasions at distances ranging from eighty to less than a
hundred meters.
144.���� The
Appellant further argues that no trier of fact could have found that Witness
GGY made a positive identification of the Appellant at Muyira Hill in
circumstances in which the witness saw him at a distance of ninety to one
hundred meters for a minute or less, adding that the witness could not identify
Muyira in a photograph. The
Trial Chamber considered these arguments, as reflected in the Judgement. The Appeals Chamber notes that the
witness saw the Appellant during the attacks of 13 and 14 May 1994 in the
Muyira area on three different occasions, rather than only for �a minute or less.� A review of the Judgement shows that,
in assessing the witness�s identifications of the Appellant discussed above,
the Trial Chamber took into account the circumstances of the identifications as
well as the witness�s basis for recognizing the Appellant. The Appeals Chamber finds that the
Appellant has failed to show that the Trial Chamber erred in assessing the
identification evidence.
145.���� The Trial
Chamber�s assessment of the credibility of Witness GGY was detailed and
careful. The Appellant has not demonstrated on appeal that the Chamber erred in
finding the witness credible and in relying on his testimony. Accordingly, the
appeal in respect of Witness GGY on these grounds is dismissed.
146.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness GGV concerning three meetings as well as incidents
in Kiziba, given that the evidence was not corroborated and was otherwise
deficient.
147.���� The
Appellant also submits that the Trial Chamber erred in finding Witness GGV
credible, considering, inter alia, that there were indications that he
was an RPF soldier or accomplice. The
Appellant further submits that the Trial Chamber erred in law in deciding not
to categorize Witness GGV as an accomplice, in failing to exercise extreme
caution while considering his evidence, and in failing to give itself the
necessary warnings with regard to accepting and weighing his evidence.
148.���� The
Appellant additionally submits that the Trial Chamber erred in law in its
acceptance of Witness GGV�s evidence that during an attack at Kiziba on 18 June
1994 he saw the Appellant from far away through binoculars whereas, during cross-examination,
the witness was unable to describe how binoculars functioned nor describe
Kiziba or the surrounding area.
Moreover, the Appellant appears to allege an error on the part of the Trial
Chamber in accepting the witness�s testimony that after the attack at Kiziba he
overheard a particular discussion taking place inside a canteen, whereas the
Appellant argues that if sensitive matters were discussed they would not have
been audible outside the canteen.
149.���� Without
elaboration, the Appellant also submits that the Trial Chamber erred in law and
in fact in deciding that Witness GGV was a credible witness and that he had
accurately identified the Appellant as being present in Kibuye on 10 and 17
June 1994 and at Kiziba on 18 June 1994.
150.���� Similarly
without elaboration, the Appellant submits that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the
evidence of Witness GGV and that, had it done so, Witness GGV�s testimony would
have been held incapable of providing proof beyond reasonable doubt.
151.���� The
Appeals Chamber shall now consider these submissions. The Appellant claims that
the Trial Chamber erred in law in finding Witness GGV credible and in relying
on his testimony, which, the Appellant alleges, is deficient in a number of
respects. It should be emphasized that the primary responsibility for
evaluating and weighing evidence rests with the Trial Chamber.
152.���� The
Appellant asserts that the Trial Chamber erred by failing to categorize Witness
GGV as an accomplice or to consider his testimony with caution. The Appellant states that Witness GGV�s
presence during the attack at Kiziba and his interaction with Interahamwe
militia show that he participated in criminal activity. The Appellant then goes on to argue
that the witness�s presence during the attacks and at meetings shows that he
was an RPF soldier or accomplice. On
the basis of these seemingly inconsistent allegations, the Appellant submits
that the witness has �an obvious and powerful inducement to implicate the
Appellant, so as to advance his own position or to curry favour with the
Rwandan authorities, so as to exculpate himself from any allegation of
wrongdoing.� The
Appellant made this submission at the trial level and the Trial Chamber stated in the
Judgement that the Appellant had failed to present any evidence to support his
claim. The
Appellant adduced no additional evidence in this respect on appeal. During
trial the witness explained that he was among the attackers at Kiziba in order
to save himself.
However, he testified that during the attack he stayed behind to watch over the
buses used to transport the attackers.
Further, he denied participating in killings while being disguised as an Interahamwe
at a roadblock in Kibuye and insisted that his testimony was not motivated by a
desire to avoid prosecution.
Indeed, the Defence conceded that he has not been charged with any offence. Finally, the witness disclaimed any
connection with the RPF and the Appellant did not produce any evidence to the
contrary.
Upon considering the record, the Appeals Chamber finds that the Trial Chamber�s
conclusion that Witness GGV was not an accomplice was one that a reasonable
Chamber could have reached.
153.���� The
Appellant challenges the witness�s identification of him at the Kiziba attack
on 18 June 1994. The
Appellant states that the witness saw him �by using binoculars� while during
cross-examination the witness was unable to describe how binoculars functioned. This argument is founded upon a
misrepresentation of the evidence and is wholly without merit. The record shows
that Witness GGV saw and identified the Appellant at Kiziba at the place where
the witness was watching over the attackers� buses and where the Appellant
arrived and parked his vehicle. The
witness described that he was close to the Appellant when the Appellant
alighted from his car and loaded his weapon.
It was only when the Appellant left the parking area and went toward the attack
that the witness watched him through binoculars. The witness then saw the Appellant
again when the Appellant returned to the place where the vehicles were parked
and where the witness had remained. The
witness�s identification of the Appellant therefore did not depend on his
familiarity with using binoculars. Even so, during cross-examination the
witness stated that although he had never used binoculars before, it was not
difficult to use them.
Moreover, the witness described how to use the focussing mechanism on
binoculars and noted that he was using the binoculars with another person who
focussed them and handed them to him from time to time. In view of this evidence, it cannot be
held that the Trial Chamber erred in accepting the witness�s identification of
the Appellant on the ground that the witness could not describe how binoculars
work.
154.���� In
questioning this identification, the Appellant also highlights that the witness
could not describe Kiziba or the surrounding countryside or name the nearby
hills. The
Appellant presented this argument to the Trial Chamber and advances nothing new on appeal to
counter the Trial Chamber�s acceptance of the witness�s testimony. A review of
the record shows that, contrary to the Appellant�s submission, the witness did
describe where the buses were parked as well as the surrounding area.
155.���� The
Appellant also questions how Witness GGV, standing outside, could have
overheard a discussion that took place in a canteen following the attack at Kiziba
on 18 June 1994.
Considering that the discussion was about the attacks on Tutsis in Bisesero,
the Appellant submits that �if such discrete [sic] matters were discussed, it
is unlikely [the speakers] would have been speaking loud enough for GGV to have heard the
discussion while outside the canteen.�
There is no evidence that the meeting and its subject were meant to be secret.
Quite the contrary, the evidence is that people were coming and going. In describing this evidence, the Trial
Chamber noted that the witness was outside the canteen close to an open window
through which he could hear what was taking place inside the canteen, despite
the fact that there was �quite a lot of noise.� It is apparent that in accepting this
evidence the Trial Chamber considered the totality of the circumstances in
which the witness heard the Appellant speak inside the canteen, including
negative factors such as noise. In the view of the Appeals Chamber, the
Appellant failed to demonstrate error on the part of the Trial Chamber in
accepting this evidence.
156.���� The
Appellant also submits that the Trial Chamber erred in law and fact in deciding
that Witness GGV was a credible witness and that he had accurately identified
the Appellant as being present in Kibuye and at Kiziba. This is another instance in which the
Appellant fails to specify the nature of the alleged error. As noted above, the
Trial Chamber assessed the credibility of Witness GGV taking into account the
totality of the evidence. The
Trial Chamber found the witness�s testimony to be clear and consistent and
noted the factors which enabled the witness to identify the Appellant. The Trial Chamber also noted the
circumstances in which each identification occurred. In the view of the Appeals Chamber, the
Appellant has failed to show the Trial Chamber�s error in finding Witness GGV
to be credible and in accepting and relying on his evidence.
157.���� Accordingly,
the appeal in respect of Witness GGV on these grounds is dismissed.
158.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness GGM concerning the Appellant�s presence at a meeting
at Kucyapa on 13 May 1994, given that the evidence was not corroborated and was
otherwise deficient. The
Appellant also submits that the Trial Chamber erred in law when it found
Witness GGM credible, because a person who was with him on 13 May 1994 did not
corroborate his account of the meeting at Kucyapa.
159.���� The
Appellant further submits that the Trial Chamber erred in law in accepting
Witness GGM�s testimony that the Appellant was present at the meeting at
Kucyapa because the Chamber failed to consider that it was becoming dark when
the witness observed the Appellant, the witness was hiding in a mature sorghum
field, the situation was chaotic, there was a large number of people at the
meeting, and the witness agreed that he did not see very well.
160.���� Finally,
the Appellant submits without elaboration that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the
evidence of Witness GGM and that, had that been done, his testimony would have
been held incapable of providing proof beyond reasonable doubt.
161.���� The
Appeals Chamber shall now consider these submissions. The Appellant argues that
the Trial Chamber erred in law in finding Witness GGM credible because a person
who was with him on 13 May 1994 did not corroborate his account of a certain
meeting which took place on that day. On appeal, the Appellant merely repeats
the argument presented to the Trial Chamber
without identifying any error in the Trial Chamber�s decision. Upon a review of the Judgement and the
underlying record, the Appeals Chamber finds no error on the part of the Trial
Chamber with respect to this matter.
162.���� The
Appellant also challenges the Trial Chamber�s acceptance of Witness GGM�s
identification evidence related to the Appellant�s presence at the 13 May 1994
meeting in Kucyapa. Contrary to the Appellant�s submission, nothing indicates
that the Trial Chamber, having decided to assess and weigh identification
evidence carefully, failed to consider the circumstances of the impugned
identification.
Indeed, the Trial Chamber considered the Appellant�s challenge and carefully described the
circumstances of the identification and the basis provided by the witness for
being able to identify the Appellant.
In the view of the Appeals Chamber, the Trial Chamber�s acceptance of the
witness�s identification of the Appellant at the meeting was made after a
proper consideration of the matter and cannot be said to be erroneous.
163.���� The
appeal in respect of Witness GGM on these grounds is therefore dismissed.
164.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness DAF concerning a murder which took place on 20 May 1994,
in circumstances in which the evidence was not corroborated and was otherwise
deficient. The
Appellant further submits that the Trial Chamber erred in law when it found
Witness DAF credible and disregarded discrepancies between his prior statements
and testimony and between his testimony in another case before the Tribunal and
his testimony in the present case. The
Appellant also submits without elaboration that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the
evidence of Witness DAF and that, had appropriate caution been exercised, his
testimony would have been held incapable of providing proof beyond reasonable
doubt.
165.���� The
Appellant additionally submits that the Trial Chamber erred in law by relying
on Witness DAF�s identification of the Appellant on 20 May 1994 at the scene of
a murder. The
Appellant argues that the witness�s testimony was lacking in detail and
unreliable, pointing out that the witness observed the Appellant from an
�unspecified� location on a hill at a distance of about thirty-seven meters and
that he could not say on which side of a vehicle the Appellant was sitting. The Appellant further submits, without
elaboration, that the Trial Chamber erred in law and in fact in deciding that
Witness DAF was a credible witness �and/or� that he had accurately identified
the Appellant as being present during an attack at Muyira Hill on 13 May 1994.
166.���� Without
classifying the alleged error and without clearly identifying the circumstances
underlying ground of appeal 53, the Appellant also submits that the Trial
Chamber violated his right to be presumed innocent by making findings of fact
based on the uncorroborated testimony of Witness DAF. Finally, without identifying the
circumstances or making reference to the record, the Appellant submits that the
Trial Chamber erred in law and in fact in finding that Witness DAF had
correctly identified the Appellant as the person who shot certain people.
167.���� The Appeals
Chamber shall now consider these submissions. The Appellant argues that the
Trial Chamber erred in finding Witness DAF credible and in relying on his
testimony. The Appeals Chamber recalls that the Trial Chamber assessed and
weighed the credibility of the witness and the reliability of his evidence
after considering his testimony as a whole.
The Trial Chamber expressly observed that it has �examined the testimony and
observed the witness�s demeanour � carefully.�� Part of the Appellant�s challenge to the
finding of credibility is founded upon alleged discrepancies between Witness
DAF�s testimony in this case and his testimony in the Musema case as
well as the decision of the Trial Chamber in Musema to reject his
testimony regarding the events of 13 May 1994. The Trial Chamber addressed this
argument in the Judgement.
During trial the witness explained that he was not asked in Musema
whether he saw the Appellant at a particular place and that the fact that the
witness did not mention the Appellant did not imply that he was not there. The Trial Chamber in the present case
noted this in its assessment of the witness�s credibility. This explanation is supported by a
review of the witness�s testimony in the Musema case. Additionally, as the Trial Chamber
noted, the witness had mentioned the Appellant as one of the leaders in his
testimony in the Kayishema and Ruzindana case.
168.���� The Trial
Chamber also took note of the fact that the Chamber in Musema decided
not to rely on the witness�s testimony relating to 13 May 1994. The Trial Chamber in this case
explained, however, that the Musema Trial Chamber took this decision on
the witness�s evidence relating to Musema�s actions on that day and it
concluded on that basis that the finding in Musema did not relate to the
present case. A
review of the relevant portion of the Musema Trial Judgement does not
show this to be a necessarily erroneous conclusion. The Trial Chamber in the present case
was fully entitled to make its own finding as to the credibility of the witness
and the reliability and weight of his evidence based upon its own observation
of the witness and its own evaluation of his evidence in the context of the
present case.
169.���� In his
challenge to the finding of Witness DAF�s credibility, the Appellant also
points to the �uncanny parallel� between his 15 June 1996 statement that on 13
May 1994 he saw Alfred Musema kill a certain Goretti Mukangoga in a red car and
his testimony that on 20 May 1994 he saw the Appellant kill an unidentified
girl in the same circumstances. The
Trial Chamber observed that the witness mentioned the Appellant killing the
girl in his statement dated 6 February 1997 and that he confirmed the event
during cross-examination.
Indeed, a review of the statements shows that the witness�s description of the
circumstances of Musema�s killing of Goretti Mukangoga is not the same as his
description of the Appellant�s killing of the girl on 20 May 1994, despite the
fact that both refer to a man killing a female as well as to a red vehicle. In
view of the foregoing, the Appeals Chamber holds that it has not been
demonstrated that the Trial Chamber erred in finding Witness DAF to be
credible.
170.���� The
Appellant also contends that the Trial Chamber erred in accepting Witness DAF�s
identification evidence of the Appellant relating to 13 and 20 May 1994. The
Trial Chamber has considered the Appellant�s arguments concerning this
evidence. The
Appeals Chamber recalls that the Trial Chamber has expressed its cautious approach
to identification evidence. In
reviewing the evidence of Witness DAF relating to 13 and 20 May 1994, the Trial
Chamber considered the circumstances of the witness�s observation of the
Appellant as well as the basis of his ability to recognize the Appellant. Coupled with the Chamber�s finding that
the witness is credible, the Chamber�s acceptance of his identification
evidence has not been shown to be erroneous.
171.���� The
Appellant also submits as follows: �In relying upon the uncorroborated allegation
of a single witness in circumstances where there was no independent evidence of
the existence of any of the deceased or their deaths/mutilation, � of the
Appellant having shot them dead/ordered mutilation, the Trial Chamber made
presumptions of fact that it was not entitled in law to make in adversarial
criminal proceedings, resulting in the violation of the Appellants [sic] right to be
presumed innocent.� In
making this submission, the Appellant fails to refer the Appeals Chamber to the
record or to specify the evidence and parts of the Judgement to which he is
referring. It is apparent that this argument lacks merit. As noted above, a
Trial Chamber may, in its discretion, rely on the testimony of a single witness
as proof of a material fact. In circumstances in which the Trial Chamber finds
the witness to be credible, it does not constitute an error for the Chamber to
accept and rely on his testimony, even in the absence of corroborating
evidence. This is not a question of �presuming� facts, as the Appellant would
have it; it is a matter of according probative value to the testimony of a
credible witness.
172.���� Finally,
without identifying the circumstances or making reference to the record, the
Appellant asserts that the Trial Chamber erred in fact and law in finding that
Witness DAF had correctly identified the Appellant as the person who shot
certain people. It
may be recalled that the appealing party is required to provide the Appeals
Chamber with precise references to any relevant transcript page or paragraph
number in the Judgement to which reference is made. Further, as the Appeals Chamber
recently stated: �the Appeals Chamber cannot be expected to consider a party�s
submissions in detail if they are obscure, contradictory, vague or suffer from
other formal and obvious insufficiencies.�
The failure to identify impugned evidence or alleged errors constitutes an
�obvious insufficiency.� In the present instance, the Appellant said nothing
more than: �The Learned Trial Chamber erred in law and in fact in finding that
Witnesses DAF and GGV had correctly identified the Appellant as the person who
shot the unidentified girl, old man and young boy.� This submission is entirely devoid of
any reference to the record or to features that might help identify what
evidence is being challenged, such as date or place. Moreover, aside from
making the blanket allegation of legal and factual errors, this submission
fails to identify what those errors are. In such circumstances the Appeals
Chamber cannot be expected to entertain the Appellant�s submission.
173.���� The
appeal in respect of Witness DAF on these grounds is dismissed.
174.���� The
Appellant submits that the Trial Chamber erred in law in accepting and relying
on the evidence of Witness GGO concerning a certain incident which took place
on 22 June 1994 at Kazirandimwe Hill, given that the evidence was not
corroborated and was otherwise deficient.
The Appellant additionally submits without elaboration that the Trial Chamber
erred in law in failing to exercise a sufficient degree of caution when
considering the evidence of Witness GGO and that, had it done so, Witness GGO�s
testimony would have been held incapable of providing proof beyond reasonable
doubt.
175.���� The
Appellant further submits that the Trial Chamber erred in law when it found
Witness GGO credible, concluding that there were �minor� discrepancies in his
evidence, given that the Chamber acknowledged that he did not always have the
presence of mind to provide details.
In support of this ground of appeal, the Appellant points to discrepancies
between Witness GGO�s prior statements and his testimony before the Tribunal,
as well as discrepancies between the evidence of Witness GGO in the present
case and testimonies of other witnesses about the same event in another case
before the Tribunal. The
Appellant further notes that since in his statement of 13 January 1999 Witness
GGO told investigators that he was shot on 22 June 1994, which rendered him
immobile until he was rescued by French soldiers on 28 June 1994, he could not
have seen the Appellant on 22 June 1994 on Kazirandimwe Hill, as he claimed in
his testimony. The
Appellant also submits that the Trial Chamber erred in law in accepting the
witness�s explanation for the discrepancy between the dates he gave for leaving
Bisesero.
176.���� The
Appellant further submits that the Trial Chamber erred in law by relying on
Witness GGO�s identification of the Appellant while he was hiding at a distance
that was �too great,� from which no one could have recognized anybody, and
taking into account that, as the Trial Chamber noted, the witness was fleeing,
had been without food for three months, and did not have the presence of mind
to provide details.
177.���� The
Appeals Chamber shall now consider these submissions. The Appeals Chamber
recalls that upon considering Witness GGO�s evidence, the Trial Chamber found
him to be credible and not prone to exaggeration. The Appellant claims that the Chamber
erred in this finding. The Appellant contests the witness�s credibility, inter
alia, on the basis of the fact that he met with Prosecution investigators
at least seven and possibly eight times, yet mentioned the Appellant only once. A review of the record shows that the
witness gave recorded statements to investigators on only four occasions. Further, the witness explained having
mentioned the Appellant to the investigators on only one occasion by testifying
that he answered the questions asked of him and did not discuss other matters.
178.���� The
Appellant additionally contends that the Trial Chamber erred in accepting the
witness�s explanation of a discrepancy as to when he fled to Bisesero, stating
that the witness had failed to give such an explanation in prior statements.
The Appeals Chamber recalls that the Trial Chamber noted this matter in its
overall assessment of the witness�s credibility.
179.���� Furthermore,
the Appellant, focusing on the witness�s use of the word �immobile,� contends
that the witness did not see the murder of a certain Kabanda since he could not
have moved three or four kilometres from where he was shot to the site of the
murder. The
Appeals Chamber notes that during his testimony Witness GGO explained that by
�immobile� he meant that he could no longer continue running through the hills
as before, not that he was incapable of movement. Moreover, the witness detailed how he
moved to Kazirandimwe where he saw Kabanda�s murder.
180.���� Finally,
in respect of alleged inconsistencies, the Appellant questions the witness�s
evidence that the Appellant was present at Kabanda�s murder, arguing that
Witness DAF had not mentioned the Appellant�s presence during this event in his
testimony in the Kayishema and Ruzindana case. Additionally, the Appellant notes that
Witness GGM, a close relative of Kabanda, never placed the Appellant at the
site of the murder, and contests the Trial Chamber�s statement that Witness GGM
had not been specifically asked about Kabanda�s death. In the view of the Appeals Chamber, a
review of the Kayishema and Ruzindana trial Judgement shows that while
Witness DAF did not mention the Appellant in connection with Kabanda�s murder,
his testimony did not identify those present during the event, except for the
perpetrator, and thus did not preclude the possibility that the Appellant was
present.
Similarly, Witness GGM�s testimony relating to Kabanda�s murder is very brief,
lacking in detail, and can in no way be understood to preclude the possibility
of the Appellant�s presence during the event.
181.���� Considering
the foregoing, the Appeals Chamber finds that it has not been demonstrated that
the Trial Chamber erred in finding Witness GGO to be credible despite the
alleged inconsistencies in his evidence.
182.���� The
Appellant also claims that the Trial Chamber erred by relying on Witness GGO�s
identification of the Appellant, claiming that the witness was too far away to
recognize him. As
noted by the Trial Chamber, the witness testified to having been only fifty to
seventy meters from the Appellant.
Additionally, the Trial Chamber noted the circumstances of the witness�s
observation of the Appellant as well as the basis for the witness�s ability to
recognize him. In
such a situation, and recalling that the Trial Chamber found the witness to be
credible, it cannot be held that the Trial Chamber erred in relying on Witness
GGO�s identification of the Appellant.
183.���� The
appeal in respect of Witness GGO on these grounds is dismissed.
184.���� The
Appellant submits that the Trial Chamber erred in law in finding Witness GGR
credible, given, inter alia, discrepancies in the witness�s testimony in
this case, as well as discrepancies between his testimony and testimonies of
other witnesses.
Additionally, the Appellant submits, the Trial Chamber erred in law by
considering the discrepancies to be �minor� and relying on this evidence to
convict the Appellant.
185.���� The
Appellant further submits that the Trial Chamber erred in law in accepting
Witness GGR�s evidence that he saw the Appellant twice on 13 May 1994. In support of this argument the
Appellant notes that the witness was never closer than 120 meters to the
Appellant and that the observations took place in chaotic and stressful
conditions.
Additionally, during the first sighting the witness observed the Appellant for
less than ten minutes and only saw his profile. In respect of the second sighting, the
Appellant submits that it occurred at nightfall while the witness was hiding in
a bush. The
Appellant submits that the circumstances of the sightings were such that no
trier of fact could have found that Witness GGR accurately identified the
Appellant. The
Appellant additionally submits without elaboration that the Trial Chamber erred
in law and in fact in deciding that Witness GGR was a credible witness and/or
that he accurately identified the Appellant as being present during an attack
at Muyira Hill on 13 May 1994.
186.���� Finally,
the Appellant submits, without elaboration, that the Trial Chamber erred in law
in failing to exercise a sufficient degree of caution when considering the
evidence of Witness GGR and that, had sufficient caution been exercised, his
testimony would have been held incapable of providing proof beyond reasonable
doubt.
187.���� The
Appeals Chamber shall now consider these submissions. The Appellant argues that
the Trial Chamber erred in finding Witness GGR credible despite inconsistencies
in his testimony and discrepancies between his testimony and evidence of other
witnesses. The Appellant alleges that the witness�s testimony was not
consistent as to how many times he saw the Appellant on 13 May 1994. He
testified, in the Appellant�s view, that he saw the Appellant more than once on
that day and then stated that he saw him only once. A review of the record reveals that the
witness�s testimony on this point was not inconsistent. The witness was clear
in testifying that he saw the Appellant on more than one occasion on 13 May
1994; when he said that he saw the Appellant once, he explained that he meant
that he saw him only on one day during the killings, rather than indicating
that he saw him only once on 13 May.
The witness did state that he saw the Appellant several times on 13 May 1994,
immediately specifying that in fact he saw him twice. In the view of the Appeals Chamber this
does not appear to be an inconsistency in the evidence; rather it is a
clarification in the testimony initiated by the witness himself.
188.���� The
Appellant also notes discrepancies between the testimony of Witness GGR and
testimonies of Witnesses HR and DAF as to when the attacks on 13 May 1994
began.
Witness GGR testified that the attacks began at around 8 and 8.30 a.m., Witness
DAF testified that they began between 7 and 8 a.m., and Witness HR stated that
Tutsi refugees were attacked at the top of Muyira Hill at around 10 a.m. The Trial Chamber noted these testimonies
and concluded that the attacks began between 7 and 10 a.m. The fact that the three witnesses did
not give precisely the same time for the beginning of the attacks may be due to
their different locations as well as to the fact that they may have had no
means of ascertaining the exact time. In any event, the Trial Chamber was aware
of all the evidence in its deliberations. The Appeals Chamber finds that the
Appellant did not demonstrate any error in the Trial Chamber�s factual finding
on this point.
189.���� Finally,
the Appellant claims that the Trial Chamber erred in accepting Witness GGR�s
identification of the Appellant on 13 May 1994 near Muyira Hill. As previously noted, the Trial Chamber
stated that it must consider a host of factors when evaluating identification
evidence. The
Appeals Chamber recalls that in the instant case, the Trial Chamber explicitly
considered the witness�s identification of the Appellant on 13 May 1994,
finding his testimony clear, consistent and reliable. The Trial Chamber noted that the
witness had known the Appellant for a long time, having seen him during
political campaigns and during recruitment of members for the MDR Party prior
to April 1994. The
Trial Chamber further noted and extensively considered the conditions
surrounding Witness GGR�s observations of the Appellant on 13 May 1994. In this respect it should be noted that
the Appellant alleges that the witness never saw the Appellant from closer than
120 meters.
However, during the examination-in-chief, the witness testified that when he
observed the Appellant, he was forty to fifty meters from him. The distance of 120 meters to which the
Appellant refers was given during cross-examination as the distance to a place
where Interahamwe were meeting, not to the place where the witness saw
the Appellant.
However, the witness�s answers about the distance between him and the Appellant
became confused during the cross-examination and he stated that he did not want
to make estimates.
Upon review of the record, the Appeals Chamber finds that the Trial Chamber�s
conclusion that the witness was about forty to fifty meters from the Appellant
was one that a reasonable trier of fact could have reached. The Appeals Chamber
considers that the Appellant�s remaining arguments concerning this
identification, relating to the time of day and the length of observations, do
not demonstrate that the Trial Chamber erred in accepting the evidence.
190.���� The
Appeals Chamber holds that the Trial Chamber�s finding that Witness GGR was
credible has not been shown to be erroneous or one that no reasonable trier of
fact could have reached. The appeal in respect of Witness GGR on these grounds
is accordingly dismissed.
191.���� The Appellant
contends that the Trial Chamber erred in law in finding that he committed acts
that were not pleaded in the indictment and by relying on those findings to
convict him. The Appellant cites nine witnesses who, he asserts, testified to
unpleaded material facts.
192.���� The
Prosecution responds to these arguments in a cursory manner. Other than
suggesting that the Appellant�s argument with respect to three of the nine
witnesses should be rejected for failure to �indicate a decision made by the
Trial Chamber with respect to notice,�
the Prosecution merely invokes general statements of law and baldly asserts
that the Appellant failed to meet his burden on appeal. This style of argumentation does not
provide the Appeals Chamber with meaningful assistance. Nor is the suggestion
in the Prosecutor�s response that defects in the indictment were corrected by
�provision to the Defence of timely, clear and consistent information� useful, given that the response does
not specify when such information was provided to the Defence and does not
identify any such communication in the record.
193.���� The law
governing challenges to the failure of an indictment to provide notice of
material facts is set out in detail in the ICTY Appeals Chamber�s Judgement in Kupre�kić.
The Kupre�kić Judgement
stated that Article 18(4) of the ICTY Statute, read in conjunction with
Articles 21(2), 4(a) and 4(b), �translates into an obligation on the part of
the Prosecution to state the material facts underpinning the charges in the
indictment, but not the evidence by which such material facts are to be
proven.� Kupre�kić
discussed several factors that may bear on the determination of
materiality, although whether certain facts are �material� ultimately depends
on the nature of the case. If the Prosecution charges personal physical
commission of criminal acts, the indictment should set forth �the identity of
the victim, the time and place of the events and the means by which the acts
were committed.� On
the other hand, such detail need not be pleaded if the �sheer scale of the
alleged crimes 'makes it impracticable to require a high degree of specificity
in such matters as the identity of the victims and the dates for the commission
of the crimes.'�
Even in cases in which a high degree of specificity is �impracticable,�
however, �since the identity of the victim is information that is valuable to
the preparation of the defence case, if the Prosecution is in a position to
name the victims, it should do so.�
194.���� Kupre�kić
also addressed the possibility that the Prosecution might be unable to plead a
material fact with specificity because it was not in the Prosecution�s
possession prior to trial. As a general matter, �the Prosecution is expected to
know its case before it goes to trial� and cannot expect to �mould₣ğ
the case against the accused in the course of the trial depending on how the
evidence unfolds.� If
the Defence is denied the material facts of the accused�s alleged criminal
activity until the Prosecution files its pre-trial brief or until the trial
itself, it will be difficult for the Defence to conduct a meaningful
investigation prior to the commencement of the trial. The Trial Chamber must
consider whether proceeding to trial in such circumstances is fair to the
accused. Kupre�kić indicated
that there are �instances in criminal trials where the evidence turns out
differently than expected,� and such situations may call for measures such as
an amendment of the indictment, an adjournment, or the exclusion of evidence
outside the scope of the indictment.
195.���� Failure
to set forth the specific material facts of a crime constitutes a �material
defect� in the indictment.
Such a defect does not mean, however, that trial on that indictment or a
conviction on the unpleaded material fact necessarily warrants the intervention
of the Appeals Chamber. Although Kupre�kić stated that a defective
indictment �may, in certain circumstances� cause the Appeals Chamber to
reverse a conviction, it was equally clear that reversal is not automatic. Kupre�kić left open the
possibility that the Appeals Chamber could deem a defective indictment to have
been cured �if the Prosecution provides the accused with timely, clear and
consistent information detailing the factual basis underpinning the charges
against him or her.�
196.���� A
Trial Chamber faced with a situation in which �the evidence turns out
differently than expected� may not simply find that the error has been cured,
but rather should take one or more of the steps envisioned by Kupre�kić, including excluding the
evidence or ordering the Prosecution to move to amend the indictment. In considering a motion to amend the
indictment, a Trial Chamber should naturally consider whether the Prosecution
has previously provided clear and timely notice of the allegation such that the
Defence has had a fair opportunity to conduct investigations and prepare its
response. On appeal, however, amendment of the indictment is no longer
possible. Rather, the question is whether the error of trying the accused on a
defective indictment �invalidat₣edğ the decision� and warrants the
Appeals Chamber�s intervention.
197.���� Whether
the Prosecution cured a defect in the indictment depends, of course, on the
nature of the information that the Prosecution provides to the Defence and on whether
the information compensates for the indictment�s failure to give notice of the
charges asserted against the accused. Kupre�kić considered that
adequate notice of material facts might be communicated to the Defence in the
Prosecution�s pre-trial brief, during disclosure of evidence, or through
proceedings at trial. The
timing of such communications, the importance of the information to the ability
of the accused to prepare his defence, and the impact of the newly-disclosed
material facts on the Prosecution�s case are relevant in determining whether
subsequent communications make up for the defect in the indictment. As has been previously noted, �mere
service of witness statements by the ₣Pğrosecution pursuant to the
disclosure requirements� of the Rules does not suffice to inform the Defence of
material facts that the Prosecution intends to prove at trial.
198.���� In considering whether a defect in the indictment
has been cured by subsequent disclosure, the question arises as to which party
has the burden of proof on the matter. Although the Judgement in Kupre�kić
did not address this issue expressly, the Appeals Chamber�s discussion
indicates that the burden in that case rested with the Prosecution. Kupre�kić
stated that, in the circumstances of that case, a breach of �the substantial
safeguards that an indictment is intended to furnish to the accused� raised the
presumption �that such a fundamental defect in the � Indictment did indeed
cause injustice.� The
defect could only have been deemed harmless through a demonstration �that
₣the Accused�sğ ability to prepare their defence was not materially
impaired.� Kupre�kić
clearly imposed the duty to make that showing on the Prosecution, since the
absence of such a showing led the Appeals Chamber to �uph₣oğld the
objections� of the accused.
199.���� It is
noteworthy, however, that Kupre�kić specifically mentioned the fact
that the accused in that case had made a timely objection before the Trial
Chamber to the admission of evidence of the material fact in question. In general, �a party should not be
permitted to refrain from making an objection to a matter which was apparent
during the course of the trial, and to raise it only in the event of an adverse
finding against that party.�
Failure to object in the Trial Chamber will usually result in the Appeals
Chamber disregarding the argument on grounds of waiver. In the case of
objections based on lack of notice, the Defence must challenge the
admissibility of evidence of material facts not pleaded in the indictment by
interposing a specific objection at the time the evidence is introduced. The
Defence may also choose to file a timely motion to strike the evidence or to
seek an adjournment to conduct further investigations in order to respond to
the unpleaded allegation.
200.���� The
importance of the accused�s right to be informed of the charges against him
under Article 20(4)(a) of the Statute and the possibility of serious prejudice
to the accused if material facts crucial to the Prosecution are communicated
for the first time at trial suggest that the waiver doctrine should not
entirely foreclose an accused from raising an indictment defect for the first
time on appeal. Where, in such circumstances, there is a resulting defect in
the indictment, an accused person who fails to object at trial has the burden
of proving on appeal that his ability to prepare his case was materially
impaired. Where, however, the accused person objected at trial, the burden is
on the Prosecution to prove on appeal that the accused�s ability to prepare his
defence was not materially impaired. All of this is of course subject to
the inherent jurisdiction of the Appeals Chamber to do justice in the case.
201.���� The
Appeals Chamber will now analyze the Appellant�s claims of lack of notice of
material facts in light of Kupre�kić and the foregoing discussion.
202.���� The Trial
Chamber found, based on the evidence of Prosecution Witness GGH, that �on 10
April 1994, the Accused was transporting guns in Gisovu with three soldiers
aboard a white Hilux.� The
Appellant contends that the transportation of weapons on 10 April was a
�material fact not pleaded in the Indictment� that should not have supported
any conviction.
203.���� The Prosecution argues that this ground of appeal
should be dismissed because the Trial Chamber did not address the question of
notice with respect to Witness GGH. The implication appears to be that the Appellant waived this
argument by failing to present it to the Trial Chamber.
204.���� At the outset, it is not clear whether the
allegation of transportation of weapons is indeed a material fact that should
have been pleaded in the indictment. It is true that the Trial Chamber included
this allegation in its recapitulation of factual findings bearing on the
Appellant�s acts of genocide, but
the Trial Chamber�s ultimate finding of individual criminal responsibility for
genocide referred only to �leading and participating in attacks against Tutsi�
and �shooting at Tutsi refugees.�
Although the Trial Chamber did consider the transportation of
weapons in concluding that the Appellant had the requisite intent to commit
genocide and crimes against humanity,
that does not automatically mean that the transportation of weapons was a
�material fact� that should have been pleaded in the indictment.
205.���� The
question whether the transportation of guns was a �material fact� need not be
answered. Even if the Appeals Chamber were to consider that the transportation
of guns amounts to a �material fact,� the objection was not raised before the
Trial Chamber. The transcript reflects no objection during trial to Witness
GGH�s evidence of the transportation of guns on 10 April 1994. In fact, the Appellant�s counsel later
cross-examined Witness GGH on this allegation specifically without mentioning
the absence of the allegation from the indictment. The Appellant�s Final Trial Brief also
discusses this allegation in detail without raising any objection of lack of
notice,
even though the Final Trial Brief does contain such objections with respect to
allegations made by other witnesses.
Finally, although the Trial Chamber�s Judgement mentions the Appellant�s notice
arguments with respect to several witnesses,
it does not mention or dispose of any notice objection in connection with
Witness GGH. The Appeals Chamber accordingly concludes that this objection was
not raised before the Trial Chamber.
206.���� Because the
Appellant waived this objection in the Trial Chamber, it falls to him to prove
that the failure to plead in the indictment the allegation that the Appellant
transported weapons on 10 April 1994 materially impaired his defence.
207.���� The
Appellant makes no effort to show impairment of the defence. Indeed, the
Appellant�s Brief does not point out how he suffered any prejudice at all from
the leading of evidence on the transportation of weapons on 10 April 1994. On
the contrary, his counsel was able to cross-examine Witness GGH on the point
and at no time suggested that the Defence was surprised to its detriment by the
witness�s testimony. In these circumstances, the Appellant has not shown that
the failure to plead the transportation of weapons on 10 April 1994 in the
indictment impaired his defence materially. Accordingly, the Appeals Chamber
finds that the Trial Chamber did not err in relying on this fact to convict the
Appellant and the related appeal is dismissed.
208.���� The Trial
Chamber found, based on the evidence of Witness KJ, that �approximately ten
days after 6 April 1994� the Appellant �procured gendarmes � for an attack on Mubuga Church against Tutsi.� The
Appellant contends that this was a material fact that should have been pleaded
in the indictment. The
Prosecution again appears to contend that the Appellant waived this objection
below.
209.���� As with
respect to Witness GGH, it is not clear whether the procurement of gendarmes
constitutes a �material fact� in the circumstances of this case. It was
mentioned in the Trial Chamber�s recapitulation of facts relevant to the count
of genocide but was not included in the ultimate finding of individual criminal
responsibility. The
Trial Chamber otherwise referred to this finding only as a basis for inferring
that the Appellant possessed the requisite mens rea for genocide and
other crimes.
210.���� As with
the allegation regarding the transportation of weapons, however, there is no
need to decide whether the procurement of gendarmes constituted a �material
fact� in the case that should have been pleaded in the indictment. Even if the
Appeals Chamber were to consider that the procurement of gendarmes amounts to a
�material fact,� the objection was not raised before the Trial Chamber. The
Judgement does not address such a complaint, nor does the discussion of Witness
KJ�s testimony in the Defence Final Trial Brief mention it.
211.���� The
Appellant makes no effort to specify how Witness KJ�s testimony regarding the
procurement of gendarmes materially impaired his defence. The Appellant asserts
only that the witness�s testimony regarding the Appellant�s procurement of
gendarmes was not fully anticipated by his witness statement, which specifies
only that another person, Ndagijimana, assembled gendarmes for the attack on Mubuga Church. The
statement does note, however, that �Minister Eliezer� arrived at the camp the
same morning and left with Ndagijimana and the gendarmes. Moreover, the fact that the witness
statement did not explicitly set forth the allegation at issue merely confirms
that the Appellant lacked notice of the allegation; it does not meet the
Appellant�s additional burden to show, in light of his failure to object in the
Trial Chamber, that the lack of notice materially impaired his defence. Since
the Appellant has failed to meet that obligation, his argument with regard to
Witness KJ�s testimony fails. The Trial Chamber was therefore permitted to rely
on Witness KJ�s testimony that the Appellant procured gendarmes. This ground of
appeal is dismissed.
212.���� Witness
GGY indicated in a prior written statement that he saw the Appellant take part
in an attack at an unspecified location. During trial, Witness GGY testified
that the Appellant carried a gun that was �between 80 centimetres and one metre
long� during this attack and that he �was shooting at people.� The witness also testified that the
attack occurred at a location called �Kivumu,� which is on �the border of
Gisovu and Gishyita communes.� The
Trial Chamber accepted this testimony, finding that the Appellant was among the
leaders of a large-scale attack at Kivumu �sometime between the end of April
and beginning of May 1994� and that he �was armed with a gun and personally
shot at Tutsi refugees.� The
Trial Chamber relied on this finding in convicting the Appellant. The Appellant contends that the Trial
Chamber erred in making this finding against him because the indictment
contained no allegation of an attack at Kivumu and did not allege that he was
armed during this attack or that he personally shot at refugees. The
Prosecution�s response does not specifically address this argument.
213.���� During
trial, the Appellant�s counsel objected on the basis of lack of notice to the
introduction of evidence that the Appellant was armed and that he shot at
people during the Kivumu attack. The
transcript is also clear that the Trial Chamber overruled the Appellant�s
objection and admonished his counsel not to continue pressing it after the
Trial Chamber�s ruling. It
appears, therefore, that this objection was properly raised below.
214.���� The
Trial Chamber nonetheless stated in the Judgement that �₣tğhe
Defence does not complain of lack of notice with respect to the attack at
Kivumu.�
This statement cites a paragraph in the Defence Final Trial Brief and appears
to rest on the fact that that brief only raises notice arguments with regard to
Witness GGY�s testimony concerning two other attacks.
The Trial Chamber was correct that the Defence Final Trial Brief did not raise
a notice argument with respect to Kivumu, although it did raise a challenge to
Witness GGY�s credibility based on the fact that, in contrast to the witness�s
trial testimony, �₣tğhere is no mention of the Accused having any
weapon in ₣GGY�sğ statement.�
Nonetheless, it is clear that the Appellant did raise his complaint with regard
to the Kivumu attack during the trial and received an unfavourable ruling. This
suffices to preserve the point on appeal.
215.���� Under Kupre�kić, criminal
acts that were physically committed by the accused personally must be
set forth specifically in the indictment, including, where feasible, �the
identity of the victim, the time and place of the events and the means by which
the acts were committed.� The
location of the Kivumu attack and the means by which the Appellant allegedly
participated in it are �material� facts that should have been pleaded in the
indictment.
216.���� The indictment in this case does not allege that a
specific attack occurred at the end of April or the beginning of May 1994, let
alone that it occurred at Kivumu, that the Appellant was armed, or that the
Appellant shot at Tutsi refugees. The closest the indictment comes to pleading
these material facts is the allegation that ��liezer ₣sicğ
Niyitegeka personally led civilian militia in assaults on the Tutsi that had
taken refuge in the hills of Bisesero� and
the allegations in paragraphs 6.57 and 6.58 of the Indictment, which counsel
for the Prosecution referenced at the appeal hearing
and which state as follows:
6.57���� In May 1994, ₣the Appellantğ personally
participated in the massacres which took place in Kibuye, by shooting at Tutsis.
6.58���� At various locations and times throughout April, May
and June 1994, ₣the Appellantğ brought armed individuals to the area
of Bisesero and directed them to attack the people seeking refuge there. In
addition, at various locations and times, and often in concert with others,
₣the Appellantğ personally attacked and killed persons seeking
refuge in Bisesero.
217.���� One Prosecution witness described
Bisesero as �a large area�; a
Prosecution filing in another case refers to it as a �vast region with
undulating hills and plains.� A
general allegation that the Appellant led others in several attacks in a �large
area� at �various locations and times throughout April, May and June 1994� does
not adequately inform the Defence that the Prosecution intends to charge
participation in a specific attack at Kivumu at the end of April or beginning
of May 1994 during which the Appellant personally shot at refugees. The
indictment must �delve into particulars� where possible; generalized allegations of attacks in
Bisesero do not suffice.
218.���� The
Appeals Chamber must therefore determine whether the Prosecution was in a
position to include the material facts of the Kivumu attack in the indictment
and, if it was, whether the failure to do so was cured by clear, consistent,
and timely information communicated to the Defence specifying that those
allegations were part of the Prosecution�s case.
219.���� The record does not clearly disclose whether the
Prosecution was aware that Witness GGY would testify to an attack at Kivumu at
the end of April or beginning of May 1994 during which the Appellant carried a
gun and shot at refugees. This attack is not mentioned in the summary of
Witness GGY�s testimony in the Prosecution�s Pre-Trial Brief.
However, counsel for the Prosecution clearly intended to present such evidence,
since she specifically directed the witness�s attention to �the period of time
at the end of April, at the very beginning of May of 1994� and asked whether �something
unusual� happened during that period. It
is worth recalling that �the Prosecution is expected to know its case before it
goes to trial.�
Given that counsel for the Prosecution knew that the witness would testify to
an attack in some detail, and considering that the Prosecution has not argued
on appeal that it was not in a position to plead the material facts of the
Kivumu attack with particularity, such as the timeframe of its occurrence, its
location, and the manner in which the Appellant allegedly participated, the
only reasonable conclusion is that the Prosecution could have included specific
particulars regarding the Kivumu attack in the indictment but failed to do so.
This failure to plead material facts rendered the indictment defective.
220.���� The next question is whether the Prosecution has
shown that the defect was cured by other �timely, clear and
consistent information detailing the factual basis underpinning the charges�
against the Appellant. In
this regard, the Trial Chamber stated that sufficient notice of the Kivumu
attack was given through Witness GGY�s statement taken on 25 October 1999. The statement, which the witness signed
on 7 December 1999, stated in the relevant part: �Next day they came with many
Interahamwe. In that group I managed to identify the minister of information
₣the Appellantğ. They killed many people. I survived because I was
running from one place to another and hiding in bushes around.� Although the statement mentioned that
the Appellant participated in an attack, it did not specify its timeframe, that
the Appellant was armed, or that he shot at refugees. The statement is also
unclear as to the location of the attack. The statement indicates that it
occurred the day after an attack at Kanyinya Hill, one of the Bisesero Hills,
but does not say whether it occurred at the same location as that previous
attack.
Notably, the statement says that the witness was �running from one place to
another� during this attack, further muddying the statement�s ability to give
notice of the location where Witness GGY allegedly saw the Appellant. Most
importantly, the statement does not mention Kivumu, which was the location
mentioned in Witness GGY�s trial testimony and the location found by the Trial
Chamber.
221.���� As a
general matter, �mere service of witness statements by the
₣Pğrosecution pursuant to the disclosure requirements� of the Rules
does not suffice to inform the Defence of material facts that the Prosecution
intends to prove at trial.
More importantly, however, the Trial Chamber�s conclusion that the witness
statement gave notice of the Kivumu attack conflicts with the Prosecution�s
submission at trial, which was that the statement referred not to the Kivumu
attack, but rather to a later attack on 13 May 1994 at Muyira Hill. Furthermore, no attack at Kivumu at the
end of April or beginning of May is included in the summary of Witness GGY�s
evidence in the Prosecution�s Pre-Trial Brief. Regardless of whether the witness
statement referred to the Kivumu attack or not, the Appellant could well have
concluded from the failure to mention Kivumu in the Pre-Trial Brief that the
Prosecution did not intend to present evidence at trial regarding an attack at
that location or in that timeframe.
222.���� The
Prosecution has not pointed to any communication that it believes informed the
Appellant in a �timely, clear and consistent� way that
the Prosecution would include the Kivumu attack in its case. In response to a
question from the Appeals Chamber asking for a reference to any information
that would show that notice was given to the Defence of the Kivumu attack, the Prosecution referred only to
paragraphs 6.57 and 6.58 of the indictment and to the discussion in the Trial
Chamber�s Judgement. As
stated above, the indictment was insufficient to the task, and the Trial
Chamber�s analysis on this point was thrown off course by the misapprehension
that the Defence did not raise a notice objection to the Kivumu allegation and
the belief that Witness GGY�s prior statement referred to the Kivumu attack.
223.���� The
Appeals Chamber concludes that the Prosecution has not shown that the failure
to plead the Kivumu attack in the indictment was cured by subsequent
communication of information. The Trial Chamber therefore committed an error of
law by convicting the Appellant in reliance on evidence of his participation in
an attack at Kivumu at the end of April or the beginning of May 1994.
224.���� Six
witnesses testified that the Appellant was present at an attack at Muyira Hill
on 13 May 1994. Four of those witnesses testified that the Appellant was armed; two affirmed that he was not. The Trial Chamber concluded that the
Appellant was one of the leaders of the Muyira Hill attack on 13 April, that he
was armed, and that he shot at Tutsi refugees. This finding underlies all of the
Appellant�s convictions.
225.���� Although
the Muyira Hill attack of 13 May 1994 was not specifically alleged in the
indictment, it was clear from the Prosecution�s Pre-Trial Brief that the
Prosecution intended to charge the Appellant with participation in an attack on
that date and at that location, and that testimony would be adduced stating
that the Appellant was armed and shot at Tutsi refugees. Indeed, the Appellant does not contend
that he lacked notice that this attack would be presented in evidence against
him. The Appellant instead argues that the indictment did not give notice of
several facts mentioned during Witness GGY�s testimony, such as the facts that
other attackers carried �firearms and traditional weapons�, that the attack
lasted �the entire day�, that the attackers left �just before nightfall�, that
the Appellant carried a �rifle�, and that a �large number� of refugees died
during the attack.
These facts, many of which do not relate to the Appellant�s own conduct and
which do not appear to be �material� to his convictions, are clearly set out in
the Pre-Trial Brief.
Accordingly, the Prosecution gave the Appellant clear, consistent and timely
information that the Prosecution would offer evidence of the Appellant�s role
in the 13 May 1994 attack at Muyira Hill and would do so through Witness GGY. Thus,
any defect in the indictment in this regard was cured.
226.���� The
Appellant�s argument seems to have less to do with defects in the indictment
than with the Appellant�s suspicion that the Prosecution withheld exculpatory
witness statements of Witness GGY. The
Appellant offers no support for his theory of undisclosed witness statements,
which rests on nothing more than speculation.
227.���� The
Appellant�s argument regarding the evidence of Witness GGR is equally unavailing.
As the Trial Chamber correctly noted, the Appellant �does not complain that [he] had no notice
of this attack,� but
rather that he lacked notice of information concerning how Witness GGR was able
to recognize him as a participant in the attack. The Appellant contends that
details relating to identification must also be pleaded in the indictment or be
subject to prior notice, but he cites no authority for this position. Kupre�kić
noted that the Prosecution must �state the material facts underpinning the
charges in the indictment, but not the evidence by which such material facts
are to be proven.� The
circumstances that led the Trial Chamber to conclude that Witness GGR could
reliably identify the Appellant are
not facts material to the charges in the indictment, but simply factors bearing
on the credibility of the witness�s testimony that the Appellant committed
criminal acts on 13 May 1994. Factors relating to witness credibility need not
be pleaded in the indictment.
228.���� Accordingly,
the Appeals Chamber finds that the Trial Chamber did not err in finding that
the Appellant had sufficient notice of the material facts of the attack at
Muyira Hill on 13 May 1994 and the related appeal is dismissed.
229.���� Again
relying on the testimony of Witness GGY, the Trial Chamber found that the
Appellant participated in an attack at Muyira Hill on 14 May 1994, during which
he �was armed with a gun and shot at Tutsi refugees.� The Trial Chamber relied on this
statement in convicting the Appellant of genocide and of extermination. The Appellant�s participation in that
attack is therefore a �material fact� that should have been pleaded in the
indictment. The failure to include it rendered the indictment defective.
230.���� The
Appellant raised this issue before the Trial Chamber. The Trial Chamber noted
that the 14 May attack was not alleged in the indictment and was not mentioned
in the Prosecution�s Pre-Trial Brief or in any witness statement. The Trial
Chamber concluded, however, that the defect in the indictment was cured by the
fact that Witness GGY had asserted in a prior statement �that attackers used to
come everyday ₣sicğ to the Bisesero hills� and by the fact that
�Prosecution witnesses have testified to large-scale attacks almost daily in
various areas in the Bisesero Hills.�
As was discussed in relation to the Kivumu attack, a general allegation of
attacks in the Bisesero region does not cure the indictment�s failure to plead
the specific date and location of the Muyira Hill attack on 14 May 1994 or the
manner of the Appellant�s participation in it. The Prosecution has not argued
that it was not in a position to plead this information in the indictment.
231.���� The Trial
Chamber also stated that the Appellant�s notice objection was addressed by the
fact that the 14 May attack was a �continuation of the 13 May attack, of which
the Defence had notice, through the Prosecutor�s Pre-trial Brief.� The description of the 14 May attack as
a �continuation� of the 13 May attack is not without doubt, given that several
witnesses testified that the attack ended in the evening of 13 May and that the summary of Witness GGY�s
evidence in the Prosecution�s Pre-Trial Brief does not state that the attack
continued into the next day, but rather that it �lasted the entire day until
attackers left just before nightfall.�
232.���� However,
even accepting the Trial Chamber�s statement that the 14 May attack was a
�continuation� of the 13 May attack, this finding does not answer the question
whether the Appellant was given adequate notice that he would be charged with
committing criminal acts on 14 May 1994 at Muyira Hill. The notice requirements
of Kupre�kić apply to the material facts of all criminal acts,
including criminal activity that arises as a consequence of earlier criminal
activity. As the Trial Chamber acknowledged, the Prosecution did not
communicate any information suggesting that the Appellant would be charged with
an attack on 14 May 1994 until Witness GGY testified at trial.
233.���� In
response to a question from the Appeals Chamber regarding the notice that was
given to the Defence of the 14 May 1994 attack, the Prosecution referred to the
discussion in the Trial Chamber�s Judgement and to paragraphs 6.57 and 6.58 of
the indictment. For
the reasons stated above, the Trial Chamber�s discussion does not justify its
conclusion that the Defence had sufficient notice of the material facts of the
14 May 1994 attack. Likewise, paragraphs 6.57 and 6.58 of the indictment allege
the Appellant�s participation in �massacres which took place in Kibuye� and attacks in �Bisesero,� which does not give notice of a
specific attack at a named location (Muyira Hill) on a specific date (14 May
1994).
234.���� The
Prosecution has therefore not rebutted the presumption of material impairment
of the defence that arises from this omission, nor has it suggested that it was
not in possession of the information prior to trial. The failure to plead the
14 May 1994 attack in the indictment was therefore not cured.
235.���� The
Appeals Chamber finds that the Trial Chamber erred in relying on evidence of
the Appellant�s participation in an attack at Muyira Hill on 14 May 1994 and in
finding him guilty under several counts of the indictment for having
participated in an attack at Muyira Hill on 14 May 1994.
236.���� The Trial
Chamber found that the Appellant killed an old man and a young boy at Kiziba on
18 June 1994. The
Appellant asserts that these murders were not alleged in the indictment. The Prosecution suggests that this
argument was not raised in the Trial Chamber.
237.���� Review of
the trial transcript reveals that the Appellant did not object to this evidence
when it was introduced.
There is a likely reason why: the Prosecution�s Pre-Trial Brief gave notice
that Witness GGV would testify that, after two Tutsi refugees were found hiding
in the bush, the Appellant �shot and killed the two Tutsi.� The Appellant was therefore aware that
the Prosecution intended to present evidence of these acts through Witness GGV.
The Appellant notably does not argue that he did not know that he would be
charged with the killings; he merely says that the killings were not pleaded in
the indictment. In
light of the information given in the Pre-Trial Brief, the Appellant cannot
show, and does not attempt to show, that his defence was materially impaired by
the failure to plead the two killings in the indictment. Rather, the failure
was cured by information in the Pre-Trial Brief. The Trial Chamber therefore committed
no error in relying on this evidence and, consequently, this ground of appeal
is dismissed.
238.���� The
Appellant notes that Prosecution Witnesses GGV, GGM, DAF and GGO testified that
they knew, recognized, or were otherwise familiar with the Appellant due to
prior encounters or sightings. The
Appellant contends that the details of these previous sightings should have
been pleaded in the indictment or subject to clear notice before the witnesses
testified at trial. As was stated above in connection with Witness GGR, the
details of a witness�s sighting of the Appellant are not material facts, but
rather go the credibility of the witness�s testimony that the Appellant was in
fact seen committing a criminal act. Facts bearing on credibility need not be
pleaded in the indictment. These grounds of appeal therefore fail.
239.���� The Trial
Chamber found that the Appellant shot and killed �a girl of 13-15 years of
age.� The
Appellant does not contend that he lacked notice that he would be charged with
this murder; rather, he contends that the Prosecution should have pleaded the
victim�s �identity� in the indictment or else disclosed it.
240.���� The
Appellant is correct that �the identity of the victim,� if known to the
Prosecution, should be pleaded in the indictment. Kupre�kić stated:
�₣Sğince the identity of the victim is information that is valuable
to the preparation of the defence case, if the Prosecution is in a position to
name the victims, it should do so.� But
this statement necessarily recognizes that there will be some situations where
the Prosecution is not in a position to name a victim. This appears to be such
a situation. Witness DAF, the only witness to testify to the murder, stated
that he did not know the victim. The
Prosecution is not obliged to forgo a charge relating to a murder simply
because the victim cannot be identified. Rather, in the instant case, the
victim�s identity could not and need not have been pleaded in the indictment.
241.���� Other than the mere assertion that not knowing the
victim�s name �caus₣edğ serious prejudice,�
the Appellant does not explain how he suffered such prejudice, particularly in
light of the fact that no witness testified to the victim�s name and the Trial
Chamber did not make a finding in that regard.
242.���� The Appellant�s argument with respect to the
failure to plead in the indictment or otherwise disclose the name of the victim
killed on 20 May 1994 accordingly fails.
243.���� The
Appellant also asserts that he had �no/insufficient notice� of Witness GK�s
statement dated 15 and 16 May 1996.
This does not appear to be an argument regarding a defect in the indictment,
but rather an argument that the Trial Chamber erred in dismissing his motion to
exclude Witness GK�s evidence because of untimely disclosure of a witness
statement. The Appellant�s principal contention of error is that the Trial
Chamber was misled by an assertion by the Prosecution during the hearing on the
motion to the effect that the witness statement �had been disclosed in
November.�
244.���� In ruling
on the Appellant�s motion, the Trial Chamber found that the witness statement
was filed with the Registry, along with other statements, on 17 May 2002. Although the Chamber stated that
several redacted statements had been in the Appellant�s possession �for some
considerable time,� it is not clear whether the Chamber was relying on a
representation by the Prosecution that the statement had been previously
disclosed on 7 November 2000.
245.���� The
record is not transparent as to the exact moment when Witness GK�s statement of
15 and 16 May 1996 was first disclosed. The Prosecution�s assertion that the
statement was disclosed in redacted form on 7 November 2000 is belied by a
review of the disclosure made on that date, which includes a statement from GK
dated 11 October 1995, but no statement dated 15 and 16 May 1996. Correspondence from the Office of the
Prosecutor on 10 May 2001 also indicates that only one statement of Witness GK,
the one dated 11 October 1995, had been disclosed in any form as of 10 May
2001.
246.���� However,
even assuming that the Appellant�s submission is correct � that is, that the
Prosecution was wrong to state that a redacted version was disclosed in
November 2000 and that this erroneous statement was material to the Trial
Chamber�s ruling � the Appellant does not make clear what harm has resulted.
The decision whether to permit Witness GK to testify was, as with most
decisions relating to the conduct of proceedings, within the discretion of the
Trial Chamber. The
Appellant has not shown that, even assuming the statement of 15 and 16 May 1996
was not disclosed before 17 May 2002, the Trial Chamber failed to exercise its
discretion properly when it permitted Witness GK to testify. The Appellant has
therefore failed to establish that the Trial Chamber committed an error of law
that invalidated its decision or an error of fact that occasioned a miscarriage
of justice. This ground of appeal is therefore dismissed.
247.���� The
Appellant had insufficient notice of two of the material facts underpinning the
charges against him, namely the allegations that he had participated in an
attack at Kivumu at the end of April or the beginning of May 1994 and that he
had participated in an attack at Muyira Hill on 14 May 1994. The Trial Chamber
therefore committed an error of law in making findings with regard to these
allegations and in finding the Appellant guilty under various counts of the
indictment for having participated in these two attacks.
248.���� These
errors of law do not invalidate the decision, however, because no conviction on
any count of the indictment rested solely on the attack at Kivumu or the 14 May
attack at Muyira Hill. Accordingly, there is no basis for disturbing the
Appellant�s convictions due to these errors of law.
249.���� The
Appellant raises numerous grounds of appeal which fail to meet the requisite
standards for consideration by the Appeals Chamber pursuant to Article 24 of
the Statute or which do not merit a reasoned opinion in writing. Such grounds are set out in this
section.
250.���� The
Appellant submits that the Trial Chamber erred in law in reversing the burden
of proof by requiring him to prove beyond reasonable doubt that members of the
RPF were present in the areas under consideration when, in his view, it should
have been sufficient to establish this as a matter of probability. In submitting this argument, the
Appellant fails to identify any decision of the Trial Chamber that was
incorrect as a matter of law or to make any reference to the record. As such,
this ground of appeal is dismissed for vagueness. Further, the Appellant
submits that the Trial Chamber reversed the burden of proof in respect of alibi
evidence.
This matter has already been addressed above in relation to ground of appeal
number 18.
251.���� The
Appellant submits that the Trial Chamber erred in law in deciding to permit the
Prosecutor to �oath help� by submitting into evidence prior statements of
witnesses to bolster their testimony. The Appellant submits that the witnesses�
previous statements are not evidence as to the truth of their contents but are,
at most, evidence of the fact that they were made, and that any inconsistency
between the witnesses� in-court testimony and an earlier statement goes to
credibility.
Moreover, the Appellant contends, the Trial Chamber failed to warn itself not
to allow such statements to support testimony given in court. Under this ground of appeal the
Appellant also argues that the Trial Chamber failed to deal properly with
testimonies of witnesses who testified in other cases before the Tribunal and
were found to be unreliable. In such cases, the Appellant submits, their
evidence in the present case cannot be relied upon to prove �anything� beyond
reasonable doubt. The
Appellant fails to ground these submissions in the record or support them with
references to the Judgement. The Appeals Chamber therefore considers this
ground of appeal to be unfounded and dismisses it for vagueness. It may also be
recalled that the Trial Chamber is entitled to admit any relevant evidence it
deems to have probative value and that the Chamber expressly noted in the
Judgement that it considered sworn testimony presented before it to have
�considerably more probative value� than declarations in prior written
statements.
252.���� The
Appellant submits that the Trial Chamber erred in law and in fact when it
failed to take into account evidence that there was a conspiracy to fabricate
evidence or that Prosecution witnesses could have been influenced or pressured
to give testimony that incriminated the Appellant. The Appellant also submits that the
Trial Chamber erred in law when it failed to consider that the evidence of
Prosecution witnesses was tainted due to the Prosecutor�s failure to adopt fair
procedural safeguards for obtaining and preserving evidence. In submitting these arguments, the
Appellant fails to identify any decision of the Trial Chamber that was
incorrect as a matter of law or fact or to make any reference to the record.
Consequently, this ground of appeal is dismissed for vagueness.
253.���� The
Appellant submits that the Trial Chamber erred in law when, in weighing
evidence of Prosecution witnesses, it took into consideration the fact that the
Defence did not initiate any proceedings against witnesses who, the Defence
maintained, were giving false testimony.
The Appellant points to paragraph 42 of the Trial Judgement in support of this
submission.
This submission is devoid of merit. In paragraph 42 of the Judgement, the Trial
Chamber noted that the Defence asserted that some Prosecution witnesses
fabricated their testimony and noted that the Defence did not file any
application under Rule 91 dealing with false testimony. The Trial Chamber
expressed its view that �a distinction is to be made between credibility issues
and false testimony� and correctly noted that the party moving an application
under Rule 91 has the onus to prove the alleged falsehood. Nothing in this, or indeed in the Trial
Chamber�s assessment of the credibility of individual witnesses, supports the
Appellant�s submission that when weighing Prosecution evidence the Trial
Chamber took into account the fact that the Defence did not make an application
under Rule 91. Accordingly, this ground of appeal is dismissed.
254.���� The
Appellant submits that the Trial Chamber erred in law in relying on evidence
given by Prosecution witnesses whose testimony the Chamber found to be doubtful
in part. The
Appellant does not refer to any particular instance or witness, or any decision
of the Trial Chamber, and fails to cite to the Trial Judgement. The Appellant
merely refers this Chamber to grounds of appeal 19, 22, 23, and 30 which do not
elucidate this submission. Consequently, this ground of appeal is dismissed for
vagueness.
255.���� The
Appellant submits that the Trial Chamber erred in law in employing �erroneous,
discriminatory and inconsistent standards� when making its findings of fact. The Appellant does not refer to any
particular instance or witness, or any decision of the Trial Chamber, and fails
to cite to the Trial Judgement. This ground of appeal is dismissed for
vagueness.
256.���� Without
citing the Judgement or the record, the Appellant submits that the Trial
Chamber erred in law and in fact in finding that the Appellant knowingly
transported guns on 10 April 1994 and/or that he knew that the guns would be
ultimately used in an unlawful fashion.
The Appellant also argues that the Trial Chamber erred in relying on the
finding of transportation of weapons to establish genocidal intent, given that
the Appellant did not have sufficient notice of the charges against him. This latter argument was addressed
above in the discussion of the Appellant�s claims of lack of notice. In respect
of the first submission, the Appellant failed to identify the legal or factual
error committed by the Trial Chamber in its finding in respect of the
transportation of weapons. It appears that the Appellant is merely seeking an
alternative interpretation of the evidence. Consequently, this ground of appeal
is dismissed.
257.���� The
Appellant submits that the Trial Chamber erred in law when it accepted submissions
of Prosecution counsel as evidence in a particular instance. A review of the Judgement and of the
relevant portion of the transcript shows that the Trial Chamber did not accept
the Prosecution counsel�s submissions as evidence, but rather that it relied on
a witness�s testimony. The
submission supporting this ground of appeal is therefore unfounded and,
accordingly, the appeal is dismissed.
258.���� The
Appellant submits that the Trial Chamber erred in law in not considering what
weight to attach to the general testimony of the evidence of Defence Witnesses TEN-8
and TEN-16 despite rejecting their evidence in relation to the alibi. In this ground of appeal, the Appellant
fails to identify the error of the Trial Chamber, does not provide any
references to specific findings he is challenging, and does not attempt to
demonstrate how the Trial Chamber committed the error. The Appellant merely
refers the Appeals Chamber to his appeal in respect of alibi (specifically
ground 18), without explaining the relevance of that ground of appeal to this
submission. The Appeals Chamber cannot entertain this undeveloped submission
and, therefore, dismisses this ground of appeal.
259.���� The
Appellant submits that the Trial Chamber erred in law in deciding not to give
proper weight to the propositions put to Witness GGY and in ruling them out
completely on the basis that the Defence had not proved them to a sufficient
degree. In
presenting this ground of appeal, the Appellant does not refer to any
particular part of the Judgement or the record. Accordingly, this ground of
appeal is dismissed for vagueness.
260.���� Under
this ground of appeal, the Appellant�s entire submission is as follows: �In an
effort to bolster GGM�s testimony in the instant case, the Trial Chamber
improperly utilises the contents of GGM�s testimony in Kayishema.� As presented, this ground of appeal is
unfounded. The Appellant fails to allege and specify the nature of the error,
and this ground is therefore dismissed.
261.���� The
Appellant�s entire submission in respect of this ground of appeal is as
follows: �The Learned Trial Chamber erred in law in failing to give the
Appellant the benefit of all reasonable doubt in circumstances where there was
a conflict in the evidence and where both versions might reasonably be true, as
set out elsewhere.� The
Appellant does not refer to any particular instance, witness, or decision of
the Trial Chamber and fails to cite to the Trial Judgement. This ground of
appeal is therefore dismissed for vagueness.
262.���� The
Appellant submits that the Trial Chamber erred in law and in fact in convicting
him �in the absence of any or any sufficient admissible evidence proving his
guilt beyond all reasonable doubt, in the course of a fair trial.� In this ground of appeal the Appellant
apparently seeks to cast doubt on his conviction for reasons of insufficiency
of evidence and unfairness of the trial. In the way it is presented, this
submission may be understood as encompassing the entire appeal in one sentence
without any reference to the Judgement, the record, or any applicable law. As
such, this is not a ground of appeal which identifies an error of law or fact
in a suitable manner for consideration by this Chamber, and this ground is
therefore dismissed.
263.���� The
Appellant raises arguments with respect to the Trial Chamber�s decision to
sentence him to imprisonment for the rest of his life. None of these arguments
is well developed and, as such, could be dismissed for failure to be presented
sufficiently on appeal. Nonetheless, the Appeals Chamber has decided to
exercise its discretion to address these grounds on the merits.
264.���� The
Appellant first contends that the Trial Chamber erroneously concluded that his
case �was not one of the exceptional cases where due consideration and weight
ought to be given to the evidence of the good character and previous behaviour
and utterances of the Appellant, in particular his public speeches.� The Appellant also asserts that the
Trial Chamber failed �to give any/sufficient consideration or weight to the
accepted facts established in evidence, namely that the Appellant was a man who
had saved the lives of civilians, including members of the Tutsi ethnic group,
that he was of good character, that he advocated democracy, that he opposed
ethnic discrimination.�
265.���� The
Appellant�s assertion that the Trial Chamber failed to consider these factors
is incorrect. The Trial Chamber stated that it �considered in mitigation the
fact that the Accused was a person of good character prior to the events. As a
public figure and a member of the MDR, he advocated democracy and opposed
ethnic discrimination. As such, he proved courageous, despite threats to his
life and property.� The
Trial Chamber also considered, �₣iğn mitigation of the Accused�s
sentence,� the evidence that he �intervened and saved a group of refugees from
Interahamwe who accused them of being Inkotanyi� and from this inferred that
�the Accused thus saved these refugees� lives.�
266.���� The
Appellant�s next argument is that the Trial Chamber erred in finding that these
mitigating circumstances carried only �limited weight� in light of the gravity
of the crimes that he was found to have committed. In a case involving mitigating
circumstances, the jurisprudence of the Tribunal is clear that �a decision as
to the weight to be accorded thereto lies within the discretion of the Trial
Chamber.�
Here, the Trial Chamber decided that the mitigating factors deserved �little
weight� because the Chamber found that �when faced with the choice between
participating in massacres of civilians or holding fast to his principles,
₣the Appellantğ chose the path of ethnic bias and participated in
the massacres committed in Rwanda at the time.� Although the Appellant was found to
have saved the lives of certain refugees on one occasion, he also �took the
lives of others, and deliberately committed crimes of a heinous nature against
civilians prior to and after this episode.�
The Appellant has not shown that the Trial Chamber�s decision exceeded the
discretion conferred upon it in matters of sentencing.
267.���� The
Appellant also argues that the imposition of a life sentence indicated that the
Trial Chamber �failed to give the Appellant any credit whatsoever for the
mitigating circumstances in the case and/or to provide for any element of
rehabilitation and/or the public policy considerations of providing incentive
to other accused charged before the Tribunal to deal with their cases in a way
similar to that adopted by the Appellant.�
However, nothing prevents a Trial Chamber from imposing a life sentence in
light of the gravity of the crimes committed, even if the evidence in the case
reveals the existence of mitigating circumstances. As the Appeals Chamber
stated in Musema, �₣iğf a Trial Chamber finds that
mitigating circumstances exist, it is not precluded from imposing a sentence of
life imprisonment, where the gravity of the offence requires the imposition of
the maximum sentence provided for.�
Proof of mitigating circumstances does not automatically entitle the Appellant
to a �credit� in the determination of the sentence; rather, it simply requires
the Trial Chamber to consider such mitigating circumstances in its final
determination. The Appellant has not shown that the Trial Chamber neglected
that duty in this case.
268.���� The
Appellant argues that the Trial Chamber erred in law by balancing the
aggravating and mitigating factors against each other, rather than first
deciding �upon the appropriate sentence, having given due consideration to the
aggravating factors� and then �tak₣ingğ into account the mitigating
factors and reduc₣ingğ the penalty accordingly.� The Appellant does not cite any
authority for his position that a sentencing Chamber is barred from balancing
aggravating and mitigating factors. Indeed, the jurisprudence of the Tribunal
clearly permits a Trial Chamber to balance aggravating factors against
mitigating factors in determining the sentence. The Trial Chamber in Kayishema
and Ruzindana balanced the relevant factors in a similar manner, and the
Appeals Chamber did not suggest that such an approach was inadmissible, but
rather affirmed that approach as within the discretion of the Trial Chamber. The same was true in Akayesu,
where the Trial Chamber concluded that �the aggravating factors overwhelm the
mitigating factors,� an approach that was upheld on appeal. This ground of appeal is therefore
without merit.
269.���� Finally,
the Appeals Chamber has considered whether the Prosecution�s failure to give
proper notice of the Kivumu attack and the Muyira Hill attack on 14 May 1994
affects the sentence imposed in this case. The fact that the Prosecution was
derelict in its duty to provide adequate notice of two individual attacks does
not mitigate the seriousness of the Appellant�s remaining crimes that were
properly tried under fair procedures. Accordingly, the Appeals Chamber
concludes that these errors of law do not invalidate the decision and do not
warrant re-sentencing.
270.���� For the
foregoing reasons, THE APPEALS CHAMBER
PURSUANT to
Article 24 of the Statute and Rule 118 of the Rules;
NOTING the
written submissions of the parties and their oral arguments presented at the
hearings on 21 and 22 April 2004;
SITTING in
an open session;
DISMISSES
the Appellant�s appeal in its entirety;
AFFIRMS the
sentence of imprisonment for the remainder of his life;
RULES that
this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules;
ORDERS, in
accordance with Rules 103(B) and 107 of the Rules, that Eli�zer Niyitegeka is
to remain in the custody of the Tribunal pending his transfer to the State in
which his sentence will be served.
Done in English and French, the English
text being authoritative.
___________________��������� ____________________������� ____________________
Theodor Meron���������������������� Mohamed
Shahabuddeen������ Florence Ndepele Mwachande Mumba
Presiding Judge��������������������� Judge�������������������������������������� Judge
___________________��������������������� ____________________�������������������
Wolfgang
Schomburg����������������������������������� In�s M�nica Weinberg de Roca
Judge�������������������������������������������������� Judge
Signed on the
fifth day of July 2004 at The Hague, The Netherlands, and issued this ninth day
of July 2004
At Arusha,
Tanzania.
����������������������������������������������������������� [SEAL OF THE
TRIBUNAL]
1.�������� The main aspects of the appeal
proceedings are summarized below.
2.�������� The Trial Judgement was
delivered in English on 16 May 2003. On 21 May 2003, the Appellant filed a
motion seeking an extension of time for filing his Notice of Appeal on the
basis that the French text of the Trial Judgement was not available. On 13 June 2003, the requested
extension was granted and the Appellant was ordered to file his Notice of
Appeal no later than on 20 June 2003.
The Appellant filed his Notice of Appeal on 20 June 2003.
3.�������� On 25 July 2003, the
Prosecution filed a motion concerning defects in the Appellant�s Notice of
Appeal, requesting that the Appellant be ordered to re-file the Notice of
Appeal in conformity with the relevant Practice Directions. By a Decision of 26 September 2003, the
Appellant was ordered to re-file his Notice of Appeal, in conformity with the
Practice Directions, within fifteen days.
The Appellant re-filed his Notice of Appeal on 17 October 2003.
4.�������� The Appellant filed his Appeal
Brief on 2 December 2003. On
5 December 2003, the Appellant was ordered to re-file his Appeal Brief on the
ground that it did not conform to the relevant Practice Direction. The Appellant filed the Appeal Brief:
Re-Filed on 23 December 2003.
5.�������� The Prosecution filed its
Response Brief on 30 January 2004. The
Appellant filed his Brief in Reply on 16 February 2004.
6.�������� On 4
June 2003, the following Judges were assigned to hear the appeal: Judge Theodor
Meron, Presiding Judge; Judge Fausto Pocar; Judge Claude Jorda; Judge Mohamed
Shahabuddeen; and Judge David Hunt.
Judge Shahabuddeen was designated as the Pre-Appeal Judge. Subsequently, Judge In�s M�nica
Weinberg de Roca was assigned to replace Judge Hunt, Judge Wolfgang Schomburg was assigned
to replace Judge Jorda, and
Judge Florence Ndepele Mwachande Mumba was assigned to replace Judge Pocar.
7.�������� On 13 April 2004, the Appellant
filed a motion seeking leave to present additional evidence in the form of five
documents relating to the standing of Prosecution Counsel Melinda Pollard at
the Bar of the State of New York and moving the Appeals Chamber to take
judicial notice of an excerpt from a transcript from another case before the
Tribunal as well as of two United Nations documents. The Appeals Chamber dismissed this
motion by an oral decision rendered on 21 April 2004, with the written reasons for the
dismissal issued on 17 May 2004.
However, since the Prosecution conceded the fact of Counsel Pollard�s
suspension from the practice of law in New York as well as the reasons
therefor, as set out in the five documents which were the subject of the
Appellant�s motion concerning additional evidence, the Appellant was allowed to
make submissions on the basis of the contents of those documents without their
admission into evidence.
8.�������� Pursuant to a Scheduling Order
of 2 April 2004, the Appeals Chamber heard the parties� submissions on the
appeal on 21 and 22 April 2004 in Arusha, Tanzania. In its Scheduling Order of 23 June
2004, in conformity with Rule 15bis(A), the Appeals Chamber was
satisfied that it was in the interests of justice to have the hearing for the
delivery of the Judgement in the absence of one of its Judges, who was
unavailable due to official Tribunal business.
9.�������� On 2 July 2004, the Appellant
filed a motion seeking an adjournment of delivery of the Judgement and
admission of additional evidence in the form of excerpts of certain documents
from a United States Immigration Court purportedly relating to the credibility
of Witnesses GGV and GGY. The
Appeals Chamber dismissed this motion by a decision rendered on 5 July 2004.
AKAYESU
Prosecutor v. Jean-Paul Akayesu, Case No.
ICTR-96-4-T, Judgement, 2 September 1998 (�Akayesu Trial Judgement�)
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Sentence, 2 October 1998 (�Akayesu Sentence�)
Prosecutor v. Jean-Paul Akayesu, Case No.
ICTR-96-4-A, Judgement, 1 June 2001 (�Akayesu Appeal Judgement�)
BAGILISHEMA
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 (�Bagilishema Trial
Judgement�)
BAGOSORA ET AL.
Prosecutor v. Th�oneste Bagosora et al., Case Nos. ICTR-98-41-AR93 & ICTR-98-41-AR93.2, Decision on Prosecutor�s
Interlocutory Appeals Regarding Exclusion of Evidence, 19 December 2003
KAYISHEMA AND
RUZINDANA
Prosecutor v. Cl�ment Kayishema and Obed Ruzindana,
Case No. ICTR-95-1-T, Judgement,
21 May 1999 (�Kayishema and Ruzindana Trial
Judgement�)
Prosecutor v. Cl�ment Kayishema and Obed Ruzindana,
Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (�Kayishema and
Ruzindana Appeal Judgement �)
�MEDIA CASE�/ NAHIMANA ET AL.
Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-I, Decision on the Defence Motion Opposing the
Hearing of the Ruggiu Testimony against Jean Bosco Barayagwiza, 31 January 2002
Prosecutor v. Ferdinand Nahimana et al., Case No.
ICTR-99-52-T, Judgement and Sentence, 3 December 2003 (�Media Case Trial
Judgement�)
MUSEMA
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T,
Judgement, 27 January 2000 (�Musema Trial Judgement�)
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A,
Judgement, 16 November 2001 (�Musema Appeal Judgement�)
NIYITEGEKA
Prosecutor v. Eli�zer Niyitegeka, Case No.
ICTR-96-14-T, Decision on Two Defence Motions Pursuant to, Inter Alia,
Rule 5 of the Rules and the Prosecutor�s Motion for Extension of Time to File
the Modified Amended Indictment Pursuant to the Trial Chamber II Order of 20
November 2000; Warning to the Prosecutor�s Counsel Pursuant to Rule 46(A), 27
February 2001
Prosecutor v. Eli�zer Niyitegeka, Case No.
ICTR-96-14-T, Judgement and Sentence, 16 May 2003 (�Trial Judgement�)
Eli�zer Niyitegeka v. Prosecutor, Case No.
ICTR-96-14-A, Decision on Defence Motion for Variation of the Notice of
Appeal, 29 January 2004
NTAKIRUTIMANA
Prosecutor v. Elizaphan and G�rard Ntakirutimana,
Case No. ICTR-96-10 & ICTR-96-17-T, Judgement and Sentence, 21 February
2003 (�Ntakirutimana Trial Judgement�)
RUTAGANDA
Prosecutor v. Georges Anderson Nderubumwe Rutaganda,
Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999 (�Rutaganda
Trial Judgement�)
Prosecutor v. Georges Anderson Nderubumwe Rutaganda,
Case No. ICTR-96-3-A, Judgement, 26 May 2003 (�Rutaganda Appeal
Judgement�)
SEMANZA
Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T,
Judgement and Sentence, 15 May 2003 (�Semanza Trial Judgement�)
Aleksovski
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (�Aleksovski
Appeal Judgement�)
BLA[KI]
Prosecutor v. Tihomir Bla�kić,
Case No. IT-95-14-T, Decision on the Production of Discovery Materials, 27
January 1997
BR\ANIN AND TALI]
Prosecutor v. Radoslav Br�anin and Momir Talić,
Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and
Prosecution Application to Amend, 26 June 2001
�Čelebići
case�/delali] et al.
Prosecutor v. Zejnil Delalić, et
al., Case No. IT-96-21-A, Judgement, 20 February
2001 (�Čelebići Case Appeal Judgement�)
Furund�ija
Prosecutor v. Anto Furund�ija, Case No. IT-95-17/1-A, Judgement, 21 July 2000
(�Furund�ija Appeal Judgement�)
Jelisić
Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement, 5 July 2001 (�Jelisić Appeal
Judgement�)
Kordić
and Čerkez
Prosecutor v. Dario Kordić and
Mario Čerkez, Case No. IT-95-14/2-T,
Judgement, 26 February 2001 (�Kordić and Čerkez Trial
Judgement�)
KRSTIć
Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004 (�Krstic
Appeal Judgement�)
Kunarac
et al.
Prosecutor v. Dragoljub Kunarac, et al., Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002 (�Kunarac
et al. Appeal Judgement�)
Kupre�kić
et al.
Prosecutor v. Zoran Kupre�kić, et
al., Case No. IT-95-16-A, Appeal Judgement, 23
October 2001 (�Kupre�kić et al. Appeal Judgement�)
KVO^KA ET AL.
Prosecutor v. Miroslav Kvočka, et
al., Case No. IT-98-30/1-PT, Decision on Defence
Preliminary Motions on the Form of the Indictment, 12 April 1999
NALETILI]
AND MARTINOVI]
Prosecutor v. Mladen Naletilić
and Vinko Martinović, Case No.
IT-98-34-T, Decision on the Defence Motion for Disclosure of any Defence
Witness Statements in Possession of the Office of the Prosecutor, 18 April 2002
Tadić
Prosecutor v. Du�ko Tadić a/k/a
�Dule�, Case No. IT-94-1-T, Judgement, 7 May 1997
(�Tadić Trial Judgement�)
Prosecutor v. Du�ko Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (�Tadić
Appeal Judgement�)
VASILJEVIĆ
Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Judgement, 25 February 2004 (�Vasiljević
Appeal Judgement�)
R. v. John Early and others, [2002] EWCA Crim 1904, [2003] 1 Cr. App. R. 288
R. v. Robert McPheat Nisbet, (1971) 55 Cr. App. R.
490
Rippingdale v. The Queen, 109 A. Crim. R. 304 (1999)
United States v. Vonn, 122 S. Ct. 1043 (2002)
Bassiouni, M. Cherif, with the collaboration of Peter
Manikas, The Law of the International Criminal Tribunal for the Former
Yugoslavia (Irvington-on-Hudson, New York, Transnational Publishers Inc., 1996)
Boot, Machteld, Genocide, Crimes Against Humanity,
War Crimes: Nullum Crimen Sine Lege and Subject Matter Jurisdiction of the
International Criminal Court (Antwerpen, Oxford, New York, Intersentia, 2002)
Robinson, Nehemiah, The Genocide Convention: A
Commentary (New York, Institute of Jewish Affairs, 1960)
Schabas, William A., Article 6: Genocide, in Otto
Triffterer, ed., Commentary on the Rome Statute (Baden-Baden, Nomos, 1999)
Schabas, William A., Genozid im V�lkerrecht (2003)
Schabas, William A., Genocide in International Law (2000)
Oxford English Dictionary, 2nd Edition (Oxford, Clarendon
Press, 1998)
Appellant�s
Brief
Eli�zer
Niyitegeka v. Prosecutor, Case No. 96-14-A, Appeal
Brief: Re-Filed, filed 23 December 2003
Appellant�s
Brief in Reply
Eli�zer
Niyitegeka v. Prosecutor, Case No. 96-14-A,
Appellant�s Brief in Reply, filed 16 February 2004
Defence Final
Trial Brief
Prosecutor v.
Eli�zer Niyitegeka, Case No. 96-14-T, Defence Final
Trial Brief, filed 20 February 2003
ECourtHR
European Court of
Human Rights
ICTR
International
Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other
Such Violations Committed in the Territory of Neighbouring States between 1 January
1994 and 31 December 1994
ICTR Statute
Statute of the
Tribunal
ICTY
International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991
Indictment
Prosecutor v.
Eli�zer Niyitegeka, Case No. 96-14-I, Amended
Indictment, filed 25 November 2002
Pre-Trial Brief
Prosecutor v.
Eli�zer Niyitegeka, Case No. 96-14-T, Prosecutor�s
Pre-Trial Brief Pursuant to Rule 73bis(B)(i), filed 11 March 2002
Prosecutor�s Final Trial
Brief
Prosecutor v.
Eli�zer Niyitegeka, Case No. 96-14-T, Prosecutor�s
Final Trial Brief, filed 16 December 2002
Prosecution
Response Brief
Eli�zer
Niyitegeka v. Prosecutor, Case No. 96-14-A,
Prosecution Response Brief, filed 30 January 2004
Regulation No.
2
Prosecutor�s Regulation No. 2,
Standards of Professional Conduct for Prosecution Counsel (1999)
Rules
Rules of Procedure
and Evidence of the Tribunal
T.
Transcript. All
references to the transcript are to the official, English transcript, unless
otherwise indicated.
Trial Judgement
Prosecutor v. Eli�zer
Niyitegeka, Case No. ICTR-96-14-T, Judgement and Sentence, 16 May 2003
Tribunal
International
Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other
Such Violations Committed in the Territory of Neighbouring States between 1
January 1994 and 31 December 1994
