Bagilishima case (ICTR-95-1A-T) International Criminal Tribunal for Rwanda

International Criminal Tribunal for Rwanda

Tribunal penal international pour le Rwanda

ORIGINAL: ENGLISH
TRIAL CHAMBER I

Before:
Judge Erik M0se, Presiding Judge Asoka de Zoysa Gunawardana Judge Mehmet Guney
Registry: Mr Adama Dieng
Decision of: 7 June 2001
THE PROSECUTOR Versus IGNACE BAGILISHEMA
ICTR-95-1A-T

JUDGEMENT
The Office of Prosecutor:
Ms Jane Anywar Adong Mr Charles Adeogun-Phillips Mr Wallace Kapaya Ms Boi-Tia Stevens
Counsel for the Defence:
Mr Fran?ois Roux Mr Maroufa Diabira Ms Heleyn Unac Mr Wayne Jordash
TABLE OF CONTENTS
CHAPTER I. INTRODUCTION
1. The International Criminal Tribunal for Rwanda
2. Indictment
3. Jurisdiction of the Tribunal
4. The Accused
CHAPTER II. PROCEEDINGS
1. Procedural Background
2. Evidentiary Matters CHAPTER III. APPLICABLE LAW
1. Individual Criminal Responsibility
1. 1 Responsibility under Article 6(1) of the Statute 1.2 Responsibility under Article 6(3) of the Statute
1.2.1 Superior-Subordinate Relationship
1.2.2 Knowing or Having Reason to Know
1.2.3 Failing to Prevent or Punish
2. The Crime of Genocide (Article 2 of the Statute)
2.1 Genocide
2.1.1 Underlying Acts
2.1.2 Dolus Specialis
2.2 Complicity to Commit Genocide
3. Crimes against Humanity (Article 3 of the Statute) 3. 1 The Broader Attack
3.1.1 Widespread or Systematic
3.1.2 Against any Civilian Population
3.1.3 On Discriminatory Grounds
3.2 Underlying Acts
3.3 Mental Element
4. Violations of the Geneva Conventions and Additional Protocol II
4.1 Applicability
4.2 Material Requirements 5. Cumulative Charging CHAPTER IV. GENERAL ISSUES
1. Introductory Remarks
2. Character of the Accused prior to the Events in 1994
3. Decision of the Accused to remain in his Post of Bourgmestre
3.1 Introduction
3.2 Significance of the Decision
3.3 Conclusion
4. Possible Subordinates of the Accused
4.1 Introduction
4.2 Communal Staff
4.3 Communal Police
4.4 Gendarmerie Nationale
4.5 Reservists
4.6 Interahamwe
4.7 Abakiga.
5. Measures taken by the Accused to Prevent Crimes
5.1 Introduction
5.2 Powers and Resources of the Accused
5.3 Prevention of Crimes by the Accused
5.4 Meetings
6. The Accused’s Relationship with Celestin Semanza
7. Letter of 24 June 1994
8. Conclusions
CHAPTER V. FACTUAL AND LEGAL FINDINGS SPECIFIC EVENTS
1. Introduction
2. Events between 6 and 12 April 1994
2.1 Attacks in Mabanza Commune
2.2 Attacks at Nyububare Hill
2.3 Night Patrols
2.4 Security Meeting on 9 April 1994
2.5 Refugees fleeing to Mabanza Communal Office
2.6 Meeting between the Accused and the Prefect on 12 April 1994
3. Events in Kibuye Town from 13 to 19 April 1994
3.1 Movement of Refugees from Mabanza Communal Office to Kibuye Town
3.2 Detention and Maltreatment of Refugees at Gatwaro Stadium, Kibuye Town, April 1994
3.2.1 Introduction
3.2.2 A Preconceived Plan?
3.2.3 Description of Gatwaro Stadium
3.2.4 Conditions at the Stadium – Deliberations
3.2.5 Conditions at the Stadium – General Findings
(i) Were the Refugees detained at the Stadium?
(ii) The Treatment of the Refugees
(iii) Was the Maltreatment Inflicted upon the Refugees such as to Reach the Legal Threshold of “Inhumane Acts”?
3.2.6 Was the Accused Present at the Stadium 13-17 April 1994? – Deliberations
Wednesday 13 April 1994
Thursday 14 April 1994
Friday 15 April 1994
Saturday 16 April 1994
Sunday 17 April 1994
3.2.7 Findings on the Accused’s Responsibility
(i) General Observations
(ii) Presence of the Accused on Wednesday 13 April 1994
(iii) Presence of the Accused on Thursday 14 April 1994
(iv) Conclusion
3.3 Attack on Refugees at Home St. Jean Complex, Kibuye Town, 17 April 1994
3.3.1 Introduction
3.3.2 Deliberations
3.3.3 Findings
3.4 Attack on Refugees at Gatwaro Stadium, Kibuye Town, 18-19 April 1994
3.4.1 Introduction
3.4.2 Deliberations
3.4.3 Findings on the Accused’s Responsibility
(i) General observations
(ii) Presence of Accused at the Stadium on 18 April 1994 Witness AA
Witness A Witness G
(iii) Conclusion
3.4.4 Conclusions
(i) Cumulative effect of evidence
(ii) Summary of findings in relation to Paragraphs 4.21-4 of the Indictment
(iii) Further grounds of liability
4. Events in Mabanza Commune from 13 April to July 1994
4.1 Killing of Karungu
4.2 Killing of Pastor Muganga
4.3 Killing of Refugees at Communal Office; Burial in Mass Grave
4.4 Attacks at Bisesero
4.5 Killing of Kanyabugosi
4.6 Killing of the Sons of Witness B
4.7 Killing of Tutsi concealed at the House of Habayo
4.8 The Detention and Fate of Habayo
5. Roadblocks in Mabanza Commune
5.1 Introduction
5.2 General Observations on Roadblocks
5.2.1 Roadblocks and the Civil Defence Program
5.2.2 Roadblocks Sighted in Mabanza Commune
5.3 Liability for Roadblock-Related Crimes
5.3.1 Liability under Articles 6(1) and 6(3) of the Statute
5.3.2 Distinction between “Official” and “Unofficial” Roadblocks
5.4 Trafipro Roadblock – Establishment and Purpose
5.4.1 Setting up and Staffing of Trafipro Roadblock
5.4.2 Purpose of Trafipro Roadblock
5.5 Trafipro Roadblock – Accused’s Complicity in Killing of Bigirimana
5.6 Trafipro Roadblock – Accused’s Complicity in Killing of Judith
5.7 Killings of Bigirimana and Judith – Accused’s Responsibility as Superior
5. 8 Gitikinini Roadblock
5.9 Gacaca Roadblock
5.10 Roadblocks Generally – Accused’s Responsibility in Negligence
5.11 Conclusions VI. VERDICT

SEPARATE OPINION OF JUDGE ASOKA DE Z. GUNAWARDANA

SEPARATE AND DISSENTING OPINION OF JUDGE MEHMET GUNEY

ANNEX A INDICTMENT

ANNEX B GLOSSARY

International Criminal Tribunal for Rwanda
Tribunal penal international pour le Rwanda

United NaUorvs Maligns Unies
Trial Chamber I
ORIGINAL: ENGLISH
Before:
Judge Erik M0se, Presiding Judge Asoka de Zoysa Gunawardana Judge Mehmet Guney
Registry: Mr Adama Dieng
Delivered on: 7 June 2001
THE PROSECUTOR Versus
IGNACE BAGILISHEMA ICTR-95-1A-T
Separate Opinion of Judge Asoka de Z. Gunawardana
The Office of Prosecutor:
Ms Jane Anywar Adong Mr Charles Adeogun-Phillips Mr Wallace Kapaya Ms Boi-Tia Stevens
Counsel for the Defence:
Mr Fran?ois Roux Mr Maroufa Diabira Ms Heleyn Unac Mr Wayne Jordash
CONTENTS
PART I
The Accused’s Plea of Inadequacy of Resources
1. The Factual Statement of the Plea
2. The Legal Position of the Plea PART II
The Conduct of the Accused Prior to the Events in 1994
1. The Prior Conduct of the Accused as Testified to by Witnesses
2. The Response of the Accused to the Threat of RPF Infiltration
3. The Action Taken by the Accused Regarding the Attacks on Tutsi by Hutu Groups
4. The Significance of the Previous Conduct of the Accused PART III
The Conduct of the Accused During the Events in 1994
1. The Alleged Change of Conduct of the Accused
2. The Use of the Security Resources by the Accused
2.1 The Security Resources Available to the Accused in April to July 1994
2.1.1 The Request by the Accused for More Resources
2.2 The Situation that the Accused had to Contend With
2.2.1 The Conditions that Prevailed in Mabanza commune from 6 to12 April 1994
2.2.2 The Invasion of the Abakiga; 13 to 24 April 1994
2.2.3 The Conditions that Prevailed in Mabanza commune from 25 April 1994 to July 1994
2.3 The Use of the Available Resources by the Accused
2.3.1 Using Civilians for Security
2.3.2 Holding Pacification Meetings
2.3.3 Providing Assistance in the Face of Attacks
2.3.4 Hiding Tutsis in His Home
2.3.5 Issuing False Identification Documentation
2.3.6 Punishing the Perpetrators of Crimes
2.3.7 Appealing to Higher Authorities
2.4 Some Additional Factors that Impaired the Ability of the Accused to Use The Resources
2.4.1 The Attacks on the Accused by the Abakiga
2.4.2 The Accused Considered as an Accomplice of the RPF
2.4.3 The Relationship of the Accused with Semanza
2.4.4 The Relationship of Semanza with the Abakiga PART IV
Documentary Evidence that Corroborates the Position Taken Up by the Accused
1. The Letter Dated 24 June 1994 (Prosecution exhibit 84)
2. The Confessional Statement of Prosecution Witness Z (Defence exhibit 112)
Conclusion
SEPARATE OPINION OF JUDGE ASOKA DE Z. GUNAWARDANA
1. I agree with the Judgment of Judge M0se that, for the reasons stated therein, the Prosecution has failed to prove its case against the Accused beyond reasonable doubt, and therefore the Accused is entitled to an acquittal on all the charges contained in the indictment.
PART I
The Accused’s Plea of Inadequacy of Resources
1. The Factual Statement of the Plea
2. In addition to the defence taken up by the Accused that, the Prosecution has failed to prove its case beyond reasonable doubt, the Defence has also raised a plea that the
Accused lacked the necessary means and the resources, to prevent the alleged commission of the atrocities, in Mabanza commune, and that he acted to maintain law and order, with the means available to him. This plea was taken up in the Defence Rejoinder at paragraph 248, in the following terms,
[The] defence is still that he did not participate in the alleged crimes and that he lacked adequate means to prevent such crimes.[1] This plea was further buttressed by the contention of the Defence Counsel in his closing arguments by stating that,
But there is also another dimension, that is important to underscore because that highlights an aspect of our argument in relation to the innocence of Mr. Bagilishema, and that is that he did what he could within the limits of the means [and] resources available to him . . . .[2] 3. However, the Prosecution alleged that the Accused had control over the Hutu assailants, and that he failed to maintain law and order or to protect the Tutsi population, from the attacks.[3] 4. In my view, it is appropriate to treat this plea as an independent challenge to the Prosecution case, in the facts and circumstances of this case.
2. The Legal Position of the Plea
5. This being a plea that involves the adducing of evidence, akin to a plea of alibi or accident, the Accused is required in the first place, to adduce sufficient evidence to put the matter in issue. In common law terms what is described as an evidential burden is cast on the Accused. This burden may be discharged by the Accused, by relying on the evidence coming from the Prosecution witnesses or by calling evidence on his behalf or by a combination of both, and thereby placing sufficient material before court, to make the plea a live issue, fit for consideration by court. When the plea has been properly raised, the onus is on the Prosecution to disprove it, beyond a reasonable doubt.[4] A failure to do so would raise a reasonable doubt in the Prosecution case.
6. In common law jurisdictions it is settled that, in relation to this type of plea, while the evidential ‘burden’ rests on the Accused, it remains at all times for the Prosecution to prove its case beyond reasonable doubt (that is, the persuasive burden remains with the Prosecution).[5] This principle was articulated in the House of Lords by Viscount Sankey L.C., in the English case of Woolmington v. DPP(1935), in a passage that has been quoted with approval in common law jurisdictions:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.[6] 7. In English law, the principle that the accused only bears an evidential burden applies in defences such as self-defence,[7] duress,[8] alibi,[9] automatism,[10] and provocation,[11] et cetera. Exceptionally, a higher burden is placed on an accused, in the case of the defence of insanity, and other statutory defences, where the accused is required to adduce sufficient evidence to establish such a defence, on a balance of probability.[12] In Canada, according to Stuart, “[i]n the case of general justifications or excuses it is consistently held that the only burden on the accused is the evidential one . . .”[13]; see for example, self-defence and provocation,[14] alibi,[15] duress,[16] and necessity.[17] With regard to the law in Sri Lanka, it is stated that; “In the case of defences like accident and alibi which destroy essential elements of the prosecution case, all that the accused need do is to raise a reasonable doubt in the minds of the jury as to the applicability of one of these defences. This may require the leading of some evidence, but it does not involve the obligation to establish any fact.”[18] This Tribunal, in the cases of Prosecutor vs Kayishema and Ruzindana and Prosecutor vs Alfred Musema, has also followed the above approach.[19] 8. In a case before a jury, it is for the judge to determine whether, on the basis of the evidence, there is a live issue fit and proper to be left to the jury for its consideration. If the case is tried by professional judges, the judges will nevertheless consider whether there is sufficient evidence to raise the plea to a level that requires consideration by the court.
9. Once the court is satisfied that there is sufficient evidence to consider the plea, the court will then evaluate the evidence relied on by the Defence in support, and by the Prosecution to negative the plea, in order to ascertain whether a reasonable doubt has been created in the Prosecution case.
10. In the instant case, what the Accused is seeking to do by raising the said plea is to show the absence of mens rea in respect of the acts and/or omissions alleged against him. As stated by Counsel for the Defence in his closing arguments:
We are asserting . . .that the Prosecution never ever demonstrated that there was a voluntary attitude on the part of Ignace Bagilishema, more so, in [regard to] the intent to commit genocide, there is no evidence. […] Our evidence shows to the contrary, that he did everything within his powers given the means at his disposal.[20] 11. It is to be observed that a failure on the part of the Prosecution to prove mens rea, which is an ingredient of the offenses preferred against the Accused, would negative any liability on the part of the Accused.
12. I will now proceed to analyse the evidence in the case, to determine whether there is sufficient evidence to sustain the plea raised by the Accused, and thereby create a reasonable doubt in the Prosecution case.
PART II
The Conduct of the Accused Prior to the Events in 1994
13. In order to understand the matters relating to the plea raised by the Accused in this case, it would be appropriate to begin by considering the conduct of the Accused prior to April 1994, in regard to the manner in which he acted to enforce law and order in Mabanza commune in general, and to protect the Tutsi population in particular.
14. The Defence asserted that Bagilishema was always a man of good character both before and after the events of 1994. The Accused consistently acted in good faith for the protection of the law abiding Tutsis and Hutus alike.
15. The stand taken by the Prosecution in regard to the prior conduct of the Accused varied at different times. At one stage the Prosecution rejected a request by the Defence to make a formal admission as to the good character of the Accused prior to April 1994.[21] However, at another stage, the Counsel for the Prosecution stated that the Prosecution did not challenge the, “impeccable character [of the Accused] prior to the events in the indictment.”[22] Furthermore, the Prosecution did not seek to cross-examine the evidence of Defence witnesses in regard to the character of the Accused. [23] In addition, some of the Prosecution witnesses themselves testified to the good conduct of the Accused prior to 1994.
16. In this context, it is pertinent to recall the remark made by Counsel for the Prosecution that, the Accused acted in good faith prior to 12 April 1994, “We accept that more likely than not, up until that time [12 April 1994], he did that in good faith. We make no bones about that. And I want that to be crystal clear. There is no evidence to suggest otherwise.”[24] 1. The Prior Conduct of the Accused as Testified to by Witnesses
17. The Defence Witness BE said of the Accused, “I can mention some of his achievements. The first is that unity was installed in his commune. Secondly there was development in the community, thirdly, there was no discrimination on ethnic grounds in that commune.”[25] Defence Witness TP, in describing the Accused’s performance of his duties, stated: “Ignace Bagilishema was a devoted man who carried out his work with a sense of commitment and fairness. Someone who was listened to, who had good reputation in his commune.”[26] According to Defence Witness RA, the Accused was a tolerant man and Mabanza was a commune where Hutus and Tutsis had lived together in peace. Defence Witnesses AS, KC and ZD gave similar accounts of the good relationship of the Accused with the entire population of Mabanza.
18. Prosecution witnesses also testified to Bagilishema’s good conduct prior to the events in 1994. When asked how the Accused was perceived by the general population, Prosecution Witness I testified:
Bagilishema was someone who was loved by all the people both Hutus and Tutsis. When they had problems they would go to him for advice and he would provide such advice. And during the war when in 1994 houses started to be destroyed people fled towards the bureau communal in large numbers. This means that he was loved by a lot of people and nobody thought that any harm would come to himself in the presence of Bagilishema.[27] 19. Prosecution Witness K, in his written statement of 10 July 1999, [28] stated that Bagilishema “was on good terms with all the peoples, i.e. until the President’s death.”[29] 20. That the Tutsi members of the population trusted the Accused is borne out by their conduct; when the attacks on Tutsis and their property started around 7 April 1994, many of the Tutsis who had fled from these attacks, gathered at the Mabanza bureau communal for safety.
21. The evidence of expert witnesses suggests that Bagilishema had been one of the most successful bourgmestres in the area of development. Prosecution expert Professor Guichaoua testified that, in his assessment, the Accused ranked as the second most efficient bourgmestre in regard to the handling of development issues in the communes.[30] Defence expert Fran?ois Clement confirmed that the Accused had made a positive contribution to development of his commune. Defence witness Jean Fran?ois Roux who, up to April 1994, had been a project leader on a development project in Kibuye Prefecture opined that the Accused was a ‘good bourgmestre’ and followed development projects very closely. The witness did not notice any discrimination on ethnic grounds.[31] He added that the Accused had managed to maintain calm during the turbulent times between 1992 and April 1994, when other communes were troubled by ethnic conflict. [32] 2. The Response of the Accused to the Threat of RPF Infiltration
22. Documentary evidence tendered by the Prosecution itself shows that, on several occasions, the Accused investigated persons suspected of illegal possession of firearms or of collaborating with the RPF. In a letter, dated 9 October 1990, written by the Accused to the prefet of Kibuye, the Accused sent a ‘Report of People Suspected of Holding Rifles Illegally’ and attached a list of such persons.[33] The list included predominantly ‘intellectuals’ but the ethnic group of many was not indicated. In the introduction to the letter, it was stated as follows: “Given the current situation, I write to you this letter in order to give you a list of people who are suspected of having rifles.” And concluded by stating that, “A search of rifles has been carried out in almost all their houses but no single rifle has been found. We are still investigating but it is not easy to find rifles with those people. The population have confirmed that they (those people) might possess rifles.”
23. In a second letter, dated 20 October 1990,[34] the Accused sent a list of “persons who are suspected by the population,” to the President of the security council of Kibuye. Again, the list was predominantly made up of ‘intellectuals’ and, although some were described as Tutsis, the ethnic group of others was uncertain. The letter ended by stating,
“I send them [the names] to you following what people say and know about them but I do not confirm for sure that what they are charged with is really true.”
24. The Prosecution produced four further letters, written by the Accused to the prefet of Kibuye, attaching lists of persons suspected of joining the Inkontanyi; dated 23 October 1992, 30 December 1992, 14 January 1993, and 12 March 1993.[35] The opening paragraph of the first letter, dated 23 October 1992 noted as follows:-
With reference to the prevailing rumors that some young men join the Inkontanyi, I would like to let you know that I assigned the “conseillers” to follow up this issue and they submitted to me the attached list.
25. It is apparent that by ‘Inkontanyi’, the Accused was referring to those persons who collaborated with the RPF, rather than Tutsi persons in general. Indeed, in the list attached to the letter dated 23 October 1992, which was the only list to indicate the ethnic group of the suspects, two of the five suspects were recorded as ‘Hutu’.
26. When questioned about the above letters, the Accused explained that members of the Hutu population had suspected certain Tutsis of being RPF collaborators and of possessing weapons, and therefore wanted to attack them. The Accused successfully diffused this situation by setting up a verification committee, to search the premises of suspected collaborators for weapons.[36] He added that the higher authorities in Kibuye had urgently required the lists of persons suspected of collaborating with the RPF, and that is was his duty as bourgmestre to report such matters to his superiors.[37] This is evidenced by a letter, dated 14 April 1992, from the intelligence service of Kibuye Prefecture to all the bourgmestres, requiring the bourgmestres to provide a list of persons who had gone into neighbouring countries shortly before or during the war, and who had returned. The said letter required the bourgmestres to furnish details of such persons including the name, age, ethnic group, the place of origin, the present location, and whether there were suspicions that any of them had undergone military training with the RPF.[38] 27. It is important to note that the two letters dating 9th and 20th October 1990 were written in the weeks immediately following the invasion of Rwanda, in October 1990, by the RPF. The four letters dating from October 1992 to March 1993 were sent in a period of continuing high tension and ongoing conflict with the RPF.
28. I am of the view that the Accused took reasonable and proper measures when responding to threats, whether perceived or real, of RPF infiltration. The Accused properly pointed out that, when there was no evidence to confirm the suspicions of the population, he did not confirm the truth of the information. The lists do not indicate an ethnic bias on the part of the Accused. It may be noted that the Accused was merely performing the official duties of the office he held under the functioning government of the day, in Rwanda.
3. The Action Taken by the Accused Regarding the Attacks on Tutsis by Hutu Groups
29. The security issues facing the Accused in the years leading up to 1994 were not limited to the threat of RPF infiltration. He was also confronted with the problem of individual attacks on Tutsi persons and property by Hutu assailants. In a letter, dated 7 January 1993, from Bagilishema to prefet Kayishema, the Accused outlined the specific attacks by the Hutus on Tutsi persons and/or their properties, and requested the assistance of the prefet to restore security. The letter stated as follows:¬. . . I regret to inform you, once more, that in the night of 4/1/1993, Hutus again attacked the home of a Tutsi, GAFARANGA, breaking the door of his house.
In the night of 6/1/1993, in spite of your promise to provide us soldiers, no soldiers came. I left with three policemen and one IPJ and we laid ambush at a place called MUGOTE, Kabili cellule; we were able to apprehend . . . [named persons] who were armed with clubs, bludgeons and hoes. They were heading for an attack. We arrested them at 12:00 midnight. We deplored the fact that on reaching another hill, we noticed that the Hutu had attacked the house of SEKABUNDI . . . . These attacks are perpetrated while the Tutsi have left their homes and are afraid to call for help, for fear of being located and killed. This does not allow security officers to come to their assistance, since they are not well informed of the sites of the attacks and also because the sector is immense.
In the night of 6 to 7/1993, the police, assisted by soldiers, tried to ensure security in MUBUGA cellule, BUHINGA sector. They were attacked and had to fire into the air. On account of their limited number, in KAGANO cellule, KIGEYO sector, a man called SEBACOGOZA was attacked; his house was destroyed and his cattle were stolen . . .
I thank you for the assistance we hope you will continue to afford us in order to restore security.[39] 30. The above letter provides a picture of the security situation that the Accused had to face in early 1993. It is apparent from the contents of the letter that the Accused attempted to use the available security resources to protect the Tutsi population from attacks by Hutus, indeed, he personally searched for and arrested Hutu attackers.
31. Thus on an analysis of the above evidence it is clear that the Accused performed the functions of his office prior to 1994, without any ethnic discrimination, to prevent the attacks on the Tutsi population by the Hutus.
4. The Significance of the Previous Conduct of the Accused
32. It may be noted that, by the nature of crimes that may be committed during a national or international emergency, persons with no prior convictions or history of violence may commit such crimes. [40] However, the probative value of the evidence relating to prior conduct will depend on the circumstances of the individual case. In the present case, the evidence shows more than mere prior good character or lack of previous disposition by the Accused to commit such crimes. It indicates that, prior to the events in 1994, the Accused had consistently conducted himself in a manner that is completely at odds with the conduct alleged by the Prosecution during the events in 1994.
33. In addition it may be observed that the Prosecution did not adduce any evidence of the conduct of the Accused, prior to April 1994, upon which the Prosecution can rely to show that the Accused had a propensity to commit the crimes with which he is charged.
Thus it becomes all the more important, for the Prosecution to prove that the Accused formed or manifested the requisite mens rea, as well as committed the requisite criminal acts, at least during the events in 1994.
PART III
The Conduct of the Accused During the Events in 1994 1. The Alleged Change of Conduct of the Accused
34. In relation to the mens rea of the Accused, the Counsel for the Prosecution submitted that it was at the alleged meeting of 12 April 1994, between the Accused and prefet Kayishema, at the Mabanza bureau communal, that the Accused changed from having a bone fide intent to protect the Tutsis, to a genocidal intent to exterminate the Tutsi population on ethnic grounds. It is significant to note that the Counsel for the Prosecution in his closing arguments stated as follows:
You see, I think that my learned friend [for the Defence] seems to get the impression that we […] are saying that the witnesses were deliberately gathered at the Mabanza Commune office as a scheme to eliminate them. We don’t say that. We accept that more likely than not, up until that time, he did that in good faith. We make no bones about that. And I want that to be crystal clear. There is no evidence to suggest otherwise. No evidence to suggest that up until that time, he was gathering people there with a view to, you know — no, no, no, no. We say that everything changed at that time, after that meeting [of the 12 April 1994], and everything that happens flows on from there. We make that clear distinction. So when they come and say well, he is a man of good character, […] I make no bones about that.[41] 35. Inherent in the above assertion of the Prosecuting Counsel, are several weaknesses. In the first place, is it realistic for such a drastic change of attitude to occur in such a short and impromptu meeting? There is no evidence to show that it was a pre-planned meeting. And the meeting is alleged to have lasted only for a few minutes. There was no suggestion of a significant persuasive effort by Kayishema to change the previously held disposition of the Accused towards the Tutsis.
36. Secondly, there is no clear proof that such a meeting ever took place. In fact the finding made in regard to the meeting in the Judgment of the majority is that there is no credible evidence that such a meeting took place. [42] 37. Thirdly, the conduct of the Accused does not bear out that he had a change of attitude. The Prosecution sought to interpret the sending of the refugees, by the Accused, to Kibuye town, to suggest a change of conduct. However, this action has been clearly explained and dealt with in the Judgment of the majority, where a finding is made that directing the refugees to Kibuye town does not entail any liability on the part of the Accused, and that it was done for other reasons.[43] 38. Fourthly, the alleged manifestation of a genocidal intent, and the existence of a conspiracy to commit genocide, is negated by the evidence of Prosecution Witness A who stated that, when he was in Kibuye Stadium in April 1994, the Accused had invited the refugees to go back to Mabanza, since peace had been restored. Witness A testified,
Following that, between the 13 th and the 18th, they [the Accused, Semanza and Dr Leonard] came back to say that we could go home, we could go back home because peace had been restored.[44] 39. In this context, it is also to be noted that Witness A, in his written statement to investigators, dated 29 June 1999, makes mention of the request by Bagilishema for the refugees to come home to Mabanza. [45] 40. To say the least, it is inconsistent for a person who has joined in a conspiracy with Kayishema to take the refugees to Kibuye Stadium and Home St. Jean to exterminate them, thereafter to invite the refugees back, before the objective of exterminating them has been achieved.
2. The Use of the Security Resources by the Accused
2.1 The Security Resources A vailable to the Accused in April to July 1994
41. The Defence argued that the Accused could not control the events due to the inadequacy of resources. The Defence has submitted that,
Because of the scant means at his disposal Bagilishema was not able to reestablish security in his commune for all the time that the Abakiga were there, i.e. until about 25 April 1994. After that date, the situation in the commune was a bit less chaotic and Bagilishema did all he could to resume his activities as bourgmestre despite the difficulties and threats still made against him. [46] 42. The Prosecution argued that the Accused did not even attempt to control the situation but, rather, encouraged and took part in the attacks in Mabanza commune.
43. The available resources must be considered in light of the geographical size and population of Mabanza commune. Mabanza commune was 160 square kilometers in extent. [47] It had a mixed population of Hutus, Tutsis and Twas. According to the statistics available for 1988, the population was around 49,250.[48] This number would have increased considerably due to the influx of refugees from April 1994.
44. It is not in dispute that, at the time of the events, there were only six communal police officers, a brigadier and an assistant brigadier, stationed in Mabanza. According to the Accused there should have been, at least, one communal police officer per secteur; Mabanza commune having fourteen secteurs. It is also worth noting that, Article 107 of the Loi Sur Organisation Communale, dated 23 November 1963, contemplates having one communal police officer per one thousand of the population. The said Article further provides for that number to be increased or decreased, in exceptional circumstances, with the authorization of the interior minister. [49] Hence, the legal requirement would be about fifty communal police officers for Mabanza commune, with the possibility of this number being increased in exceptional circumstances. However, at the relevant time the Accused only had about one-tenth of this figure, despite the added need for security personnel due to the influx of the refugees in April 1994. Thus it is apparent that the Accused was thoroughly handicapped by the lack of personnel to maintain law and order.
45. There was no specific evidence led at the trial with regard to the arms and ammunition available to the security forces in Mabanza commune at the time. The position taken up by the Accused was that the arms and ammunition were thoroughly inadequate to control the situation. According to the Accused, the Brigadier had about twelve Enfield rifles. And the evidence indicates that there were only one or two vehicles belonging to Mabanza communal office, and that the police did not have a vehicle. [50] Hence it is clear that with regard to availability of arms, ammunitions and the vehicles, the situation was equally vulnerable.
46. It is evident from the letter mentioned earlier, dated 7 January 1993, from Bagilishema to prefet Kayishema,[51] that when the Mabanza commune experienced ethnic strife in 1993, although less serious than that encountered in 1994, the security resources available even at that time were insufficient to effectively maintain law and order. This was because the enormity of the size of the area to be covered (“the sector is immense”); the fact that Tutsis were afraid to call for help (“for fear of being located and killed”); and, the lack of security personnel (“on account of their limited number”).In January 1993, the Accused had requested, from prefet Kayishema, soldiers to help provide security from the Hutu attacks. Apparently, these reinforcements were never supplied, “in spite of your promise to provide us soldiers, no soldiers came.”
2.1.1 The Request by the Accused for More Resources
47. In the wake of the deterioration of the law and order during the events in 1994, the Accused had specifically asked for reinforcements from his immediate superior, Clement Kayishema, the prefet of Kibuye. It may be noted that the prefet is the proper authority from whom such assistance had to be requested according to the administrative hierarchy.
48. The Defence pointed out that the power to call for assistance from the armed forces, according to the Decret-Loi dated 11 March 1975, is clearly vested with the prefet, and that the bourgmestre did not have such power. [52] The Defence added that, at that time, there was a war in Rwanda, and the Army was engaged in the fight against the Rwandan Patriotic Front’s army on the front line. Hence the Accused could not call for assistance directly from the armed forces.
49. The Accused testified that he made his first request for reinforcements on 9 April 1994, during a security meeting chaired by prefet Kayishema, and attended by members of UNAMIR.[53] He had requested the allocation of sufficient means to fend off the attacks. However, because all the bourgmestres requested reinforcements, the security council had allocated only a limited number of gendarmes amongst the communes. Therefore, although the Accused insisted on being assigned a large number of gendarmes immediately, the Accused was provided with only five gendarmes to help secure the situation in the whole of Mabanza. [54] Further, the five gendarmes were only provided for four or five days, and were subsequently withdrawn on 13 April 1994.
50. The Accused decided to ensure the security at the bureau communal with the six policemen, who were to take their turn on day and night shifts, guarding the bureau communal and the refugees who had gathered in large numbers. The Accused had wanted the gendarmes also to be placed at the bureau communal, but the gendarmes had preferred to be at Mushubati because of the security problems in that secteur and due to the availability of accommodation. On Saturday, 9 April, he had worked together with gendarmes in Kibingo, Rukagarata and Nyagatovu secteurs where refugees came through from Kavoye secteur. On Sunday, 10 April, the Buhinga and Mushubati secteurs were attacked; the Accused posted two gendarmes and one policeman there. The Accused testified that he and the security forces “worked continuously day and night so as to go round these sectors but we were not able to diffuse the situation.”[55] The Accused added that, on no less than three consecutive days viz, the 10th, 11th and 12th April 1994, he had requested reinforcements from the prefet’s office in Kibuye, but that “every time I called . . . the prefecture I was told that they were sent to other places.”[56] On Sunday 10 April, he called during the day and in the evening gave a security report to prefet Kayishema by phone; at that time he specifically stated that a large number of gendarmes were required. On Monday 11 April, he spoke to Gashongore, the sub prefet on two occasions. When asked if these were the only occasions that he phoned the Accused replied, “I phoned them up always and then in the evening I had to make a report on the phone. I could call two or three times a day when I came back to the communal office from the various secteurs.” [57] That security reports were provided is evidenced by a letter dated 10 April 1994, from prefet Kayishema to the Minister of the Interior, wherein the prefet provided an account of the reports from all bourgmestres in Kibuye Prefecture, during the period from 6 April to 10 April 1994.[58] The Accused testified that he was consistently informed that there were no more gendarmes available.
After 13 April, the Accused had given up asking for reinforcements, particularly since the gendarmes who were already assigned to him on 9 April 1994, had been re¬called. The Accused stated that he had posted the gendarmes at strategic points in the commune but they were ineffective as they were clearly out numbered by the attackers, and also because they did not have their own transport.
The Accused again requested reinforcements from the prefet by way of a letter, dated 24 June 1994.[59] In that letter he had informed the prefet of impending attacks from Hutus from Kayove and Rutsiro communes, and had requested urgent assistance from the prefet in order to prevent the attack. He testified that he received no assistance.
It is apparent that the resources that were available to the Accused in mid April
1994 were far from adequate, to bring about peace in Mabanza or to maintain law and order on any significant level. However, from 25 April to late June 1994, after the Abakiga attacks had subsided, the available resources were utilised to maintain law and order to some degree. The security measures implemented by the Accused during this period are examined below. However, even during this period of relative calm, the limited resources were not sufficient to police the entire commune. It is evident from the letter dated 24 June 1994, that the Accused considered his resources inadequate to prevent the imminent attacks by Hutus from Kayove and Rutsiro communes. It is seen
from the efforts made by the Accused as referred to above, that the Accused had exhausted all the options available to him to obtain reinforcements, but without success.
2.2 The Situation that the Accused had to Contend With
In order to get a clear picture of the situation that prevailed in Mabanza commune, during the period from April to July 1994, it is appropriate to review the events that took place during that period, as they unfolded.
That massive attacks by Hutus began in Mabanza from about mid April 1994 is not in dispute. While the Defence argued that Mabanza was overrun by an uncontrollable mass of invaders known as the Abakiga, the Prosecution contended that the Abakiga did not overwhelm the commune. However, the stand taken by the Prosecution regarding this issue varied at different times. [60] 2.2.1 The Conditions that Prevailed in Mabanza Commune from 6 to12 April 1994
57. The Prosecution and Defence witnesses testified that following the crash of the President’s plane on 6 April 1994, Tutsi civilians were attacked and their properties destroyed, in Mabanza commune. Due to these attacks thousands of men, women and children, predominantly Tutsis sought refuge in, amongst other places, Mabanza bureau communal. These facts are not in dispute.
58. The Accused described the situation during this period in the following way, “[t]he people [of Mabanza] organised by facing up to the attackers who came from the river . .
. In any event, the people tried Sunday, Monday and Tuesday but up to Tuesday evening [12 April], the whole commune was on fire.”[61] 2.2.2 The Invasion of the Abakiga; 13 to 24 April 1994
59. The evidence indicates that the Abakiga invaded Mabanza commune on 13 April 1994 and thereafter. Prosecution and Defence witnesses described how hordes of Hutu attackers from the northern region, identified as Abakiga, beset the commune. The attackers were distinctively dressed in banana leaves, and carried traditional weapons. Prosecution Witness I described the Abakiga as “people who come from the highlands . . . . These are the people who came to our commune, who . . launched an attack. They looted and killed.”[62] Asked if he had an opportunity to see the Abakiga come down from the hills into Mabanza, Witness I replied that he saw the attackers come down from the hills in groups of no less than two hundred.[63] Asked if the arrival of the Abakiga had any connection with the death of the President, Witness I replied,
Yes, the arrival of the Abakiga had some kind of relation to the death of the president because they were saying that the president was killed by the Inkotanyi so the Abakiga came down to fight the Inkotanyi. There was a war and they wanted to revenge the death of their president at the hands of the Inkotanyi.[64] 60. Defence Witness RA, who agreed that it seemed like an invasion, described the event in similar terms:
From our home we can see a hill that faces north, and at a point in time we saw people coming down and we were wondering what was going on there, and yes, this is how I came to know that it was the Abakiga who were coming. There were many. [O]n the next day they came very early and this continued almost . . . every morning . . . . They were no longer people. They were wild animals . . . . They were shouting, they were carrying machetes and traditional weapons.[65] 61. Defence witnesses RA, BE, ZJ and TP confirmed that, around 12 April 1994, there were rumours of an imminent attack on the refugees at the bureau communal in Mabanza, by the Abakiga, who were coming from Rutsiro. The Accused testified that in the morning of 13 April 1994, he received a phone call from the bourgmestre of Rutsiro, informing him of the advance of the Abakiga to Mabanza commune, and it was on that basis that he had asked the refugees to go south, to Kibuye town, for protection.
62. The evidence shows that, following the invasion of the Abakiga, they proceeded to kill Tutsis and loot properties in Mabanza and neighboring Gitesi commune. Prosecution and Defence witnesses testified to the Abakiga attacking the refugees at the bureau communal on 13 and 14 April 1994. They killed Pastor Muganga and attacked Karungu’s house on 13 and 14 April 1994. They laid siege on the religious community of nuns on 14 and 16 April. In Gitesi commune, the Abakiga participated in attacks at the Home St. Jean Complex on 17 April 1994, and the attack on the Stadium on 18 April. In all events, witnesses identified the Abakiga by their distinctive dress and testified that they attacked in large numbers, often in the hundreds.
63. According to the evidence, local bandits, and those sometimes described as interahamwe, joined the Abakiga in their attacks on the Tutsis and the looting.
64. Thus, from an analysis of the evidence, it appears that Mabanza commune was overrun, on the 13 April 1994 and on subsequent dates, by murderous hordes of Hutu men from the north, known as the Abakiga, and their collaborators. As a consequence, Mabanza commune sank into a confused and chaotic state.
2.2.3 The Conditions that Prevailed in Mabanza Commune from 25 April 1994 to July 1994
65. With the easing of the Abakiga attacks in the area, around 25 April 1994, a period of relative calm ensued. This is evidenced by the communal Register of Outgoing Mail,[66] which shows an increase in the administrative activities of the communal office from 25 April 1994, compared to a lull in such activity during the period 13 to 25 April 1994. It was during this period that, according to the Accused, he managed to restore some order and arrest certain persons involved in criminal activities.
66. However, during May and June 1994, Mabanza still suffered from isolated attacks by local Hutu militia. This is apparent from the evidence led by the Prosecution in relation to the killings of Kanyabugosi, the sons of Witness B, and of Tutsis concealed in Habayo’s house, along with the arrest of Habayo. The Accused testified to threats of further incursions into Mabanza, by groups of Hutus, from neighboring communes, in
June 1994. His evidence is supported by a letter, dated 24 June 1994, from him to the prefet, which stated,
According to the information at our disposal, the preparations of a series of attacks are reportedly under way in ZONE MURUNDA and ZONE RUTSIRO (Northern Rutsiro) of Rutsiro commune; the attacks target MABANZA commune between 1st and 5th July 1994, under the pretext that accomplices are still hidden in Mabanza.[67] 67. It is important to note that, according to the evidence, by late April 1994, the bulk of the Tutsi population in Mabanza had fled the area or had gone into hiding.
2.3 The Use of the Available Resources by the Accused
68. The Defence submitted that, the fact that the Accused had used the available security resources, to the maximum, to maintain law and order, shows his bone fides. In particular, the Accused had used civilians to maintain law and order as night patrols and to man the roadblock. He also had held a number of pacification meetings throughout Mabanza commune. On numerous occasions the Accused had used the available resources to protect persons and property, by preventing crime and taking action to punish the perpetrators of crime.
69. Contrary to the Defence, the Prosecution alleged that the Accused held meetings whereby he encouraged the attacks. Although the Prosecution accepted that the Accused assisted certain Tutsis during the events, it argued that the Accused acted selectively. [68] 2.3.1 Using Civilians for Security
70. In the wake of the attacks, the Accused supported the formation of cross-ethnic night patrol groups and organised civilian defence measures in Mabanza commune, initially from 7 to 12 April. The night patrols were set up to protect the population, irrespective of ethnicity, in the commune. The evidence suggests that the night patrols did not continue after 12 April 1994, due to the imminent attacks by the Abakiga. Defence Witness BE stated:
[B]ecause it was from that day, people from Rutsiro, that’s the Abakiga, started saying that the refugees who were at Mabanza communal office, including Hutus who were not helping the Abakiga, were going to be killed. It was on that day [12 April] that there was a major attack carried out by the Abakiga who came down from the hills and people were afraid and the groups collapsed and people ran away.[69] 71. Asked about specific measures that had been taken to strengthen the security after 25 April, the Accused testified that, at that point in time, they had tried to elect in each cellule, people who would be added to the five members of the cellule committee. Then the cellules would have fifteen people in all, responsible for the maintenance of law and order to face up to attacks from the Abakiga, if they were to come back.
72. The Accused also made use of civilian volunteers to man the Trafipro roadblock that was located close to the bureau communal. The Accused admitted having set up the Trafipro roadblock, and authorising civilians to operate it. The Prosecution alleged that
this roadblock had been set up on 14 April 1994, however, according to the Accused, this measure was not taken until the end of April 1994. This measure was in line with the Prime Minister’s request to prefets, in a letter dated 27 April 1994, referred by prefet Kayishema, to the bourgmestre on 30 April, in which the Prime Minister had requested, inter alia, that official roadblocks should be set up to prevent infiltration by members of the RPF. [70] 2.3.2 Holding Pacification Meetings
73. The Chamber has already analysed in length the Prosecution and Defence evidence relating to the meetings held in Mabanza during the events.[71] Therefore, only a brief reference to the evidence of pacification meetings, in the context of this plea, would be appropriate.
74. The Accused testified to holding pacification meetings in May and June 1994, after the major attacks of Abakiga had stopped around 25 April 1994. In particular, the Accused explained that he had written to the conseiller of Kibilizi secteur, asking him to organise in Kamusanganya cellule, a meeting on 5 May 1994, for the election of a committee to restore peace. [72] Another meeting on 6 May 1994 with representatives of the Churches and political parties followed. In his testimony the Accused stated as follows:-
I wanted first of all to put myself together with the political party representatives so that we can speak the same language before the next meeting of all these other people.[… ]the intent was to ensure security within the commune and also to face up to the possible attacks that would come from outside. You should not forget the fact that the country was at war. We wanted to keep away the infiltration by the RPF.[73] 75. In accord with the testimony of the Accused in respect of the above meeting, Defence Witness ZJ testified that he attended a meeting chaired by the bourgmestre at the beginning of May. He explained that members of all the political parties were present and that the meeting took place at the bureau communal. The subject at that meeting was how to restore security and peace in the commune. The Witness ZJ stated that,
[t]he Bourgmestre explained the situation which was prevailing within the commune, and he said that since everybody had seen this and was aware, the security had been disturbed by those who came from outside the commune, and he insisted that people come together, and they should no longer fight one against the other . . . . He said that those who had not been killed, and who were in hiding should be kept well, and he said that he no longer wanted to hear of any killings. He spoke of a project which would involve setting up committees in sectors and cellules in order to safeguard the property of these people.[74] 76. A number of witnesses testified that they heard the Accused make public speeches on similar lines, in April to June 1994. Witness AS was with the Accused on about 13 April 1994, when the Accused addressed a group of Abakiga and exhorted them to stop looting. Witness WE testified that, towards the end of April, he attended a meeting held by the Accused at which he was urging the audience to distinguish between the RPF, the real enemy of the people, and the Tutsis. At that meeting the Accused told the people not to listen to the propaganda from the Abakiga and the interahamwe, who came to kill and loot.[75] Witness ZD attended two meetings, in May or June 1994, where the Accused
implored the people to stop pursuing Tutsis. Witness KA spoke about a meeting in Gihara secteur at the end of May or early June, at which the Accused encouraged the people to do everything possible to prevent the Abakiga from killing and looting. [76] Witness KC had attended two meetings in June, where the Accused had urged the people to ignore the Abakiga who were trying to divide them, and affirmed that the only enemy was the RPF.[77] 77. The Prosecution Witness Q, a Tutsi woman married to a Hutu man, stated that she survived attacks after seeking help from the Accused. She explained that the Accused had held a meeting at the bureau communal where he stated that Tutsi women married to Hutu men should not be killed. The Accused later gave the husband of Witness Q two letters to be read out to the assailants, which stated that they should no longer participate in the killings and that those who searched for Tutsis to be killed would have to answer for their actions.
78. The above witnesses are consistent with regard to the message that Bagilishema sought to deliver to his people. It is apparent that the Accused, in holding such meetings, advocated solidarity amongst the people of Mabanza in two main aspects. First, that the people should stop attacking the Tutsis. And second that the people should recognise that the real enemy is the RPF and not the Tutsis generally. This is consistent with the position taken up by the Accused at the trial.
2.3.3 Providing Assistance in the Face of Attacks
79. The Accused testified to the assistance that he had given to a religious community of nuns, in April 1994. Witness RA, who is a senior nun in a religious community, corroborated the Accused and further explained that, in the afternoon of 14 April 1994, the religious community was provided with the assistance of a policeman, by the Accused. On that day, the Abakiga had left, after the religious community had given them money. The witness testified that, on the morning of 16 April 1994, the Abakigas returned in their hundreds. On this occasion also, the religious community had again given money to the Abakigas, and the policemen had fired in the air to disperse them. In the afternoon of 16 April, the Abakiga had come again and said that, if on the following day the Tutsi sisters were still there, then the entire religious community would be wiped out. Witness RA explained that on 17 April 1994 she, along with five other Tutsi sisters, went to the bourgmestre for help. The Accused provided a false Hutu ID card for one of the sisters at their request, and offered them a place to hide in the IGA building of the bureau communal. The Prosecution does not dispute these matters. [78] 80. The Accused had also requested civil officials of Mabanza commune to provide protection for Tutsis, their property, or those who had assisted Tutsis. For example, on 5 May 1994, the Accused sent a letter to the conseiller of Mushubati secteur, urging him to provide special protection for a family who had hidden a Tutsi in their home.[79] On 9 May 1994, he wrote to the conseiller of Buhinga secteur, asking him to protect a Tutsi woman who had been threatened. [80] And on 19 and 20 May 1994, he sent letters to the conseiller of Gihera secteur, and to a committee that had been set up to recover property, requesting them to ensure that the property abandoned by displaced Tutsis, was not misappropriated. [81] 2.3.4 Hiding Tutsis in His Home
81. The Accused also testified to hiding Tutsis in his home, including Witness RJ and her two children, a girl named Chantal, two orphans, and Pastor Muganga’s wife and children. Defence witnesses RJ, AS, and RB corroborated his evidence. Witness RJ, a Tutsi, described how she had sought refuge in the bourgmestre’s house and was hidden by the Accused for about a month, along with her two children and a Tutsi girl named Chantal. Eventually the Accused issued Witness RJ with a false ID card, and Chantal with a laissez-passer, both documents stating that the holder was a Hutu, thus enabling them to travel. Defence Witness AS confirmed that, around mid April 1994, he had seen Chantal, a Tutsi, hiding in the home of the Accused.
82. According to Witness AS, who was a Pastor himself, the Accused had helped Pastor Muganga, and had assisted Pastor Muganga’s wife and children to escape. In her written statement, Defence Witness RB stated that in April 1994, immediately after the death of President Habyarimana, Pastor Muganga’s wife and her children hid in the residence of the Accused. And that the Accused ultimately helped Pastor Muganga’s wife and her children to escape.
83. The Rwandan confessional statement of Prosecution Witness Z shows that Pastor Muganga had hidden in Bagilishema’s home.[82] 2.3.5 Issuing False Identification Documentation
84. The Accused testified that he had issued false Hutu ID cards to Tutsis from Mabanza and laissez-passers to Tutsis from outside Mabanza. He explained that this was done deliberately by certifying Tutsi persons as Hutus, in order to save lives. He had issued about 100 such documents during the events.[83] The Prosecution did not dispute that the Accused issued false ID cards and laissez-passers but contended that this demonstrates how he used his power and authority, selectively. [84] 85. Defence Witness WE testified that the Accused gave him a Hutu ID card to be given to a certain lady, and ten other blank ID cards, signed by the bourgmestre, to be filled in by Tutsis from Mabanza who were, at the time, resident in Kigali. The act of issuing ten blank ID cards goes contrary to the assertion by the Prosecution that the Accused acted selectively. Witness KC testified that the Abakiga had laid siege on a house where he had been staying, looking for the Tutsis who were there. The witness explained that, fearing the return of the Abakiga, he had gone to see the bourgmestre, who had issued “Hutu” laissez-passers for four persons, who later escaped to Zaire. Witness RA testified that the Accused provided a false ID card to one of the Tutsi sisters from the religious community.
86. In this context it may be noted that the Prosecution adduced no evidence to indicate that the Accused acted on a selective basis and refused to issue identification documentation to a Tutsi person, describing him as a Hutu, upon such a request being made.
87. The Accused also testified to ordering false entries in the Registre des Residents,[85] in regard to the ethnicity of the Tutsi refugees, who had to obtain resident’s permits from the bureau communal. He explained that a person from another commune, who remained in Mabanza commune for more than three days, had to be recorded in the Registre des Residents in order to obtain a resident’s permit. The resident’s permit indicated the ethnic group of the holder. The Accused stated that he had authorised entries in the Registre des Residents and had issued resident’s permits, which indicated that the persons were Hutus, whereas in fact they were Tutsis, in order to save lives. According to the Accused, up to 60% of the ethnic identities recorded in the Registre des Residents had been falsified, upon his instruction. He added that all the Tutsis who had been issued resident’s permits during the events in 1994, in Mabanza, were issued resident’s permits, which indicated that they were ‘Hutus’.[86] 2.3.6 Punishing the Perpetrators of Crimes
88. According to the Accused, after around 25 April 1994, he had re-gained enough control in his commune to arrest and transfer to the Prosecutor in Kibuye, those persons suspected of murder or other crimes against Tutsis. Notwithstanding the inadequacy of security personnel, the Accused testified that, between May and June 1994, he had transferred sixteen people to the Public Prosecutor in Kibuye, for alleged crimes.
89. Evidence of these transfers is contained in the communal Register of Outgoing Mail. For example, the Accused referred to a letter sent on 27 April 1994, to the Prosecutor of the Republic, which is recorded in the communal Register of Outgoing Mail,[87] concerning the transfer of the suspects in respect of the murders of Biziyaremye and Bampunirineza. Further, in a letter of 3 May 1994, to the Prosecutor of the Republic,[88] the Accused stated that he is transferring five named persons accused of killing a certain Kangabe, on ethnic grounds. Numerous other arrests and transfers are documented in the Register of Outgoing Mail, which indicates that letters of transfer, dating from 24 May through to 12 July 1994, were sent by the Accused to the Prosecutor, in Kibuye. [89] 90. The Accused further pointed out that, by letters dated 2 May 1994, he had suspended his own communal driver, Ephraim Nshimyimana, and a communal policeman, Anastase Munyandamutsa, because they had stolen the engine from the car of a Tutsi refugee. [90] The Accused had placed them at the disposal of the Office of the Public Prosecutor, in Kibuye, and had requested an investigation.
91. The Prosecution accepted that sixteen people were arrested and transferred to the Prosecutor in Kibuye, but pointed out that no such transfers were recorded from 8 to 25 April 1994. [91] In this regard, the Accused testified that during that period, the administrative activities of the commune were paralysed. He added that, from about 13 to 25 April 1994, there were thousands of attackers coming from the North, who could not be identified, but after that period it was much easier to identify those who had committed the crimes. [92] This explanation of the Accused is consistent with the evidence relating to the invasion of Mabanza commune by the Abakiga, from about 13 April 1994, and the level of violence that ensued, thereafter.
2.3.7 Appealing to Higher A uthorities
92. The Accused testified that, on 25 April 1994, he attended a meeting in Kibuye town, with prefet Kayishema and the other bourgmestres[93] where he deplored the massacres that had occurred in Kibuye town, and had requested the superior authorities to avert such situations in the future. [94] Soon thereafter, on 3 May 1994, the Accused went to Kibuye town again to attend a meeting with Jean Kambanda, the Prime Minister.[95] At that meeting the Accused asserted that, he raised the issue of the massacres with the Prime Minister and, in particular, the requirement to attend to the needs of the victims of the atrocities, committed in the region. [96] 93. There is no independent evidence to support the above testimony of the Accused, however the Prosecution has not proved otherwise. If it were to be accepted that the Accused made these appeals to higher authorities, it would reflect his bone fide intention to help the refugees. However, whether such entreaties would have borne fruit, has to be assessed in the light of the reality of the situation that prevailed in Kibuye Prefecture at that time. According to the Prosecution, the civil authorities of Kibuye and the Gendarmerie National played a central role in the massacres in Kibuye town. Indeed, the prefet of Kibuye, Kayishema, who is the hierarchical superior of the Accused, has been convicted by this Tribunal for leading the massacres at the Kibuye Stadium and Home St Jean. [97] The Prime Minister, Jean Kambanda, has confessed to his role in supporting the genocide. [98] This would have obviously limited the ability of the Accused to seek punishment for those involved in the massacres in Gitesi commune, where the Kibuye Stadium and the Home St. Jean are situated. Although the appeals made by the Accused to the prefet of Kibuye and to the Prime Minister were the appropriate steps to take, according to the administrative set up that existed at that time, however the matter of favourable response was outside his control.
2.4 Some Additional Factors that Impaired the Ability of the Accused to Use the Resources
94. In addition to the inadequate resources available to the Accused during the events, the Defence adduced evidence of several other factors, which affected the ability of the Accused to protect the Tutsis and to maintain law and order.
2.4.1 The Attacks on the Accused by the Abakiga
95. The Accused testified that, on 13 April 1994, the Abakiga came even to his house in order to seek out Tutsis that he was hiding there. He explained, the Abakiga “threatened
me, telling me I am an Inyenzi, an Inkotanyi”, and they asked where I had hidden the Tutsis at the communal office. He added, “seeing how ferocious they were, I gave them 10.000 Francs for them to leave my house and they left. . . .” The evidence of Witness RJ appears to corroborate this event. Witness RJ, a Tutsi, testified that, from 8 April 1994, she had sought refuge in the bourgmestre’s house. She was hidden by the Accused in the servants’ quarters, along with a Tutsi girl named Chantal. The witness testified that the Accused “came to see us once because the Abakiga were coming to attack and he wanted to warn us. He advised us to close the door, and that’s what we did. [. . .] We heard the noise that they were making during the attacks, and we would also hear the whistles they were blowing. . . .”[99] 96. Further support for this incident is contained in the Rwandan confessional statement of Prosecution Witness Z, dated 22 June 1998, wherein he stated,
On 14/4/94 . . .the former assistant bourgmestre [Semanza] ordered those who were with him (the Abakiga he was lodging) to bring along the Tutsi[s] who had taken refuge at the Bourgmestre’s house. Immediately, they all went to the Bourgmestre s home where they caused disturbances, which frightened the Bourgmestre. [100] 97. Witness KA testified in court that, he had been told, by two people, about an attack on the bourgmestre’s house.
98. This is the first example of the direct challenge to the authority of the Accused by the Abakiga.
99. A second confrontation occurred a few days later. The Accused stated that, on 18 April 1994 at about at 8 a.m. he, escorted by two policemen, and accompanied by some Pastors and conseillers of the neighbourhood, confronted the Abakiga, at the Rubengera Parish. He addressed the group of about 100-200 Abakiga and asked them “never to come back again to Mabanza” and added “[y]ou are looking for enemies, and there are no enemies in Mabanza.” However, the Abakiga disregarded his plea. The Accused was humiliated and, according to him, felt that he was “nothing in front of [his] people.”[101] Witness RA, corroborating the Accused, testified in court that Pastor Eliphase, who had been with the Accused at the time, had informed her of this incident.
100. Prosecution Witness Z testified to a similar confrontation between the Accused and the Abakiga, although it is unclear whether he was referring to the confrontation on
18 April 1994. He stated that one morning before killings at the Gatwaro Stadium, the Accused held a meeting at Rubengera Parish where he addressed the Abakiga. The Accused had told the Abakiga that he had “had enough of their killings and that they should stop the killings [. ]”.[102] 101. As well as the above confrontations that he had experienced with the Abakiga, the Accused further testified that, on 14 April 1994, the Abakiga looted the home of his parents. He added that the Abakiga took “everything, the sofas, the chairs, food, everything. “[103] 102. Thus, the evidence from both Prosecution and Defence witnesses shows that the Accused had been threatened by the Abakiga in his own home and had been confronted by them on other occasions, in Mabanza. These incidents illustrate that the Abakiga did not respect the authority of the Accused and were not amenable to the commands of the Accused.
2.4.2 The A ccused Considered as an A ccomplice of the RPF
103. The Accused testified that he was considered to be an accomplice of the RPF by some of the Hutu attackers. He denied that he was in fact an accomplice, and stated that he always tried to defend his commune against the RPF infiltration and invasion. In the letter, dated 24 June 1994, from Bagilishema to prefet Kayishema, the Accused referred to a series of imminent attacks on Mabanza, from Rutsiro commune, and emphasised that “they have also dared to include myself among the accomplices stating that I am married to a Tutsi woman.”[104] He explained in his testimony in court that, “there were several reasons [why I was suspected to be an accomplice] I mentioned that of having been congratulated on Radio Muhabura, there was also the fact that I was married to a Tutsi woman . . . .” In response to a question from the Bench, “your position that the people in the North suspected you as an accomplice is stated in this letter clearly . . . . That is your position even today here?”[105] The Accused answered in the affirmative. In my view, this letter, written during the events, lends strong support to the assertion by the Accused that he himself was considered, by the attackers from the North, as an accomplice of the RPF.
104. According to the Accused, a further reason why he was considered as an accomplice was because of the announcements on the Radio Muhabura, which was a radio station that supported the RPF. Witness BE testified to hearing an announcement, just before the refugees were sent to Kibuye on 13 April 1994, which congratulated the Accused by stating that, “all other bourgmestres should follow the example of the bourgmestre of Mabanza.” Witness ZD testified to hearing on Radio Muhabura, between 11 and 17 April, an announcement, which stated that, “they were grateful for . . . how Ignace behaved in order to contain the situation and also to protect his people.”[106] This evidence is consistent with the position of the Accused that Radio Muhabura had made positive announcements, in mid April 1994, concerning him. This also confirms the Prosecution admission that, the Accused acted in good faith, prior to 12 April 1994.
105. There can be little doubt that a bourgmestre supporting the genocide was likely to wield more influence over the attackers and therefore be able to control them, than a bourgmestre who was seen as neutral or opposed to the genocide. Thus the evidence seems to indicate that the Accused, as a bourgmestre falling into the latter category, would not have been able to influence or control the Abakiga.
2.4.3 The Relationship of the Accused with Semanza
106. The Defence submitted that before and during the events, Bagilishema had lost control over his assistant bourgmestre, Celestin Semanza, due to political power that
Semanza had built for himself and his association with the Abakiga.[107] In addition, Semanza was planning and plotting to get rid of the Accused from his position, so that Semanza could become the bourgmestre. This struggle persisted until the departure of the Accused in July 1994, when Semanza achieved his objective, and succeeded the Accused as bourgemestre of Mabanza. The Defence argued that this further undermined the ability of the Accused to maintain law and order.
107. The Prosecution argued that the Accused had deliberately created the impression that he had problems with Semanza, in order to distance himself from the atrocities committed by Semanza, for which he is responsible.[108] 108. The Accused testified that, prior to 1994, he wanted to send Semanza back to the Ministry of Interior:
Mr. Semanza Celestin became unmanageable. I tried to manage him, so I had suggested that he be sent back to the Ministry, the civil service but the prefet did not, yes the prefet did not comply with my request. He did not want to support my proposal which I had sent in.[109] The Accused gave as reasons that Semanza had embezzled money,[110] attended work only whenever he wanted, become ill disciplined, and was uncontrollable.
109. Evidence of this fractious relationship can be found in letters written even before 1994; the substance of which was not disputed by the Prosecution.[111] A letter dated 16 December 1992,[112] from Bagilishema to Semanza, and the reply thereto, dated 17 December 1992,[113] concerned Semanza’s absence from work. The letters indicate that the two men had a relationship of distrust; in the said reply, Semanza stated “if you were not setting a trap for me, it would be incomprehensible that you should be denying that you actually gave me permission yourself.”
110. In another letter, dated 19 December 1992, from Bagilishema to Semanza, Bagilishema wrote:
I am sorry to inform you that it is not good to lie and especially to lie in order to incriminate your superior. […] Since you have always tried to outsmart your superior and shy away from other important, official duties, I am forced to send you back at the disposal of the supervisory ministries which employed you.[114] The Accused testified that it was not within his power to dismiss the assistant bourgmestres. Therefore, he had sent this letter to the Ministry of Interior with a view to having Semanza sent back, but he had not received a response. The Accused explained that, following the refusal of his superiors to remove Semanza, Semanza felt “untouchable and did whatever pleased him.”[115] The evidence of the Accused is in accord with the opinion of Prosecution expert witness Andre Guichaoua, who opined that, a bourgmestres powers were proportional to the influence that he wielded with the higher government officials, at the national level.
111. The evidence indicates that the political rivalry between the Accused and Semanza began in 1992 and continued right up to the events in 1994. According to the Accused, it was following the introduction of multipartyism in 1992 that his relationship
with Semanza, who was the secretary of the rival Mouvement Democratique Republicain (MDR) Party, deteriorated. Each of the political parties wanted to have a representative in the commune. Witness ZD, who was at the time of the events a senior official of an opposition political party, stated that in 1994 most of the people in Mabanza belonged to the MDR party. He added that the strategy of the opposition parties was to replace Bagilishema (the MRND candidate) with the MDR candidate, Semanza, and that Semanza had the support of the top MDR party official. Witness ZD agreed that Semanza was acting “in an irreverent manner, particularly in 1994.”[116] Defence Witness KA testified that in mid April, it was Semanza who was in control of the commune “during that period the MDR was stronger because the MDR members were the majority [. . .] Semanza was, therefore, the favourite of the people, so to speak, and had an eye on the position of bourgmestre. “[117] He added that, during the MDR meetings, the members used to sing that the bourgmestre should resign. Expert witness Jean-Francois Roux who, up to April 1994, had been a project leader on a development project in Kibuye Prefecture, also confirmed that there had been a conflict between Bagilishema and Semanza. He added that he had personally received a letter from Semanza, wherein Semanza questioned the authority of Bagilishema.
112. The assertion by the Accused that his fractious relationship with Semanza continued throughout the events, until July 1994, is evident in a letter dated 24 June 1994, from Bagilishema to prefet Kayishema.[118] Therein, the Accused referred to his problems with his political rivals: “I would like to inform you that this rumour is spread, by my political opponents, whose intention is to take my place.” He explained in testimony that he had in mind, amongst others, Semanza. In response to a question from the Bench “[a]nd that is the position that you are taking up in this court even today, that Semanza was designing or planning to take over from you?” the Accused answered in the affirmative.
113. The Prosecution did not dispute that Semanza ultimately achieved his objective of becoming the bourgmestre of Mabanza, for he succeeded the Accused as bourgmestre, in which post he remained until his arrest in November 1994.[119] 2.4.4 The Relationship of Semanza with the Abakiga
114. Prosecution and Defence witnesses testified that, during the events, Semanza had been closely associated with the Abakiga. The Accused and Witness KA stated that Semanza came from the same region as the Abakiga. The Prosecution did not dispute these assertions. Indeed, it was part of the Prosecution case that Semanza was acting in concert with the Abakiga and other attackers.
115. Witness KA testified that, in mid April 1994, he had observed a meeting outside the Rubengera School where Semanza was addressing a group of Abakiga and others. Semanza exhorted the other young men from Mabanza to help the Abakiga kill the Tutsis and to loot. According to the said witness, Semanza was acting as a political leader of the Abakiga.
116. Evidence also suggests that Semanza had been lodging Abakiga in his home, during the events. Witness Z, in the Rwandan confessional statement, dated 22 June 1998, stated “[o]n 14/4/94 . . .the former assistant bourgmestre ordered those who were with him (the Abakiga he was lodging) to bring along the Tutsi who had taken refuge at the bourgmestres house.”[120] (Emphasis added)
117. It is apparent from the above analysis that the relationship of the Accused with his assistant bourgmestre Semanza was one of distrust and rivalry. Therefore, it is reasonable to infer that, during the events, the Accused had no significant control over Semanza, which debilitated his authority.
PART IV
Documentary Evidence that Corroborates the Position Taken Up by the Accused
118. It is to be observed that several aspects of the position taken up by the Accused are corroborated by independent documentary evidence. In that regard two of the documents already mentioned, deserve further analysis, since they lend support to the defence case as a whole: viz., the letter from Bagilishema to prefet Kayishema, dated 24 June 1994, and the confessional statement of Prosecution Witness Z, dated 22 June 1998.
1. The Letter Dated 24 June 1994 (Prosecution exhibit 84)
119. The letter sent by the Accused to the prefet Kayishema, dated 24 June 1994, bears such significance to the defence taken up in this case, that it requires careful consideration. It is important to note that, although this letter was written in June 1994, it lends corroboration to the defence the Accused has taken up in this trial, almost six years later. The Accused certainly could not have envisaged facing a trial of this nature at the time that he wrote the letter. Hence it enhances the credibility of the matters urged therein. The Accused had written this letter on 24 June 1994, to Kayishema, who was the prefet of Kibuye Prefecture, stating that he was considered to be an accomplice, by the Hutu attackers from the north, because he was married to a Tutsi woman. The matters arising from this letter were clarified, when the Accused gave evidence in court, on 7 June 2000.
120. The Accused had asserted in the said letter that the rumor that he is an accomplice had been spread by his political opponents, whose intention it was to take his place. On being questioned by the Bench he explained as follows;
Q. In that letter in the first paragraph, the last sentence, you have asserted that that the– they have also [dared] to include myself among the accomplices stating that I am married to a Tutsi woman. You have stated that.
A. Yes, Your Honour.
Q. That is exactly the position you are stating in this Court today also, that you were suspected as an accomplice?
A. There were, there were several reasons, I mentioned that of having been congratulated on Radio Muhabura, there was also the fact that I was married to a Tutsi woman and so on and so forth. But it was supposed that my wife was Tutsi. But as I have said my wife, my wife’s mother was Tutsi and her father is Hutu.
Q. That is clear. But your position that the people in the north suspected you as an accomplice is stated in this letter clearly, isn’t that what you have stated in? That is your position even today, here?
A. Yes.
Q. Then the second sentence in the second paragraph, we do not want to be considered as defeated so that people from Kayove and Rutsiro communes need to come to loot at any time. What do you mean by defeated, there?
A. I wanted to say that we were under siege by this population who came under the pretext of looking for accomplices and they came and they looted in any manner that they wish.
Q. What, what do you understand by the term accomplice? What did you really mean to convey? A. In my understanding, this is someone who was working with the RPF– for the RPF. Q. So, that is what you intended to convey when you used the word accomplice in the letter? A. Yes, indeed, Your Honour.
Q. Then on the third paragraph you have explained the problem about your wife, and you go on to assert that you are [accused of being] an accomplice because they think that you support the Hutu who are married to Tutsi women, that is one reason. The second reason is that you are supporting the Tutsi population?
A. Yes, that is so, Your Honour.
121. The Accused pointed out that there were imminent attacks from the north. It is to be observed that the main complaint in the said letter was the imminent attacks from zone Murunda and zone Rutsiro (Northern Rutsiro). He specifically requested the prefet to do his, “utmost to stop these attacks . . .” and stated “. . . that is why your assistance is urgently solicited.” The Accused in his evidence explained the situation in the following terms;
Q. Then in the final paragraph, therefore, I would like the honourable prefet to request so and so. And you are then in the final paragraph, second sentence, you have taken up a particular position that should be prevented, that is which can result in confrontation between Hutus, you are referring to the Hutus in the north, then Hutus in Mabanza commune. And in that context you have stated that what we presently need, the most is, the unity to face the Inyenzi/Inkotanyi. What did you mean by that?
A. What I meant was that if these people from the north were to attack Mabanza commune in particular, if they were to attack me in person, I had my family, I had my family and my friends, we could be involved in killings and then there were people who were on the other side in Gitarama, they could use this to kill all of
us. So, I was thinking that it would be a good idea that we come together because together we stand, so that we can face up to the RPF Inkotanyi attack.
Q. So . . . was it your intention to point out the common enemy?
A. Yes, that’s quite so.
Q. And the common enemy you have identified in this letter to be the Inkotanyi and the Inyenzi? A. Yes, Your Honour, you are right.
Q. And that is the position you are taking up in this Court even today, that not the Tutsi population but the Inkotanyi and Inyenzi are the enemies of the people?
A. Yes, it’s still the same position and I’m saying that if people from inside had come together we wouldn’t have had to leave our country.
122. Although the said request was made for urgent help in earnest, it was the evidence of the Accused that no such assistance was given;
Q. Now, was there any action taken by the prefect of the Kibuye in consequence of this letter? A. I gave him this report but he never gave me any reply.
Q. In other words, he didn’t give you any support or pursue the complaint, [or] take any suitable action in pursuance of your request?
A. He didn’t take any measures but as far as I am concerned, I was to give him a warning in case something happen, in case I die so that people are aware of the conditions under which I was killed. That was my aim.
Q. Have you made similar representation to any other authority at about that time?
A. No, this is the only letter that I wrote, and the nearest authority to me was the prefet, the others, it wasn’t easy for me to reach them.
123. It is discernible from the above analysis of the said letter as testified to by the Accused, that the position he takes up in court now in regard to the following matters is the same.
1. The fact that the resources available to him in June 1994 were inadequate.
2. That there was an imminent attack from the North at that time.
3. That he believed that he was considered an accomplice by the Hutu attackers.
4. That his communal employees undermined him.
124. The Prosecution interpreted the letter differently. According to the Prosecution, the Accused wrote the letter to Kayishema to inform him that additional
Hutu attackers were no longer necessary in Mabanza commune.[121] The interpretation placed by the Prosecution is unsupported, and does not bear scrutiny.
125. The Prosecution further argued that the statements contained in the letter that Mabanza was “self-sufficient” and would “defend itself” indicated that the Accused had control over the events.[122] However, the statement by the Accused that Mabanza was “self-sufficient” may be interpreted to mean that the people of Mabanza were able to check for RPF accomplices, rather than having the ability to fight the Hutu attackers from other regions. And, the statement that Mabanza would “defend itself”, appeared to predict an unwanted confrontation between Hutus at a time when the available resources are needed to defend against the RPF threat. It is clear that the main purpose of writing the said letter was to outline the problems in regard to security in Mabanza, and to request urgent help from the Kibuye authorities. If Bagilishema had been in control of the situation, there would have been no reason to make such an urgent request to the prefet.
126. Thus the position of the Accused taken up in court is corroborated by the contents of the said letter which was written as far back as June 1994. Although the said letter was written in June 1994, it appears to mirror the situation in Mabanza commune, during the period April to July 1994. And it may properly be deduced that the security problems faced by the Accused in April 1994 were even greater, than those faced in late June 1994, when the said letter was written.
2. The Confessional Statement of Prosecution Witness Z
(Defence exhibit 112)
127. Corroboration of the Defence case is also found in the confessional statement of Prosecution Witness Z.[123] Witness Z made this confession to the Rwandan authorities, on 22 June 1998, long before his first witness statement to Tribunal investigators on 18 September 1999, and his testimony before this Chamber on 8 February 2000. At no point in his confessional statement did Witness Z directly implicate the Accused. It is reasonable to assume that at the time when Witness Z made his confessional statement to the Rwandan authorities, he did not know that he would be testifying against the Accused. In the course of his confession, in relation to his role in the killing of Pastor Muganga, Witness Z stated the following:
On 14/04/94, at about 9am, he came out of the Rubengera school complex where he worked and sought refuge in the home of Bourgmestre Bagilishema Ignace; but before he arrived there, he was first stopped by a man named Semanza, then Bourgmestre Assistant . . . ; and later, he was saved by a man named Gafurafura Isaie. From there, he went to the Bourgmestre s house. At about one hour later, the former assistant Bourgmestre [Semanza] ordered those who were with him (the Abakiga he was lodging) to bring along the Tutsi[s] who had taken refuge at the Bourgmestres house. Immediately they all went to the Bourgmestre’s home where they caused disturbances, which frightened the Bourgmestre. […] 128. The above statement by Witness Z, a Prosecution witness, lends independent corroboration to the position of the Accused in relation to the following;
1. That a Tutsi had taken refuge in the Accused’s home.
2. That Abakiga were lodging in assistant bourgmestre Semanza’s home and they obeyed his orders.
3. That Abakiga caused disturbances at the Accused’s home on 14 April 1994.
4. That Abakiga frightened the Accused.
129. Further, it is implicit in the act of Semanza ordering the Abakiga to bring the Tutsi hiding in the bourgmestre’s house that Semanza defied the authority of the Accused and that they were at cross purposes. This incident highlights the animosity that prevailed between the Accused and Semanza. The fact that Semanza had the audacity to order the Abakiga to trespass upon the home of the Accused to seize the Tutsi refugee who had sheltered there, shows that Semanza had little or no respect for the authority of the Accused.
Conclusion
130. It is clear from the above analysis of the evidence in this case, that the Accused has established the plea set up by him, that the resources which were available to him were inadequate to prevent the massacres of the scale that took place in Mabanza commune, from April 1994, and that he acted to maintain law and order in the commune, with the means available to him. Moreover, the Prosecution has failed to disprove this position. Thus, the Accused has negatived one of the ingredients of the offences that he is charged with viz., mens rea. Thereby, a reasonable doubt has been raised in the Prosecution case, which should enure to the benefit of the Accused, resulting in the Accused being entitled to an acquittal, on this ground too.
131. Accordingly, I hereby acquit the Accused Ignace Bagilishema, of all the charges, contained in the indictment.
Done at Arusha
On this seventh day of June 2001
Asoka de Z. Gunawardana Judge
International Criminal Tribunal for Rwanda Seal of the Tribunal
[1] Defence Rejoinder brief, 29 September 2000, at paragraph 248
[2] Transcripts 4 September 2000 at page 184
[3] Counsel for the Prosecution stated “Your Honour, the issue here is not as to whether or not the Accused had power to act to stop this. The issue is that he never tried. The fact is that he never tried, and there is enough evidence to prove this beyond reasonable doubt. There is also evidence to prove that he actually encouraged and took part in the attacks that took place in Mabanza commune and also was present during the attack at the Kibuye Stadium.” Prosecutor’s Closing Arguments, 18 October 2000 at page 219
[4] See Stuart, Canadian Criminal Law, 3rd Ed., (1995): “In the case of general justifications or excuses it is consistently held that the only burden on the accused is the evidential one of pointing to evidence putting the defence in issue. There is no departure from the general rule that the Crown must prove guilt beyond a reasonable doubt and therefore no reversal of the onus of proof which would be subject to Charter review. The Crown must negative a justification or excuse. Where the defence is not put in issue by the Crown case, the accused has a duty of adducing some evidence although this does not mean he has to prove anything or to testify.” (pages 425-436). See also the English Court of Appeal in Gill(1963), 2 All E.R. 688 (C.C.A): “The accused, either by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two, must place before the court such material as makes duress a live issue fit and proper to be left to the jury. But, once he has succeeded in doing this, it is then for the Crown to destroy that defence in such a manner as to leave in the jury’s minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.” (page 691).
[5] Civil law systems, applying the principle dubiopro reo, also operate to give the benefit of the doubt in the prosecution’s case to the accused. For example, in French law the prosecutor must adduce sufficient evidence – preuve suffisante – to convince the court of the guilt of the accused. Under the German code of criminal procedural law the judge, functioning in an inquisitorial capacity, is required to consider any defence that may arise from the evidence in the case, and the burden of proving the case rests upon the prosecution, no matter which defence has been raised.
[6] Woolmington v. DPP(1935) A.C. 462, (HL), at pp. 481-482
[7] See e.g., R vFolley [1978] Crim.L.R.556; R v Abraham [1973] 1 W.L.R. 1270
[8] See e.g., R v Gill [1963] 47 Cr.App.R. 166; R vBone [1968] 52 Cr.App.R. 546
[9] See e.g., R.vDenney [1963] Crim.L.R.191; R. v Wood [1968] 52 Cr.App.R. 74
[10] See e.g., R vDervish [1868] Crim.L.R. 37; R v Stripp [1978] 69 Cr.App.R. 318
[11] See e.g., Chan Kau vR [1955] A.C. 206; R v Wheeler [1968] Crim.App.R. 28
[12] See Cross and Tapper on Evidence, 8th ed., 1995, (Butterworths), at page 131
[13] Stuart, Canadian Criminal Law, 3rd Ed., (1995) at page 425. Stuart further noted that any requirement that an accused must prove his plea on the balance of probabilities has been specifically rejected in Canada. In the case of Whyte (1988) 64 C.R. (3d) 123 (S.C.C.), Chief Justice Dickson remarked: “The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. […] If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”
[14] See e.g., Latour [1951] S.C.R. 19; Linney [1977] 32 C.C.C. 294
[15] See e.g., R vLizotte [1951] S.C.R. 115; R vLanigan [1984] 53 N.B.R. 388 (CA)
[17] See e.g., Perka [1984] 42 C.R. (3d) 113 at 137
[18] G.L. Peiris, The Law of Evidence in Sri Lanka, (1974), at page 429
[19] In these cases the burden placed upon an accused has been addressed only in relation to the plea of alibi. In Prosecutor vs Kayishema and Ruzindana, Trial Chamber II stated: “The burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects notwithstanding that the Defence raised alibi . . . . The accused is only required to raise the defence of alibi . . . .” (Prosecutor vs Kayishema andRuzindana, (ICTR-95-1-T) Judgment, 21 May 1999, at paragraph 234). Similarly, in Prosecutor vs AlfredMusema, Trial Chamber I held: “The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi is introduced, the Prosecution must prove, beyond a reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.” (Prosecutor vs Alfred Musema, (ICTR-96-13-T), Judgement, 27 January 2000 at paragraph 108). This approach is supported implicitly by the Statute and Rules of the Tribunal, whereby the Accused is presumed innocent until proven guilty (Article 20(3)), and where a finding of guilt may be reached “only when the majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt” (Rule 87 (A)).
[20] Transcripts 19 October 2000 at page 144
[21] When this matter was raised during the testimony of a Defence witness, the Counsel for the Prosecution gave the following response: “We propose to make no admissions. […] The admission referred to in this document are already referred to in the court record, and my learned friend can refer to those transcripts in his closing arguments and consider them as admitted, if he needs to; . . . . ” Transcripts 2 June 2000 at page 7
[22] Transcripts 2 May 2000 at pages 12-13
[23] See e.g. in relation to Mr. Francois Roux, an expert witness for he Defence, Counsel for the Prosecution stated: “I propose on behalf of the Office of the Prosecutor that this statement can simply be admitted in evidence as an exhibit. We do not propose to cross-examine this witness if it is solely character evidence . . . . We can move on to other matters this morning, if it is established of course that he is not a witness of fact in relation to events between April and June 1994.” Transcripts 4 May 2000 at page 7
[24] Transcripts of closing arguments, 18 October 2000 at page 65
[25] Transcripts 27 April 2000 at page 35
[26] Ibid at page 133
[27] Transcripts 23 November 1999 at page 25
[28] Defence exhibit 14
[29] A minority of witnesses held a different view. Witness G stated that the Accused “stopped loving” the Tutsis in 1990, after the outbreak of the war. However, Witness G appears to have based her view on a personal experience relating to her father and uncle which, on examination of relevant documentation, appears to be objectively unjustified. (See, Chapter V (3.4) of the Judgment of the majority). Prosecution Witness J spoke of ethnic discrimination in Mabanza, particularly in the area of education, but documentary evidence suggests that, if there was ethnic discrimination in Mabanza, it was not on the part of the Accused.
See for example, in 1992, the issue of ethnic discrimination in education arose in connection with the Director of the school in Mushubati secteur, Mabanza commune. In that instance, Hakizimana, the Communal Secretary, wanted to remove the Director claiming that he had allegedly been favouring Tutsis in the school. The issue was addressed by a Commission chaired by the Accused. It is clear from the Commission’s report, dated 21 September 1992 and signed by the Accused, that Bagilishema had (unsuccessfully) attempted to reconcile the differences between the Director and Hakizimana without further investigation, having given both parties an opportunity to present their case. There is no indication that the Accused sided with Hakizimana notwithstanding that he was the Communal Secretary and had alleged that the Director was “favouring one of the ethnic groups in Mushubati to such an extent that, practically, all people found there were Tutsi.” Following a hearing, the Commission’s findings were as follows: “Our wish has been to lighten the issue and to reconcile you, but we note that neither of you has the will to be reconciled with each other. Consequently, since you do not want us to help you reconcile, we are going to refer this matter to the courts, since it is beyond our powers. It will then be up to them to resolve it and punish the person at fault.” Thus, having exhausted his efforts to reconcile the parties, the Accused properly referred the matter to the courts.
[30] Transcripts 14 February 2000 at page 43
[31] Transcripts 4 May 2000 at page 23
[32] Ibid at page 27
[33] Prosecution exhibit 91
[34] Prosecution exhibit 90
[35] Prosecution exhibits 80, 81, 82 and 83 respectively
[36] Transcripts 8 June 2000 pages 43 – 50
[37] Transcripts 1 June 2000 page 147
[38] Defence exhibit 88
[39] Defence exhibit 90
[40] See “Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque”, of 17 February 1999, in the case of Kupreskic et al, ICTY.
[41] Transcripts of closing arguments, 18 October 2000 at pages 65 – 66
[42] See, Judgment of the majority, Chapter V
[43] See, Judgment of the majority, Chapter V
[44] Transcripts 17 November 1999 at page
[45] Defence exhibit 7
[46] Defence Closing Brief at page 114
[47] Defence exhibit 80 is a map of Mabanza commune
[49] The Loi Sur Organisation Communale, dated 23 November 1963 is one of the main legal texts updating those of the first Republic. See Expert Report by Professor Guichaoua “Local Government in Rwanda”, dated August 1998, at page 8. Prosecution exhibit 71.
[50] See e.g., Francois Clement, transcripts 29 May 2000 at page 22
[51] Defence exhibit 90
[52] See Article 11 of the decret-loi of 1975, which addresses the requisition power of the armed forces by the prefet. Article 103 of the Loi sur l’organisation communale of 1963 states that the prefet can put at the disposal of the bourgmestre, elements of the gendarmerie nationale. Article 7 of the decret-loi portant creation de la gendarmerie nationale of 1974 states that any commander of gendarmes may, if faced with insufficient resources, require the assistance of detachments of the Rwandan army.
[53] It is not in dispute that the Accused attended the said meeting.
[54] Transcripts 2 June 2000 at page 74
[55] Ibid at page 82
[56] Ibid at page 86
[57] Ibid at page 88
[58] Prosecution exhibit 76
[59] Prosecution exhibit 84
[60] For example, when responding to questions in relation to the ‘invasion’ on 13 April 1994, the Counsel for the Prosecution provided a confusing response: “Well, first of all, we have to accept that both he [the Accused] and his colleague [the former bourgmestre of Rutsiro] lacked the necessary control over these Abakiga, that is if they ever existed, anyway. I don’t accept that they did. And even if they did, . . . I take the view, rather, that there is nothing that was done in Mabanza that Mr Bagilishema was not in control of. I don’t accept that he was overwhelmed by the Abakiga or anything. […] There were no Abakiga coming to overwhelm anyone anywhere. There was plan in place, there was no need for any Abakiga to go anywhere.” Transcripts of closing arguments, 18 October 2000 at pages 45-46. Thus the Counsel for the Prosecution asserted that the Accused lacked the necessary control over the Abakiga and then immediately contradicted himself by stating that he did not accept that the Abakiga overwhelmed the Accused. The Prosecution’s contention that the Abakiga did not ‘exist’ was made for the first time in the Prosecutor’s closing arguments, and is contrary to the Prosecution’s own witnesses who speak of Abakiga attacking Tutsis, in Mabanza commune. Notwithstanding the above assertion by the Prosecution, it presented no evidence that the Accused solicited the presence of the Abakiga during the events.
[61] Transcripts 2 June 2000 at page 86
[62] Transcripts 23 November 1999 at pages 31-32
[63] Ibid at 33-34
[64] Ibid at 35-36
[66] Defence exhibit 18
[67] Prosecution exhibit 84
[68] Prosecutor’s Closing Brief at pages 49 – 54
[69] Transcripts 27 April 2000 at page 48
[70] Prosecution exhibit 77
[71] See Judgment of the majority, Chapter V
[72] Defence exhibit 18, correspondence no. 0303
[73] Transcripts 6 June 2000 at page 119
[74] Transcripts 3 May 2000 at pages 80-81
[75] Ibid at page 41
[76] Ibid at page 58
[77] Transcripts 28 April 2000 at page 27
[78] Prosecutor’s Closing Brief, Part I at paragraphs 298-300
[79] Defence exhibit 18, correspondence no. 0291
[80] Defence exhibit 18, correspondence no. 0294
[81] Defence exhibit 18, correspondence nos. 0308 and 0311, respectively
[82] Defence exhibit 112
[83] Transcripts 6 June 2000 at page 59
[84] Prosecutor’s Closing Brief Part I at paragraphs 294-298
[85] Defence exhibit 93
[86] It is apparent that all those who had been recorded in the Registre des Residents, in Mabanza, during 1994, were recorded as being from the ‘Hutu’ ethnic group. See Defence exhibit 93
[87] Defence exhibit 18, correspondence no. 0279
[88] Defence exhibit 18, correspondence no. 0286
[89] See e.g., Defence exhibit 18, correspondence nos. 0135, 0320, 0332, 0340, 0341, 0353, 0367, and 0368
[90] Defence exhibit 94 and 95 are letters, dated 2 May 1994, from the Accused to the said driver and to the communal policeman, respectively
[91] Prosecutor’s Closing Brief Part I at paragraph 276
[92] Transcripts 6 June 2000 at pages 116-117
[93] Ibid at pages 100 -101
[94] Transcripts 5 June 2000 at page 69
[95] Transcripts 9 June 2000 at page 60.
[96] Transcripts 5 June 2000 at pages 66-67
[97] See Prosecutor vs Clement Kayishema and Obed Ruzindana, (ICTR-95-1-T), Judgment, 21 May 1998
[98] See Prosecutor vs Jean Kambanda, (ICTR-97-23-S), Judgment and Sentence, 4 September 1998
[99] Transcripts 23 May 2000 at page 15 (in camera)
[100] Defence exhibit 112
[101] Transcripts 5 June 2000 at pages 140-141
[102] Transcripts 8 February 2000 at pages 21-23
[103] Transcripts 5 June 2000 at page 125
[104] Prosecution exhibit 84
[105] Transcripts 7 June 2000 at pages 110-111
[106] The Defence stated in its oral closing arguments that it had requested these transcripts from Radio Muhabura, which request was denied.
[107] Defence Closing Brief at pages 102-108
[108] Prosecutor’s Closing Brief Part I at paragraph 278
[109] Transcripts 1 June 2000 at pages 72-73
[110] In a document entitled ‘Evaluation Sheet Covering Period 1 April 1993 to May 1994’, signed by Bagilishema, reference is made to the misappropriation of communal funds by Semanza. See, Defence exhibit 20
[111] Prosecution Counsel stated, “all these documents concerning Semanza taking over are not disputed.” See Transcripts 1 June 2000
[112] Defence exhibit 24
[114] Defence exhibit 22
[115] Transcripts 1 June 2000 at page 85
[116] Transcripts 3 May 2000 at page 29 (in camera)
[117] Transcripts 22 May 2000 at page 105
[118] Prosecution exhibit 84
[119] In this regard the Accused asserted that Semanza had appointed himself as bourgmestre, whereas the law provided that, in such circumstances, the bourgmestre should be replaced by a conseiller.
[120] Defence exhibit 112
[121] Prosecutor’s Closing Brief at paragraph 72
[122] Prosecutor’s closing argument, transcripts 18 October 2000 at pages 220 – 239
[123] Defence exhibit 112

TRIAL CHAMBER I
ENGLISH ORIGINAL: FRENCH
Before:
Judge Erik M0se, Presiding Judge Asoka de Z. Gunawardana Judge Mehmet Guney
Registry: Mr Adama Dieng
Opinion of: 7 June 2001
THE PROSECUTOR versus
IGNACE BAGILISHEMA ICTR-95-1A-T
SEPARATE AND DISSENTING OPINION OF JUDGE MEHMET GUNEY
Office of the Prosecutor:
Ms Jane Anywar Adong Mr Wallace Kapaya Mr Charles Adeogun-Phillips Ms Boi-Tia Stevens
Counsel for the Defence:
Mr Fran?ois Roux Mr Maroufa Diabira Ms Heleyn Unac Mr Wayne Jordash
TABLE OF CONTENTS
I. Preliminary comments on some points of law
A. Violation of the principle of due diligence, or culpable negligence
II.
B. Presence of a respected authority at the scene of the crime – form of complicity by encouragement
C. Standards for the assessment of evidence Defence Arguments
III. Factual and legal findings relating to allegations in paragraph 4.14 of the Indictment
Trafipro roadblock : Setting up, Staffing and Purpose
1. Setting up of roadblocks
2. Instructions
3. Individuals assigned to man the roadblocks
B. Purpose of the Trafipro roadblock
C. The Accused’s Complicity in the murders of Judith and Bigirimana
1. The murder of Judith
2. The murder of Bigirimana
D. Findings
IV. The Accused’s complicity in the detention and maltreatment of refugees at Gatwaro stadium (paras. 4.23, 424 and 4.31 of the Indictment)
A. Monitoring by the Accused of the situation with respect to the Mabanza refugees in Gitesi
B. Regarding the presence of the Accused at Gatwaro stadium on 13 and 14 April 1994
1. 13 April 1994
2. 14 April 1994
3. Findings on the presence of the Accused at the Stadium on 13 and 14 April 1994 and on the assessment of the
testimonial evidence
V. Complicity of the Accused in the attack on Gatwaro Stadium on 18 April 1994 (paras. 4.13, 4.26 and 4.27 of the Indictment)
1. Evidence of the Accused’s presence in the Stadium on 18 April 1994
2. The Accused’s testimony
VI. Findings
1. I agree with the findings in the Judgement, regarding the acquittal of the Accused on certain counts, but I beg to differ with the findings in the majority opinion (hereinafter “the majority”) that there is insufficient evidence of the involvement of the Accused as an accomplice in the crimes committed against Tutsi civilians in connection with the activities at Trafipro roadblock in Mabanza commune (para. 4.14 of the Indictment), and in the massacres committed against thousands of Tutsi civilians in Kibuye, of whom nearly 1000 to 1500 were natives of Mabanza, as testified to by the Accused [1] (paras. 4.21 to 4.28 and 4.31 of the Indictment).
2. With respect to the activities carried out at the Trafipro roadblock, I find that it has been proved that the Accused had full responsibility for the operation of the roadblock right from the time it was set up, that he had the duty and power to control the operation thereof and possibly to have the said activities discontinued. While I concur with the finding that the evidence tendered does not support a finding that the roadblock was set up for criminal purposes, I am satisfied with the evidence adduced to show that the Accused had sufficient reason to know that the screening system instituted at the roadblock entailed possible risks for the Tutsi civilian population. Consequently, I am of the view that the Accused’s responsibility must be assessed on the basis of negligence on his part with regard to the setting up and running of the roadblock. I find that such willful negligence renders him an accomplice to the crimes against humanity committed through the killing of Judith and Bigirimana.
3. With respect to the attacks on and massacre of Tutsi civilians at Gatwaro stadium, Kibuye, I am satisfied that there is sufficient evidence to establish the presence of the Accused at the stadium on several occasions between 13 and 18 April 1994, before and during the attack. This stands in contrast to the testimony of the Accused who denied having gone to Kibuye during the period from 9 to 25 April 1994. Consequently, it is my view that, by such presence and given that he was an official, the Accused, who had a well-established reputation in Kibuye after a 14-year mandate as Bourgmestre, aided and abetted the commission of crimes against humanity (extermination and other inhumane acts), and thereby incurred responsibility as an accomplice to the genocide perpetrated at Gatwaro Stadium, by providing moral support to the assailants.
I. Preliminary comments on some points of law
4. For each of the above-mentioned counts, it appears, from the evidence presented at trial in support of the Prosecutor’s allegations, that the Accused is liable under Article 6(1), not so much because of his direct participation as a principal or co- perpetrator, as by reason of his contribution to crimes committed by others, as an accomplice.
A. Violation of the principle of due diligence, or culpable negligence
5. In my opinion, it has been proved that the Accused was negligent by setting up an intrinsically dangerous system, to wit, the Trafipro roadblock. It is appropriate to discuss the extent of such negligence in light of a duty to act, reflected by the continuing duty of the Accused from the erection of the roadblock to the organization of its operation. The Accused failed to provide the control system with such safeguards and guarantees against any form of recklessness (See the notions of dolus eventualis in Civil Law and “recklessness” in Common Law [2]), as dictated by his public and administrative prerogatives. I therefore find that the criminal liability of the Accused arises out of negligence for deliberately failing to address the risks associated with the erection of a roadblock in the prevailing context of the period under consideration.
6. Although the Prosecutor did not specifically address this particular kind of responsibility at trial, I am of the opinion that gross negligence may be considered to be one of the numerous forms of individual criminal responsibility provided for by Article 6(1) of the Statute of the Tribunal.
7. The principle of criminal negligence by which an accused may incur responsibility for crimes committed by others was applied in the Blaskic Judgement, after the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that General Blaskic used forces under his control which he knew, at least in part, were difficult to control, and that having issued orders for certain acts, he could reasonably have foreseen that the said acts would lead to the commission of crimes. [3] 8. The above principle on the various grounds for assigning individual criminal responsibility was illustrated in Prosecutor v. Tadic, where the Trial Chamber of ICTY affirmed that:
“(..) aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present. Under this theory, presence alone is not sufficient if it is an ignorant or an unwilling presence. However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it.” [4] 9. The ICTY Chamber affirmed further, after reviewing the relevant case-law, that actual physical presence at the time the crime is committed is not necessary, since an accused can be considered to have participated in the commission of a crime, on the basis
of the precedent set by the Nurnberg war crimes trials, if he is to be found to be “concerned with the killing”. In the same case, the Appeals Chamber recalled that the Statute of the Tribunal did not limit its jurisdiction to the prosecution of persons who allegedly participated directly in crimes or who, in some other way, personally aided or abetted their commission. The Chamber pointed out that it is apparent from the wording of Article 7(1) of the Statute and the provision setting forth the crimes over which the Tribunal has jurisdiction that such responsibility for serious violations of international humanitarian law is not simply limited to those who actually carry out the actus reus of the crimes enumerated, but also extends to other offenders, including those who order them to do so or are accomplices thereto. [5] 10. Thus, it was pointed out in the Akayesu Judgement that mens rea or the criminal intent of the perpetrator of a crime may be in the form of “negligence that is so serious as to be tantamount to acquiescence.” [6] 11. In French criminal law, the general principle on complicity presupposes the performance of an affirmative act, and excludes, a priori, complicity by failure to act. However, case-law provides a broader notion of complicity which could allow for the existence of actus reus or mens rea, on condition that mere presence [7] or omission is construed as assistance, moral support or encouragement. It is no longer a question of mere failure to act, but of accomplice liability. Such was the case of an officer who did a round, thus allowing a colleague to steal one of the objects over which he had a duty to watch. [8] Belgian case-law makes a distinction between deliberate failure to act and a form of “abstention dans faction” where, in the performance of a duty, willful failure to take the necessary steps to prevent harm is equated to an affirmative act of participation. [9] 12. In Common Law, the exception to the principle whereby no criminal responsibility shall arise from an omission has been developed in successive cases in relation to the notion of duty to act. The assessment of a duty of care or due diligence in the context of criminal responsibility was considered by the House of Lords (criminal section of the Appeal Chamber) in Regina v. Adomako, [10] where a qualified medical employee was charged with homicide for failure to act. In that case, Lord Mackay stated as follows:
“… .in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the Defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterized as gross negligence and therefore is a crime. This will depend on the seriousness of the breach of duty committed by the Defendant in all the circumstances which the Defendant was placed when it occurred.”
13. The above case highlights the criteria the jury must consider in ascertaining whether or not there is a breach of duty which may be regarded as gross negligence, and thus be considered a crime.
14. In the instant case, I deem it appropriate to assess the status and functions of the Accused which define the nature and extent of his duties under Rwandan Law.
Prosecution Expert Witness, Andre Guichaoua, referred to the Law of 23 November 1963 on communal organization, [11] which was in force in Rwanda at the time of the events. That Law provides that the Bourgmestre is the representative of the central authority in the commune and the embodiment of communal authority (Article 56 of the Law). As a representative of the executive power, the Bourgmestre is responsible for the enforcement of laws and regulations (Article 57 of the Law). Administration of the commune is under the direct authority of the Bourgmestre (Article 60 of the Law) who, in particular, has the power to recruit, suspend and dismiss communal staff after consultation with the conseil communal (communal council) (Article 93 of the Law). Such power also extends to communal police officers, over whom the Bourgmestre has sole authority, except in exceptional circumstances (Article 104 of the Law). Article 109 of the Law defines the functions of communal police officers placed under the authority of the Bourgmestre and, in particular, the duty imposed on the Bourgmestre to contribute to maintaining or restoring law and order, to order the arrest of troublemakers or offenders and to bring them before the competent authorities.
15. The decision by the Accused to set up the roadblock, on the one hand, and to have it manned by civilians, on the other hand, entails, to my mind, various types of criminal responsibility. Besides the responsibility incurred for setting up the roadblock itself, the Accused should have known that, under such circumstances as recounted by the witnesses, continuing that activity would entail risks, especially considering the conduct of the untrained civilians who were posted there. Hence, the culpable negligence connected with the setting up of the roadblock becomes continued and aggravated if the Accused knows or has reason to know that crimes were committed after it was set up. In that case, the phrase “he knew or has reason to know” used as a condition for assigning superior responsibility under Article 6(3) of the Statute, could be useful in assessing the continuous nature of that crime. Such knowledge can be ascertained from direct evidence or by inference. In Aleksovski, the Trial Chamber of ICTY laid down certain indicia:
“This means that the more physically distant the commission of the acts was, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime, a fortiori, if the crimes were repeatedly committed” (Emphasis added). [12] 16. Within the context of the operation of the Trafipro roadblock, the Prosecution alleged that the Accused incurred responsibility by reason of his position as the hierarchical superior of the persons manning the roadblock. However, I note that in the Kordic and Cerkez Judgement, the ICTY Chamber pointed out that the distinction between liability under Article 7(1), on the one hand, and under Article 7(3) on the other hand, (equivalent to Articles 6(1) and 6(3) of the Statute of ICTR), depends on the evidence presented. In the instant case, if the superior was not simply informed that his subordinates had committed crimes, but, in the exercise of his powers, he had otherwise aided or abetted in any manner whatsoever the preparation or execution of those crimes, “(…) the type of criminal responsibility incurred may be better characterised by Article 7(1). Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7 (1).”[13] It is my opinion, in light of the evidence produced in the instant case, that the type of criminal responsibility incurred by the Accused is better defined under Article 6(1) of the Statute because the ingredients for accomplice liability have, to my mind, been established.
B. Presence of a respected authority at the scene of the crime – form of complicity by encouragement.
17. This form of indirect participation in the crimes alleged in the Indictment raises some questions as to the assessment of the requisite link between the presence of the Accused and the crimes, which assessment, to date, has hardly been considered by the courts, but which, in my opinion, must be applied to the events that occurred at Gatwaro stadium.
18. In Common Law, the laid down principle is that mere presence of a person at the scene of the crime is not sufficient to entail his criminal responsibility. However, in Regina v. Coney, the High Court (Divisional Court of the Queen’s Bench) [14] found that the presence of a spectator at an unlawful prize-fight constituted a sign of encouragement by the accused persons who were among the crowd of spectators, even though they did not directly participate in the crime, or verbally encourage it. The Court, accordingly, held that, even if presence in itself was not sufficient, it was evidence of aiding and abetting because, without these spectators, there would have been no incitement to fight. In that case, Judge Hawkins [15] made the following statement, which became a leading opinion in Common Law jurisdictions :
“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expression, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposefully present witnessing the commission of a crime, and offered no opposition to it, although he might reasonably be expected to prevent it and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”
19. In guiding the jury, Judge Hawkins underscored the requirements for accomplice liability: a person voluntarily present at the scene of the crime and, with full knowledge of the facts, witnessed the commission of a crime and offered no opposition to it, although he might reasonably be expected to prevent it, because he had the power to do so, or at least the possibility to express his disapproval in the face of the prevailing events.
20. In the Blaskic Judgement, the Trial Chamber stated as follows:
“The actus reus of aiding and abetting may be perpetrated through an omission, provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea. In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.” [16] 21. In the Aleksovski Judgement, the Trial Chamber stated that participation need not be manifested through physical assistance, but could be moral support or encouragement expressed in words, “or even by mere presence at the site of the crime” if such presence had a significant effect on the commission of the crime and that the person present had the required mens rea. [17] Moreover, the mens rea may be deduced from the circumstances, and “the position of authority constitutes one of the circumstances which can be considered when establishing that the person against whom the claim is directed knew that his presence would be interpreted by the perpetrators of the wrongful act as a sign of support or encouragement.” [18] 22. In the Synagogue case [19] (mentioned in the Furundzija Judgement, [20]) the German Supreme Court found one of the accused guilty of a crime against humanity for providing moral support to those who perpetrated the criminal acts. The Court pointed out that although the Accused had not physically taken part in the devastation of the synagogue with the others, nor planned or ordered it, his occasional presence at the crime scene, his status as a long-time respected militant of the Nazi party and his knowledge of the criminal enterprise, were deemed sufficient by the Court to convict him. The Court held, in respect of the actus reus, that his entire conduct constituted support and encouragement in the commission of the crimes even if it was not shown that such support covered each of the crimes committed by others. Regarding the occasional presence of the Accused, the Court held that such presence could not be considered as a form of curiosity shown by a person unconcerned about the events taking place. With respect to the mens rea, the Court held that the Accused had in fact wished that the acts be committed “as though they were his own” (als eigene gewollt hat). Finally, the Court found that the Accused knew of the plan at least two hours before the commission of the crime.
23. In the Furundzija case, the Trial Chamber of ICTY took into account the above decision and found that an “approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct, may be guilty of complicity in a crime against humanity.” [21] As regards the nature of assistance provided by the accomplice, it held that it is not necessary for the assistance to be tangible or to be directly linked to the crime by a causal relationship. [22] As to the effect of such assistance, the Chamber tried to summarize the case-law on the subject by stating that “the assistance should have a substantial effect on the commission of the crime”, but that it could be in the form of moral support. [23] When the actus reus of an omission consists effectively in moral support having a substantial effect on the commission of the crime, the requisite and sufficient mens rea is knowledge of the fact that the “acts” assist the commission of the offence, and therefore render the accused an accomplice. [24] In the Blaskic Judgement, the Trial Chamber held that the accomplice must have, “as a
minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.” [25] 24. In the Akayesu Judgement, the Trial Chamber found the Accused guilty of crimes against humanity for aiding and encouraging others to commit acts of sexual violence by, inter alia, allowing that the said acts be committed within the bureau communal while he was present, and because he knew or had reason to know that acts of sexual violence were being committed. The Chamber found, on these two points, that the Accused had facilitated the commission of the crimes through words of encouragement in other acts of sexual violence which, by virtue of his authority, “sent a clear signal of official tolerance, without which these acts would not have taken place.” [26] 25. I had to review the above case-law, which I consider relevant for the assessment of the criminal responsibility of the Accused, who was present at Gatwaro stadium during the period the refugees were held and massacred there.
C. Standards for the assessment of evidence
26. Issues regarding the assessment of testimonial evidence in the specific context of the cases brought before this Tribunal have been the subject of progressive development since the Akayesu Judgement, for the Tribunal is not bound by any approach modeled on national rules of evidence (Rule 89 of the Rules of Procedure and Evidence).
27. Regarding testimonial evidence with respect to the events which occurred at Gatwaro stadium, I hold the view that the majority applied strict assessment standards which were not related to the nature or reliability, but to the quantity and accuracy, of the information provided by witnesses whose credibility is not being questioned (cf. The testimonies of Witness A, Witness AC and Witness G in Chapter V.3 of the Judgement). In fact, in assessing these testimonies, the majority applied standards that have to do more with precision required for issues of identification of a person hitherto unknown, rather than for recognition of a person already known to the witness. In this case, given that no evidence was adduced tending to show that the witnesses present at the stadium may have been faced with a problem of mistaken identity, I hold the opinion that the standard of proof applied by the majority is erroneous. It seems to me that said standard is artificial and far-fetched in the sense that, although it is mainly up to the parties to examine the witnesses during the trial in adversarial proceedings, the Chamber is also allowed to put any additional questions to the witnesses at any stage in the course of the trial, in order to clarify or specify the issues raised, as provided for in Article 85(B) of the Rules on the presentation of evidence. [27] In my opinion, the majority did not draw the appropriate conclusions from the oral evidence presented to establish the presence of the Accused at Gatwaro stadium between 13 and 18 April 1994.
28. Regarding the difficulty of most of the witnesses to provide specific information, I would like to recall precisely the requisite standard in taking oral evidence, as expounded in the Akayesu Judgement:
“[…] Similar cultural constraints were evident in their difficulty to be specific as to dates, times, distances and locations [.] The Chamber did not draw any adverse conclusions regarding the credibility of witnesses based only on their reticence and their circuitous responses to questions.” [28] 29. As to the assessment of the discrepancies between prior witness statements and their testimonies before the Chamber, once again, I concur with the stand taken in the Akayesu Judgement :
“The Chamber noted that during the trial, for a number of these witnesses, there appeared to be contradictions or inaccuracies between, on the one hand, the content of their testimonies under solemn declaration to the Chamber, and on the other, their earlier statements to the Prosecutor and the Defense. This alone is not a ground for believing that the witnesses gave false testimony. Indeed, an often levied criticism of testimony is its fallibility. Since testimony is based mainly on memory and sight, two human characteristics which often deceive the individual, this criticism is to be expected […] Moreover, inaccuracies and contradictions between the said statements and the testimony given before the Court are also the result of the time lapse between the two. Memory over time naturally degenerates, hence it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony.”[29] (Emphasis added)
30. I therefore totally agree with the following assessment, made in that same Judgement, of the impact of the peculiar circumstances and the widening time difference on the testimonies :
“The Chamber is unable to exclude the possibility that some or all of these witnesses did actually suffer from post traumatic or extreme stress disorders, and has therefore carefully perused the testimonies of these witnesses, those of the Prosecutor as well as those of the Defence, on the assumption that this might possibly have been the case. Inconsistencies or imprecision in the testimonies, accordingly, have been assessed in the light of this assumption, personal background and the atrocities they have experienced or have been subjected to.”[30] 31. Lastly, regarding the unus testis, nullus testis principle, the Chamber, in the Akayesu Judgement, deliberately refused to apply it, stating that “it can rule on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible”. [31] The Appeals Chamber endorsed this stand in the Aleksovski case when it affirmed that “Similarly, the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration.” [32] 32. In light of the various standards for assessing evidence discussed above, I have drawn conclusions, different from those of the majority, regarding the individual criminal responsibility of the Accused with respect to the two events referred to above.
II. Defence Arguments
33. Throughout the trial, the Defence argued that the powers and duties of the Accused, as Bourgmestre, were to be viewed in concreto, in light of the circumstances that prevailed at the time of the acts with which he is charged. On the one hand, the Defence submitted that the Accused, given his personality and character as a moderate man who had a great love of justice, set up a security shield for the people under threat, by organising pacification meetings, issuing fake identity cards to the Tutsi and by even meeting with the Abakiga to dissuade them from pursuing the massacres and looting. On the other hand, the Defence asserted that the de facto authority of the Accused over Mabanza commune had deteriorated following the breakdown of law and order and had become extremely limited in the wake of the events, and that consequently he could not be held responsible for the atrocities and crimes committed in Mabanza commune. Therefore, the Accused could not be considered an accomplice for failing to carry out his administrative and legal duties under Rwandan national law, for, in the opinion of the Defence, the affirmative acts of the Accused for the people of Mabanza do not allow for establishing evidence of any criminal intent that would make him an accomplice who aided and abetted the perpetration of any of the crimes provided for in the Statute.
34. The Defence contends that the Accused was overly powerless to stop or punish criminal acts committed by a swarm of “invaders” (including those who shared their criminal intent), and that the only power he had left was the authority and control he could exercise over the communal police. However, the Defence alleges that the Accused had limited de jure control over the communal police, and sufficient de facto control at certain moments. The Defence further contends that to have dealt with such murderous intents shows the Accused’s genuine courage and unfailing determination to continue defending his people.
35. The Defence underscored the “Accused’s good character” to show that he lacked the specific criminal intent to commit genocide. Yet, it is important to note in this regard that the concept of “good character” borrowed from Common Law only applies to proof of the requisite criminal intent regarding the Accused’s criminal responsibility as a principal or co-perpetrator and is not applicable, in the same manner, to the assessment of accomplice criminal responsibility, which has different mens rea requirements.
36. It is worth noting that the Defence does not contest that, as a civilian authority of Mabanza commune, the Accused had legal duties, as well as the power to ensure respect for the law by all the citizens of his commune, and the obligation to punish and prevent crime in his commune, to the extent possible. Many of the Prosecution and Defence witnesses alike describe the Accused as a well-known figure, for he had been in office for fourteen years as head of the commune and, in the discharge of his duties, enjoyed undoubted respect throughout the commune. Moreover, in his official capacity as Bourgmestre, the Accused had the obligation to take measures for the protection of the entire population of Mabanza commune.
37. I would like to add that the disciplinary measures provided for in case of failure by the communal employees to comply with their obligations are laid down in Chapter VIII of the Presidential Order on the Status of Communal Officials of
25 November 1975, [33] which is pertinent in assessing the relationship between the Accused and Celestin Semanza, Assistant Bourgmestre, as presented by the majority opinion in Chapter VII of the Judgement. Article 38 of the Order stipulates that the “agents qui, d’apres des indices graves, sontpresumes avoir commis une fautepouvant etre sanctionnee par la disponibilite disciplinaire ou la revocation, peuvent, par mesure d ‘ordre prise par le bourgmestre, etre suspendus de leurs fonctions jusqu ‘a la cloture de l ‘instruction. Cette mesure entraine, pour l agent, l ‘interdiction d ‘exercer toute fonction
et le place dans une position d ‘attente pour une periode maximum de 3 mois “[employees who, in light of strong evidence, are alleged to have committed an offence punishable by disciplinary suspension or dismissal may, by order of the bourgmestre, be suspended from their duties pending completion of the investigation. Under this measure, the employee shall be barred from performing any duties and shall be kept in such a state for a maximum period of three months].” With respect to the performance evaluation of communal staff, which was the responsibility of the Bourgmestre, Chapter VI of the
Order also provides that “tout agent qui a obtenu deux fois consecutives la note synthetique “Mediocre ” est demis de ses fonctions [an employee who receives an overall “Poor” [Mediocre] rating two consecutive times shall automatically be dismissed from his duties,” (Article 24 of the Order). Yet, the Accused never gave such rating to the assistant bourgmestre Semanza, whom he accused before this Chamber of insubordination and even fraud. I am of the opinion that, under the law, the Accused had the necessary means to take disciplinary action against Semanza, but deliberately failed to use them (see Chapter II, Section 6 of the Judgement). I am of the view that the Accused deliberately described his working relationship with Semanza as deplorable in a bid to dissociate himself from the latter’s actions and show that he did not enjoy sufficient support in the discharge of his duties.
38. As regards the activities at Trafipro roadblock, the Accused had the duty to take action, by virtue of his powers to maintain law and order in the commune, with a view to ensuring control of the activities being carried out there and, as an administrative authority, the duty and power to supervise the civilians who were running a high-risk system, considering the specific circumstances prevailing in Rwanda during that period.
39. With respect to the meeting of 25 April 1994 that followed the massacres in Gitesi commune, particularly in Gatwaro stadium and at the Home St. Jean Complex, I specifically asked the Accused whether he took any steps to seek explanations from his superiors concerning the maintenance, or rather the lack thereof, of law and order in Kibuye. I even asked the Accused whether, in light of the circumstances, he did not consider tendering his resignation, expressing his outrage or even making a report to the Prefet’s superior on the behaviour of the gendarmes who participated in the massacres at the stadium. The Accused answered :
“Your Honour, I share the opinion. But I thought it was up to the superior, my superiors to take the initiative to follow-up on what happened in the prefecture. That was not the first time that such atrocities had occurred, but not on that scale. On each occasion, there were consents, and there were decisions to investigate and follow-up.[34] 40. Nevertheless, the Accused failed to mention any measures said superiors may have taken in that respect.
41. Regarding security in the commune, I would like to note that the Accused frequently made reference to attacks by the Abakiga on the commune in order to support his claim that he was overwhelmed by hordes of uncontrollable attackers and that he felt personally threatened. However, in the Accused’s official correspondence with the
prefecture or even in the entries in his personal [35] diary with respect to the dates of the attacks, there is no mention of these “infamous”, though ill-defined, Abakiga. On the other hand, I note that the Interahamwe are mentioned in the diary, although their presence in Mabanza was contested by the Accused, who stated: “I told you that in
Mabanza there was no wing of the Interahamwe Interahamwe militia.” [36] Such is
also the case with the letter to the Prefet dated 25 June 1994, in which the Accused mentioned that he felt personally threatened by the assailants from Rutsiro and Kavoye but did not indicate that they were Abakiga [37]. Regarding the actual authority and control that the Accused exercised over the Abakiga, I deem it worth recalling that although the Accused did not state it, he in fact made it possible to prevent Abakiga attacks on a religious institution on several occasions between 16 and 18 April, as was clearly testified to by Defence Witness RA. Witness RA testified that when the assailants arrived on 16 April 1994, a communal policeman intervened and shot in the air, causing the attackers, to disperse. Witness RA testified that in the early hours of 17 April 1994, she and others went to see the Accused at his residence for advice on how best to protect several Tutsi members of the institution who had subsequently decided to leave Mabanza.
42. It should be underscored, with respect to the Accused’s awareness of the inherent risks involved in the activities at the roadblocks at the time, that this same Witness RA testified that the Accused advised them against sending their colleagues to Kibuye due to the danger on the road, and provided them with a room in the IGA building, in order to hide them. Witness RA further testified that the Accused and others met with the attackers on 18 April 1994 and pleaded with them to stop the attacks. Witness RA testified that he did not attend the said meeting but had been informed later that the assailants had agreed to suspend attacks on their institution, and that they never ever returned there. I would like to compare this testimony to that of the Accused to the effect that he was overwhelmed when he had to ensure the protection of the refugees at the commune office, and that he felt personally threatened by the same attackers whom he had decided to confront, although they were many more on 18 April 1994. Witness RA further testified that the Accused assigned a reservist and a communal policeman to watch over them at Kabilizi: one to watch over Rubengera College and the other to watch over witness RA’s location. [38] 43. In my opinion, this testimony proves that the Accused was in a position to exercise his powers relating to the maintenance of law and order, and specifically to prevent the Abakiga from committing their atrocities, but chose, on many occasions, to exercise his authority and control selectively, whereas such were part of his duties and obligations.
III. Factual and legal findings relating to allegations in paragraph 4.14 of the Indictment
A. Trafipro roadblock : Setting up, Staffing and Purpose,
44. As regards the erection and running of the Trafipro roadblock, I am of the opinion that the Accused failed in his duty to act and thus incurred liability as an accomplice for the crimes committed in the context of the operations at this roadblock.
1. Setting up of roadblocks
45. The Accused testified that he had first given oral instructions concerning the erection of roadblocks, which were confirmed in writing on 3 June 1994, within a context he described as one of “resumption of the war”, in order to check infiltration by members of the Rwandan Patriotic Front (RPF). In his view, said oral instructions were given at the end of April or beginning of May, after the communal council met pursuant to the Prime Minister’s instructions of 27 April 1994 [39]. The Accused further testified: “I was implementing what instructions I had been issued by the prime minister through the prefet.” [40] In fact, the Accused stated as follows:
“I spoke with the communal council during – – because we had talked about this during the meeting of the communal council we determined the criteria for recruitment, and furthermore, I relayed the directives to all the conseillers, and it was during that meeting that we invited people who were supposed to man the roadblock and we were telling them what their functions would be.”[41] 46. However, the Accused also testified that the instructions had been given after
13 April, “during the second half of the month of April.” [42] I note that, the exact date on which the roadblock was erected remained vague throughout the testimony of the Accused, despite the fact that questions were repeatedly asked on this point.
47. Witness Z testified that on the evening of 13 April, he had gone to the Bourgmestre’s home to receive instructions relating to the erection of the roadblock the next day, in the company of a certain Rushimba. Witness Y, for his part, does not specify the date on which the roadblock was set up. Rather, he testified that the roadblock was set up in the month of April, and that he himself, was not among the first people posted to man the roadblock.
48. Explaining why the Trafipro roadblock was erected at that particular location, the Accused stated : “This was why the roadblock was set up close to the bureau communal, so that if need be we could call upon the police at the bureau communal. So, it was the official roadblock I had referred to, and this is why it was set up there. It was a strategic location” [43]. Hence, it should be noted that the location of the Trafipro roadblock was chosen by the Accused on the basis of the intervention facilities it offered, particularly, assistance from the communal police posted at the bureau communal.
2. Instructions
49. The Accused was questioned on several occasions on the nature and scope of the instructions he had allegedly given prior to the “attestation” and “certification” of
3 June 1994, by which he specified measures for the proper manning of the roadblocks and for averting the ill-treatment or even killing of passers-by. I note that the Accused responded to questions put to him by the Chamber by referring to the directives contained in the Prime Minister’s circular letter dated 27 April 1994, which was transmitted to the Accused by the Prefet on 30 April 1994.[44] In this correspondence, the Prefet also referred to the security meeting held in Kibuye on 25 April 1994 which was attended by the Accused. Yet, it is essential to note that the Prime Minister’s circular letter contains
no specific information as to the functions and conduct expected of those manning the roadblock other than that “officially” recognized roadblocks could be set up to ensure “that the enemies find no passageway to infiltrate”, that where it was possible, the communal authorities could, in particular, be assisted by the National Army, and finally, that at the said roadblocks, “the citizens must guard against taking it out on innocent people”. [45] 50. In a second letter from the Prefet dated 30 April 1994 still to the Accused, the Prefet addressed the specific issue of the organization and control of roadblocks by civilians who were to be trained by reservists selected by the Bourgmestre, and of the need to organize information meetings for the population after the said recruitment. [46] Yet, the Accused never mentioned the above recommendations concerning the training of people posted to the roadblock, precisely to organize their functions, nor the information meetings to ensure the safety of the population. When questioned on this specific issue, the Accused stated that there were “no reservists in Mabanza who were used to train in the civil defence programme.” [47] But then, the erection of the roadblock could not be considered as a purely administrative task, particularly, within the context of the time, where the official purpose was to check infiltration by the RPF-Inkotanyi, identified as the enemy, but sometimes generally considered to be Tutsis.
51. I would like to recall that by virtue of his duties as the official in charge of maintaining law and order and of ensuring security in the commune, the Accused had the primary responsibility for the operation of the Trafipro roadblock, before and after it became “official”. At the time the Trafipro roadblock was set up, the Accused assumed responsibility for the initiative, as well as for the instructions, which he may or may not have given in the month of April, concerning the co-ordination of efforts. I hold the view that it is irrelevant and certainly insufficient for the Accused to rely on vague instructions transmitted to him by the Prefet only at a later date to show the practical measures he allegedly took at that time.
52. I note that the evidence adduced supports a finding that killings occurred at the very location of the roadblocks or in connection with the activities at the three roadblocks erected in Mabanza commune (Trafipro, Gitikinini and Gacaca roadblocks). Consequently, even if the Trafipro roadblock was set up for a priori legitimate security reasons, its modus operandi was, through the willful negligence of the Accused and in full awareness of the foreseeable risks, left at the mercy of individuals, whether or not selected by him, who had jointly participated in criminal acts against the Tutsi.
53. Furthermore, I would like to state that at the time the circular letters of 3 June 1994 were published, by which those manning the roadblock were officially appointed and the supervisory committee set up, massive attacks against the Tutsi population had, in the main, already occurred, and the risk of maltreating fleeing Tutsi civilians seeking refuge had, in fact, reduced, either because most of them had already been killed or because those who had not escaped were in hiding.
54. It should also be noted that as regards the “unofficial” roadblocks in the commune, cited by many witnesses (Witnesses AA, AB, B, RA, Z and ZD), the Accused merely produced, as evidence of measures he took against the “recalcitrant” persons who allegedly erected the said roadblocks, a letter dated 12 July 1994, requesting two people to “dismantle” the roadblock set up “on their own initiative”. [48] I would like to emphasize that this letter was written barely two days before the Accused escaped, and that as the official in charge of maintaining law and order, as well as security, he could or ought to have taken different measures that were more positive and immediate, if he had wanted to take prompt action to dismantle an “official” roadblock, instead of writing a letter to individuals who deliberately violated communal security rules and regulations, and who were known to him.
3. Individuals assigned to man the roadblocks
55. With regard to the persons actually manning the Trafipro roadblock and in reference to the letter of 3 June 1994, the Accused testified that the “attestation” concerned the same people as those who manned the roadblock right from the time it was set up. He stated as follows :
“The TRAFIPRO roadblock was always manned by these people. What we did was, to give them the attestation because those who were passing at the roadblock would ask them who they were; you are asking me for my identification, in what capacity. So it’s at that point in time that we had been obliged to give them specific assignments and so that if there is any passer-by asking them who they were, they could show this official attestation. But it was always these people who were at the roadblock, at this roadblock. And referring to what happened in the past, I told you that when we started setting up the roadblocks we were expecting what was happening in other communes, and I was telling them that they should not behave in the same manner.” [49] 56. Since this “attestation” dates back to early June, that is nearly two months after the Trafipro roadblock was set up, it cannot, in itself, be used as evidence to show the persons who at one time or another manned or supervised the roadblock from the time it was set up, or to show that it was always the same persons. Moreover, the Accused’s claim is contradicted by the testimonies of several witnesses, including Witness Z and Witness Y.
57. The majority found that the presence of Witness Y from April until around
3 June 1994 (para. 914 of the Judgement) was uncontested, and further found that the testimonies of Witnesses O, AA, Z and Y, supported by prior witness statements, suggest (para. 919 of the Judgement) that Witness Z and Rushimba were regularly present at the Trafipro roadblock. The majority concluded that even though it was not possible to establish the exact dates when Z and Rushimba were present at the Trafipro roadblock, the Chamber found that they were at the roadblock with considerable regularity. The majority also took into account the close proximity of the roadblock to the bureau communal in assessing the Accused’s awareness of the situation (para. 925 of the Judgement). Hence, the majority does not hesitate to conclude that it cannot accept the Accused’s contention that the “attestation” of 3 June 1994 gives a complete picture of the persons who were regularly present at the roadblock while it was operational (para. 924 of the Judgement). However, I note that the majority drew no other conclusion other than stating that it could not accept that the Accused was unaware of the fact that other persons, besides the five who were appointed, were present at the Trafipro roadblock on a regular basis (para. 925 of the Judgement).
58. In his testimony, the Accused stated that the people stationed at the roadblock enjoyed the trust of the communal council, because they had been selected by the said council and that the commission appointed on 3 June 1994 verified that the persons posted at the roadblock discharged their duties properly and that no one was ill- treated. [50] The letter further states, for the information of members of the supervisory commission, that no one was to appear at the roadblock without the “certification”, which suggests that there was a likelihood of that happening or that it did happen, thus confirming the testimonies of Y and Z, which made no reference to the “attestations”. The Accused testified as follows :
“You see, I gave them assignments, and in those assignments there was no mention made of how Tutsis should be sought. My instructions were clear. Amongst the people with whom I was working, there were those who would go beyond what they were supposed to do and we wanted to bring them back to order […] I do not think, that is not surprising if there is one person amongst this team who made mistakes. But, they knew that they could be punished. This is why I set up this verification commission so that they could direct and supervise these people.” [51] 59. The Accused testified that the persons appointed were people who conducted themselves properly and had his confidence. [52] As regards the level of training and background of said persons, the Accused answered, “No, these were exemplary farmers”. [53] The Accused stated that he listened to the conseillers’ views and that the level of training required for persons manning the roadblock was “that they had completed at least primary school or post-primary education and so on”.[54] The Accused admitted that he had confidence in them, and that he had selected people of good moral standing in the village for the job.[55] 60. Incidentally, he testified that he did not authorise Witness Z and Rushimba to man the roadblock, although it was established that they were regularly present at the Trafipro roadblock. The presence of a number of people unofficially manning this roadblock during that period would suggest that the Accused did not exercise sufficient control over the people manning the roadblock from at least 3 June 1994, despite the fact that the roadblock was close to both his office and his residence. Reacting to Witness Z’s testimony that he received instructions to man the roadblock, the Accused testified that Witness Z’s name was in the register of arrest warrants and summonses issued by the courts [56] because he was a wanted person on 17 June 1994. [57] I note, however, that the Accused gave no explanation for the arrest of this witness and that this information sheds no light on what Witness Z’s status and duties might have been.
61. The “attestation” of 3 June 1994 sent to Witness Y and four other persons contained the following instruction : “During the checks your are required to conduct, you are kindly requested not to ill-treat passers-by, as some have already done” [58] (emphasis added). The Accused stated in that regard that, “This was why there was a
five-man commission set up, responsible to verify whether or not passers-by had been maltreated and whether the enemy has infiltrated through this passageway.” [59] 62. It is my opinion that, in the specific context of April 1994, the Accused should have ensured that all the necessary measures were taken, like the ones he formally took in June 1994, for the proper and effective operation of the Trafipro roadblock even before it was made “official”. Specifically, the Accused had the obligation to ensure that measures were taken to limit, as far as possible, any maltreatment of the civilian population. It appears, moreover, that a number of “unofficial” roadblocks, besides the one at Trafipro, were allowed to operate during the month of April. Considering that the Accused had authority over the persons assigned to man the roadblock, even though they were selected in consultation with the communal council, he incurred full responsibility for the setting up and operation of the said roadblock by virtue of his duties as the official responsible for maintaining law, order and security.
63. When I reminded the Accused that Witness Y had spoken in detail about the key role played by Rushimba in the killing of Judith and that Rushimba was apparently the leader of those manning the Trafipro roadblock, he answered: “The names that I have are the five whom I asked to appoint their leader themselves. I don’t see the name of Rushimba because you recall that during this period there were people who were at the roadblock like the Witness “Z” whom we referred to and who was on this list.” [60] [NB. French transcript states that witness Z was not on the list: “…n ‘est pas sur cette liste…”] When asked whether Rushimba had been authorised to act as a leader, the Accused answered, “If it was Cyakubwirwa, that maybe is the one who was known as Rushimba, maybe. Otherwise, I wouldn’t know very well. [.] Fidele Cyakubwirwa,
Fidele Cyakubwirwa, but here we have Fidele Kubwimana. I don’t know whether we are dealing with the same person.” [61] In conclusion, whether or not Rushimba was the nickname of one Kubwimana or one Kyakubwira, the testimonies are consistent with the fact that Rushimba held, at least de facto, a position of authority or leadership over the persons who manned the Trafipro roadblock from the time it was set up in April 1994. Hence, considering the proximity of the roadblock to the communal office and the fact that the Bourgmestre was responsible for its erection, the Accused could not have been unaware of the presence and role of Rushimba and Witness Z, and failed to provide adequate supervision over a system that inherently presented obvious risks.
64. Accordingly, I hold the opinion that by allowing these individuals to man and run the roadblock for the entire period that it was operational, the Accused incurred liability as an accomplice in the arrest and murder of the only two Tutsis who came to the roadblock, or were taken there while it was operational.
B. Purpose of the Trafipro roadblock
65. The majority has noted that neither the Prefet’s letter of 30 April 1994, nor even the “attestation” or “certification” of 3 June 1994 support a finding that the roadblock was established for criminal purposes, but that precisely, the “certification” warned against the ill-treatment of passers-by (para. 935 of the Judgement). Yet, it had already been established earlier that this letter that was sent at the end of April only came “to make official” a roadblock which had already been erected earlier on the verbal instructions of the Accused, which instructions the Accused was unable to explain in detail, despite the questions put to him by the Chamber to that effect. Moreover, the letters of June 1994 cannot serve as documentary evidence of due diligence on the part of the Accused for the period prior thereto, because they cover only part of the period during which the roadblock was operational. Furthermore, as the majority noted, the actual conduct of operations at the roadblock during this period is the revealing factor of its objective, which is not necessarily reflected by the documentary evidence (para. 938 of the Judgement).
66. Questioned on the meaning of the word “enemy”, appearing in paragraph two of the English version of the “attestation” dated 3 June 1994, [62] the Accused answered : “Enemy is mwanzi, mwanzi [.] Mwanzi is what we used to define the enemy and it means member of the RPF.” [63] With respect to the ethnic group of those who could pass through the Trafipro roadblock, without encumbrance, the Accused testified that they were passers-by who were in vehicles. [.] any ethnic group.” The Accused further testified : “Why not say that there were Tutsis that passed by this roadblock? I can give you an example, the example of convoys that I was aware of by Deputy Musafiri. His wife was Tutsi. There was also another Tutsi woman. [.] They were in a vehicle which was filled with Tutsis and they passed by this roadblock. They arrived in Kibuye. I remember meeting them there. And later on, they went to Zaire, via Lake Kivu.” [64] However, I note that this fact is not corroborated by witnesses Y and Z who were regularly present at the Trafipro roadblock.
67. Witness Z testified that during his recruitment, he went to the home of the Bourgmestre, which was guarded by a policeman, to ask about the details of the assignment. The Accused specifically asked him to meet one Rushimba to set up the roadblock very early the next morning, “because the enemies are escaping.” [65] Witness Z explained that the Bourgmestre used the word Inyenzi which, at that time, according to the Witness, meant a Tutsi, or a member or a sympathizer of the RPF. The instructions given by the Bourgmestre were that he should check the identification papers of anyone passing through the roadblock, as well as vehicles, in the objective of seeking out the enemy. When passing, the Bourgmestre would greet them and would ask about the work and he would urge them on. [66] The Witness testified that about one thousand people passed by everyday, but as regards the ethnic origin of these people, he stated that “at that time, they were Hutus because Tutsis could not pass by the roadblock, they were in hiding.” [67] Apart from Judith and Bigirimana, he did not see any other Tutsis. [68] He testified that policemen would pass by because the bureau communal was not far from the roadblock and that the gendarmes would also come there; in fact, at one point in time, the gendarmes came into the region and occupied the building belonging to the Chinese and “they would always come by the roadblock”.[69] 68. Witness Y testified to having committed an act of genocide in 1994 by killing three people, two of whom he knew were Tutsis. He explained that it was Rushimba Fidele and Saidi Rucanos who asked him to go and “man” the roadblock, “because they are the ones
who had been there earlier and they asked me to join them there at the roadblock”. [70] As regards the instructions, he testified that, “my friends who had come before me in this job told me that we needed to check all the identity cards which had a photograph inside.” [71] This statement means that Witness Y was not among the first group of persons posted to man the roadblock. He also stated that his duty was to check all the identity cards which had a photograph inside and also the documents of vehicles. The instruction was to “check whether the identity card contained the photograph and, if there were no photographs, to send the individual to the bureau communal.” [72] According to this witness, the purpose of the roadblock was “to fight against the enemy”. [73] He testified that he saw the Bourgmestre every morning and evening when he was returning home [74] because it was the main road. Asked about the presence of Tutsis at the roadblock, the Witness explained that “The Tutsis, at that time, didn’t want to be seen because they were the ones who were being sought”. [75] Witness Y testified that he did not see any policemen at the Trafipro roadblock, [76] but that there were gendarmes who would come there from the Chinese camp and sometimes they would come in shifts, [77] which is consistent with the testimony of Witness Z.
69. I note, furthermore, that Witness AB testified that the reason for mounting the roadblocks was to identify the Tutsis and “when Tutsis were found, they were killed or if you had a face that looked like a Tutsi’s face, you were killed”. [78] Asked about the killings which took place in Mabanza commune in April 1994, Witness Y stated that “what was happening in the commune was seen by everybody. Everybody knew that there were killings and I don’t see how the Bourgmestre would be unaware of them when he was there present”. [79] Witness RA testified that on 17 April, when he asked the Bourgmestre to assist some threatened Tutsis, the Accused advised him not to go to Kibuye because there were roadblocks on the road and that they would be killed if they went. [80] Moreover, Witness B testified that he personally saw two people killed at two different roadblocks, including Pastor Muganga at the Trafipro roadblock. Witness RJ testified that at the roadblocks, the Hutus could go through whereas the Tutsi were stopped. Witness AA testified to having seen about thirty bodies near the Trafipro roadblock and the bureau communal, before the bodies were buried in mass graves. Witness A testified that he saw people being killed at the roadblock near Bagilishema’s residence where he had seen policemen and the Interahamwe controlling this roadblock. [81] 70. It appears from the foregoing that the instructions which were given by the Accused when the Trafipro roadblock was being set up were obviously inadequate and came in too late to avert the risks of criminal conduct on the part of armed civilians, who at that time were manning the roadblock, against the Tutsis, sometimes considered as the RPF-Inkotanyi enemy, within the context of the war at the time. I am satisfied that such failure to exercise control gave rise to misconduct on the part of those manning the roadblock in question, since the Accused had the responsibility and the means to control the operations at the Trafipro roadblock right from the time it was set up and throughout the period it was operational.
C. The Accused’s Complicity in the murders of Judith and Bigirimana
1. The murder of Judith
71. The Accused testified that he heard about Judith’s death for the first time before this Chamber and expressed surprise, as follows:
“I thought she died in Kibuye. It’s here that I heard she was killed in Mabanza [.] during that period there were a lot of deaths regrettably so, but regarding Judith I thought she left with the others to Kibuye. It was later that I heard she was killed in Mabanza by the attackers. It so happened that the deliquesce [sic] of Mabanza and the Abakigas who arrived, it’s possible that she died around that time but I was not informed.”[82] 72. When asked whether Judith was well known in Mabanza on account of the charitable work she performed and whether her death therefore made news, the Accused answered as follows regarding Judith’s personality:
“I told you that Judith was a farmer and that her husband was a nurse. He wasn’t even an assistant medical, what we call a — is someone who had finished a primary education and then through experience and practice acquires experience to be able to treat people. So the husband was not very well known. Maybe he was well known in his cellule where they lived and maybe the sector but not throughout the commune not in the whole commune and the medication that people have referred to. Maybe this was medication fraudulently acquired by the husband from the centre at which he worked. And maybe she was helping her neighbours with this medicine. It wasn’t something which was recognised and official.” [83] 73. In my opinion, by this assertion, the Accused, who claimed that he did not know Judith in person, tried to justify his not being aware of her death by using disparaging terms and denigrating her role as a benefactor, as testified to by one of her killers himself, while at the same time alleging that she engaged in quasi fraudulent activities.
74. Witness Y testified that Judith had been taken from Gitikinini to the Trafipro roadblock by Rushimba and that she was not asked for her identification papers because even her neighbour knew her quite well and was aware that she was Tutsi.[84] Describing where they had passed with Judith, the witness explained that they had passed three paces away from the bureau communal. He added : “I didn’t observe who was in the Secretary’s office but I did indeed see the Bourgemestre in his office.” [85]. In his prior written statement, Witness Y stated:
“When I mentioned in my admission that Bagilishema was a witness, I was responding to a question as to whether anyone had seen us leading her to her death and stating that Bagilishema saw us go by. [.] The fact that the murder happened so close to Bagilishema’s office leads me to believe that he definitely knew about it. I can state that no inquiry was conducted in the case, at least neither of us, who committed the murder, was brought to book.”[86] 75. That Witness Y testified that those who were manning the roadblock did not even take the trouble to ask Judith for her papers because they knew she was Tutsi suggests conclusively that the decision to kill her was based on ethnic grounds, without the duty to check papers in order to identify “the enemy” being even complied with. This tempers the testimony by the same witness to the effect that, in principle, anyone whose papers were in order, regardless of their ethnicity, could pass without incident. I note that the
conduct of the people manning the roadblock at the time, including Witness Y, shows on the contrary, discrimination on ethnic grounds against passers-by identified as Tutsis.
76. To the question as to whether the Accused saw them pass by with Judith, Witness Y answered, “Indeed, he saw us, he saw us.”[87] Under cross-examination, Witness Y asserted they had seen the Accused :
“The office had glass windows, I cannot therefore not state whether he saw us or not but we could see him. [.] Since we passed in front of him without speaking to him I cannot tell you that he knew what we were going to do.”[88] 77. Discussing the three crimes he committed in 1994 and the fact that the Accused had been informed of such crimes, Witness Y testified, “I believe he must have known this because we did this while he was still there.”[89] Witness Y stated lastly, “We were there, we were all there. These things happened within this commune. He was present in the commune and my reasoning or my understanding is that he was aware.”[90] 78. Witness Z testified that one Mutiganda came to see him one morning and said to him that he had found an Inyenzi in a banana plantation. Witness Z immediately led Judith to the roadblock and, along the way, he met Rushimba who took Judith by the hand. [91] They passed by the communal office, with Rushimba and Witness Y holding Judith and Witness Z behind them, 5 or 10 metres behind them. [92] As they passed by the communal office, after the other three people had gone by, the Bourgmestre came out and allegedly asked him “where he had found her”, to which Witness Z answered that he had found her “somewhere there in a banana plantation” and had told her that they were going to “work on her”, to which the Accused allegedly answered: “… that’s fine, go ahead.”[93] Witness Z testified that when he reached Judith’s home, Rushimba and Witness Y had already killed Judith. He further testified that he thought that the Accused came out of his office because “.he saw them pass by because they — it is just — we passed by just the window of the Bourgmestre and the curtains were drawn open. So I think he came out to find out what was happening and that was when we met”. [94] 79. The majority found that the only evidence concerning the Accused’s possible involvement in the murder of Judith was given by Witness Z, who testified to having discussed it with him in front of the communal office immediately after Judith and the people who were escorting her had passed by[95] (para. 959 of the Judgement). The majority found further that if the allegation that the Accused had seen the two roadblock attendants pass in front of his office with Judith had been proved, even if Judith was not being held, that should have alerted the Accused to imminent danger, given the specific circumstances of the time (para. 962 of the Judgement). However, relying on the “contradictions” between Witness Z’s written statements and his testimony, coupled with its assessment of the witness’s allegations of the arrest and murder of Bigirimana, the majority found that those statements reinforce the Chamber’s doubts as to the credibility of the witness. The majority held, based on the findings made in light of its assessment of the circumstances surrounding the killing of Bigirimana, as described by Witness Z, that apart from the statements of the said witness regarding his involvement in the murder of Judith, it cannot rely on other aspects of the witness’s testimony (para. 960 of the Judgement).
80. The apparent contradiction noted by the majority in the account of the meeting between Witness Z and the Bourgmestre prior to the murder of Judith is minor in my estimation, and relates at most to the sequence of the words exchanged between the Accused and Witness Z in front of the communal office, but does not raise doubts as to whether a meeting might have taken place. The majority stated that no other witness could corroborate such a meeting although, as it found, the accounts of the events by Witnesses Y and Z are not inconsistent per se, but that the majority ruled out the possibility that such a meeting ever happened based on the evidence of a witness that it had already found unreliable in light of his testimony on the murder of Bigirimana (para. 961 of the Judgement). Now, unlike the majority, I am satisfied that Witness Z’s testimony regarding his meeting with the Bourgmestre is consistent with the evidence of Witness Y who explained that he saw that the Bourgmestre was in his office when they passed by with Judith right in front of the bureau communal prior to killing her.
81. It is also my opinion, that the mere fact that Witnesses Y and Z knowingly passed in front of the communal office and did not bother to use an alternate route whereas they had the intent to kill Judith conclusively shows that there prevailed at the time a culture of impunity where the activities at the Trafipro roadblock were concerned. Witnesses Y and Z likely did not have the sense that they were acting in violation of any rule or directives from the communal authorities, otherwise they would certainly have chosen to hide, and not taken the obvious and patent risk of meeting the Bourgmestre. Plainly, they did not expect to be questioned, reprimanded or even punished for the criminal conduct they were about to engage in, whereas clearly the Accused knew that such individuals manned the Trafipro roadblock as he had met them there on a regular basis.
82. Moreover, Judith, a resident of Mabanza, knowing that she certainly faced death at the hands of the persons who were leading her to her home, elected not to ask the Bourgmestre to intervene although the latter was in his office when they passed by. The Accused himself admitted that, given Witness Y’s murderous intent, it would have been inconceivable for him to dare pass in front of the communal office with Witness Z, whom he knew to be a delinquent [96]. He further testified that, if that had happened, Judith would certainly have sought his assistance and that it seemed to him odd for someone going past the bureau communal under the escort of killers not to ask him or the security forces who were present at the bureau communal for assistance [97].
83. I find, unlike the Majority, that there is sufficient reliable and credible evidence that the Accused knew about Judith and the people flanking her passing by, that he may have spoken to Witness Z about it and that he failed to act to prevent the crime and punish its perpetrators at that particular time (para. 965 of the Judgement).
84. Lastly, the fact that the murder was likely committed in April [98], or in any event prior to the June written instructions on which neither of the two witnesses at the roadblock testified, coupled with the fact that such persons, of whom at least one was
formally appointed by the Accused, failed to comply with “directives” relating to the operation of the roadblock, leads me to further question whether there ever was such a thing as “directives” regarding the safety of civilians crossing the roadblock. In my opinion, this is a confirmation of the Accused’s wilful negligence in erecting the Trafipro roadblock, negligence which became criminal as he continued to operate the roadblock prior to the directives of early June 1994.
2. The murder of Bigirimana
85. Regarding Bigirimana, Witness Y testified that “he was in a vehicle, we made him come down because he did not have any identity papers.”[99] One Semugeshi had said he knew him and that he was an enemy of the country and speaking to Witness Z “he asked him to go and kill him.”[100] Witness Y further testified “he asked us to go and deal with him and that he was going to buy us tea, obviously, speaking figuratively.” [101] They then left, armed with machetes and a club, to kill him in a small forest about 150 metres from the bureau communal. Witness Z landed the first blow and Witness Y struck with the club.[102] It should be noted that Witness Y testified that he did not see the Accused[103] at the time of Bigirimana’s arrest, but not that the Accused was not at the roadblock as held by the majority (para. 944 of the Judgement). Moreover, during the examination of Witness Y, no questions were put to him as to whether Bigirimana’s wife had been present and what role she might have played during the arrest of her husband.
86. Witness Z testified that Bigirimana was stopped in his vehicle “as they usually did”, that they searched “his clothing” for weapons and that he himself allegedly “discovered that he had two identity cards: one indicating that he was a Hutu and the other that he was a Tutsi”;[104] which he characterized as a serious offence.[105] One Semugeshi arrived claiming to know Bigirimana very well as a Tutsi who worked with the Inyenzi. [ 106] Witness Z testified that there were a lot of people at the roadblock.[107] As to whether Witness Y had engaged in control operations alongside him, Witness Z testified that he was at the roadblock and that they allegedly “encircled the gentleman’s vehicle, the vehicle aboard which Fran?ois Birgirimana was.”[108] Bigirimana’s wife, a Hutu woman, allegedly went to plead with the Bourgmestre, who was walking towards the roadblock to intervene but the Bourgmestre allegedly told her it was none of his business and that she should go and talk to the people manning the roadblock. The Accused then allegedly went past, pretending not to see them,[109] as he headed towards his residence.[110] Under cross-examination, Witness Z testified that Bigirimana’s wife and the Bourgmestre met on the road to the bureau communal and not at the Trafipro roadblock and that he approached the Bourgmestre to show him Bigirimana’s identity cards and give him some explanations.[111] They allegedly detained Bigirimana until the evening when Witness Y, Rushimba and himself, allegedly took Bigirimana to a bush and killed him with machetes because he was an accomplice, a Tutsi, and also because Semugeshi had given him some money.[112] 87. The majority noted inconsistencies in the testimonies of Witness Y and Witness Z who confessed to killing Bigirimana following his arrest at Trafipro roadblock and drew
some conclusions therefrom as to the credibility of Witness Z (para. 961 of the Judgement).
88. After reviewing the details of this event as recounted by two people manning the roadblock, who both confessed to committing genocide on Fran?ois Bigirimana, I am unpersuaded that both accounts are irreconcilable and give rise to doubts as to the credibility of Witness Z. Indeed, Witness Y testified that Bigirimana had to climb out of his vehicle because he had no identity papers while Witness Z testified that he personally found the two identity cards. Witness Z physically had them since he explained that he went to show them to the Bourgmestre while the latter was discussing with Bigirimana’s wife. Therefore, it is not unlikely, given the fact that there were many of them at the roadblock, that Witness Y thought that Bigirimana did not have any identity papers, since they were in the possession of Witness Z. On the other hand, the meeting between Bigirimana’s wife and the Accused may not have happened at the specific time of arrest nor at the exact location of the Trafipro roadblock but a few yards from there, on the road between the bureau communal and the roadblock and it is not unlikely that Witness Z was the only person who witnessed the meeting since he had in his possession Bigirmana’s identity cards and had approached the Bourgmestre of his own accord to show them to him. I wish to add that, Witness Y did not testify that the Accused was not at the roadblock at the time of Bigirimana’s arrest; he only testified that he had not seen him there.[113] D. Findings
89. After carefully reviewing the testimonial evidence, I must respectfully disagree with the majority finding that the Accused incurs no criminal responsibility for erecting and controlling activities at the Trafipro roadblock, where Tutsis were arrested or taken to and then killed, in pursuance of a policy of discrimination on ethnic grounds that the Accused allowed to prevail through willful failure to act, whatever the motives of the perpetrators of the crimes might otherwise have been.
90. The majority holds that only the killings of Judith and Bigirimana can be ascribed with certainty to activities at a roadblock in Mabanza (para. 1014 of the Judgement). Consequently, the majority goes on to find that there cannot be the slightest causal link between the fate suffered by civilian victims under such a system and the reckless operation of the roadblock by the Accused (para. 1021 of the Judgement). I wish to observe on this point that the number of victims at the roadblock is irrelevant to the issue of assessing the gravity of the Accused’s negligence in erecting and operating such a roadblock, because Witnesses Z and Y, who were themselves regularly present at the roadblock, testified that Tutsis did not use to pass through the roadblock at that time (Witness Z explained that Tutsis who had passed through the Trafipro roadblock and had been arrested were Judith and Birigmana).[114] Such a limited number of Tutsis who passed through the roadblock appears to me to be more indicative of the fact that there was not a large number of Tutsi civilian victims at the Trafipro roadblock, rather than suggesting that the Accused operated the said roadblock in a reasonable fashion.
91. Lastly, the majority addressed the conditions that may be relied on to show criminal negligence on the part of the Accused by holding that four elements must necessarily be proved cumulatively (para. 1011 of the Judgement) : (1) the murders of Judith and Bigirimana were committed in the context of activities at the Trafipro roadblock; (2) the Accused was responsible for the operation of the roadblock in his capacity as the authority in charge of maintaining law and order in the commune (the majority also finds that the first two elements were proved); (3) the measures that the Accused took to prevent any potential crimes at the roadblock were woefully inadequate in the circumstances at the time, such measures having been taken over a month after the re-establishment of the Trafipro roadblock; (4) the crimes in question could have been prevented or punished had the Accused exercised due diligence in his duty to control the persons manning the roadblock, by ensuring, inter alia, that they were trained by reservists, as suggested in the Prefet’s letter and by initiating investigations into the incidents mentioned in the Attestation of 3 June 1994.
92. The majority finds, in spite of there not being proffered any such documentary evidence prior to 3 June 1994 and in spite of the vague responses given by the Accused when questioned as to the nature of directives given during the erection of the roadblock, that it cannot be found that the Accused had shown negligence in operating the roadblock because the Accused somewhat exercised de facto control over the roadblock (para. 1018 of the Judgement). Now, such a suggestion of a de facto role by the Accused in the daily supervision of activities at the Trafipro roadblock is not supported by the testimony of the Accused himself who never suggested that he exercised any such regular control over the said roadblock. Indeed, had the Accused so admitted, such an admission would have given rise to other forms of liability arising from negligence, while suggesting that he willfully ignored what was going on at the roadblock.
93. The majority finds that in the absence of dates on which Judith and Bigirmana were killed, it cannot rule out that the killings were committed at a time when the Accused was not fully in control of the administration of his commune, particularly during the attacks by the Abakiga. However, it appears reasonable to me to find on the basis of the testimonies of both Witnesses Z and Y that the Accused was in his office while the witnesses were taking Judith away, and at the time when Judith and Bigirimana were killed. Moreover, neither witness testified that the commune was attacked by the Abakiga during those days (para. 1019 of the Judgement).
94. The majority finds further that it is doubtful that Judith and Bigirimana would have been spared if the Accused had not been negligent, suggesting thereby that the Accused’s failure to comply with his duty to act was inconsequential (para. 1020 of the Judgement). I wish to note that this finding is at variance with the majority’s holding that the Accused regularly passed by the roadblock, and that should have allowed him to exercise reasonable control over the activities there, including over the people manning the roadblock. However, the majority appears to justify this finding by alleging that one cannot rule out the possibility that the Accused did not have sufficient means of control during those days.
95. Consequently, I am satisfied beyond any reasonable doubt that the evidence outlined and discussed supra shows willful negligence on the part of the Accused.
96. With respect to the Accused’s criminal intent, it is my opinion that the evidence adduced at trial which shows the negligence evinced by the Accused in deliberately turning a blind eye to the inherent risks in erecting and operating the Trafipro roadblock, is akin to a consistent pattern of conduct.[115] I am persuaded that, over and beyond his duty, the Accused, in his capacity as Bourgmestre, had the resources to control on a daily basis the activities and organization of the persons manning the only “official” roadblock in the commune, erected close to the bureau communal, a location the Accused had to pass as he went to and from home to the office. Furthermore, the Accused was aware that the situation posed a danger for Tutsis, as he admitted to being so aware during his interview with Witness RA, especially where the Mabanza-Kibuye road was concerned. It was proved at trial, and this is not disputed by the parties, that Mabanza commune was subjected to certain attacks and that the Accused knew that the Tutsis in Mabanza were the primary targets of such attacks. Consequently, the erection of a roadblock, manned by armed Hutu civilians, who were sometimes generally likened to the Interahamwe, to prevent infiltration by members of RPF, obviously posed a special risk for Tutsi civilians.
97. I note that the powers to check identification, to search, to confiscate, to an extent, to arrest and detain which were exercised by individuals who, as testified by the Accused, had no special training apart from primary education, are by virtue of delegation of powers, among the basic powers of the Bourgmestre relating to his responsibility for maintaining law and order in the commune. Notwithstanding the scope of such delegation of powers, the Accused never referred in his testimony to any measures he might have taken to enforce the Prefet: ‘s directive to the effect, inter alia, that the persons manning roadblocks should be trained by reservists.
98. Furthermore, to the extent that the Accused alleges, in his defence, that he knowingly and unlawfully issued a number of false identity cards to Tutsis who came either to the bureau communal or to his home, it is my opinion that he could not have been unaware of the consequences of carrying an identity card indicating a Tutsi ethnicity, and more specifically when crossing a roadblock at that particular time.
99. Consequently, there is no denying that the risks posed by such a system were real and could be perceived by an Accused-Bourgmestre who had been in office for 14 years, from the moment such a screening system was put in place, and it became known that the persons manning the roadblocks enjoyed considerable power at the time major massacres were being perpetrated in Mabanza commune and in Kibuye prefecture. Those circumstances alone warranted that the Accused became doubly vigilant and ensured an adequate level of supervision over activities at the roadblock throughout that period. Consequently, even the supervisory and control actions taken by the Accused in June appear inadequate to me, especially as they relate to incidents which allegedly occurred from the time the roadblock had been erected but which were never followed up on. Therefore, it is not impossible that the killings testified to by Witnesses Z and Y would
be part of such “incidents”. Yet, no proceedings were instituted by the Accused to identify, to punish or to prosecute the perpetrators of those crimes.
100. There is no evidence prior to June 1994, not even in the Accused’s testimony, that he in any way tried to prevent persons not assigned to the roadblock from actually manning it, or that he punished those who inflicted ill-treatment on passersby. It is my view that such information concerning ill-treatment of passersby, coupled with the fact that the Accused knew that “unofficial” roadblocks had been erected in the commune and admitted to having been aware of what was happening at other roadblocks in other communes or even on the Kibuye road, constitute a body of indicia sufficient to show that the Accused had reason to know the nature of the risks posed by the Trafipro roadblock. In the instant case, I am satisfied that considering the information available to the Accused, he must have been aware of the probability of criminal conduct by the individuals manning the roadblock and that his was so serious a conduct as to amount to criminal negligence as defined in the Blaskic Judgement.
101. In light of the foregoing, it is my opinion that the Accused willfully neglected his duty to exercise appropriate control over the modus operandi at the only roadblock under his responsibility, and thereby aided substantially the principals of the crimes. The Accused did not fulfil his duties of supervision and maintenance of law and order in Mabanza commune. Therefore, I find that through willful negligence, the Accused incurred liability for complicity in crimes against humanity – murder – committed by individuals assigned regularly, or even permanently, to the Trafipro roadblock.
IV. The Accused’s complicity in the detention and maltreatment of refugees at Gatwaro stadium (paras. 4.23, 4.24 and 4.31 of the Indictment)
102. I respectfully distance myself from the position of the majority who, in finding evidence of his presence at the stadium insufficient, failed to hold the Accused criminally liable for complicity in the unlawful confinement of the Mabanza refugees at the Gatwaro stadium, in Kibuye, from 13 to 18 April 1994.
103. After carefully weighing the testimonial evidence adduced, I am of the view that the Accused’s testimony is not credible since he testified before the Chamber that he never went to Gatwaro stadium, nor even to Kibuye town between 9 and 25 April 1994, despite credible and corroborated testimonial evidence placing him at Gatwaro stadium on 13, 14 and 18 April 1994.
104. For the purposes of my reasoning, I refer to the facts as set out in Chapter V, Section 3.2 of the majority judgement without undertaking an exhaustive review of all the testimonial evidence.
A. Monitoring by the Accused of the situation with respect to the Mabanza refugees in Gitesi
105. With regard to the circumstances surrounding the departure of the refugees, the Accused testified as follows:
“Given the circumstances in which I received the message, there was no way of checking. It is when I received this message, and that I was sensing what was going to happen, especially given what was being said elsewhere, rumours, I didn’t check on what was happening in Kibuye, whether they would be able to receive these people. I was simply thinking that they should flee and run away.”[116] 106. The Accused testified that after the refugees left for Kibuye, he had thought that their safety would be ensured by Prefecture and commune authorities in Kibuye.[117] In response to questions from the Chamber on the nature and content of actions he allegedly took to check on the plight of the refugees at the stadium, the Accused explained that he did not go to Kibuye because he had to face attacks occurring in the Mabanza commune on that day. He further testified that the gendarmerie Commander, Jabo, had told him in the afternoon of 13 April 1994 that the refugees had arrived safely in Kibuye. Now, it is worth noting that, as the Accused testified to himself, his meeting with Commander Jabo was a chance encounter and that the Accused had failed to take action, on his own initiative, to ensure that the refugees would arrive in Kibuye safe and sound, even if no crime under Statute of the Tribunal’s had been committed during the transfer. Questioned on the monitoring of the Mabanza refugees’ safety in Kibuye, the Accused added that he went to Kibuye only when he was invited.[118] Coming from a Government- appointed Bourgmestre in office for 14 years, and with a well-established reputation in Government, such an explanation does not appear to me credible, in light of the events unfolding at the time and the movement of a substantial part of the commune’s Tutsi population. Therefore, I am unpersuaded by the Accused’s assertion that he had taken practical and concrete action to check on the plight of the refugees and I would add that this point is important to assessing the role of the Accused in the events that occurred at Gatwaro stadium as from the transfer of refugees.
107. With respect to his schedule, the Accused testified that from 13 April 1994 “the Abakiga came [everyday], and this time they did not remain at Mabanza they continued up to Gitesi, towards Gitesi and they would go back in the evenings.”[119] Now, during that period, the majority of Tutsis from Mabanza were refugees in Kibuye, Gitesi commune, upon the Accused’s advice as given in the morning of 12 April 1994. I am of the view that the Accused cannot therefore claim that he was unaware of the possible attacks on the Tutsi refugee population in Gitesi by the same Abakiga who were attacking Mabanza during that same period. Furthermore, I note that there is no independent or specific factual evidence adduced by the Accused that on 15, 16 and 17 April 1994 other Abakiga attacks occurred in Mabanza requiring that the Accused remain in the commune to ensure the safety of the population.
108. With regard to the actual security conditions prevailing in Mabanza from
13 April 1994, the Accused, when questioned on how he kept the Prefet informed through a report on the events of 13 April 1994, testified that he had spoken to the Prefet in the morning of 13 April, following the departure of the refugees, but not subsequently because the telephone lines had been cut. As to whether he could not have possibly sent a message to the Prefet through the gendarmerie Commander, Jabo, since the telephone was no longer working, the Accused replied: “I didn’t have a specific message for him, he himself, would have been aware of what happened in Mabanza.”[120] And this, despite the fact that that day was described by the Accused as “total chaos in Mabanza”[121] and would have certainly prompted a commensurate reaction, including, notifying higher authorities with a view to their possible intervention. I note that this attitude stands in stark contrast to the Accused’s zealous promptitude in informing the Prefet in the night of 12 to 13 April of imminent danger he had had to face before the refugees fled the bureau communal. For instance, after midnight in the night of 12 to 13 April 1994, upon realizing that the prefecture had brought in other refugees from Rutsiro, the Accused testified that he had telephoned the Prefet and even offered to resign:
“At that point in time, at that very time at midnight, I telephoned the Prefet, it was very late but I took the liberty to call him at night. I asked him what they were trying to do […] So I asked why the Prefet was bringing people before consulting me, we should have looked at the ways and means of finding a solution to my problems. That is what I believe we should have done. Moreover, I said to the Prefet, I had invited him on several occasions to come and see with his own eyes the conditions under which I was working and the problems with which I was faced and he never came. [.. .]I told him, by telephone, that I would bring – – that I was going to give him the keys to the office on the morning of the 13th.”
109. Concerning the Accused’s alleged offer to resign presented to the Prefet that morning, it seems to me that in light of the events which followed the departure of the Tutsi refugees, such as the widespread attacks described by the Accused, or the withdrawal of the gendarmerie forces and, especially, the massacre of the majority of the Mabanza Tutsi population in Kibuye on 17 and 18 April, the Accused would have had several serious opportunities to tender his resignation to the Prefet, but elected to remain in office, in spite of such events.
110. During his testimony, the Accused insisted on the number of times he contacted the Prefet during the night of 12 to 13 April 1994. In my opinion, such insistence served as a justification for the fact that the Accused had no other recourse than “to advise” the refugees to leave for Kibuye and to ask them to vacate the bureau communal in the morning of 13 April, in order to get rid of the “burden” brought, in his view, by the Prefet. Now, it should be noted that from 9 April 1994, the Accused had five gendarmes following the Kibuye security meeting held on that day, and that instead of stationing them close to the bureau communal where the Tutsi population, who were the primary targets of the attackers, had sought refuge as of that same date, the Accused had elected to post the gendarmes to Mushubati, although the latter had no means of transport.[123] Nevertheless, the gendarmes had a telephone line and it appears quite strange that the Accused elected not to call the gendarmes at least in the evening of 12 April 1994 so that they might come and ensure the security of the bureau communal considering the fresh influx of refugees that evening.
111. Furthermore, I note that despite the Accused being presumably aware of an imminent danger as identified in the morning of 13 April 1994, none of the witnesses who at the time were refugees at the bureau communal testified to the Accused explaining to them the specific nature of such a danger. However, the Accused testified at length to an imminent attack by attackers composed of Abakiga from Rutsiro.
112. Lastly, in light of the unique circumstances in which the Accused decided to dispatch, as a matter of urgency, thousands of refugees from the bureau communal to Kibuye in the morning of 13 April 1994, it appears to me doubtful that the Accused could have proceeded without seeking prior authorization from Prefet Kayishema, given the well-established chain of command which required the Accused, in his capacity as Bourgmestre, to first seek such an authorization. If true, then such unorthodox conduct seems to me to stand in stark contrast to the Accused’s reluctance, in light of the opportunities he presumably had, to go to the Prefecture, even without invitation, following the departure of the refugees, to ensure that they would actually be safe there. By extension, this observation applies to the Accused’s reluctance to address the
25 April 1994 security meeting in Kibuye, which in particular followed the massacres at Gatwaro Stadium and which will be discussed in detail below.
113. Consequently, I am of the opinion that the totality of the Accused’s contradictory attitude in the face of the unfolding events casts doubt on the veracity of his testimony. I find therefrom that the explanations provided by the Accused as to the magnitude of the attacks on Mabanza commune served to conceal his willful negligence in checking on the plight of the Tutsi refugees, with the Accused relying on “the alibi” offered by the Abakiga attacks on the commune to show that, he had been blocked in Mabanza on the one hand, and that he had to attend to the population of the commune, on the other hand.
B. Regarding the presence of the Accused at Gatwaro stadium on 13 and 14 April 1994.
1. 13 April 1994
114. Witness A and Witness AC testified to seeing the Accused at Gatwaro stadium on
13 April 1994 though there is about a one-hour discrepancy in the time they both testified to seeing him. (According to Witness AC, the Accused was with Semanza).[124] However, the Accused testified that he had remained in Mabanza where the bureau communal had allegedly been inter alia attacked by Abakiga in the morning.[125] 115. Witness A testified that the Accused arrived at the stadium gates around 2 p.m. but as he did not have a watch, the time he had given was a rough estimate.[126] Witness A testified that the Accused followed the refugees when they left Mabanza for Kibuye but that the Accused had stopped to speak to some gendarmes and joined them in Kibuye as the gates of Gatwaro stadium were being opened.[127] Now, since Witness A failed to mention in his prior statements the Accused following the refugees as they left the bureau communal, the majority finds that such failure casts doubt on the evidence of Witness A who testified before the Chamber to seeing the Accused on that day (para. 536 of the Judgement).
116. Witness AC testified to the Accused arriving unarmed and in civilian clothing, around 3 p.m. that same day. The witness explained that the Accused spoke to the gendarmes at the stadium gates and that after his departure, the gendarmes allegedly stated that nobody would be allowed out of the stadium and even beat back the refugees
who attempted to follow the Accused. The majority found that there were inconsistencies between the testimony of the witness and his prior statement as to the specific conduct of the Accused when he arrived that day. The majority noted discrepancies between the prior statements of Witness AC and his testimony: either the Accused entered the stadium or he tried to enter the stadium, or he took a few steps into the stadium. The majority finds, that in the face of such discrepancies and consistencies with the account of the visit of the Accused the day before, coupled with the fact that the witness only gave a sketchy account of the visit, it cannot be ruled out that the witness actually remembered a single visit which he was now recounting as two separate visits (para. 538 of the Judgement).
117. For my part, I hold the opinion that since these questions were not clearly put to Witness AC during his testimony, the majority’s finding which is based specifically on a prior statement is speculative. At any rate, according to the majority decision itself, it should have been found that the witness remembered at least one visit of the Accused to the stadium, although this fact is not even accepted by the majority. Regarding the absence of details, I note that the majority acknowledges with respect to the evidence of the other witnesses who had been at the stadium at that time, but who had not seen the Accused, that it is not unlikely that the Accused made “short visits” which went unnoticed. But the majority nonetheless required comprehensive and specific details about the visits of the Accused as testified to by the witnesses who saw the Accused “briefly.”
118. In my opinion the other testimonies regarding the Accused being present at Mabanza in the morning of 13 April 1994 are not inconsistent with the Accused possibly visiting Gatwaro stadium in the early afternoon since he had a vehicle and the roads would have been free by then as the refugees had already arrived at their destination. For his part, the Accused testified that Mabanza was 20 kilometres away from Kibuye prefecture and “moreover, that it was not a tarmac road, it took me one hour to get to Kibuye.” [128] I am unpersuaded by the majority’s finding that in light of the evidence of Witness A and Witness C, it would have been impossible for the Accused to have gone to the stadium on two separate occasions on 13 April 1994 (para. 539 of the Judgement). This, although the majority noted that the witnesses give an approximate time and that the only factual difference lies in the fact that one of the witnesses testified that the Accused was at the stadium before the gates were opened (Witness A) while the other witness was already inside the stadium (AC). It is quite possible for the Accused to have remained for a while in the vicinity of the stadium or in Gitesi commune; therefore, I fail to see how such two witnesses could be said to be describing an unlikely situation all the more since the time given were estimates.
2. 14 April 1994
119. The Accused testified that on that very day of 14 April in the morning, the Abakiga returned to the commune in greater numbers and attacked a group of peasants near the bureau communal and that once again, they attacked Karungu like they had done the day before.”[129] 120. Witnesses A and AC[130] testified to seeing the Accused again in a vehicle with Semanza on 14 April 1994 (according to Witness A, in the company of Dr. Leonard and according to Witness AC, at 9 a.m. in the company of two communal police officers and the communal driver)[131] head towards the entrance and speak to the gendarmes. Witness AC testified that the Accused was in civilian clothing and unarmed while the policemen were armed. Witness A who was high on the larger stand further testified that when they arrived, the refugees shouted: “that they”, referring to the visitors, were coming to kill them. In my opinion, if there was a mix-up as to the day of the visit (Thursday or Friday) between Witness A’s testimony and his prior statement, such a discrepancy has little impact on the reliability of the evidence of a witness who was recounting the same incident on both occasions, an incident which involved the Accused being present at the stadium that day. I do not share the view of the majority that it was prompted by “the absence of details” from Witness A on such a visit to consider the prior statements of the said witness (para. 549 of the Judgement). I am puzzled by such an approach to assessing evidence that I cannot endorse.
121. Regarding the visit of the Accused to the stadium on 14 April 1994, the majority finds that the evidence of Witness A is not conclusively corroborated by the testimony of Witness AC and notes specifically the fact that Witness AC did not testify to a “striking and relevant detail” as mentioned by Witness A who testified that when the Accused arrived, the refugees screamed “that they,” referring to the visitors, had come to kill them (para. 551 of the Judgement). Thus, though the majority finds that Witness A had not provided sufficient detail to erase the subsisting doubt with respect to the visit of the Accused, it seems incongruous for the majority to rely on a “striking and relevant detail” given by this same witness to find that the testimonies of A and AC are not conclusively corroborative of one another, in spite of the fact that Witness AC was at another location in the stadium and that this may account for his failing to mention such a detail.
(para. 551 of the Judgement.)
3. Findings on the presence of the Accused at the Stadium on 13 and 14 April 1994 and on the assessment of the testimonial evidence
122. I note that, even though the Accused renounced his defence of alibi in the course of the trial, and whereas he claimed in his testimony that he did not go to Kibuye between 9 and 25 April 1994, the Accused was only able to provide little information on his schedule and activities in Mabanza during this period. Even though several witnesses place the Accused in Mabanza on 13 and 14 April, at various times during the day on
13 April, their testimonies, in the main, only point to the mornings. It therefore seems to me that the Accused could very possibly have travelled between Mabanza and Kibuye during the day, considering that, as suggested by the Accused himself, one hour by road was sufficient to cover such a distance. I would like to note, moreover, that the evidence used to “corroborate” the presence of the Accused on 13 and 14 April 1994 in Mabanza, is testimonies which had not been accepted by the Trial Chamber when they suggested the Accused’s involvement in other crimes committed in Mabanza (particularly, Witnesses AB, Z and H).
123. Moreover, it being established that the Accused was present at the stadium during this period, in the absence of evidence to show that he objected to the crimes which were committed there at that time, and taking into account his status as an authority, I am of the opinion that the probability that the Accused was, at that time, associated with the perpetrators of the crimes is, to my mind, established, even in the absence of evidence to show that the Accused was privy to a preconceived plan. Such probability, in my opinion, is supported by the statement of Witness A, as to the incident which occurred upon the arrival of the Accused on 14 April 1994, during which incident the refugees inside the stadium cried out “that they” – including the Accused who was among the visitors – had come to kill us [refugees], a detail described by the majority as “striking and pertinent.”
124. Consequently, I differ with the majority which, in assessing the evidence in support of the presence of the Accused at the stadium, and in light of the factual findings which could be made on the basis of evidence of the presence of an authority at the scene of the crime, applied a double standard regarding the assessment of evidence and, in several cases, the test applied proved to be inappropriate. Thus, the majority stated that an allegation of the presence of the Accused must be treated with caution if such allegation is not supported by other evidence (para. 532 of the Judgement). In other words, where lack of detail raised doubt, the majority would apply the following test : examine other testimonies or take into account witness statements to clarify or test the veracity of allegation made by a witness, whereupon if there is no corroboration, the doubt would persist and presence would not have been proven (para. 532 of the Judgement).
125. As I stated supra in the introductory remarks, I hold, on the contrary, that testimonial evidence has an intrinsic value, and that evidence must be tested when the witness is giving testimony and not a posteriori, by relying, particularly, on the witness’ prior statements, without such statements being necessarily put to him during his testimony. I insist on the fact that prior statements must be used with caution, by taking into account the lack of information on the conduct of the examination of the witness, and by ensuring that apparent inconsistencies are brought to the knowledge of the witness, thus giving him the opportunity to provide an explanation during his testimony.
126. In this instance, the majority holds that Witness A only gave superficial information regarding his observation of the Accused; it points out, in particular, that there is no precision as to what the Accused was doing, whether or not he was accompanied, whether he was standing or sitting in a vehicle or whether he was armed (para. 537 of the Judgement). I note that Witness A provided several details, but that the majority did not make factual findings therefrom, because it considered them as being insufficient to remove doubt as to the presence of the Accused. I deem it appropriate to recall that, in the opinion of the majority, depending on the location of an individual at the stadium and taking into account the fact that there was a crowd inside the stadium, it is not to be ruled out that a brief visit could go unnoticed (para. 542 of the Judgement). A fortiori, to require that witnesses provide such details and accurate information is, in my opinion, unjustified and unfair, considering that the witnesses recognized, and not identified, the Accused under such circumstances as have been described.
127. Lastly, when the majority states that it does not give any weight to the fact that Witnesses A and AC allegedly saw the Accused at the stadium on 13 April within an interval of about one hour, it nevertheless draws the inference that if the Accused had been present when the refugees were entering the stadium (as testified by Witness A), the Accused would not have had to return at a later stage to ask whether the refugees he had sent had arrived, (as testified by Witness AC) (para. 539 of the Judgement). I hold the opinion that such a finding is irrelevant and smacks more of speculation. I would like to add that the assessment of Witness AC’s testimony by the majority with regard to the visit of the Accused on 13 April 1994 and the finding that the said superficial and sketchy description of the visit of the Accused could very well apply to the visit of the next day is, in my opinion, unfounded (para. 541 of the Judgement). Regarding the visit of
14 April 1994, I disagree with the finding of the majority that the testimonies of A and AC are insufficiently corroborative of one another. In light of these testimonies, I am of the opinion that the majority failed to consider the fact that the witnesses were at two different locations in the stadium at the time they saw the Accused on 14 April 1994.
128. When the majority holds that it is not satisfied beyond reasonable doubt that the presence of the Accused on 13 and 14 April 1994 is established, it adds that, assuming that the Accused was there, the witnesses did not provide sufficient details concerning the purpose of his visit, and that, therefore, there was insufficient evidence of his criminal intent (para. 543 of the Judgement). I note that by such reasoning, the majority rejects its own logic regarding the hypothetical significance of the presence of an authority, who does not intervene for the refugees, whereas he has, at least the means to express his disapproval, if only to take positive action to protect the said refugees.
129. Moreover, even though the Chamber finds that the ill-treatment inflicted upon the refugees at the stadium during the period from 13 April to the day of the attack, on
18 April 1994, amounted to inhumane acts committed during said period (crimes against humanity), the majority went ahead to find that, in any case, even if the Accused were present at the stadium on 13 April, no crime under the Statute had been committed at that time which could give rise to any liability (para. 543 of the Judgement). I must point out here that the reasoning of the majority on this point does not at all take into account its own factual findings that crimes against humanity were committed during the period commencing from 13 April 1994.
130. In light of the foregoing, and considering the testimonies of Witnesses A and AC that I find credible and reliable, I respectfully disagree with the factual findings of the majority as regards the lack of sufficient evidence of the presence of the Accused at the stadium on 13 and 14 April 1994. I am convinced that having visited the stadium on these various occasions, the Accused was aware of the inhumane detention conditions under which the refugees found themselves, most of whom came from Mabanza, and that being so aware, he did not intervene in their favour. Accordingly, I find that by his presence, even transient, at the time the refugees were undergoing inhumane treatment, the Accused provided some form of moral support, some legitimacy to the criminal activities being carried out, and thereby incurred liability as an accomplice. Furthermore, by his silence and failure to intervene in favour of the refugees, notably those from Mabanza, the Accused facilitated the perpetration of said crimes. Lastly, I am convinced that by going to the stadium on two occasions at the time the refugees were in forced confinement, the Accused could not have been unaware of the fact that presence would be interpreted as encouragement, or even as acquiescence by those who were responsible for the refugees’ living conditions, in particular, the gendarmes posted at the stadium gates on 13 and 14 April 1994. I am convinced that in his capacity as a respected administrative authority, the Accused’s presence at the scene of the crimes helped to legitimize the said crimes in a significant manner because, in the absence of effective denunciation, such conduct provided moral or psychological support to the perpetrators of the crimes. The tacit acquiescence of the Accused is shown through his behaviour and attitude as described by the witnesses, in particular, his conversations with the gendarmes, whose role and intention he must have been aware of, between 13 and 14 April 1994. Considering the entire circumstancial evidence, I am satisfied that the Accused, failing his objection to the perpetration of the crimes in question, knew that his presence would very likely contribute to the perpetration of criminal acts by other persons, whose role and intention he had been able to verify.
131. I am therefore satisfied beyond reasonable doubt that the Accused is liable as an accomplice, pursuant to Article 6 (1) of the Statute and, of other inhumane acts under Article 3 (1) of the Statute, committed from 13 to 14 April at Gatwaro stadium, as alleged in Count 5 of the Indictment.
V. Complicity of the Accused in the attack on Gatwaro Stadium on 18 April 1994 (paras. 4.13, 4.26 and 4.27 of the Indictment)
132. The fact that there was a widespread and systematic attack on 18 April 1994 against the civilian population that was compelled to take refuge in the stadium has been proved beyond reasonable doubt, and is uncontested by the Accused.
1. Evidence of the Accused’s presence in the Stadium on 18 April 1994
133. First of all, I want to state that I concur with one of the findings of the majority relating to the lack of credibility on the part of Witness AA concerning the Accused’s involvement in the events at the stadium. In fact, I hold the opinion that the doubts and questions raised during Witness AA’s testimony, considering his prior statement and guilty plea before the Rwandan authorities, were not erased even after he was cross- examined thereon during the trial (paras. 607-637 of the Judgement).
134. Witness Z testified that on the day of the attack on the Home St. Jean complex or on the stadium (17 or 18 April 1994), the Accused, who was armed, stopped by at the Trafipro roadblock with Semanza and armed Abakiga and allegedly told the witness that he was going to Kibuye, as he always did whenever he was going there.[132] 135. Prior to the attack, Witness AC saw Semanza in the communal vehicle that was carrying the Interahamwe[133] stop near the stadium gate.
136. Witness A testified that on the morning of 18 April 1994 prior to the attack on the stadium, he saw the Accused, together with Semanza and policemen in a vehicle, but that the Accused left in the same vehicle after he heard the refugees shouting.[134] The witness, who happened to be at the grandstand located in the uppermost part of the stadium, described it as a brief stopover. His description is obviously limited, but it does not call into question the fact that this event occurred. I cannot subscribe to the finding of the majority regarding the credibility of this witness’ testimony, when they state that
“… the evidence provided by Witness A about the presence of the Accused at the Stadium is unclear.” (para. 641 of the Judgement).
137. Contrary to the majority opinion, Witness G recognised, and not identified, the Accused who was with Prefet Kayishema and the attackers on Gatwaro hill before the Prefet gave the signal to launch the attack (para. 649 of the Judgement). It should be noted that although the credibility of Witness G was not at issue, the majority nevertheless went ahead to apply improper standards for the assessment of evidence as to whether Witness G identified, and not recognised the Accused. Although the majority relied on the testimony of said witness for its finding that the Accused, who was with the attackers, was a person known to the witness, it states, with regard to Prefet Kayishema, that it is not satisfied with the evidence relied on by the Prosecution to show that this witness knew the Prefet prior to the events at the stadium. The fact remains that, the majority accepted that Witness G knew the Accused, based on Witness G’s testimony given in camera to the effect that he and the Accused lived in close proximity to each other,[135] without considering particularly relevant facts (para. 650 of the Judgement) In my view, the majority unjustifiably adopted a double standard in assessing the evidence. On the other hand, during the in camera hearing, the witness provided pertinent information as to what he was able to see, the exact position where he was, that is on the first step in the stands[136] and as to the fact that the Accused was on Gatwaro hill together with Prefet Kayishema.[137] The witness duly indicated all these locations in a photograph of Gatwaro stadium.[138] During the attack, the witness could see the Accused who was standing, but not carrying a weapon that day.[139] However, the majority emphasised that the Prosecution had failed to discharge its duty to provide sufficient evidence regarding the conditions in which Witness G viewed the events, in order to dispel any doubt (para. 652 of the Judgement); yet the witness testified that he was only a short distance away from the Accused.[140] In the opinion of the majority, the fact that Witness G testified that the Accused was in a standing position on the hill cannot be accepted as a distinctive factor of conduct that could help distinguish the Accused from the other attackers (para. 652 of the Judgement). The majority further stated that Witness G’s view “presumably” included a porch filled with people, which suggests that their opinion is based on speculation (para. 649 of the Judgement). It should be noted that Witness G was in a location different from that of the other two witnesses who were at the stadium during the attack (A and AC). Thus, since Witness G was relatively closer to Gatwaro hill, he was able to recognise the Accused on the said hill while Witnesses A and AC may not have seen him from their location in the stadium. Nonetheless, since the majority held that no other witness had corroborated the fact that the Accused was on the hill before and during the attack, it concluded that on account of the distance and given
that Witness G was unable to provide further details, the presence of the Accused had not been proven, for there was still doubt (para. 653 of the Judgement).
138. On the contrary, I am of the view that the testimonial evidence given by Witnesses A and G regarding the presence of the Accused before and during the attack on the stadium is not contradictory. I take the view that in light of the surrounding circumstances, Witness A, who was right at the top of one of the stands when the attack began, before he subsequently came down to the field[141], that is in a stand opposite the one where Witness G was, saw the Accused in the morning of 18 April 1994 when he arrived in a vehicle and not during the attack. On the contrary, Witness G who was in a stand opposite that of Witness A did not see the Accused in the morning of
18 April 1994, but rather around 2 p.m., just before the attack and when it began, at which time the Accused was on Gatwaro hill.
139. I find that since both witnesses saw the Accused at two different times of the day on 18 April 1994 from different locations inside the stadium, it is both well-founded and justified to consider them credible, and I dismiss as immaterial the contention of the majority that the witness’ observation of the Accused was inadequate. Consequently, I am of the opinion that the testimonies of Witnesses A and G prove beyond reasonable doubt that the Accused was present in Gatwaro stadium on 18 April 1994 before and during the attack on the refugees who were being detained there.
2. The Accused’s testimony
140. The Accused testified that on the morning of 18 April 1994, he went, together with policemen and Pastor Eliphaze, to Rubengeri Parish to request the Abakiga to withdraw from the commune. The Abakiga allegedly did not listen to him and went towards Gitesi town in Kibuye.[142] Thus, while the Abakiga returned to Mabanza in much larger numbers than in the previous days, the Accused was informed of their intentions and the direction they were heading for on the morning of 18 April 1994, after having met with them.[143] The Accused further testified that following the failed attempt, he stayed in the bureau communal until midday, helping people whose identity cards had been torn, by getting them new ones, so that if the Abakiga returned they would not be killed.[144] I must point out that I was not satisfied with the Accused’s explanation in support of his testimony that he decided suddenly to face the Abakiga on 18 April 1994, whereas the attacks on Mabanza commune had begun since 13 April 1994, at which date he claimed he was not in a position to stop them because he was personally threatened, whereas the number of attackers increased daily, as per his testimony. When asked where the Abakiga were heading for on 18 April 1994, the Accused reiterated that they “were going towards Gitesi.[145]” The Accused further testified that it was on that day that the Abakiga committed their criminal acts in Kibuye and added : “but in Mabanza, I was faced with other problems. It was the people who were coming to me. Coming to tell me about how they had problems”.[146] As the majority noted, the Accused later testified that he had stayed at home on the afternoon of 18 April 1994, that he had received people; but then this has not been corroborated by any other testimony or documentary evidence. I hold the view that the evidence adduced supports a finding that the Accused
was informed on the morning of 18 April 1994 that the refugees in Mabanza who were at Gatwara stadium in Gitesi commune faced possible attacks and, it also shows that by going to the stadium on the morning of 18 April 1994, as testified by Witness A, the Accused knew or had reason to know that an attack was imminent.
141. The Accused testified subsequently that at midday he returned home to receive people requesting him to help obtain identity cards for them, and that he allegedly wrote letters to the conseillers and members of the cellule, whereas there is no evidence of such official correspondence in the commune’s outgoing mail register.[147] And for good reason, the Accused asserted as follows :
“Between the 12 and 27 April 1994 that indicates the chaos which was prevailing in the commune. The commune was totally paralysed. The secretariat was not functioning. All the communal departments were paralysed. That is why between the 12 and 27 there is no letter, there is no other letter which went out of the commune”.[148] 142. This testimony raises doubts as to the Accused’s contention that on the afternoon of 18 April 1994, while the attack was being launched on the Gatwara stadium, he stayed at home to write “official letters” of which no trace exists, whereas one testimony situates him at the said stadium at the same moment, at the beginning of the afternoon when the attack was launched.
143. When questioned on the tragic fate of the Mabanza refugees in Kibuye and the identity of the attackers, the Accused testified that he thought that the higher authorities had been informed of the situation in Kibuye. Thus, he thought it was up to them [authorities] to take the initiative to follow up on what happened in the Prefecture and conduct the necessary investigations, for that was not the first time that such atrocities had occurred[149]. Yet, after the massacres in Gitesi commune, which he admitted he was aware of since 19 April 1994, the Accused remained quiet and took no measures, at least, until 25 April 1994. His failure to request the identity of persons killed or to order an investigation following the massacre of thousands of members of the Mabanza population appears, to say the least, incomprehensible, and indeed, incompatible with the Accused’s ostensible concern for the security of the Mabanza population, whose most vulnerable section, composed of the Tutsis, had just been annihilated.
144. I hold the view that had the Accused’s intention not been criminal when he went to the stadium on the day of the attack, he would have intervened, at least, by trying to stop the attacks, in order to protect the Tutsi population of Mabanza who had sought refuge there and over whom he had responsibility. If he did not have the means to stand up to the attackers, and having understood that the higher administrative authorities would not intervene or might have been involved in the massacres, and if the Accused had not acquiesced in the massacres, he would at least have taken measures a posteriori to identify or repatriate the bodies of Mabanza natives killed. It is therefore not credible, as the Defence indicated hypothetically, that even if the Accused had been at the stadium on the day of the attack, he would have been there only passively, whereas as he himself admitted, the Accused knew that the attackers were moving towards Gitesi town in Kibuye and that when he went there he did not object to the crimes committed.
145. In his capacity as the official responsible for the security of the inhabitants of Mabanza, the Accused testified that he went to Kibuye on 25 April 1994 to attend a security meeting at the Prefecture with, among others, Prefet Kayishema and some other bourgmestres. In that regard, the Accused testified that the authorities deplored what had happened and made recommendations to the higher authorities aimed at averting a recurrence of such situations in the future.[150] The Accused testified that, at the meeting, the Prefet mentioned that gendarmes, delinquents and the Abakiga had taken part in the killings and that nobody, not even him [the Accused], had inquired about the number of victims in spite of the fact that thousands of Tutsis from Mabanza were among the victims.[151] The Accused further testified that they [the Prefet and Bourgmestre of Gitesi] were overwhelmed and that they decided that each Bourgmestre was to ensure that what had happened in Kibuye did not occur elsewhere.[152] When I asked the Accused if he had sought an explanation about the apparent participation of gendarmes in the massacres at Gatwaro stadium, he gave the following answer:
“This meeting did not last long, because there were problems between the Prefect and the Bourgmestre of Gitesi commune, the urban commune of Gitesi, regarding what happened in the town. Then we had to give the security status report of the various communes. But the meeting did not last long. It was one hour, it lasted an hour.”[153] 146. When I insisted on knowing if the massacres had not been carried out with the knowledge and under the supervision of the administrative authorities of Kibuye, the Accused responded: “The Prefet explained to us that the local commander “went to the battlefield . and that he himself was threatened. That is how he explained the situation to us, … that he was unable to do anything during that period.”[154] The Accused never testified that the issue of the Prefet’s use of his power to call in the armed forces as provided for in the Legislative Decree of 11 March 1975 on the organization and functioning of the prefecture was raised by the participants at the security meeting.[155] The Accused then added :
“. then he had problems explaining what happened. So on that point, the Prefect asked us it we needed fuel. We told him that we needed fuel for our communes.”[156] 147. It seems surprising to me, to say the least, that the type of problem raised by the Accused during that meeting, in his capacity as an administrative authority, and particularly at a time when, according to him, the town was stinking and strewn with bodies,[157] was a problem of petrol and fuel supply, whereas a large part of the Tutsi population of Mabanza had just been exterminated.
148. As to the majority’s question whether the Accused could not have done more (paras. 665 – 683 of the Judgement), I hold the view that, the evidence confirming his presence at the stadium on 18 April 1994, and the fact that he had failed in his duty as a local government representative during and after the massacres indisputably establish the extent of liability and negligence of the Accused in connection with the massacres at Gatwaro stadium. Moreover, I am convinced that the difficulty with which the Accused answered questions about his failure to order an investigation into the massacres in order to denounce them or punish the perpetrators thereof could be logically explained by the
fact that the Accused, who was present at the time of the massacres, acquiesced in their commission.
149. Besides, given the fact that during that meeting, the Accused realized that the authorities of Gitesi, who were administratively in charge of Gatwaro stadium, did not take a clear stand when recounting the horrendous massacres which had just taken place there, and the fact that gendarmes were involved in the killings, I fail to see the relevance of the letter that the Bourgmestre sent to that same Prefet on 24 June 1994, which even contrasts with the timidity displayed by the Accused at the meeting of 25 April 1994 following the massacres. In that letter written in June, when a large part of the Tutsi population had already been massacred at Kibuye, the Accused, with full knowledge of the facts, vehemently denied being an accomplice “who supports Hutus married to Tutsis and the Tutsi in general”, and requests that the Prefet counter the attack by the Hutus from Rutsiro and Kavoye: “otherwise the population of Mabanza commune would defend itself, which can result in a confrontation between the Hutus, whereas what we presently needed the most is their unity to face the Inyenzi-Inkotanyi.” [158] For all these reasons, the Accused urgently requested assistance from the Prefet. This documentary evidence brings to light the ambiguous nature of the relationship between the Accused and the Prefet, a relationship the Accused sometimes described as distant, when explaining why he dared not ask him about the massacres at Gitesi, and sometimes as very frank, when trying to show that he could count on the Prefet to, among other things, intervene to ensure his own protection, and inform him if the people of Mabanza could take care of “accomplices.” I hold the opinion that this last point proves that the Accused was not powerless in the face of the events he has recounted.
150. In light of the explanations given by the Accused, it is apparent that after the large- scale massacre in Kibuye, he failed in his duties and responsibilities as a Bourgmestre. He did not attempt to clarify the situation about the officials nor to identify the victims of Mabanza, and was evasive on the questions he could have asked as to how the events unfolded, even though he was present at the “security” meeting of 25 April 1994, which was attended by all the authorities concerned by the massacres.
VI. Findings
151. Testimonial evidence of the presence of the Accused at Gatwaro stadium on 18 April 1994 appears to me to irreparably impair the credibility of the Accused’s testimony and impugn his vague and even sometimes surreal accounts of his activities in Mabanza commune on that day aimed at rebutting the allegations that he was present at the stadium. On this specific point, I concur with Judge Pillay’s finding in her separate opinion in the Musema Judgement that “once the credibility of a witness has been impaired, the testimony of that witness is inherently unreliable in all its parts, unless it is independently corroborated.”[159] In the said case, Judge Pillay dissented with the majority’s finding that the sole testimony of a witness, who had otherwise been found to be a credible witness, while the Accused was not, was insufficient to prove that the Accused was present at the crime site. Judge Pillay went on to hold that “the testimony
of Witness [..] cannot be rejected in one instance on the basis of testimony from the Accused and accepted in another instance despite testimony from the Accused.”[160] 152. In the instant case, I am satisfied that the testimonies of Witnesses A and G prove beyond reasonable doubt that the Accused was present before and during the attack on the stadium on 18 April 1994, and that the Accused knew or had reason to know that the attack was being planned or was indeed imminent.
153. It is my opinion that by being willfully present during the said attack the Accused incurs criminal responsibility as an observer who acquiesced in the commission of crimes by others and thereby encouraged such crimes. I am satisfied that the testimonial evidence adduced shows the Accused’s acquiescence in the crimes committed, since it does not evince any reprobation whatsoever of the crimes by the Accused, despite the duties and obligations incumbent upon him in his capacity as Bourgmestre, even if he were outside his respective administrative district. Though not explicit, it is my opinion that, in the instant case, the criminal intent of the Accused can be inferred from the body of facts presented above. I am satisfied that by being present at the stadium in the morning and afternoon of 18 April 1994, even in the absence of evidence of a pre¬conceived plan, the Accused could not have been unaware that an attack was going to be launched against the refugees at the stadium and that, he therefore incurs accomplice liability under Article 6(1). In the case at bar, the subjective element of the crime does not arise from co-perpetration because in my view it has not been shown that Accused in any way shared as such the same criminal intent with the perpetrators of the crimes. However, as held in the Tadic Judgement, [161] in respect of complicity, mens rea can, inter alia, comprise knowledge of the common design to inflict ill-treatment. Such an intent may be proved either directly or as a matter of inference from the nature of the Accused’s authority within an organizational hierarchy.[162] In the said case, the Chamber further held that what is required, beyond the negligence, is a specific intent to the extent that even if the person had no intention of bringing about certain results, that person was aware that the actions of the group were most likely to lead to that result (dolus eventualis).
154. It ensues from the foregoing that the Accused could not have been unaware that his presence at the massacre site would encourage, if not, sanction the crimes perpetrated on the refugees by hundreds of attackers. Even if a direct causal relationship with the commission of the crimes has not been shown, his participation came in the form of moral support. I am satisfied that the presence of the Accused at Gatwaro stadium on
18 April 1994 contributed substantially to the perpetration of the crimes testified to by the witnesses during the massacre of the Tutsi refugees. There is no denying that there were residents of his commune, who were under his responsibility, among the victims of the said massacre and that his mere presence, as the highest-ranking authority in Mabanza commune, in the absence of any opposition on his part to the criminal acts in progress, could only have encouraged the perpetrators of the crimes.
155. The French Code of Criminal Procedure provides under Article 353 with respect to the Assize Court [Cour d’assises] that “The law does not ask an accounting from judges
of the grounds by which they became convinced […]. The Law asks them only the single question […]: ‘Are you thoroughly convinced?'” I am thoroughly convinced that the Accused is guilty, under Article 6(1) of the Statute, of complicity in genocide and crimes against humanity (murder and extermination), crimes covered under Articles 2(3)(e) and 3(a), 3(b) and 3(i) of the Statute, in respect of counts two, three, and four and five, and that his guilt on such counts warrants a guilty verdict.
Done in Arusha on 7 June 2001 in French and English, the French text being authoritative.
Judge Mehmet Guney
[1] Transcript of the hearing of 5 June 2000, p. 43.
[2] The Prosecutor v. Blaskic, ICTY, Judgement of 3 March 2000, para. 267.
[3] The Prosecutor v. Blaskic, Judgement of 3 March 2000, para. 560 to 562.
[4] Prosecutor v. Tadic, Judgement of 7 May 1997, para. 689.
[5] Prosecutor v. Tadic, ICTY Appeals Chamber Judgement of 15 July 1999, paras. 189 and 190.
[6] The Prosecutor v. Akayesu, Judgement of 2 September 1998, paras. 486 to 489.
[7] Thus, it was held that a passive spectator who had an affirmative legal duty to intervene to prevent the offence which he witnessed passively – in silence – committed an offence construed as complicity by giving moral support.
[8] Tribunal correctionnel Aix, 14 January 1947, D. 1947. Somm. 19, Rev. science crim. 1947, 5 81.J.C. P. 1947.II 3465
[9] Cass. Belge, 23 October 1950 and 24 September 1951, rev. dr. pen. Et criminologie, 1951¬952.774 [1947.II, 3465.
[10] [1995] 1 Appeals Court 71. *171.
[11] Prosecution Exhibit No. 71, footnote 3 of the report by Andre Guichaoua on “L ‘autorite communale et les prerogatives du bourgmestre.” This law is also cited in Article 8 of the Presidential Order of
25 November 1975 on the status of communal personnel, Defence Exhibit No. 97.
[12] The Prosecutor v. Aleksovski, ICTY Judgement of 25 June 1999, para. 80.
[13] The Prosecutor v. Kordic and Cerkez, ICTY Judgement of 26 February 200, para. 371.
[14] [1882] 8 Queen’s Bench Division 534.
[15] Per Hawkins, J. at 557.
[16] The Prosecutor v. Blaskic, Judgement of 3 March 2000, para. 284.
[17] The Prosecutor v. Zlatko Alesksovski, Judgement of 25 June 1999, para. 63 and following.
[18] Ibid, para. 65.
[19] Strafsenat. Urteil vom 10. August 1948 gegen K und A StS 18/48, Oberste Gerichtshof der Britischen Zone (Entscheidungen, Vol. I, pp. 53 and 56) Judgement of the German Supreme Court in the British Occupied Zone.
[20] The Prosecutor v. Anto Furundzija, ICTY Judgement of 10 December 1998 paras. 205 and following
[21] Ibid, para. 207.
[22] Ibid, para. 232.
[23] Ibid., paras. 234 and 235.
[24] Ibid, para 249.
[25] The Prosecutor v. Blaskic, Judgement of 3 March 200, para. 286.
[26] The Prosecutor v. Akayesu, Judgement 2 September 1998, para. 293 and 294.
[27] Rule 85 (B) of the Rules of Procedure and Evidence specifically provides that: “It shall be for the party calling a witness to examine him in chief, but a judge may at any stage put any question to the witness”
[28] The Prosecutor v. Akayesu, Judgement 2 September 1998, para. 156.
[29] Ibid, para. 140.
[30] Ibid, paras. 142 and 143.
[31] Ibid, para. 135.
[32] The Prosecutor v. Zlatko Aleksovski, ICTY Appeals Chamber Judgement, 24 March 2000, para. 62.
[33] Defence Exhibit No. 97.
[34] Transcript of the hearing of 5 June 2000, p. 62.
[35] Prosecution Exhibit No. 85
[36] Transcript of the hearing of 9 June 2000, p. 89.
[37] Prosecution Exhibit No. 84.
[38] Transcript of the hearing of 2 May 2000, pp. 72 and 73.
[40] Transcript of the hearing of 9 June 2000, p. 42.
[41] Transcript of the hearing of 9 June 2000, p. 43.
[42] Transcript of the hearing of 9 June 2000, p. 76.
[43] Transcript of the hearing of 9 June 2000, pp. 54-55.
[44] Prosecution Exhibit No. 77 B.
[45] Prosecution Exhibit No. 77 A.
[46] Prosecution Exhibit No. 77 A.
[47] Transcript of the hearing of 9 June 2000, p. 96.
[48] Defence Exhibit No. 18.
[49] Transcript of the hearing of 9 June 2000, pp. 39 and 40.
[50] Prosecution Exhibit No. 94.
[51] Transcript of the hearing of 9 June 2000, p. 49.
[52] Transcript of the hearing of 8 June 2000, p. 231.
[53] Transcript of the hearing of 7 June 2000, p. 161.
[54] Transcript of the hearing of 9 May 2000, p. 30.
[55] Transcript of the hearing of 8 June 2000, p. 265 of the French version.
[56] Defence Exhibit No. 100.
[57] Transcript of the hearing of 7 June 2000, p. 169 of the French version.
[58] Defence Exhibit No. 62.
[59] Transcript of the hearing of 9 June 2000, p. 37.
[60] Transcript of the hearing of 9 June 2000, p. 36.
[61] Transcript of the hearing of 9 June 2000, pp. 44 and 45.
[62] Prosecution Exhibit No. 94.
[63] Transcript of the hearing of 9 June 2000, pp. 44-46
[65] Transcript of the hearing of 8 February 2000, p. 39.
[66] Transcript of the hearing of 8 February 2000, p. 52.
[67] Transcript of the hearing of 8 February 2000, pp. 55 to 56.
[68] Transcript of the hearing of 8 February 2000, pp. 75 to 76.
[69] Transcript of the hearing of 8 February 2000, p. 74.
[70] Transcript of the hearing of 7 February 2000, p. 28.
[71] Transcript of the hearing of 7 February 2000, p. 34.
[72] Transcript of the haring of 7 February 2000, p. 35.
[73] Transcript of the hearing of 7 February 2000, p. 32.
[74] Transcript of the hearing of 7 February 2000, p. 33.
[75] Transcript of the hearing of 7 February 2000, p. 36.
[76] Transcript of the hearing of 7 February 2000, p. 55.
[77] Transcript of the hearing of 7 February 2000, p. 55.
[78] Transcript of the hearing of 15 November 1999, pp. 109 and 110.
[79] Transcript of the hearing of 7 February 2000, p. 60.
[80] Transcript of the hearing of 2 May 2000 (Closed session) , p. 49.
[81] Transcript of the hearing of 17 November 1999, p. 56.
[82] Transcript of the hearing of 7 June 2000, p. 160.
[83] Transcript of the hearing of 9 June 2000, pp. 160 and 161.
[84] Transcript of the hearing of 7 February 2000, p. 63 (French).
[85] Transcript of the hearing of 7 February 2000, p. 52.
[86] Defence Exhibit No. 64.
[87] Transcript of the (in camera) hearing of 7 February 2000, p. 53 (French).
[88] Transcript of the hearing of 7 February 2000, p. 54.
[90] Transcript of the hearing of 7 February 2000, p. 62.
[91] Transcript of the hearing of 8 February 2000, pp. 62 and 63.
[92] Transcript of the hearing of 8 February 2000, p. 67.
[93] Transcript of the hearing of 8 February 2000, p. 67.
[94] Transcript of the hearing of 8 February 2000, p. 67.
[95] Transcript of the hearing of 8 February 2000, p. 75 (French).
[96] Transcript of the hearing of 9 June 2000, p. 156.
[97] Transcript of the hearing of 9 June 2000, p. 156.
[98] Witness Z talks of “end of April” in his admission to the Rwandan authorities of 22 June 1998, Defence Exhibit No. 112.
[99] Transcript of the hearing of 7 February 2000, p. 38.
[100] Transcript of the hearing of 7 February 2000, p. 38.
[101] Transcript of the hearing of 7 February 2000, p. 37.
[102] Transcript of the hearing of 7 February 2000, p. 38.
[103] Transcript of the hearing of the hearing of 7 February 2000, p. 48 – 49.
[104] Transcript of the hearing of 8 February 2000, p. 57.
[105] Transcript of the hearing of 8 February 2000, p. 57.
[106] Transcript of the hearing of 8 February 2000, p. 56.
[107] Transcript of the hearing of 8 February 2000, p. 58.
[108] Transcript of the hearing of 9 February 2000, p. 77.
[109] Transcript of the hearing of 8 February 2000, p. 79.
[110] Transcript of the hearing of 8 February 2000, p. 70.
[111] Transcript of the hearing of 9 February 2000, p. 79.
[112] Transcript of the hearing of 8 February 2000, p. 59.
[113] Transcriptof the hearing of 7 February 2000, p. 49.
[115] Pursuant to Rule 93 of the Rules of Procedure and Evidence, evidence of a consistent pattern of conduct is admissible in proving the guilt of an accused.
[116] Transcript of the hearing of 5 June 2000, p. 44.
[117] Transcript of the hearing of 5 June 2000, p. 42
[118] Transcript of the hearing of 5 June 2000, p. 51.
[119] Transcript of the hearing of 5 June 2000, pp. 133 – 134.
[120] Transcript of the hearing of 5 June 2000, p. 121.
[121] Transcript of the hearing of 5 June 2000, p. 113.
[122] Transcript of the hearing of 5 June 2000, pp. 29-32.
[123] Transcript of the hearing of 8 June 2000, pp. 142 and 143 (French).
[124] Transcript of the hearings of 17 November 1999, p. 22 and 23 and of 18 November 1999, p. 39.
[125] Transcript of the hearing of 5 June 2000, p. 42.
[126] Transcript of the hearing of 17 November 1999, p. 74.
[127] Transcript of the hearing of 17 November 1999, p. 31.
[128] Transcript of the hearing of 9 June 2000, p. 72.
[129] Transcript of the hearing of 5 June 2000, pp. 42, 113 and 125.
[130] Transcript of the hearing of 17 November 1999, p. 38 and of 18 November 1999, p. 43.
[131] Transcript of the hearing of 18 November 1999, p. 44.
[132] Transcript of the hearing of 8 February 2000, pp. 52 and 53.
[133] Transcript of the hearing of 18 November 1999, p. 50.
[134] Transcript of the hearing of 17 November 1999, p. 36.
[135] Transcript of the hearing of 26 January 2000 (in camera), p. 39 (French).
[136] Ibid, p. 36 (French).
[137] Ibid, pp. 33 – 36 (French).
[138] Prosecution Exhibit No. 65.
[139] Transcript of the hearing of 26 January 2000, pp. 37 and 38 (French).
[140] Transcript of the hearing of 26 January 2000, p. 16.
[141] Transcript of the hearing of 17 November 1999, p. 61 (French).
[142] Transcript of the hearing of 5 June 2000, pp. 141 – 142.
[143] Transcript of the hearing of 5 June 2000, pp. 140 – 141.
[144] Transcript of the hearing of 5 June 2000, p. 142.
[145] Transcript of the hearing of 5 June 2000, p. 141.
[146] Transcript of the hearing of 5 June 2000, p. 142.
[147] Defence Exhibit No.18.
[148] Transcript of the hearing of 6 June 2000, p. 100.
[149] Transcript of the hearing of 5 June 2000, p. 62.
[150] Transcript of the hearing of 5 June 2000, p. 69.
[151] Transcript of the hearing o 8 June 2000, p. 256.
[152] Transcript of the hearing of 6 June 2000, p. 103.
[153] Transcript of the hearing of 6 June 2000, p. 102.
[154] Transcript of the hearing of 6 June 2000, p. 103.
[155] Article 11 of the Legislative Decree sets forth the conditions under which the Prefet may use his powers to call in the armed forces to restore public order.
[156] Transcript of the hearing of 6 June 2000, p. 104.
[157] Transcript of the hearing of 6 June 2000, p. 101.
[158] Prosecution Exhibit No. 84.
[159] The Prosecutor v. Musema, Judgement rendered by the Trial Chamber on 27 January 2000, Separate Opinion of Judge Navanethem Pillay, para. 4, p. 315.
[160] Ibid, p. 317.
[161] The Prosecutor v. Tadic, Judgement rendered by the Appeals Chamber on 15 July 1999.
[162] Ibid., para. 220.
Office of the Prosecutor:
Carla Del Ponte Norman Farrell Sonja Boelaert-Suominen Mathias Marcussen
v. International Criminal Tribunal for Rwanda ^v^f^ Tribunal penal international pour le Rwanda
United NaUorvs Mglions Unies
APPEALS CHAMBER
Before:
Judge Claude Jorda, Presiding Judge Mohamed Shahabuddeen Judge David Hunt Judge Fausto Pocar Judge Theodor Meron
Registry: Adama Dieng
Judgement of: 3 July 2002
THE PROSECUTOR (Appellant) v.
Ignace BAGILISHEMA (Respondent)
Case No. ICTR-95-1A -A
Counsel for the Defence: Fran?ois Roux Maroufa Diabira
JUDGEMENT (REASONS)
ENGLISH
Original: French
I. INTRODUCTION
A. Trial Proceedings
B. Appeal Proceedings
C. Standard of review for an appeal against acquittal
II. INADMISSIBILITY OF THE PROSECUTION’S APPEAL
III. FIRST GROUND OF APPEAL: ALLEGATIONS OF ERRORS RELATING TO ARTICLE 6(3) OF THE STATUTE
1. Whether the Trial Chamber considered the “had reason to know” test
2. Whether the Trial Chamber committed an error in finding that it was not established beyond a reasonable doubt that the Accused “had reason to know” in terms of Article 6(3) of the Statute
3. Whether the Trial Chamber committed errors of law in its analysis of the superior-subordinate relationship
(a) Issue as to the nature of a civilian superior’s authority
(b) Issue as to failure by the Trial Chamber to consider de facto authority
IV. SECOND GROUND OF APPEAL: ALLEGATIONS OF ERRORS RELATING TO THE ADMISSION OF WRITTEN CONFESSIONS OF WITNESSES AA, Z AND Y
V. THIRD GROUND OF APPEAL: ALLEGATIONS OF ERRORS IN THE ASSESSMENT OF EVIDENCE CONCERNING THE “TRAFIPRO” ROADBLOCK AND THE GATWARO STADIUM
A. General errors
1. Whether the Trial Chamber applied an incorrect standard in assessing the evidence of the presence of the Accused at Gatwaro Stadium
2. Whether the Trial Chamber erred in its use of and reliance on prior written statements
3. Whether the Trial Chamber erred by finding Witness Z not credible
B. “Specific” errors concerning the Trial Chamber’s assessment of the evidence in relation to the purpose of the Trafipro roadblock, the murder of Judith and the presence of the Accused at the Gatwaro Stadium
1. The Trial Chamber’s assessment of the relevant evidence relating to the purpose of the Trafipro roadblock
2. The Trial Chamber’s reliance upon prior statements (statements made to Prosecution investigators and confessional statements to Rwandan authorities)
3. Assessment of the evidence relating to the presence of the Accused at the Gatwaro Stadium on 13, 14 and 18 April 1994
(a) Presence of the Accused at the Gatwaro Stadium on 13 April 1994
(b) Presence of the Accused at the Gatwaro Stadium on 14 April 1994
(c) Presence of the Accused at the Gatwaro Stadium on 18 April 1994
VI. DISPOSITION
ANNEX APPEALS PROCEEDINGS
A:
1. Summary of facts relating to filings on appeal
2. Motions filed as part of the appeals proceedings
(a) Inadmissibility of the Prosecution’s Appeal Brief
(b) Translation and extension of deadlines
(c) Motions for review
(d) Motions for disclosure of evidence and for witness protection measures
(e) Motions brought under Rule 115 of the Rules
3. The Appeal Judgement ANNEX GLOSSARY
B:
A. Filings of the Parties
B. References relating to the instant case
C. Cited Cases
D. Other References
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 and 31 December 1994 (“the Appeals Chamber” and “the Tribunal” respectively) is seized of an appeal filed by the Prosecution (“the Appellant”) against the Judgement rendered by Trial Chamber I of the Tribunal (“the Trial Chamber”) on 7 June 2001 in the case of The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T (the “Judgement”).
2. On 3 July 2002, following the Appeal Hearing of 2 July 2002 in Arusha, the Appeals Chamber rendered its Judgement, unanimously dismissing the Appeal filed by the Prosecution. On that occasion, the Appeals Chamber indicated that the reasons for its Judgement would be made available to the parties as soon as possible.
3. Accordingly, the Appeals Chamber
SETS OUT HEREIN THE REASONS FOR ITS JUDGEMENT. I. INTRODUCTION
A. Trial Proceedings
4. The amended Indictment of 17 September 1999, on the basis of which Ignace Bagilishema (the “Respondent”, “Bagilishema” or the “Accused”) was tried, charged the Respondent with involvement in criminal acts perpetrated in Mabanza commune between 1 April and 31 July 1994 (the “Indictment”). In his capacity as bourgmestre of the said commune, Bagilishema was charged under Articles 6(1) and 6(3) of the Statute (individual criminal responsibility) with seven distinct counts in respect of the following crimes: genocide, punishable under Article 2(3)(a) of the Statute (Count 1); complicity in genocide, punishable under Article 2(3)(e) of the Statute (Count 2); crimes against humanity, punishable under Articles 3(a), 3(b) and 3(i) of the Statute (Counts 3, 4 and 5); serious violations of common Article 3 of the Geneva Conventions and of Additional Protocol II, punishable under Articles 4(a) and 4(e) of the Statute (Counts 6 and 7).
5. On 18 September 1999, Bagilishema pleaded not guilty to all the counts in the Indictment. The trial commenced on 27 October 1999, and ended on 19 October 2000, when the case was adjourned for deliberation.
6. In its Judgement rendered on 7 June 2001, the Trial Chamber acquitted Bagilishema on all counts in the Indictment.[11 The Chamber also ordered the immediate release of the Accused pursuant to Rule 99(A) of the Tribunal’s Rules of Procedure and Evidence (the “Rules”).
B. Appeal Proceedings [21
7. The Prosecution appealed the Judgement on 9 July 2001. It advanced three grounds of appeal. Two of these contained several submissions, which the Appeals Chamber summarized as follows at the appeal hearing:[3] Ground 1: Allegations of errors relating to Article 6(3) of the Statute, which comprises three submissions:
First and second submission: The Trial Chamber erred in law and fact in its assessment of the mental element provided for in Article 6(3) of the Statute. The Trial Chamber is alleged to have committed an error of law as a result of having failed to ask whether Bagilishema had reason to know that crimes had been committed by his subordinates at the Trafipro roadblock. Assuming that the Appeals Chamber is of the opinion that the Trial Chamber has examined the test of whether the Respondent had reason to know, the Trial Chamber committed a factual error for having found that the Respondent had no “reason to know” that crimes had been committed at the Trafipro roadblock.
Third submission: The Trial Chamber made a wrong legal analysis of the superior-subordinate relationship under Article 6(3) of the Statute.
Ground 2: Allegation of errors relating to the admission of written confessions of Witnesses AA, Z and Y.
Ground 3: Allegation of errors relating to the assessment and evaluation of evidence relating to the Trafipro roadblock and the Gatwaro Stadium. With regard to this ground of appeal, the Prosecutor alleged three general errors and three “specific” errors.
(A) “General” errors:
(i) First error: Application of a wrong criteria with regard to the assessment of evidence relating to the presence of the Accused at the Gatwaro Stadium during the period when the refugees were locked up and subjected to maltreatment, as well as during the Gatwaro attack;
(ii) Second error: The Trial Chamber erred in its use of prior written statements;
(iii) Third error: Erroneous finding relating to Witness Z. (B) “Specific” errors:
(i) First error: Error relating to the assessment made by the Trial Chamber regarding the evidence tendered with regard to Trafipro roadblock;
(ii) Second error: Error in the assessment of the evidence relating to the murder of Judith;
(iii) Third error: Error relating to the assessment of evidence relating to the presence of the Accused at the Gatwaro Stadium on 13, 14 and 18 April 1994.
C. Standard of review for an appeal against acquittal
8. The present appeal is filed by the Prosecution against acquittal by the Trial Chamber. This type of appeal is provided for under Article 24 of the Tribunal’s Statute, which states that the two parties may lodge an appeal on grounds of an error of law or of fact.[4] On several occasions, the Appeals Chamber has reiterated the standards to be applied in considering errors on a question of law and errors of fact raised in an appeal against conviction.[5] However, the Appeals Chamber has never had the opportunity to define the standards to be applied in considering appeals by the Prosecution against acquittal, and deems it necessary to do so in the present matter, inasmuch as the greater part of the Prosecution’s grounds of appeal relates to allegations of errors of fact.
9. With regard to allegations of errors on a question of law, the Appeals Chamber considers that the standards of review are the same for the two types of appeal: following the example of a party appealing against conviction, an appeal by the Prosecution against acquittal, which alleges that the Trial Chamber committed an error on a question of law, must establish that the error invalidates the decision.
10. With regard to errors of fact in appeals against conviction, the Appeals Chamber applies the standard of the “unreasonableness” of the impugned finding. The Appeals Chamber must determine whether the finding of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached, it being understood that the Appeals Chamber can only overturn a decision of the Trial Chamber where the alleged error of fact occasioned a miscarriage of justice. An appellant who alleges an error of fact must therefore show both the error that was committed and the miscarriage of justice resulting therefrom. [6] 11. As the Appeals Chambers of both the ICTR and the ICTY have repeatedly stressed, an appeal is not an opportunity for a de novo review of the case. The Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber.”[7] Because “[t]he
task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber, […] [i]t is only when the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.”[8] Two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence. [9] 12. The Appeals Chamber has also repeatedly explained the reasons for this deference to the factual findings of the Trial Chambers. As the ICTY Appeals Chamber put it in the Kupreskic Appeal Judgement:
The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’ testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.[10] 13. The same standard of unreasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. Thus, when considering an appeal by the Prosecution, as when considering an appeal by the accused, the Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the challenged finding.
14. Under Article 24(1)(b) of the Statute, the Prosecution, like the accused, must demonstrate “an error of fact that occasioned a miscarriage of justice.” For the error to be one that occasioned a miscarriage of justice, it must have been “critical to the verdict reached.”[11] Because the Prosecution bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution faces a more difficult task. It must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.
II. INADMISSIBILITY OF THE PROSECUTION’S APPEAL
15. The Respondent argues that the Appellant’s Brief is inadmissible because (1) the Prosecution did not comply with the Practice Direction on the Length of Briefs and Motions on Appeal right from the beginning of the appeal process, and (2) the decision rendered on 30 November 2001 by the Pre-hearing Judge was violated. Generally speaking, the Respondent requests the Appeals Chamber:
[.] to note (i) that the Prosecution has been granted several extensions of time to file its Brief in compliance with the Practice Direction of 13.8.01; (ii) that notwithstanding the various extensions, the Prosecutor has not respected the time-limits granted him; and (iii) that his Brief violates Article 20 (a) of the Statute, and, consequently, to find and rule that the third version of the Prosecutor’s Appeal Brief of 19 December 2001 is inadmissible, and, accordingly to dismiss the notice of appeal.[12] 16. On 13 August 2001, the Presiding Judge of the Appeals Chamber signed the Practice Direction on the Length of Briefs and Motions on Appeal (the “Practice Direction”), which came into force on the day it was notified to the parties, namely 19 September 2001.[13] The Prosecution filed its Appeal Brief on 29 October 2001, in conformity with the guidelines laid down by the Pre-hearing Judge.[14] On 2 November 2001, the Prosecution filed a motion in which it acknowledged that its Appeal Brief exceeded the maximum number of pages set forth in the Practice Direction,[15] and requested the Appeals Chamber to admit its Brief as filed on 29 October 2001 and, in the alternative, to grant it an extension of seven (7) days to file a new Brief. On 30 November 2001, the Pre-hearing Judge ruled on the Motion as follows:
Whereas, as a result, the Appellant’s Brief is not in order, and whereas it is necessary for the Appellant to comply with the requirements of the Practice Direction; whereas the interests of justice require that the Appellant should file a new brief within a reasonable time-limit, and whereas the seven-day extension of time requested by the Appellant to file a new brief is reasonable;
[.] Grant the alternative request in the Prosecution’s Motion and Order the Prosecution to file an Appellant’s Brief that complies with the criteria set forth in the Practice Direction within seven (7) days from the date of this Decision. [16] 17. The Prosecution filed a second version of its appeal brief on 7 December 2001, in conformity with the aforementioned Decision of the Pre-hearing Judge. On 14 December 2001, the Deputy Registrar of the Tribunal informed the President and Judges of the Appeals Chamber that the Appellant’s Brief, containing more than 40,000 words, did not conform to the Practice Direction nor to the Pre-hearing Judge’s Decision of 30 November 2001.
18. On 19 December 2001, the Prosecution filed a motion requesting the Pre-hearing Judge to accept the observations of the Registry with respect to the number of words contained in the brief, and acknowledged that the said brief did not conform to the criteria set out in the Practice Direction. It further requested the Appeals Chamber to grant the Prosecution a further extension of time to enable it to file a brief in conformity with the Practice Direction, which was attached to the motion. In its motion, the Prosecution explained that it had concentrated on reducing the number of pages without paying attention to the number of words on each page, and that upon receiving the observations of the Registry, it had reduced its brief to 29,867 words.
19. On the same day, the Pre-hearing Judge rendered the following Decision:
Considering that the Decision of 30 November 2001 directed the Prosecution to file an Appellant’s Brief in compliance with the applicable Practice Direction;
Whereas the arguments put forth by the Prosecution in support of its motion in themselves do not constitute sufficient justification for an extension of time;
Whereas, however, to ensure that the proceedings are not unduly delayed, it is necessary to allow the Appellant to file the new Brief as attached to his Motion;
Whereas furthermore by failing to file an Appellant’s Brief in compliance with the Decision of 30 November 2001, the Appellant failed to comply with the order of the Pre-hearing Judge in the said Decision and having ascertained Appellant’s non-compliance with this order, the Appeals Chamber will take appropriate disciplinary measures, if necessary and at the right moment.
For the foregoing reasons, we
Allow the Appellant to file his new Brief attached to the motion for extension of time;
Request the Registry to translate the new Appellant’s Brief into French and to serve the said document on the parties before 7 January 2002;
Affirm that, at this stage of appeal proceedings, time allotted for response by the Respondent will commence when the Registry serves the Respondent and his Counsel with the French version of the new Appellant’s Brief.[17] 20. Before the Appeals Chamber, the Respondent submits that the appropriate disciplinary measure is a declaration of nullity of the Appellant’s Brief, which, according to the Respondent, was filed out of time.[18] In support of his argument, the Respondent refers to the Kayishema/Ruzindana Appeal Judgement, which states:
[.] procedural time-limits are to be respected and [.] are indispensable to the proper functioning of the Tribunal and to the fulfilment of its mission to do justice. Violation of these time-limits, unaccompanied by any showing of good cause, will not be tolerated. [ 19] 21. The Appeals Chamber rejects the Respondent’s arguments. Considering the exceptional circumstances of this case, the Appeals Chamber holds that there is no reason for imposing any specific disciplinary measure on the Prosecution. The disciplinary measure consisting in declaring the Appellant’s Brief irregular and the appeal inadmissible because of non-compliance with the requirements of the Practice Direction is inappropriate in the instant case and would be quite disproportionate. In the case of The Prosecutor v. Kayishema and Ruzindana, the decision of the Appeals Chamber setting the deadline for the filing of briefs was clear, but the Prosecution failed to comply with it. It did not seek an extension of time to file its brief prior to that deadline; its motion for clarification of the time-limits was filed late, and the Appeals Chamber considered, in the judgement, that it had failed to substantiate the basis upon which it was seeking relief. Its formal motion for extension of time was finally submitted over two months after the deadline had expired. The Prosecution also failed to comply with the new deadline set by the Pre-hearing Judge. There was therefore a repeated pattern of non-compliance and a lack of diligence on the part of the Prosecution in the Kayishema/Ruzindana case. In the present case, however, the failure to comply is of a markedly different nature; the Prosecution did file its brief in conformity with the guidelines set by the Pre-hearing Judge.
22. Furthermore, the Prosecution, after accepting the observations of the Registry regarding the number of words in the brief and acknowledging that the brief in question did not comply with the criteria set out in the Practice Direction, took the necessary steps to cure the non-compliance with the text referred to above. The Appeals Chamber considers that the Prosecution has thus shown proof of dispatch in filing a new brief in compliance with the criteria in the Practice Direction on the same day that it filed the motion for extension of time. The Prosecution therefore took the necessary steps to correct its error as quickly as possible and immediately after the problem was brought to its notice. In any case, the Defence has failed to establish that he was prejudiced in any way.
23. For these reasons, the Appeals Chamber dismisses all of the Respondent’s arguments on the inadmissibility of the appeal.
III. FIRST GROUND OF APPEAL: ALLEGATIONS OF ERRORS RELATING TO ARTICLE 6(3) OF THE ATATUTE
24. In its first ground of appeal, the Prosecution advances three submissions relating to the analysis made by the Trial Chamber of the Respondent’s responsibility founded on Article 6(3) of the Statute and to the findings based thereon with regard to the crimes committed at the Trafipro roadblock in Mabanza commune: [20] – First submission: the Trial Chamber committed an error in not ruling on the issue as to whether the Respondent “had reason to know” that crimes had been committed by his subordinates at the Trafipro roadblock; [21] – Second submission: the Trial Chamber committed an error in finding that the Respondent did “not have reason to know” that crimes had been committed by his subordinates at the said roadblock;[22] and
– Third submission: the Trial Chamber committed an error of law in its legal analysis of the conditions required for a person to be considered as a superior within the meaning of Article 6(3) of the Statute.[23] 25. With regard to the first two submissions, the Prosecution requests the Appeals Chamber to quash the acquittal of the Respondent on Counts 1, 3 and 6 of the Indictment and to remit the case to a Trial Chamber. On the basis of the third submission, the Prosecution requests this Chamber to note the errors raised and to make the necessary corrections in the interests of justice. [24] 1. Whether the Trial Chamber considered the “had reason to know” test
26. The Appeals Chamber emphasizes, first of all, that the Prosecution does not contest the analysis which the Trial Chamber made of the applicable law,[25] but only contests the application by the said Chamber of the criteria set out in Article 6(3) of the Statute. The Prosecution submits that the Trial Chamber committed an error of law in not seeking to know whether the Accused “had reason to know” in terms of Article 6(3) of the Statute, or, in other words, whether he possessed information which put him on notice of the risk of crimes being committed or crimes which have been committed and requiring him to carry out an additional investigation or punish his subordinates guilty of such crimes. [26] 27. For a proper interpretation of the “had reason to know” standard, the Prosecution relies on the manner in which this issue was addressed in the Celebici Appeal Judgement[27] and proposes an interpretation of the concept of “inquiry notice” (i.e., a superior’s affirmative duty to inquire further when put on notice). The Prosecution dwells at length on the question of applying the above standard to civilian superiors in support of its argument that the said obligation applies to all superiors.[28] Referring to paragraphs 966 to 989 of the Trial Judgement, the Appellant submits that the Trial Chamber only tried to establish, on the basis of direct or circumstantial evidence, that the Respondent had actual knowledge of the facts.[29] According to the Prosecution, the Trial Chamber’s findings in paragraphs 988 and 989 of the Judgement reveal that the “had reason to know” standard was not examined.[30] It further submits that insofar as the standard of criminal negligence as applied by the Trial Chamber[31] differs from that used in the Celebici Appeal Judgement, it is necessary to determine whether the legal ingredients required for criminal negligence[32] could amount to the “had reason to know” standard,[33] in accordance with the Celebici jurisprudence.[34] 28. After considering the Appellant’s arguments, the Appeals Chamber holds, for the reasons set out below, that the Trial Chamber actually examined the “had reason to know” standard. However, the distinction between the “knowledge” and “had reason to know” standards could have been expressed more clearly by the Trial Chamber. The “had reason to know” standard does not require that actual knowledge, either explicit or circumstantial, be established. Nor does it require that the Chamber be satisfied that the accused actually knew that crimes had been committed or were about to be committed. It merely requires that the Chamber be satisfied that the accused had “some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates.”[35] 29. In paragraph 896 of the Judgement, the Trial Chamber set forth the standard for establishing the Accused’s mens rea under Article 6(3) of the Statute:
[.] the knowledge element of superior responsibility will be fulfilled if the Accused actually knew of one or more crimes committed or about to be committed in connection with a roadblock, or alternatively was put on notice and failed to inquire further.[36] The Trial Chamber further considered “‘knowledge’ [as] an indispensable element of [.] the liability of a superior [. ]”, by holding that “the mental element of knowledge [must be] demonstrated beyond reasonable doubt.”[37] On the basis of this definition, the Trial Chamber found, after examining the direct evidence, that it was not in a position to establish that the Accused had knowledge of the murders of Judith and Bigirimana.[38] It therefore proceeded to examine the concept of “knowledge”, or the Accused’s mens rea under Article 6(3) of the Statute, on the basis of the available circumstantial evidence, guided by the indicia set down by the Commission of Experts in its Final Report.[39] 30. The Appeals Chamber recalls that the murders of Judith and Bigirimana are the only criminal acts acknowledged by the Trial Chamber as having been perpetrated by subordinates of the Respondent. With regard to the murder of Bigirimana, the Trial Chamber held in paragraph 974 of the Judgement that it was not convinced that the
Accused had been notified of the imminent offence by Bigirimana’s wife. [40] It also underscored the fact that “it [was] not possible [.] to look to other known facts in an effort to determine whether the Accused was at his office or at the bureau communal, or at any rate close by, when the offence was committed.” The Trial Chamber further held that “[a]s the Accused’s location is unknown for the date on which Bigirimana was killed, the corresponding indicium of knowledge does not enter into the Chamber’s calculations.”[41] With respect to the murder of Judith, the Trial Chamber, in considering the Accused’s responsibility as superior,[42] took into account its earlier findings, and in particular, the fact that the Respondent denied having had knowledge of the murder of Judith. [43] Besides, it appears from paragraphs 986 et seq. of the Trial Judgement that the Trial Chamber considered the Prosecution’s theory that the Accused “would have found out about” the murder of Judith later and “upon being informed of the crime should have initiated an investigation to identify and punish the perpetrators” of the crime. The Trial Chamber also held the view that “the claim that Judith’s murder was public knowledge in Mabanza commune [lacked] sufficient foundation.” [44] Following an examination of the indicia relating to the Accused’s presence, the geographical location, the time, and modus operandi, the Trial Chamber came to the conclusion that there was no evidence to show that the killings of Judith and Bigirimana were not just isolated or exceptional incidents, rather than illustrations of a routine of which the Accused could not plausibly have remained unaware. [45] In other words, the Trial Chamber decided that the evidence put forward by the Prosecution did not prove beyond reasonable doubt that the Accused had reason to know that murders had been committed at the Trafipro roadblock.
31. The Appeals Chamber considers that the Prosecution’s submissions are based on a partial analysis of the Trial Judgement. The Appeals Chamber concedes that the Trial Chamber did not explicitly refer to the “had reason to know” standard. The Appeals Chamber believes, however, that simply because the Trial Chamber did not explicitly declare that the Accused did not “have reason to know” does not mean that the Chamber did not refer to the standard. An analysis of the Judgement shows that the Trial Chamber indeed sought to know whether the Accused had sufficient information enabling the Chamber to find beyond a reasonable doubt that the Accused “had reason to know.”
32. Moreover, with regard to the concept of “criminal negligence” challenged by the Prosecution,[46] the Appeals Chamber observes that the Trial Chamber identified criminal negligence as a “third basis of liability. “[47] This form was qualified as a liability by omission, which takes the form of “criminal dereliction of a public duty.”[48] 33. The Appeals Chamber wishes to recall and to concur with the Celebici jurisprudence,[49] whereby a superior’s responsibility will be an issue only if the superior, whilst some general information was available to him which would put him on notice of possible unlawful acts by his subordinates, did not take the necessary and reasonable measures to prevent the acts or to punish the perpetrators thereof.
34. The Statute does not provide for criminal liability other than for those forms of participation stated therein, expressly or implicitly. In particular, it would be both
unnecessary and unfair to hold an accused responsible under a head of responsibility which has not clearly been defined in international criminal law.
35. References to “negligence” in the context of superior responsibility are likely to lead to confusion of thought, as the Judgement of the Trial Chamber in the present case illustrates. The law imposes upon a superior a duty to prevent crimes which he knows or has reason to know were about to be committed, and to punish crimes which he knows or has reason to know had been committed, by subordinates over whom he has effective control. A military commander, or a civilian superior, may therefore be held responsible if he fails to discharge his duties as a superior either by deliberately failing to perform them or by culpably or wilfully disregarding them. [50] 36. Depending on the nature of the breach of duty (which must be a gross breach), and the gravity of the consequences thereof, breaches of duties imposed by the laws of war may entail a disciplinary rather than a criminal liability of a superior who is subject to military discipline. The line between those forms of responsibility which may engage the criminal responsibility of the superior under international law and those which may not can be drawn in the abstract only with difficulty, and the Appeals Chamber does not need to attempt to do so in the present Judgement. It is better, however, that Trial Chambers do not describe superior responsibility in terms of negligence at all.
37. The Trial Chamber must be satisfied that, pursuant to Article 6(3) of the Statute, the accused either “knew” or “had reason to know”, whether such a state of knowledge is proved directly or circumstantially. The Appeals Chamber is of the opinion that the test for criminal negligence as advanced by the Trial Chamber cannot be the same as the “had reason to know” test in terms of Article 6(3) of the Statute. In the Appeals Chamber’s view, the Trial Chamber should not have considered this third form of responsibility, and, in this sense, it committed an error of law. The Appeals Chamber considers, however, that the error does not invalidate the Judgement, since, as pointed out before, the Trial Chamber established that Bagilishema neither knew nor possessed information which would have enabled him to conclude, in the circumstances at that time, that the murders had been committed or were about to be committed by his subordinates.
38. Accordingly, the Appeals Chamber dismisses the Prosecution’s first part of this ground of appeal.
2. Whether the Trial Chamber committed an error in finding that it was not established beyond a reasonable doubt that the Accused “had reason to know” in terms of Article 6(3) of the Statute
39. The Prosecution submits that, were the Appeals Chamber to consider that the Trial Chamber examined the “had reason to know” standard within the meaning of Article 6(3) of the Statute, the Trial Chamber committed an error of fact in finding that the Respondent “did not have reason to know” crimes had been committed at the Trafipro roadblock.[51] For the Prosecution, this error occasioned a miscarriage of justice within the meaning of Article 24 of the Statute. [52] The Prosecution puts forward the following argument:
– The factual findings in the Trial Judgement allow for the conclusion that the Respondent possessed enough information to put him on notice of possible unlawful acts by his subordinates. The Trial Chamber did not take into consideration the context in which the two murders occurred, namely, the background of widespread attacks on Tutsi civilians throughout Rwanda in general, and in the Kibuye prefecture and the commune of Mabanza in particular;[53] – The Respondent was thus aware, in other words “had reason to know”, that his subordinates had committed serious crimes. By its very nature, this information triggered the duty for the Accused to inquire further[54] and, following the inquiries, to prevent crimes from being committed or to punish the perpetrators thereof.[55] The Prosecution also bases its argument on its earlier submissions relating to “a superior’s affirmative duty to inquire further when put on notice”[56] to demonstrate that the same standard applied to the Respondent in this case.[57] 41. The Appeals Chamber notes that the Appellant relies on certain general findings by the Trial Chamber relating to the background against which the killings of Judith and Bigirimana took place in order to propose, on the basis of this selection, various findings of fact that the Trial Chamber could, according to the Prosecution, have reached. In the Appeals Chamber’s view, these findings should be placed back in their proper context and the allegations relating thereto should be considered in the light of the overall findings of fact made by the Trial Chamber.
42. The Celebici Appeal Judgement makes it clear that “a showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know’.”[58] The Appeals Chamber endorses the finding of the ICTY Appeals Chamber in the Celebici Appeal Judgement that the information does not need to provide specific details about unlawful acts committed or about to be committed by his subordinates. [59] With regard to the arguments advanced by the Prosecution, the Appeals Chamber, however, deems it necessary to make a distinction between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes. With this distinction in mind, the Appeals Chamber identifies below the main arguments advanced by the Appellant to support the contention that the Respondent “had reason to know” that crimes had been committed or were about to be committed at the Trafipro roadblock.
(1) The Accused knew of the dangerous nature of the Trafipro roadblock.
40.
According to the Prosecution, the roadblock operated like any other roadblock in Rwanda. [60] On the basis of the general factual findings by the Trial Chamber relating to roadblocks, the Prosecution asserts that the Trafipro roadblock was used to identify and kill Tutsis.[61] (2) The Prosecution challenges the Trial Chamber’s finding in paragraph 937 of the Judgement that Witness Y gave an account of the purpose and functioning of the roadblock that was different from the account of Witness Z. According to the Prosecution, “Witness Y never gave this apparently crucial explanation in his oral testimony in court.” The Prosecution submits that the Trial Chamber’s point of departure should have been the oral testimony given by Witness Y in court, and that the portion of the written statement relied upon by the Trial Chamber in paragraph 937 of the Judgement should have been put to the Witness in court. [62] (3) The Respondent knew that Witness Z was an ex-soldier with a criminal record.[63] With particular reference to the Kahan Commission Report,[64] the Prosecution submits that this fact is most important. It argued that, “the undisputed evidence on record shows that the Respondent knew about Witness Z’s past.”[65] Leaving aside this evidence, the Trial Chamber used “euphemistic language” in concluding that the Accused had not given a complete picture of all those staffing the roadblock. [66] 43. With regard to the killings of Judith and Bigirimana, the Appeals Chamber recalls the need to place the Respondent’s mens rea in relation to the “had reason to know” standard within the context of the evidence available to the Trial Chamber, and to make a general appraisal of the Chamber’s factual findings in this regard in order to establish whether the alleged errors exist.
44. As regards the Prosecution’s allegations relating to the erroneous assessment of the purpose of the Trafipro roadblock, the Appeals Chamber holds that the Prosecution has obviously not demonstrated that the Trial Chamber made an unreasonable finding about the legitimate purpose of the roadblock in question.[67] Indeed, the Prosecution merely refers to some of the Trial Chamber’s findings with a view to asserting that the Chamber’s assessment of the purpose of the roadblock was erroneous. With regard to the Prosecution’s argument concerning Witness Y, the Appeals Chamber observes that the Trial Chamber correctly reproduced the transcript of Witness Y’s written statement as well as his testimony during the trial.[68] The reference made to Witness Y’s “statement” in paragraph 937 of the Trial Judgement[69] is also accurate since the Trial Chamber is implicitly alluding to Witness Y’s written statement. As to the more specific allegation that the Trial Chamber erred in referring to and relying upon the prior statement of Witness Y, the Appeals Chamber indicates that this allegation is dealt with under the third ground of appeal, and refers therefore to its findings relating thereto.[70] Lastly, with regard to the Respondent’s knowledge of Witness Z’s criminal record, the Trial Chamber did not indeed take explicitly into consideration all of the relevant evidence. It must be recalled, however, that a Trial Chamber is not obliged to give a detailed answer to every argument raised during a trial,[71] and that it is for the Trial Chamber to assess, in concreto, whether a superior has in his possession sufficient information.
45. The Appeals Chamber observes that the Trial Chamber relied on certain facts which were not disputed by the Appellant, for example, that there were personal motives behind the killings,[72] and that there was no evidence as to whether the Accused was present at the communal office, so as to determine whether it was established beyond reasonable doubt that the Respondent “had reason to know” within the meaning of Article 6(3) of the Statute. The Appeals Chamber is of the opinion that the Prosecution has not demonstrated the unreasonableness of the Trial Chamber’s finding that the Respondent had no reason to know that his subordinates were committing or had committed crimes on the persons of Judith and Bigirimana, or the miscarriage of justice resulting therefrom. In the light of the foregoing, the Appeals Chamber finds that it is unnecessary to address the issue of whether customary international law imposes a duty on a civilian superior to inquire further.
46. In conformity with the above-mentioned case-law relating to the standard for examining errors of fact on appeal,[73] the Appeals Chamber dismisses this part of the first ground of appeal.
3. Whether the Trial Chamber committed errors of law in its analysis of the superior-subordinate relationship
47. The Prosecution submits that the Trial Chamber’s analysis of the conditions under which a person can be considered to be a superior in terms of Article 6(3) of the Statute is flawed in two instances:
– The Trial Chamber erred in law in stating that civilians can only be found liable on condition that they exercise a military-style command authority over alleged subordinates;[74] and
– The Trial Chamber erred in law in construing superior responsibility exclusively by virtue of a person’s de jure authority. According to the Prosecution, the Trial Chamber made little or no allowance for the possibility that a person can be considered a superior on the basis of a de facto exercise of powers of command and control.[75] 48. The Prosecution considers that the Trial Chamber misapprehended the overriding factor (namely the “effective control” standard), which is used to determine whether a person can be considered a superior under Article 6(3) of the Statute. [76] The Prosecution requests the Appeals Chamber, in the interests of justice, to take note of the errors committed by the Trial Chamber and to provide the appropriate remedy.
(a) Issue as to the nature of a civilian superior’s authority
49. The Prosecution takes issue with the Trial Chamber for over-emphasizing the “military features” of the superior-subordinate relationship. [77] The Trial Chamber, according to the Prosecution, took the view that a civilian superior’s responsibility requires proof that the powers exercised by such superior over his subordinates are similar to the “command” powers of a military superior. [78] It further submits that the Trial Chamber misconstrued the principle in the Celebici Appeal Judgement by subjecting a superior’s responsibility when exercising his authority to a military-style chain of command. [79] The Prosecution submits that there is no indication that the Trial Chamber focused on the test of effective control. [80] 50. Under Article 6(3), a commander or superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the commission of a crime by a subordinate after the crime is committed”.[81] The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment. [82] Hence, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” [83] The effective control test applies to all superiors, whether de jure or de facto, military or civilian. [84] 51. Indeed, it emerges from international case-law that the doctrine of superior responsibility is not limited to military superiors, but also extends to civilian superiors. In the Celebici case, it was held that:
[…] the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders. [85] In this respect, the Appeals Chamber notes that the Musema Trial Judgement, which took into consideration the Rwandan situation, pointed out that “it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration.”[86] 52. Hence, the establishment of civilian superior responsibility requires proof beyond reasonable doubt that the accused exercised effective control over his subordinates, in the sense that he exercised a degree of control over them which is similar to the degree of control of military commanders. It is not suggested that “effective control” will necessarily be exercised by a civilian superior and by a military commander in the same way, or that it may necessarily be established in the same way in relation to both a civilian superior and a military commander.
53. In the instant case, the Trial Chamber relied on the Celebici Trial Judgement, which was affirmed by the ICTY Appeals Chamber, in holding that:
[.] for a civilian superior’s degree of control to be “similar to” that of a military commander, the control over subordinates must be “effective”, and the superior must have the “material ability” to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by the “the trappings of the exercise of de jure authority “. The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence.[87] 54. The Trial Chamber also reiterated that a civilian superior will have exercised effective control over his or her subordinates in the concrete circumstances if both de facto control and the trappings of de jure authority are present and similar to those found in a military context. [88] The Trial Chamber went further to point out that its approach was to consider the character of the de jure or de jure-like relationships (in French, “quasi -de jure”) between the Accused and his supposed subordinates, and then to determine if the Accused’s authority (whether real or contrived) was comparable to that exercised in a military context.[89] 55. The Appeals Chamber holds the view that the Trial Chamber’s approach to the notion of “effective control” in relation to civilian superior was erroneous in law, to the extent that it suggested that the control exercised by a civilian superior must be of the same nature as that exercised by a military commander. [90] As the Appeals Chamber has already stated, this is not the case. It is sufficient that, for one reason or another, the accused exercises the required “degree” of control over his subordinates, namely, that of effective control. However, as conceded by the Prosecution,[91] this error did not affect the verdict as the Appeals Chamber is satisfied that the Accused did not possess the required mens rea. The Appeals Chamber therefore concludes that this error does not render the decision invalid.
56. The Appeals Chamber notes the ambiguity of the expression a contrived de jure- like authority (in French, “autorite quasi-de jure factice “)[92] and acknowledges that it is difficult to grasp the meaning thereof. In the context of paragraph 152 of the Judgement, the concept seems to form part of the reasoning used by the Trial Chamber in examining the de jure authority exercised by the Accused, but it can be interpreted in different ways. The Appeals Chamber reiterates that the case law of the International Tribunals makes it mandatory to use the effective control test for both de jure and de facto superiors. Creating intermediate levels of authority is unnecessary and it would impair the legal analysis of the criminal liability of a superior under Article 6(3) of the Statute, as well as heighten the confusion in identifying the various forms of authority and instituting effective control. Although this wording is inappropriate, the Appeals Chamber considers that it is of no consequence to the Judgement, given that it was not unreasonable to conclude from the evidence presented that the Accused was not liable under Article 6(3) of the Statute for the killings at the Trafipro roadblock.
57. With regard to the Prosecution’s argument that the Trial Chamber misapprehended the Celebici jurisprudence by requiring a civilian superior to exercise his control through a military-style command, the Appeals Chamber draws attention to its previous decisions[93] and to those of the ICTY Appeals Chamber. [94] It emphasizes that the line of reasoning adopted by the Trial Chamber with regard to gendarmes[95] and reservists[96] can actually lead one to think that the Chamber sought to determine the Accused’s position as part of the “gendarmerie command” or the “strict hierarchical structure of military personnel.” Considering that the Accused, as a civilian administrative officer would not have been able to operate in this structure, the Trial Chamber deduced that he could not have exercised any de jure authority whatsoever over gendarmes. [97] However, these findings do not in themselves constitute an error, considering that the Trial Chamber merely sought to establish whether the Accused wielded de jure authority. It therefore tried to determine whether Rwandan law conferred powers on a bourgmestre that were comparable to those of military commanders in terms of control over subordinates, thus placing him in a position similar to that of a military commander, for the purpose of evaluating the de jure responsibility of the bourgmestre, a civilian administrative officer, over military personnel.
58. Consequently, the Trial Chamber did not intend to require proof of the Accused’s position in the military command structure to establish the existence of effective control, but sought to know whether, in this case, in light of the evidence provided by the Prosecutor, it was possible to conclude that the Accused exercised de jure powers. [98] (b) Issue as to failure by the Trial Chamber to consider de facto authority
59. The Prosecution submits that the Trial Chamber erred in making little or no allowance for the possibility that a person can be considered a superior on the basis of a de facto exercise of powers of command and control.[99] For his part, the Respondent emphasizes that the Prosecution did not adduce any evidence at trial to demonstrate the de facto authority exercised by the Accused over certain groups of subordinates. According to him, the Trial Chamber clearly considered both de jure and de facto powers on the basis of evidence adduced by the Prosecution.[100] 60. The Trial Chamber set out in paragraphs 39, 43, 151 and 153 of the Judgement its approach in examining the issue of the existence of de facto authority as part of its overall analysis of superior responsibility; it indicated that “[t]he existence of the second element of subordination, namely de facto control, will be considered, as necessary, on a case-by- case basis, in the course of the Chamber’s analysis of the Prosecution’s factual allegations.”[101] The Trial Chamber took the view that “Fag civilian superior will have exercised effective control over his or her subordinates in the concrete circumstances if both de facto and the trappings of de jure authority are present and similar to those found in a military context”.[102] 61. The Appeals Chamber is of the view that, when the Trial Chamber came to apply the test of “effective control” to the facts of the case, it made little allowance for the possibility that the Accused could be considered as a superior on the basis of a de facto power or authority over his or her subordinates.[103] Furthermore, in paragraph 151 of the Judgement, the Trial Chamber wrongly held that both de facto and de jure authority need to be established before a superior can be found to exercise effective control over his or her subordinates. The Appeals Chamber reiterates that the test in all cases is whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority.[104] The ICTY Appeals Chamber held in the Celebici Appeal Judgement that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.[105] 62. The Appeals Chamber is therefore of the view that the lack of proper consideration of the de facto character of the Accused’s responsibility by the Trial Chamber was incorrect and upholds the Appellant’s third submission. However, as the Appellant concedes,[106] this by itself does not invalidate the judgement. This is so because the Trial Chamber was correct in finding that the Accused neither knew nor possessed information which would have enabled him to conclude, in the circumstances at that time, that crimes had been committed or were about to be committed by his subordinates.
IV. SECOND GROUND OF APPEAL: ALLEGATIONS OF ERRORS RELATING TO THE ADMISSION OF WRITTEN CONFESSIONS OF WITNESSES AA, Z AND Y
63. During the trial, the Prosecution presented three witnesses detained in Rwanda to testify, namely Witnesses Y, Z and AA, who appeared before the Trial Chamber on
7 February 2000, 8-9 February 2000 and 10-11 February 2000 respectively. In the course of their testimony, they each stated that they had made written confessions to the Rwandan authorities in which they recognized having participated in the genocide. At the end of the Prosecution case, and some time before the opening of the Defence case, the Defence filed a Motion on 20 April 2000 requesting the Trial Chamber to order the Prosecution to disclose the written confessions pursuant to Rule 68 of the Rules.[107] The Defence prayed the Trial Chamber to order the Prosecution to disclose the confessions in question, considering that disclosure was necessary for the discovery of the truth and for evaluating the credibility of the Witnesses.[108] In its response to the motion, the Prosecution indicated that it was not in possession of the documents, pointing out that it was for the Defence to use the resources at its disposal to conduct its investigations and, in particular, to obtain the documents it deemed relevant for the trial. [109] On 8 June 2000, the Trial Chamber dismissed the motion filed by the Defence pursuant to Rule 68 of the Rules.[110] The Chamber also stated that:
Under Rule 98 the Chamber may, proprio motu, order either party to produce additional evidence. Having considered the facts and circumstances of this case, the Chamber is of the view that, for a better determination of the matters before it, the Prosecution is ordered to produce the written confessions of Prosecution witnesses Y, Z and AA. The Chamber is of the view that the said written confessions could be material in evaluating the credibility of the said Prosecution witnesses.
The Chamber hereby decides that the Prosecution should take the necessary steps to obtain the written confessions of witnesses Y, Z and AA. The Prosecution is directed to take such steps by 23 June 2000 and to forward the said written confessions to the Chamber.[111] 64. Before the Appeals Chamber, the Prosecution submits that the Trial Chamber committed several errors of law in admitting the written confessions of Witnesses AA, Z and Y into the trial record. The errors are set out as follows:[112] (1) The fact that statements by witnesses are admitted without having them acknowledge the contents of the written confessions or offering them an opportunity to explain alleged inconsistencies or contradictions between their testimony and their written confessions;
(2) The fact that the Defence is allowed to rely on out-of-court statements by witnesses to challenge the credibility of the witnesses without having offered the witnesses an opportunity to explain the statements during cross-examination;
(3) The fact that there was no order calling back witnesses for additional examination on their written confessions;
(4) The fact that the written confessions were subsequently used in assessing the credibility of Witnesses Y, Z and AA.
65. The Appeals Chamber understands the thrust of the Prosecution’s argument to be a demonstration that the above-noted proceedings were unfair, considering that the Trial Chamber never gave Witnesses Y, Z and AA the opportunity to explain themselves on the contradictions between their oral testimony and their confessions before Rwandan authorities.[113] The Prosecution contends that the admission of the written confessions was instrumental in the assessment the Trial Chamber made of the testimony of Witnesses Y, Z and AA, who testified to the events which occurred at the Gatwaro stadium and at the Mabanza communal office.[114] The Prosecution submits that, if the Trial Chamber had heard the explanations of the Witnesses on the contradictions, it would probably have arrived at a different conclusion. It further submits that, since neither the Prosecution nor the Appeals Chamber is in a position to determine what that conclusion would have been, it is necessary to hold a fresh trial. [115] 66. The Appeals Chamber dismisses the foregoing arguments. Where, as in the present case, the Prosecution is directed by the Trial Chamber to obtain further material, the Prosecution cannot rely upon Rule 98, as that rule contemplates that the party to which the direction is given will itself tender the further material in evidence as part of its case. The Trial Chamber does, however, have a clear power – as part of its duty to ensure that the trial is properly conducted – to direct the Prosecution to obtain material which may be relevant to the case of the accused. In such a case, the further material should be produced, not only to the Trial Chamber, but also to the accused. If any use is to be made of that material during the trial, it must either be elicited in evidence from a witness or tendered in evidence itself.[116] 67. In the present case, counsel for the defence should have been stopped by the Trial Chamber from referring to that material during the course of his final address when it was not in evidence. The tender of the further material as a defence exhibit without having given the witnesses the opportunity to deal with it in cross-examination was a serious breach of the duty of fairness of the trial, and it led to the right of the Prosecution to have the three witnesses recalled to explain their previous inconsistent statements.
68. The Prosecution’s complaint can be rejected for yet another reason. At the appeal hearing, the judges asked the Prosecution whether the arguments advanced on appeal had been presented before the Trial Chamber, and, in particular, whether the Prosecution had requested the Trial Chamber to call back Witnesses Y, Z and AA so that they could give an explanation for the contradictions. The Prosecution admitted not having done this and conceded that it should indeed have asked for the witnesses to be brought back.[117] As
to why, under these conditions, the Prosecution was raising the issue on appeal, the Prosecution Attorney had the following reply:
The only reason I can give you is the one I stated, that we submit that there is a problem with the judgement, and maybe part of that problem has occurred because the Prosecution did not ask for the witnesses to be called back when the Defence didn’t do it. So we submit that that is potential failure by the Prosecution, the trial should not prevent that these errors be rectified. That is the only thing I think I can concede to your submissions and I concede your legal points, as I have conceded.[118] 69. Thus, at no time did the Prosecution request the Trial Chamber to call back the Witnesses in question. At no time did the Prosecution raise the issue of unfair proceedings before the Trial Chamber, although it appealed on this ground.[119] The Appeals Chamber considers that if this did not happen in the present case, it is probably because the Prosecution was hoping to have the confessional statements of the witnesses removed from the record rather than admitting the confessions as evidence and, in the circumstances, requesting the Witnesses to be called back.
70. The Appeals Chamber therefore holds that the Prosecution’s justification is unfounded.[120] The Appeals Chamber cannot accept the argument that the Trial Chamber in this case was under a duty to ensure that the Witnesses were called back, under the pretext that the Chamber itself had asked that the statements of the Witnesses be made available. It is the sole responsibility of the party that claims to have suffered prejudice, in this case, the Prosecution, to request the Trial Chamber to have the Witnesses called back and to justify such a request.
71. In conformity with the case-law of the International Tribunals, the fact that an appellant did not raise an objection before the Trial Chamber means, in the absence of exceptional circumstances, that he waived his right to raise the issue as a valid ground of appeal.[121] In the instant case, the Appeals Chamber holds that in the absence of exceptional circumstances, this ground of appeal must be dismissed.
V. THIRD GROUND OF APPEAL: ALLEGATIONS OF ERRORS IN THE ASSESSMENT OF EVIDENCE CONCERNING THE “TRAFIPRO” ROADBLOCK AND THE GATWARO STADIUM
72. As regards this ground of appeal, the Appeals Chamber understands that the Prosecution began by alleging that the Trial Chamber committed three general errors in its assessment of the evidence concerning the crimes committed at the Trafipro roadblock and Gatwaro stadium.[122] According to the Prosecution, these errors “affect the assessment of the evidence throughout.”[123] The Prosecution then alleged that the Trial Chamber committed three “specific” errors, in the sense that they all relate to the assessment of three specific issues in the Trial Judgement, namely, the purpose of the Trafipro roadblock, the murder of Judith and the presence of the Accused at the Gatwaro Stadium. In light of the above-mentioned errors, the Prosecution prayed the Appeals Chamber to reverse the Judgement with respect to Counts 1 to 6 of the Indictment and to order a new trial.
A. General errors[1241
1. Whether the Trial Chamber applied an incorrect standard in assessing the evidence of the presence of the Accused at Gatwaro Stadium
73. As to whether the Accused was present at the Gatwaro Stadium, the Trial Chamber made the following general observations:
The question whether the Accused was present at the Stadium is critical to all the charges covering the period 13 to 18 April 1994. It follows from case law that mere presence at the scene of criminal events is not in itself incriminating […]. One obvious reason for this is that presence may have the purpose of preventing the commission of crimes. Nonetheless, if the Prosecution can establish that the Accused was at the Stadium during the critical period in question, other elements of participation in the crime may be presumable or imputable. A person in authority, such as the Accused, runs the risk of being identified with the perpetrators of the crimes unless he is seen to be actively and demonstrably opposing the crimes. Therefore, the Prosecution must lead sufficient evidence to convince the Chamber beyond reasonable doubt that the Accused was present at the Stadium at some point during the relevant period.[125] In view of this, the Chamber will have to treat a bare allegation of presence with caution. Put differently, a lack of detail will raise doubts. The Chamber will then examine the testimonies of other witnesses, or look to prior statements to clarify or test a witness’s allegations. If corroboration is not found through this process, doubts will remain and presence will not have been established. It is incumbent on the Prosecution to adduce sufficient evidence to convince the Chamber that the Accused was present and, if so, to demonstrate his role during the events.[126] 74. The Prosecution mainly submits that the Trial Chamber erred in law in its assessment of the evidence, in so far as it made corroboration of the testimony of witnesses a pre-condition to establish the guilt of the Accused of the crimes committed at the Gatwaro Stadium. In other words, whenever the Trial Chamber determined that there was a lack of detail in a testimony, it examined the testimonies of other witnesses and looked to prior statements in order to clarify or test the witness’s allegation. Thus, according to the Prosecution, the Trial Chamber relied on this process of seeking corroboration of the alleged facts. In this connection, the Prosecution submits that different statements made by the same witness cannot be used to corroborate each other.[127] 75. The Appeals Chamber observes first of all that the Trial Chamber was right in proceeding with caution with respect to the question of the identification of the Accused at the Stadium. As the Appeals Chamber of the ICTY indicated in the Kupreskic Appeal Judgement, a Trial Chamber must proceed with extreme caution when assessing a witness’ identification of an accused made under difficult circumstances:
In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances. While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.[128] 76. After stating, in paragraph 532 of the Trial Judgement, that “a bare allegation of the presence of the Accused” should be treated “with caution” and that “a lack of detail will raise doubts”, the Trial Chamber set out its general approach to assessing evidence in view of the need to proceed with caution as indicated above: the Trial Chamber first indicated that it “will examine the testimonies of other witnesses” and that it may “look to prior statements”, in order to “clarify or test a witness’s allegations”. The Trial Chamber then went on to say that if “corroboration is not found through this process, doubts will remain and presence will not have been established”. Finally, it stated that, in any event, “it is incumbent on the Prosecution to adduce sufficient evidence to convince the Chamber that the Accused was present and, if so, to demonstrate his role during
the events”.[129] 77. While considering the evidence adduced before it, the Trial Chamber indeed adopted the approach described above, with respect to the presence of the Accused on 13 April 1994,[130] 14 April 1994[131] and 18 April 1994.[132] 78. Contrary to the Prosecution’s contention, the Appeals Chamber is of the view that by adopting such an approach, the Trial Chamber was simply exercising the required caution. Mindful of the need to proceed with caution in the examination of each allegation regarding the identification and presence of the Accused at the Stadium, the Trial Chamber focussed on assessing the credibility and reliability of the witnesses appearing before it. With regard to each witness, it was within its discretion to assess any inconsistencies noted and determine whether, in light of the overall evidence, the witness was reliable and his evidence credible. To this end, it either resorted to corroboration of the oral testimony from other evidence,[133] including other testimonies,[134] or compared or confirmed the content of the oral testimony of the witness with his prior statement(s).[135] But the Trial Chamber did not suggest that corroboration was necessary in every case as a matter of law.
79. The Appeals Chamber fails to see in what way the approach adopted by the Trial Chamber for corroboration constitutes an error. Of course, as the Prosecution stated, it is well settled that “the testimony of a single witness on a material fact may be accepted as evidence without the need for corroboration.”[136] However, the Appeals Chamber considers that this jurisprudence cannot be interpreted to mean that a Trial Chamber cannot resort to corroboration; the Trial Chamber can do so by virtue of its discretion. In the present case, the Trial Chamber was entitled to verify the facts and assess the credibility of witnesses by reference to the testimony of other witnesses.
80. Moreover, the Appeals Chamber dismisses the Prosecution’s argument that the Trial Chamber sought mutual “corroboration” of different statements made by the same witness (namely, a confessional statement of a witness with his previous statement).[137] The Appeals Chamber is of the view that, in this case, the Trial Chamber was simply seeking to establish the consistency of the said evidence, and hence, the credibility of the testimony, which is part of the main responsibilities of a trier of fact. The Appeals Chamber therefore considers that the Trial Chamber’s findings should be viewed within the context of the Trial Chamber’s overall assessment of the consistency and credibility of the evidence.
81. In view of the foregoing, the Appeals Chamber finds that the Prosecution has not demonstrated that the Trial Chamber committed the alleged errors. Consequently, the Appeals Chamber dismisses this part of the third ground of appeal.
2. Whether the Trial Chamber erred in its use of and reliance on prior written statements
82. The Prosecution essentially submits that the Trial Chamber erred in relying on inconsistencies between the statements made to Prosecution investigators, on the one hand, and confessional statements made to Rwandan authorities, on the other hand, without having afforded the said witnesses an opportunity to explain the inconsistencies. The Prosecution refers to its second ground of appeal[138] and notes that the Defence did not cross-examine certain Prosecution Witnesses with a view to testing their credibility on some aspects of their testimony that it considered contradictory, and also that the Trial Chamber did not use its discretion to put questions to witnesses.
83. With regard to the use made by the Trial Chamber of confessional statements, the Appeals Chamber reiterates its conclusions concerning the second ground of appeal. Thus, it is up to the party which considers itself aggrieved, in this case, the Prosecution, to request the Trial Chamber to call back the witnesses for further cross-examination and provide justification for such request.
84. With regard to the specific issue of the Trial Chamber’s reliance on prior witness statements, a question raised several times by the Prosecution, the Appeals Chamber refers to its findings in paragraphs 94 et seq. of this Judgement and dismisses this ground of appeal.
3. Whether the Trial Chamber erred by finding Witness Z not credible
85. The Prosecution impugns paragraph 747 of the Trial Judgement, which reads:
While the Chamber accepts that Pastor Muganga was taken from the communal office area to the communal football field and killed, the events leading up to his death are unclear. The only purported eye¬witness to the killing was Witness Z, whose testimony the Chamber has found to be unreliable in relation to the allegations tending to incriminate the Accused (See, in particular, sub-sections V.5.5 and V.5.6, infra) .[139] 86. Despite the fact that the Trial Chamber actually found inconsistencies and flaws in Witness Z’s testimony, the Prosecution does not understand the “basis for the categorical conclusion that whenever the evidence of Witness Z tends to incriminate the Accused, such evidence is unreliable.”[140] The Prosecution submits that a review of the Trial Chamber’s assessment of Witness Z’s evidence reveals that such a finding is not substantiated.
87. The Appeals Chamber notes that paragraph 747 constitutes a general conclusion drawn from the Trial Chamber’s observations in paragraphs 748 et seq. of the Judgement. The Appeals Chamber is of the view that those paragraphs provide a clear view of the basis for the finding set forth in paragraph 747, and dismisses the Appellant’s arguments in that regard. For example, the Appeals Chamber notes that “the witness [Z] gave two different versions as to how he found out about it [the order] [given by the Accused to Semanza to kill Muganga].”[141] The Trial Chamber further stated that “[t]his shift in accounts [given by Witness Z] between direct examination and cross-examination gives the impression of an attempt by the witness to claim that his knowledge of the order allegedly issued by the Accused was more immediate than it in fact was. This effort could stem from a desire to incriminate the Accused more decisively [.] “.[142] 88. As the Appeals Chamber recalled earlier, the Trial Chamber is not required to articulate in its Judgement every step of its reasoning in reaching particular findings.[143] The Appeals Chamber recalls that in order to establish an error of fact, the Prosecution must prove that the Trial Chamber’s reasoning was incorrect, and as such resulted in a miscarriage of justice. Simply criticising the reasoning adopted by the Trial Chamber is not an adequate demonstration that the Trial Chamber committed an error of fact. As the Prosecution failed to demonstrate that the Trial Chamber’s findings were unreasonable, this ground of appeal must be dismissed.
B. “Specific” errors concerning the Trial Chamber’s assessment of the evidence in relation to the purpose of the Trafipro roadblock, the murder of Judith and the presence of the Accused at the Gatwaro Stadium[1441
89. The Appeals Chamber holds that the questions raised by the Prosecution with respect to the “specific” errors relate to three main, distinct issues:[145] the Trial Chamber’s assessment of the relevant evidence relating to the purpose of the Trafipro roadblock; the Trial Chamber’s reliance on previous statements, namely, the statements made to Prosecution investigators and the confessional statements made to Rwandan authorities (on this point, the Appeals Chamber will address the Prosecution’s arguments as a whole, insofar as this issue arises in relation to virtually all the questions raised); and finally the Trial Chamber’s assessment of the evidence relating to the alleged presence of the Accused at the Gatwaro Stadium.
1. The Trial Chamber’s assessment of the relevant evidence relating to the purpose of the Trafipro roadblock
90. The Prosecution refers to the Trial Chamber’s findings in Chapter V of the Trial Judgement as regards the purpose of the Trafipro roadblock .[146] It argues that the Trial Chamber erred by not considering the testimonies of Witnesses KC, AB, RA, ZJ and that of the Accused. [147] The Appellant submits that the evidence referred to shows that the Accused was aware that identify cards were being checked at roadblocks, which had been erected for the purpose of identifying Tutsis. As early as the beginning of April 1994, the Accused knew that Tutsis were actively sought out in Mabanza and other communes
within Kibuye prefecture. According to the Prosecution, the above-mentioned Witnesses revealed the real purpose of the roadblock, namely, to find and kill Tutsis.[148] 91. The Prosecution submits that the aforementioned testimonies show in essence that:
– The Accused provided the bourgmestre of Tambwe and two other Tutsi women with laissez-passers indicating that they were Hutu;[149] – The main purpose of the six roadblocks mounted in Mabanza was to identify Tutsis;[150] – The Accused dissuaded five Tutsi nuns from going to Kibuye town because of the roadblocks they would encounter on their way;[151] – The Accused helped the brother-in-law of Defence Witness ZJ by providing him with an identity card, which had the word “Hutu” written on it, to enable his wife and other Tutsis to cross the roadblocks that had been erected on the Kigali- Kibuye road, without experiencing problems;[152] – The Accused issued over 100 laissez-passers and feuilles de route to persons from outside Mabanza commune and gave a witness several blank identify cards which had the word “Hutu” written on them so as to help citizens of Mabanza who were living in Kigali.[153] 92. The Appeals Chamber observes that the Trial Chamber considered the testimonies of all witnesses called by the Appellant in other parts of the Trial Judgement, either in Chapter IV entitled “General Issues”[154] or in the section entitled “Roadblocks sighted in Mabanza Commune”. The Trial Chamber considered their testimonies for the purpose of “establishing whether the Accused was generally supportive of the massacres.”[155] It is the view of the Appeals Chamber that the factual findings contained in Chapter V of the Judgement must therefore be read in the light of the “General Issues” dealt with earlier. In any event, as the Judgement must be viewed as a whole, it would be incorrect to assert that in Chapter V of the Judgement the Trial Chamber failed to take into account the submissions relating to the testimonies of Witnesses KC, AB, RA, ZJ, and the testimony of the Accused in Chapter IV of the Judgement.
93. Moreover, in Chapter V of the Trial Judgement, with regard in particular to the issue as to the purpose of the Trafipro roadblock, the Trial Chamber analysed the evidence before it in order to address the specific question as to whether the roadblocks had originally been set up by the Accused for criminal purposes. Thus, it began by analysing the documentary evidence presented by the Prosecution,[156] and then scrutinized the testimonies of the two Prosecution’s witnesses who regularly attended the Trafipro roadblock.[157] On the basis of the relevant evidence, the Trial Chamber considered that it was unable to conclude beyond reasonable doubt that the aim of the Accused, when he set up the Trafipro roadblock, was to screen out and kill Tutsi civilians.[158] In the light of the above, the Appeals Chamber finds nothing unreasonable in the Trial Chamber’s reasoning and findings with regard to this specific point. It therefore dismisses the Appellant’s submission on this point.
2. The Trial Chamber’s reliance upon prior statements (statements made to Prosecution investigators and confessional statements to Rwandan authorities)
94. Firstly, the Prosecution refers to the Trial Chamber’s findings as regards the inconsistencies between the testimonies of Witnesses Y and Z in the Section of the Judgement dealing with the purpose of the Trafipro roadblock. Referring to paragraph 937 of the Judgement,[159] the Prosecution submits that:
– The Trial Chamber erred insofar as it relied upon the written statement of Witness Y for the truth of its content, attributing more weight to this statement than to his testimony before the court and doing so without even putting the statement to the Witness to determine whether he accepted it as true;[160] – Though there may be circumstances where a statement may be admitted for the truth of its contents, notably pursuant to Rule 92bis of the Rules,[161] no such consideration was given by the Trial Chamber in admitting the statement for this purpose. It appears that the Trial Chamber may simply have been mistaken in its appreciation of the difference between testimony and prior statement.[162] Moreover, its reliance on the statement means that it placed greater weight on the out-of-court statement than the live testimony of a witness.[163] 95. Secondly, the Prosecution challenges the Trial Chamber’s findings as regards the murder of Judith. Referring mainly to paragraphs 959 to 961 of the Trial Judgement,[164] it raised the following main arguments:
– The inconsistency relied upon by the Trial Chamber to find Witness Z unreliable arises from a difference between Witness Z’s confession to Rwandan authorities, his written statement and his testimony. However, neither the Defence nor the Trial Chamber put this single inconsistency to the Witness. On this point, the Prosecution refers the Appeals Chamber to the second ground of appeal;[165] – The inconsistency does not undermine the evidence that the Accused came out of his office when Judith was escorted past his premises, and had a conversation with Witness Z. Further, Witness Y’s testimony is not inconsistent with Witness Z’s and cannot be used to discredit Witness Z’s testimony due to the fact that “the supposed conversation between Witness Z and the Accused is not corroborated. “[166] In that connection, the Prosecution contends that Witness Z’s testimony is corroborated substantially by the testimony of WitnessY.[167] According to the Prosecution, the Trial Chamber should have asked Witnesses Y and Z to explain themselves on these minor inconsistencies.[168] 96. In the light of the above, the Appeals Chamber understands that the Prosecution takes issue with the Trial Chamber on two main points. In respect of these points, the Appeals Chamber considers as follows:[169] (1) The Trial Chamber not only relied upon prior statements in order to assess
the credibility of the witnesses but it also used them for the truth of their content.
97. According to the Prosecution, only evidence admitted as hearsay may be relied upon for the truth of its content (on this point, the Prosecution is referring to Rule 92 bis of the Rules of ICTY), not prior witness statements. The Prosecution submits that such evidence should be relied upon only for the assessment of the credibility of witnesses.
98. The Appeals Chamber notes that, in the paragraphs of the Judgement mentioned by the Prosecution, [170] the Trial Chamber indeed relied on previous statements of witnesses for the truth of their content.However, the Appeals Chamber is of the view that such reliance does not constitute an error in this instance.
99. The Appeals Chamber recalls that, at the time of the trial, the only legal authority with regard to admission of evidence was Rule 89(C) of the Rules, which provides that “[a] Chamber may admit any relevant evidence which it deems to have probative value.”[171] The Trial Chamber therefore assessed the admissibility of the prior statements solely on the basis of Rule 89 of the Rules, by properly weighing their relevance and probative value. At paragraphs 24 and 25 of the Trial Judgement, it set out its approach in the assessment of the evidence, in the following terms:
24. Regarding in particular the assessment of testimony, the Chamber observes that, during the present trial, previous written statements of most witnesses appearing in this case were tendered in their textual entirety as exhibits. On occasions, the parties and, where appropriate, the Chamber, have raised inconsistencies between the content of an earlier statement and the testimony during the trial. The Chamber’s point of departure when assessing the account given by a witness is his or her testimony in court. Of course, differences between earlier written statements and later testimony in court may be explained by many factors, such as the lapse of time, the language used, the questions put to the witness and the accuracy of interpretation and transcription, and the impact of trauma on the witnesses. However, where the inconsistencies cannot be so explained to the satisfaction of the Chamber, the reliability of witness’ testimony may be questioned.
25. Finally, the Chamber notes that hearsay evidence is not inadmissible per se, even when it is not corroborated by direct evidence. Rather, the Chamber has considered such hearsay evidence with caution, in accordance with Rule 89. When relied upon, such evidence has, as all other evidence, been subject to the tests of relevance, probative value and reliability.
100. The Appeals Chamber considers that, in this case, the Trial Chamber relied on prior statements of witnesses for two purposes: on the one hand, to assess the credibility of the witnesses, and on the other hand for the truth of their content. In the latter case, the Trial Chamber had good grounds to proceed in the way it did, insofar as the prior statements were regarded as hearsay evidence. As “previous written statements of most witnesses appearing in this case were tendered in their textual entirety as exhibits,”[172] it was the responsibility of the Trial Chamber, pursuant to Rule 89 of the Rules, to determine, by virtue of its discretion, the weight to attach to such statements. The
Appeals Chamber holds that, at the time, nothing prevented the Trial Chamber from admitting prior statements as hearsay evidence; and this was the case even in instances where the witnesses concerned had testified at trial.[173] (2) In the instances where the Trial Chamber relied upon differences between the
witnesses’ prior statements and their testimony in court, it failed to ask the witnesses to explain themselves on the said differences.
101. The Appeals Chamber holds the view that the Prosecution cannot allege on appeal that the Trial Chamber committed an error in this regard. It was incumbent upon the Prosecution, when necessary, to request the Trial Chamber to order further cross- examination in order to dispel any doubt regarding any inconsistencies that could affect the credibility of witnesses. The Prosecution cannot raise such an argument for the first time on appeal whereas the problem was not brought to the attention of the Trial Chamber at trial (see the findings of the Trial Chamber regarding the second ground of appeal).
3. Assessment of the evidence relating to the presence of the Accused at the Gatwaro Stadium on 13, 14 and 18 April 1994
(a) Presence of the Accused at the Gatwaro Stadium on 13 April 1994
102. The Prosecution argues that a number of inconsistencies noted by the Trial Chamber between Witness AC’s prior statement and his testimony in court are immaterial, and that, moreover, the inconsistencies were not put to the Witness during her testimony.[174] The Prosecution refers in particular to the discrepancy relied upon by the Trial Chamber in relation to where the Accused was standing and what she heard the Accused say.
103. Concerning the reproach made to the Trial Chamber for having taken into account the discrepancy as to the time when the Accused arrived at the Stadium,[175] the Appeals Chamber dismisses the Prosecution’s arguments. Firstly, as submitted by the Respondent,[176] it is clear that the Trial Chamber recognized that the discrepancy regarding the time was immaterial. Secondly, the discrepancy regarding the time when the witnesses saw the Accused at the Stadium appears to have been less crucial for the Trial Chamber than that regarding the moment when the Accused is alleged to have arrived at the Stadium. The Trial Chamber’s use of the terms “before” and “after” in italics in the Judgement affirms this interpretation. In the view of the Appeals Chamber, nothing in the Trial Chamber’s course of action indicates that it was unreasonable in this instance.
104. With respect to the argument that the discrepancy as to the wording of what the Accused said was a minor one, the Appeals Chamber sees nothing unreasonable in the Trial Chamber’s findings at paragraph 541 of the Judgement. In any event, the Prosecution has failed to demonstrate the alleged error. As stated by the Respondent, it was the combination of inconsistencies as to when the Respondent arrived, where he
stood and what he said that was considered crucial by the Trial Chamber.[177] Indeed, the Trial Chamber explained that “[i]t has not been proved beyond reasonable doubt that the Accused was present at the Stadium in Kibuye on 13 April 1994. Even assuming that he was there, the testimonies of the witnesses provided little information about the purpose of the visit. Witness AC’s testimony seems to indicate that he simply came to verify whether the refugees had arrived at the Stadium. There is insufficient evidence of criminal intent. No crimes under the Statute had been committed at the Stadium by that stage. Therefore, there can be no question of liability. “[178] (b) Presence of the Accused at the Gatwaro Stadium on 14 April 1994
105. The Prosecution submits that in its assessment of the evidence related to 14 April 1994, the Trial Chamber applied an incorrect test, namely that “in the absence of details” in the oral testimony of Witness A the Trial Chamber considered the prior statements of this witness and compared its content to his oral testimony.[179] 106. According to the Prosecution, the oral testimonies of Witnesses A and AC contain ample evidence upon which a reasonable trier of fact would have concluded the presence of the Accused at the Stadium.[180] It further submitted that there was no basis for resorting to the previous statements of the witness for “corroboration”. Therefore, the Trial Chamber erred in failing to put such inconsistencies to Witness A at trial to afford him an opportunity to provide explanations for the said inconsistencies.^!] 107. The Appeals Chamber dismisses the Prosecution’s arguments relating to the Trial Chamber’s alleged application of an incorrect test in its assessment of the evidence. By virtue of its discretionary power, the Trial Chamber could consider the written statements “in the absence of other details” in order to assess the reliability and credibility of a given witness. In this instance, it is only after the Trial Chamber noted that the information provided by Witness A was “very limited”[182] that it decided to proceed, “in the absence of details”,[183] to look into the witness’ prior statements. The Appeals Chamber does not find the Trial Chamber’s approach unreasonable.
108. With respect to the argument that the oral testimonies of Witnesses A and AC combined provide sufficient evidence upon which a reasonable Trial Chamber would have found that the Accused was present at the Stadium, the Appeals Chamber does not consider the Trial Chamber’s reasoning to be unreasonable, in light of the evidence adduced, and considering the contradictory nature of the evidence. The Trial Chamber assessed and weighed the evidence adduced, in view of the specific circumstances of the case, in determining whether, on the whole, the accounts of both witnesses were relevant and credible.[184] (c) Presence of the Accused at the Gatwaro Stadium on 18 April 1994
109. The Prosecution submits that the assessment of the oral testimonies of Witnesses G and A,[185] and the inferences drawn therefrom were erroneous. The Prosecution contends that the Trial Chamber took into consideration facts which were not evident on
the record, and which caused it to speculate that there were other factors which affected the ability of Witness G to see the Accused.[186] According to the Prosecution, if the Trial Chamber assessed the evidence correctly, in light of the fact that Witness G knew the Accused, the verdict of the Chamber would have been affected.[187] 110. The Appeals Chamber rejects the Prosecution’s allegations. It recalls that the Trial Chamber expressly visited Rwanda in order to “better appreciate the evidence to be adduced during the trial.”[188] The visit no doubt enabled the trial judges to form a concrete and realistic opinion of the situation. The information gathered during the visit cannot be considered speculative, especially given that the visit was aimed at assessing the evidence relating mainly to the question of the witnesses’ conditions of observation at the stadium.
111. It appears to the Appeals Chamber that the main issue for the Trial Chamber was to determine whether Witness G could clearly identify the Accused at the Stadium on that day. The Prosecution submits that the Trial Chamber should have taken into consideration the fact that Witness G knew the Accused. This argument must be rejected as the Trial Chamber did recognize that the Witness “knew the Accused well.”[189] Furthermore, it appears that this issue was not crucial for the Trial Chamber; as indicated in the Respondent’s Brief,[190] it was rather the issue of visibility which appears to have been crucial for the Trial Chamber. The question before the Trial Chamber was how Witness G was able, given the distance between him and the stadium, to specifically identify the Accused among the attackers.[191] Upon reading the Judgement, it appears that the Trial Chamber had a very precise idea of the configuration of the place. It also appears that the Prosecution clearly did not provide sufficient information to the Chamber and that the testimonies of the witnesses who appeared before it could not support a finding by the Trial Chamber that the Accused was present at the Stadium on 18 April 1994. Once again, the Appeals Chamber is of the view that the Prosecution failed to show that the findings of the Trial Chamber on this issue were unreasonable.
112. In view of the foregoing, the Appeals Chamber dismisses all the submissions made under the third ground of appeal.
113. The Appeals Chamber therefore dismisses all the grounds of appeal raised by the Prosecution, as the Prosecution has failed to establish that the Trial Chamber committed any error of fact leading to a miscarriage of justice or any error of law invalidating the Judgement.
VI. DISPOSITION
For the foregoing reasons, the Appeals Chamber, on 3 July 2002, at Arusha, ruled as follows:
“The Appeals Chamber,
Pursuant to Article 24 of the Statute of the Tribunal and Rule 118 of the Rules of Procedure and Evidence,
Considering the written submissions of the Parties and their oral arguments at the hearing of 2 July 2002,
Sitting in open court,
Unanimously Dismisses the arguments of Ignace Bagilishema regarding the inadmissibility of the Prosecution’s Appeal,
Unanimously Dismisses the appeal lodged by the Prosecution against the Judgement delivered on 7 June 2001, and will give the Reasons for the Judgement in due course,
Affirms the acquittal by the Trial Chamber on all the counts in the Indictment,
Rules that it is not necessary therefore to consider all the motions filed by Ignace Bagilishema pursuant to Rule 115 of the Rules of Procedure and Evidence, and the Motion for Protective Measures for Defence Witnesses,
Orders the immediate release of Ignace Bagilishema,
Rules that it is therefore not necessary to consider the “Requete urgente de l’Intime en demande de main levee de controlejudiciaire ” [Respondent’s Urgent Motion for the Lifting of Judicial Control Measures] filed on 2 July 2002,
Rules that this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules of Procedure and Evidence.
Done in French and English, the French text being authoritative.

Claude Jorda
David Hunt
Mohamed Shahabuddeen

Judge
Judge
Presiding Judge

Fausto Pocar
Theodor Meron

Judge
Judge

Dated this third day of July 2002 At Arusha, Tanzania.”
The reasons for Judgement are now set out in the foregoing text.
Done in French and English, the French text being authoritative.

Claude Jorda
David Hunt
Mohamed Shahabuddeen

Judge
Judge
Presiding Judge

Fausto Pocar
Theodor Meron
Judge
Dated this thirteenth day of December 2002
[Seal of the Tribunal] ANNEX A: APPEALS PROCEEDINGS 1. Summary of facts relating to filings on appeal
1. On 9 July 2001, the Prosecution appealed the Judgement rendered on 7 June 2001 by the Trial Chamber.[192] By decision dated 26 September 2001, the Presiding Judge of the Appeals Chamber designated himself Pre-Hearing Judge in the present case (“PHJ”).[193] On 19 October 2001, the PHJ issued an order setting 24 September 2001 as the beginning date for the parties to agree on the contents of the record on appeal.[194] By decision rendered on 30 November 2001,[195] Judges Claude Jorda,
Mohamed Shahabuddeen, David Hunt, Fausto Pocar and Theodor Meron were assigned to the present case.
2. In accordance with the decision of the PHJ dated 1 October 2001,[196] the Prosecution filed its Appeal Brief on 29 October 2001.[197] On 2 November 2001, the Prosecution filed an urgent motion for authorization to exceed the page limit allowed for the Appellant’s Brief and alternative request for extension of time.[198] Upon realizing that its appeal brief exceeded the number of pages allowed by the Practice Direction on the Length of Briefs and Motions on Appeal, the Prosecution requested the Appeals Chamber to allow its brief as filed on 29 October 2001 and, alternatively, to grant it an extension of seven (7) days within which to file a new brief. By decision dated 30 November 2001, the PHJ ordered the Prosecution to file an Appellant’s Brief in accordance with the requirements set forth in the Practice Direction within seven (7) days of the said decision.[199] The said brief was filed on 7 December 2001.[200] The Judges of the Appeals Chamber were informed by the Deputy Registrar of the Tribunal, on
Judge
14 December 2001, that the Appellant’s Brief did not comply with the Practice Direction with regard to the number of words. In its Urgent Motion filed on 19 December 2001,[201] the Prosecution explained that it dwelt on reducing the number of pages in its brief without paying attention to the word count, and requested the Appeals Chamber to grant the Prosecution an extension of time to file a brief in compliance with the Practice Direction, which was attached to the Motion. [202] The same day, the PHJ noted the Prosecution’s failure to comply with the decision of 30 November 2001 and stated that the Appeals Chamber would take appropriate disciplinary measures, if necessary and at the right moment. He, however, stated that in order to avoid undue delay in the proceedings, there was cause to allow the Prosecution to file the new brief attached to the Motion for an Extension of Time Limits.[203] 3. On 7 February 2002, Bagilishema filed his Respondent’s Brief in Response[204] to which the Prosecution replied on 25 February 2002.[205] Bagilishema then filed a Motion on 13 March 2002 requesting leave to file a rejoinder to the Prosecution’s Reply Brief.[206] By decision dated 20 March 2002, the PHJ dismissed the said Motion. [207] Recalling that the Rules do not provide for the filing of a rejoinder in respect of appeals against judgement, the PHJ pointed out that the Appeals Chamber may, at its discretion, allow the filing of a written submission not provided for by the Rules, where such filing is warranted for a proper determination of the appeal. In the instant case, as the Reply was still being translated, the Respondent had had no opportunity to apprise himself of the Motion and had not shown that the filing of the Rejoinder was justified. Once the Brief in Reply was translated into French,[208] Bagilishema filed another motion seeking leave to file a rejoinder to the Prosecution’s Reply Brief on 23 April 2002,[209] to which the Prosecution responded on 1 May 2002.[210] In its Decision of 23 May 2002,[211] the PHJ noted that in order to ensure a fair trial, every party has the right to challenge the arguments put forward by the Prosecution. In the instant case, however, he held, on the one hand, that Bagilishema had had “tout le loisir de discuter les arguments souleves par le Procureur dans son Memoire en reponse ” [all the time to address the arguments raised by the Prosecution in its Reply Brief] and, on the other hand, that the Prosecution’s Reply did not contain any new arguments relating to the main grounds of appeal. After emphasizing that Bagilishema had failed to show that filing the rejoinder was justified for a proper determination of the appeal, and, after examining the document, considering that it was not necessary for the proper conclusion of the appeal, the PHJ dismissed the second motion.
2. Motions filed as part of the appeals proceedings
4. The motions filed as part of the appeals proceedings raise several questions, which the Appeals Chamber combined for consideration under the following headings:
(a) Inadmissibility of the Prosecution’s Appeal Brief
5. On 12 September 2001, Bagilishema filed a motion challenging the admissibility of the Prosecution’s appeal, arguing notably on the ground, inter alia that it was too vague and imprecise for him to understand the Prosecutor’s grounds of appeal and hence, to adequately prepare his defence.[212] Bagilishema submitted that such lack of specificity of the grounds of appeal was tantamount to a lack of grounds and that therefore, the Prosecution’s Notice of Appeal did not “set forth the grounds” within the meaning of Rule 108(A) of the Rules. On 24 September 2001, the Prosecution filed its Response in English and an alternative request seeking a suspension of the Briefing schedule and an extension of time. [213] Subsequently, Bagilishema wrote a letter to the Presiding Judge of the Appeals Chamber, stating that he was unable to understand the Prosecution’s Response, as it was in English.[214] By Decision dated 1 October 2001, the PHJ granted Bagilishema’s request and ordered him to file his reply within seven (7) days after receiving the translation of the Prosecution’s Response, which was expected by 8 October 2001 at the latest.[215] The PHJ also fixed 29 October 2001 as the deadline for
filing the Prosecution’s Appeal Brief, without prejudice to the Appeals Chamber’s decision as to the admissibility of the Prosecution’s Notice of Appeal.
6. On 26 October 2001, the Appeals Chamber rendered its Decision. [216] Considering Rules 111 and 108 of the Rules, the Appeals Chamber took the view that the only formal requirement under the Rules regarding the content of the notice of appeal is an enumeration of the grounds of appeal and that in no case does the notice of appeal have to give details of the arguments the parties intend to raise in support of the grounds of appeal. The Appeals Chamber also held that it is the Appellant’s Brief that contains details of the grounds of appeal. The Appeals Chamber therefore dismissed Bagilishema’s motion challenging the admissibility of the Prosecution’s Appeal Brief.
(b) Translation and extension of deadlines
7. Bagilishema filed a motion for translation and additional time on 31 October2001,[217] to which the Prosecution responded on 14 November 2001.[218] On 30 November 2001, the PHJ ordered the Prosecution to file an Appellant’s Brief in compliance with the criteria set forth in the Practice Direction within seven days from the date of the decision, and also granted Bagilishema’s motion to the effect that the thirty- day time-limit for the filing of the Respondent’s Brief, as provided for in Rule 112 of the Rules, should only start to run from the time the Registry served him and his Counsel with the French translation of the new Appellant’s Brief, which was to be served on the Parties by 4 January 2002 at the latest.[219] 8. On 22 January 2002, Bagilishema filed a motion for extension of time,[220] which the PHJ dismissed on 25 January 2002 on the grounds that it constituted an abuse of process within the meaning of Rule 73(E) of the Rules,[221] insofar as Bagilishema had already brought the issues raised in his motion before the PHJ and the Appeals Chamber, which issues were still under consideration by the Appeals Chamber.
9. On 12 February 2002, the Prosecution filed an urgent motion for extension of time and for leave of court to exceed the page limit allowed for the Prosecution’s Reply Brief,[222] to which Bagilishema responded on 20 February 2002.[223] The PHJ dismissed this motion on 21 February 2002 on the grounds that the Prosecution had failed to show good cause for an extension of time and did not establish such exceptional circumstances as would justify its exceeding the page limit set forth in the Practice Direction. [224] (c) Motions for review
10. On 12 December 2001, Bagilishema filed a motion for review of the Order rendered by the PHJ on 30 November 2001.[225] He submitted that the parties’ filings should be translated into both languages and that the deadlines allowed him should start to run only from the time he was served with the French version of all documents intended for him. On 20 December 2001, the Prosecution responded to Bagilishema’s motion for review. [226] Bagilishema filed a second Motion for review on 21 December
2001, [227] challenging the PHJ’s Decision of 19 December 2001, whereby the Prosecution was allowed to file its new Appellant’s Brief attached to the Motion for Extension of Time (filed on 19 December 2001).[228] The Prosecution responded to Bagilishema’s second Motion for review on 4 January 2002. [229] 11. By Decision dated 6 February 2002,[230] the Appeals Chamber reiterated that only a decision that puts an end to proceedings may be reviewed, and that in this instance, “neither of the two decisions impugned by the Respondent in his ‘motions for review'” put an end to proceedings. The Appeals Chamber held that the motions for review should be viewed as motions for reconsideration, and that such a motion for reconsideration should be brought before the PHJ who had rendered the decision, given that the Rules do not provide for appeals to the Appeals Chamber against decisions rendered by the PHJ. The Appeals Chamber thus held that it was necessary to refer the motions to the PHJ for consideration. On 6 February 2002, the PHJ dismissed the motions for review on the grounds that, in the first motion, there were no exceptional circumstances to justify a reconsideration by the PHJ of his decision, and, moreover, Bagilishema had not demonstrated in his second motion the existence of exceptional circumstances that would warrant a reconsideration by the PHJ of his decision. With regard to the argument relating to the inadmissibility of the Prosecution’s Brief, the PHJ emphasized that it was possible for Bagilishema to advance, if necessary his arguments in this connection in an addendum to his response to the Appellant’s Brief. [231 ] (d) Motions for disclosure of evidence and for witness protection measures
12. On 12 December 2001, Bagilishema filed a motion requesting the Appeals Chamber to order the Prosecution to disclose recordings of Broadcasts on Radio Muhabura to the Defence.[232] The Prosecution filed its Brief in Response on 20 December 2001 and 28 January 2002.[233] Recalling that under the provisions of Rule 68 of the Rules “it is the Prosecutor who determines ab initio whether an item of evidence is exculpatory or not,” the PHJ emphasized that the Appeals Chamber would intervene if Bagilishema could show that the Prosecution had not fulfilled its obligations. The PHJ dismissed this motion on 6 February 2002 on the ground that it was unfounded and, in particular, because the Prosecution stated that it did not have the evidence requested and that, in any event, the said evidence showed no item of information that could be disclosed under Rule 68 of the Rules.[234] 13. On 8 March 2002, Bagilishema sought an order from the Appeals Chamber for protective measures for potential Defence witnesses.[235] The Prosecution filed its Response on 22 March 2002,[236] and the Respondent filed a Reply thereto on 11 April
2002. [237] By Decision of 30 May 2002, the Appeals Chamber decided to defer consideration of the motion for protection of Defence witnesses until the Prosecution’s appeal against acquittal had been heard, given that Bagilishema had requested the Appeals Chamber to have the said witnesses called to testify pursuant to Rule 115 of the Rules.[238] (e) Motions brought under Rule 115 of the Rules 14. On 8 March 2002, Bagilishema filed a Confidential Motion for Leave to file
new Evidence.[239] The Prosecution responded to it on 22 March 2002. [240] On 25 April 2002,[241] Bagilishema filed his Reply, to which the Prosecution filed an objection on 1 May 2002. [242] Bagilishema filed a Supplementary Motion on 29 April 2002[243] for leave to file new evidence in which he sought to adduce as additional evidence certain factual findings made in the Trial Judgement of 21 May 1999 and the Appeal Judgement of 1 June 2001 in The Prosecutor v. Kayishema and Ruzindana. The Prosecution filed a Response to this Motion on 9 May 2002. [244] The Appeals Chamber decided on 30 May 2002 to defer consideration of the motions brought under Rule 115 until after the hearing of the Prosecution’s appeal against the acquittal of Bagilishema.[245] The Appeals Chamber considered that the issues raised by Bagilishema in the above-mentioned motions brought under Rule 115 would be relevant to the Prosecution’s appeal only if the Prosecution’s appeal against Bagilishema’s acquittal could succeed in the Appeals Chamber. The Appeals Chamber held that it was therefore appropriate to first hear the parties’ arguments relating to the Prosecution’s appeal.
3. The Appeal Judgement
On 3 July 2002 at the end of the appeal hearing held at the seat of the Tribunal in Arusha on 2 July 2002, the Appeals Chamber rendered its Judgement. [246] In substance, the Appeals Chamber unanimously dismissed the Prosecutor’s appeal, as well as Bagilishema’s arguments relating to the inadmissibility of the Prosecutor’s appeal and affirmed the acquittal on all counts in the Indictment’s.
ANNEX B: GLOSSARY
A. Filings of the Parties
Notice of Appeal Notice of Appeal, filed in English by the Prosecution on
9 July 2002.
Appellant’s Brief “Prosecution’s Appeal Brief (Further reduced version)”, filed
on 19 December 2001.
Respondent’s Response “Respondent’s Brief in Response”, filed on 7 February 2002.
Prosecution’s Reply “Prosecution’s Reply Brief’, filed on 25 February 2002.
B. References relating to the instant case
Indictment Amended Indictment in The Prosecutor v. Ignace Bagilishema,
Case No. ICTR-95-1A-T, 17 September 1999.
Hearings on Appeal Hearings on the arguments of the parties on appeal, held on 2
and 3 July 2002.
Bagilishema or Ignace Bagilishema.
Respondent
Appeals Chamber 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.
Transcripts of trial proceedings in The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T. All page numbers referred to in this Judgement are those of the unofficial and uncorrected English version.
Transcripts of the hearings on appeal held in Arusha on 2 and 3 July 2002. All page numbers of the transcripts of the hearings referred to in this Judgement are those of Document BL20702E.APPEAL.doc.
The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A- T, Judgement, 7 June 2001.
Separate and Dissenting Opinion of Judge Mehmet Guney in The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A- T, Judgement, 7 June 2001. Office of the Prosecutor.
Rules of Procedure and Evidence of the Tribunal. Statute of the Tribunal. or 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. 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.
T
T(A)
Trial Judgement Judge Guney’s Opinion
Prosecution or Appellant
Rules
Statute
International Tribunal Tribunal
ICTY
C. Cited Cases
Akayesu Appeal Judgement Aleksovski Appeal Judgement Celebici Appeal Judgement Furundzija Appeal Judgement
Kambanda Appeal Judgement
The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (Appeals Chamber). Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (ICTY Appeals Chamber). Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (ICTY Appeals Chamber). Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (ICTY Appeals Chamber). Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000 (Appeals Chamber).
Kayishema/Ruzindana Appeal Judgement
Kupreskic Appeal Judgement Musema Appeal Judgement Tadic Appeal Judgement Tadic Decision (additional evidence)
Blaskic Trial Judgement
Celebici Trial Judgement
Kayishema/Ruzindana Trial Judgement
Musema Trial Judgement
D. Other References
ICC
Practice Direction
Report of the Commission of Experts
Clement Kayishema and Obed Ruzindana v. The Prosecutor, Case No. ICTR-95-1-A, Judgement, 1 June 2001 (Appeals Chamber).
Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16-A, Judgement, 23 October 2001 (ICTY Appeals Chamber). Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (Appeals Chamber). Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 (ICTY Appeals Chamber).
Decision on Appellant’s Motion for the extension of the time- limit and admission of additional evidence, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, 15 October 1998 (ICTY Appeals Chamber).
The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (ICTY Trial Chamber). Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement, 16 November 1998 (ICTY Trial Chamber). The Prosecutor v. Clement Kayishema et Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999 (Trial Chamber).
The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and Sentence, 27 January 2000 (Trial Chamber).
International Criminal Court established by the Rome Statute, adopted on 17 July 1998, Doc. ONU A/CONF/1 83/9. Practice Direction on the Length of Briefs and Motions on Appeal.
Report of the United Nations Commission of Experts S/1994/674.

[1] It should be noted that the Accused was unanimously found not guilty of Counts 1, 6 and 7 of the Indictment, and, not guilty of Counts 2, 3, 4 and 5 of the Indictment by a majority (Judge Guney appended a Separate and Dissenting Opinion). Judge Asoka de Z. Gunawardana appended a Separate Opinion to the Judgement.
[2] Details of the proceedings are found in Annex A. H] T(A), 2 July 2002, p. 4 et seq.
[4] Article 24 of the Statute provides as follows:
“1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecution on the following grounds:
(a) An error on a question of law invalidating the decision; or
(b) An error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.” (Emphasis added).
Article 24 of the Tribunal’s Statute is similar to Article 25 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). It should be noted that in his Report S/25704 (devoted to ICTY), the Secretary-General of the United Nations indicated that “[t]he right of appeal should be exercisable on two grounds: an error on a question of law invalidating the decision or, an error of fact which has occasioned a miscarriage of justice. The Prosecutor should also be entitled to initiate appeal proceedings on the same grounds “, para. 117 (emphasis added).
[5] Musema Appeal Judgement, paras. 15 to 21; Kayishema/Ruzindana Appeal Judgement, para. 320; Akayesu Appeal Judgement, paras. 174 to 179.
[6] Musema Appeal Judgement, para. 17; Akayesu Appeal Judgement, para. 178.
[7] Musema Appeal Judgement, para. 18 (quoting Furundzija Appeal Judgement, para. 37); see also Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63.
[8] Akayesu Appeal Judgement, para. 232 (quoting Tadic Appeal Judgement, para. 64); see also Kunarac Appeal Judgement, paras. 39 and 40; Kupreskic Appeal Judgement, paras. 30 and 32; Celebici Appeal Judgement, para. 435.
[9] See, e.g., Tadic Appeal Judgement, para. 64.
[10] Kupreskic Appeal Judgement, para. 32; see Kunarac Appeal Judgement, para. 40.
[11] Kupreskic Appeal Judgement, para. 29.
[12] Respondent’s Brief, para. 54.
[13] The Practice Direction was indeed served by the Registry on the various Offices of the Prosecutor (at The Hague and in Arusha) on 18 September 2001 and on all Defence Counsel on 18 and 19 September 2001.
[14] “Decision “Motion for extension of time”, The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95- 1A-A, rendered on 1 October 2001.
[15] In support of its motion, the Prosecution explained that “In the evening of Wednesday 31 October 2001, the Prosecution was informed by the Registry that the Prosecution’s Appeal Brief did not conform with Section 1(a) of the Practice Direction, in that it exceeded 100 pages or 30,000 words. The Appeals Section in The Hague did not receive a copy of the Practice Direction before […] 1 November 2001, at which date the Appeals Section received a copy from the Office of the Prosecutor in Arusha.” Cf. “Prosecution’s Urgent Motion for Authorisation to Exceed the page limit to the Prosecution’s Appeal Brief and Alternative Request for Extension of Time”, The Prosecutor v. Ignace Bagilishema, Case No. ICTR- 95-1A-A, 2 November 2001, paras. 6 and 7.
[16] “Decision (“Respondent’s Motion for translation and request for extension of time”; “Prosecution’s Urgent Motion for Authorisation to exceed the page limit to the Prosecution’s Appeal Brief and alternative Request for extension of time”), The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, rendered on 30 November 2001, p. 4.
[17] “Decision (“Prosecution’s Urgent Motion for extension of time to file its appeal brief in compliance with the Practice Direction on the length of Briefs and Motions on Appeal”), The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, rendered on 19 December 2001, p. 3 (emphasis added).
[18] T(A), 2 July 2002, p. 179.
[19] Kayishema/Ruzindana Appeal Judgement, para. 46 (footnotes omitted).
[20] Appellant’s Brief, para. 2.4.
[21] Ibid., paras. 2.5 and 2.39 to 2.44.
[22] Ibid., paras. 2.45 to 2.69.
[23] Ibid., para. 2.70
[24] Appellant’s Brief, paras. 2.68, 2.69 and 2.75; T(A), 2 July 2002, p. 65 etseq.
[25] Trial Judgement, paras. 44 to 46 included.
[26] Appellant’s Brief, para. 2.40.
[27] T(A), 2 July 2002, p. 22; Appellant’s Brief, paras. 2.6 to 2.14.
[28] The Prosecution considers that “this is an important question on which it would be appropriate for this Appeals Chamber to pronounce, not only in view of this case on appeal, but also in view of the guidance that needs to be given to the Trial Chambers and the parties in other cases.” The Prosecution is referring here to paragraph 240 of the Celebici Appeal Judgement. Cf. Appellant’s Brief, paras. 2.14 to 2.38. See also T(A), 2 July 2002, p. 30: “The Prosecution’s submission is that, the concept of inquiry notice, as developed by the Celebici Appeals Chamber applies to all superiors under the Statute regardless of their formal or legal status, regardless of whether they are civilian or militia.”
[29] Appellant’s Brief, para. 2.40; T(A), 2 July 2002, p. 41.
[30] Appellant’s Brief, para. 2.40; T(A), 2 July 2002, pp. 41-42.
[31] It should be noted that the English version of the Judgement uses the two expressions “gross negligence” and “criminal negligence” (Cf. Trial Judgement, for example paras. 897 and 1005).
[32] Appellant’s Brief, para. 2.42. The Prosecution is referring to the elements applied by the Trial Chamber in paras. 1011 and 1012 of the Judgement.
[33] Appellant’s Brief, paras. 2.42 and 2.43.
[34] According to the Respondent, the Appellant misinterpreted the Celebici Appeal Judgement (Respondent’s Brief, para. 122). The Respondent submits that the ICTY Appeals Chamber clearly held that whereas it is not required that the superior actually acquaint himself with the information (whether it was
provided or made available to him), the relevant information only needs to be in the possession of the superior. (See also T(A), 2 July 2002, pp. 208-214). Furthermore, the Respondent considers that the Prosecution is “attempting to use the Bagilishema case to solve the legal issue of liability of military or civilian superiors” and submits that the standard set out in the Celebici Appeal Judgement ought not to apply to civilian superiors (Respondent’s Brief, paras. 124 and 141; T(A), 2 July 2002, p. 210). With respect to the Prosecution’s main contention, he believes that the Trial Chamber “explicitly and implicitly” applied the “had reason to know” standard (Respondent’s Brief, paras. 142 and 151). The Respondent points out that the fact that the Trial Chamber concluded that there were two possible groups of subordinates (the communal police and persons staffing the roadblocks) necessarily limits the obligation to assess the Respondent’s mens rea in respect of the unlawful acts which may have been committed by these groups (or individuals in the group) (Ibid., para. 145), and that the test for criminal negligence encompasses the “had reason to know” concept. (Ibid., para. 156).
[35] Celebici Appeals Judgement, par. 238.
[36] Emphasis added.
[37] Trial Judgement, para. 967. It follows from this paragraph that a superior’s “knowledge” covers the two standards, namely (1) the Respondent “knew” or (2) the Respondent “had reason to know”.
[38] Trial Judgement, para. 975.
[39] Trial Judgement, para. 968. The Trial Chamber is referring to paragraph 386 of the Celebici Appeal Judgement, which in turn refers to the following indicia featuring in the said Report (United Nations Commission of Experts Report S/1994/674): the number of illegal acts, the type of illegal acts, the scope of illegal acts, the time during which the illegal acts occurred, the number and type of troops involved, the logistics involved, if any, the geographical location of the acts, the widespread occurrence of the acts, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved, and the location of the commander at the time.
[40] The Trial Chamber indeed considered that “[W]itness Z testified to the effect that the Accused was put on notice about the impending murders, and may even have encouraged their commission. In the case of Bigirimana, and for the reasons given earlier, the Chamber cannot accept Witness Z’s testimony about the presence of the Accused at the Trafipro roadblock shortly before Bigirimana was taken away and killed; nor is the Chamber convinced that the Accused was notified of the imminent offence by Bigirimana’s wife. In the case of Judith, Witness Z claimed to have conversed with the Accused moments after Witness Y and Rushimba led Judith past the window of the Accused’s office. However, for the reasons given above, the Chamber has decided to disregard his evidence.” Cf. Trial Judgement, para. 974.
[41] Trial Judgement, para. 977.
[42] Ibid., para. 966.
[43] The Trial Chamber in fact considered in para. 962 of the Judgement that “[i]t is arguable that if the Accused had seen the group pass before his window he would have appreciated the likelihood of an imminent offence. […]. However, in the absence of any evidence that the Accused noticed the procession, this line of argumentation leads nowhere.” (emphasis added). Furthermore, the Trial Chamber emphasized that Witness Z, “the Prosecution’s own witness, effectively invited to allude to a tolerance for criminal conduct in the proximity of the bureau communal, spoke instead of his own and others’ unreasoned conduct at the time.” The unreasoned conduct in question in this para. refers to the fact that Witnesses Y, Z and Rushimba passed in front of the communal office, giving the impression that the Accused was informed about the crime that was about to be committed on the person of Judith. Cf. Trial Judgement, para. 963.
[45] Trial Judgement, para. 980 in fine (emphasis added). In the original version of the Trial Judgement, namely the English version, para. 980 reads: “[…] If the murders of Judith and Bigirimana were instances of a larger number of victims of the Trafipro roadblock, the inference that the Accused knew about the offences might have been plausible. But there is no evidence to show that the two killings were not just isolated or exceptional incidents, rather than illustrations of a routine of which the Accused could not plausibly have remained unaware”.
[46] The Prosecution submits indeed that “it is important to examine whether the legal elements of the standard which the Trial Chamber articulated for criminal negligence could amount to the “had reason to know” standard in accordance with the Celebici jurisprudence.” (Appellant’s Brief, para. 2.41 et seq.)
[47] The Trial Chamber stated that it would “address these three roadblocks below on the basis of all available evidence concerning their establishment and operation and decide whether the Accused is liable under one or more of the three forms of liability.” (cf. Trial Judgement, paragraph 891). It continued in para. 897 that “a third basis of liability in this context is gross negligence.” Lastly, the Trial Chamber stated in para. 1014 in fine that it had given its reasons for being unable to find the Accused guilty under Article 6(1) and 6(3). Nevertheless, according to the Chamber, “the question that remains is whether the Accused is nonetheless liable in negligence for the two deaths [of Judith and Bigirimana].” Cf. Trial Judgement, para. 1015.
[48] Trial Judgement, para. 897. It was thus held that, “[h]ad [he], as bourgmestre, an obligation to maintain order and security in Mabanza commune, it would have been a gross breach of this duty for him to have established roadblocks and then failed properly to supervise their operations at a time when there was a high risk that Tutsi civilians would be murdered in connection with them.” (emphasis added).Consequently, in testing for negligence, according to the Trial Chamber, ordinary principles of the law of negligence apply to determine whether an accused person was in breach of a duty of care towards his or her victim. The next question is whether the breach caused the death of the victim and, if so, whether it should be characterized as so serious as to constitute a crime. (Trial Judgement, para. 1010). The Trial Chamber set forth the standard for examining this “form of liability” in para. 1011 of the Judgement.
[49] Celebici Appeal Judgement, paras. 230 to 239. The Celebici Appeal Judgement points out that Article 7(3) of the ICTY Statute, which is identical to Article 6(3) of the ICTR Statute, “is concerned with superior liability arising from failure to act in spite of knowledge. Neglect of a duty to acquire such knowledge, however, does not feature in the provision as a separate offence. A superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish.” (Celebici Appeal Judgement, para. 226).
[50] See, e.g., Summing-up of the Judge Advocate in Babao Masao case (Rabaul, 1947), reported in Law Reports of Trials of War Criminals, UNWCC, Vol. XI, at pp. 56 to 60.
[51] According to the Prosecution, the factual findings of the Trial Chamber and the undisputed evidence on record clearly show that “the majority’s conclusion that the Prosecution did not adduce sufficient evidence to support the ‘had reason to know’ standard is so unreasonable that no reasonable trier of fact could have come to a similar conclusion.” Cf. Appellant’s Brief, para. 2.67.
[52] Appellant’s Brief, para. 2.67.
[53] In support of its contention, the Prosecution advances the following main arguments:
– Para. 1019 only allows for the conclusion that the precise date of the killings of Judith and Bigirimana has not been established (Appellant’s Brief, para. 2.47);
– These killings must be placed in the context of other events, which the Trial Chamber found were established beyond reasonable doubt: the events which took place in Mabanza (Ibid., para. 2.48), in Kibuye (Ibid., para. 2.49) and in Rwanda in general (Ibid., paras. 2.52 and 2.53); the purpose and functioning of the Trafipro roadblock (Ibid., paras. 2.54 to 2.58); knowledge by the Accused of Witness Z’s past (Ibid., paras. 2.59 and 2.60); the close proximity of the Communal Office to the Trafipro roadblock where the murders were committed (Ibid., para. 2.61).
[54] The Prosecution posits that “if the superior fails to remain apprised of his subordinates’ unlawful conduct and the superior had the means to obtain the knowledge, but deliberately refrained from investigating further, it may be presumed that he had the required mental element during his failure to prevent, report or punish.” Cf. Appellant’s Brief, para. 2.12.
[55] The Prosecution submits that the Respondent had the duty to investigate or inquire further because the evidence on the record demonstrated that the Respondent knew: (1) about the widespread killing of Tutsi civilians that took place all over Rwanda, in the town of Kibuye and in Mabanza; (2) about the fact that the perpetrators of these massacres were /./ also gendarmes, policemen, ordinary Hutu civilians and inhabitants of his commune; (3) that Tutsis were targeted; (4) about the fact that roadblocks were inherently dangerous for Tutsi civilians; (5) that the Trafipro roadblock was at a strategic location; (6) that at least one of the persons staffing the Trafipro roadblock was an ex-soldier. Cf. Appellant’s Brief, paras. 2.62 and 2.63.
The Prosecution submits that the Respondent failed in his duty to investigate further (Ibid., para. 2.64), and offers some suggestions on how the Respondent could have met his duty to inquire (Ibid., para. 2.65), following which “it would have been clear that several courses of action were open to him in order to comply with his duty as a superior to prevent the commission of crimes or to punish the perpetrators thereof.” (Ibid., para. 2.66).
[56] Appellant’s Brief, paras. 2.14 to 2.38. The Prosecution submits that the precise formal or technical status of a superior is not relevant and, hence, all superiors should be judged according to the same legal standard in relation to the “had reason to know” standard. For the Prosecution, “there is no indication that the drafters of the Statute intended to lay down different standards for different categories of superiors.” (Appellant’s Brief, para. 2.17). It submits that this position can be confirmed by international jurisprudence on the subject. The Prosecution, however, analyses the distinction between civilian and military superiors in Article 28 of the Statute of the International Criminal Court (“ICC”), which it qualifies as being innovative and deviating from customary law in force when the offences alleged in the Indictment were committed. (Ibid., para. 2.29 et seq.)
[57] Appellant’s Brief, paras. 2.62 to 2.67.
[58] Celebici Appeal Judgement, para. 238 (emphasis added).
[59] Celebici Appeal Judgement, para. 238.
[60] The Prosecution submits in particular that the Respondent admitted that he had given no specific instruction regarding the operation of the Trafipro roadblock. Cf. Appellant’s Brief, para. 2.54.
[61] Appellant’s Brief, para. 2.58.
[62] Appellant’s Brief, para. 2.55. The Prosecution refers to para. 930 of the Trial Judgement, the Statement of 17 September 2000, as well as Prosecution exhibit 77b. The Appeals Chamber points out that para. 930 of the Judgement refers to the Statement of 17 September 1999 in footnote 1101 of the Judgement, which mentions Defence exhibit 64. The Prosecution submits that this portion of the written statement of Witness Y was not specifically put to the witness in court, and that the Chamber’s point of departure should have been the oral testimony given by this Witness in court.
[63] Appellant’s Brief, paras. 2.59 and 2.60; T(A), 2 July 2002, pp. 49-50.
[64] See in particular Appellant’s Brief, para. 2.25; T(A), 2 July 2002, p. 45.
[65] Appellant’s Brief, para. 2.60. The Prosecution refers to the T, 7 June 2000, pp. 152 to 154, and to Defence exhibit No. 100. The Prosecution also refers to the T, 8 June 2000, pp. 230 to 245 and p. 42 and 9 February 2000, pp. 29 and 30.
[66] Appellant’s Brief, para. 2.60. The Prosecution refers to paras. 924-925 and 754 of the Trial Judgement.
[67] Trial Judgement, paras. 936 and 938.
[68] Trial Judgement, paras. 930 and 929, the latter reproduces Witness Y’s testimony at the hearing of 7 February 2000 (T, 7 February 2000, pp. 34-36).
[69] The Judgement reads: “Witness, Y, on the other hand, said that anyone with proper identification, whether Tutsi, Hutu or Twa, could pass through the roadblock without experiencing problems.”
[70] See para. 94 et seq. of the present Judgement.
[71] Kayishema/Ruzindana Appeal Judgement, para. 165; Furundzija Appeal Judgement, para. 69; Celebici Appeal Judgement, para. 481.
[72] See, for example, Trial Judgement, paras. 944, 952 and 1020.
[73] Cf. supra, para. 10 et seq of the present Judgement.
[74] Appellant’s Brief, para. 2.70.
[75] Ibid., paras. 2.70 and 2.74.
[76] Ibid., para. 2.75.
[77] Ibid., para. 2.72. The Prosecution cites as an example the fact that the Trial Chamber uses the expression “trappings of military power” and subjects proof of a superior to the presence of military style authority. To illustrate the Trial Chamber’s legal approach, the Prosecution cites paras. 43, 150, 151, 152, 160, 163 to 165, 171, 180, 183 and 664 of the Trial Judgement.
[78] At the appeal hearing the Prosecution stated that “[t]he Trial Chamber is firmly convinced that a person could only be considered a de jure superior on condition that that person was acting as a quasi military commander.” Cf. T(A), 2 July 2002, p. 52.
[79] Appellant’s Brief, para. 2.73. The Prosecution refers to paras. 252, 254 and 304 of the Celebici Appeal Judgement.
[80] Appellant’s Brief, para. 2.73. The Respondent, for his part, considers that the argument raised by the Prosecution before the Appeals Chamber is a display of citations from the Judgement made out of context and a misinterpretation of the Trial Chamber’s analysis. According to him, the Chamber “correctly identified the characteristics that underpin the relationship between the Respondent and his supposed subordinates, which would make it possible to find whether or not there was sufficient control to establish command responsibility.” The Defence submits further that “contrary to the Prosecutor’s contention […], the Trial Chamber did not refer to the ‘trappings’ of military command but to the ‘trappings’ of de jure command.” Cf. Respondent’s Brief, in particular, paras. 174 and 176.
[81] C elebici Appeal Judgement, para. 192: “[u]nder article 7(3), a commander or superior is thus the one who possesses the power or the authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.”
[82] Ibid, para. 193.
[83] Ibid., para. 198.
[84] Aleksovski Appeal Judgement, para. 76 in fine. The ICTY Appeals Chamber took the view “that it does not matter whether [the Accused] was a civilian or military superior, if it can be proved that [.] he had the powers to prevent or to punish in terms of Article 7(3).”
[85] Emphasis not in the original. Celebici Trial Judgement, para. 378, affirmed on appeal in the Celebici Appeal Judgement, para. 197 in fine. The ICTY Appeals Chamber considered in para. 197 of the Celebici Appeal Judgement that “[i]n determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. This would equally apply in the context of criminal responsibility. In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met. Muci}’s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. The Appeals Chamber therefore agrees with the Trial Chamber’s conclusion […]” (footnotes omitted).
[86] Musema Trial Judgement, para. 135. The Trial Chamber based its finding on earlier case-law established in the Akayesu Trial Judgement (para. 491).
[87] Trial Judgement, para. 43 (footnotes omitted).
[88] Trial Judgement, para. 151, which reads as follows: “[…] a civilian superior will have exercised effective control over his or her subordinates in the concrete circumstances if both de facto control and the trappings of de jure authority are present and similar to those found in a military context.” (emphasis added).
[89] Trial Judgement para. 152, which reads as follows: “[. ] for the character of a civilian’s de jure authority (whether real or contrived) must be comparable to that exercised in a military context.”
[90] Celebici Appeal Judgement, paras. 196, 197 and 256. The ICTY Appeals Chamber considered that “‘Command’, a term which does not seem to present particular controversy in interpretation, normally means powers that attach to a military superior, whilst the term ‘control’, which has a wider meaning, may encompass powers wielded by civilian leaders. In this respect, the Appeals Chamber does not consider that the rule is controversial that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control. Effective control has been accepted, including in the jurisprudence of the Tribunal, as a standard for the purposes of determining superior responsibility […]” (footnotes omitted) (para. 196). It further held that “The concept of effective control over a subordinate – in the sense of a material ability to prevent or punish criminal conduct, however that control
is exercised – is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute” (footnotes omitted) (para. 256).
[91] Prosecution Appellant’s Brief, para. 2.75.
[92] Trial Judgement, para. 183.
[93] According to which “references [.] to concepts of subordination, hierarchy and chains of command /./need not be established in the sense of formal organisational structures so long as the fundamental requirement of an effective power to control the subordination, in the sense of preventing or punishing criminal conduct, is satisfied.” Cf. Kayishema/Ruzindana Appeal Judgement, para. 298 (footnote 520). The Appeals Chamber referred to the Celebici Appeal Judgement (para. 254) wherein the ICTY Appeals Chamber underscored this principle. The Appeals Chamber thus considered that: “[t]he Trial Chamber’s references to concepts of subordination, hierarchy and chains of command must be read in this context, which makes it apparent that they need not be established in the sense of formal organisational structures so long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct, is satisfied.”
[94] It was thus held that the relationship between a superior and his supposed subordinates may be both “direct and indirect”, with the proviso that effective control must always be established. Furthermore, “the law relating to command responsibility recognises not only civilian superiors, who may not be in any such formal chain of command, and de facto authority, for which no formal appointment is required.” Cf. Celebici Appeal Judgement, paras. 252 and 304. The Appeals Chamber stated that it “[…] regards the Trial Chamber as having recognised the possibility of both indirect as well as direct relationships subordination and agrees that this may be the case, with the proviso that effective control must always be established […]” (Celebici Appeal Judgement, para. 252). It further considered that it was “[…] satisfied that the Trial Chamber was not in fact imposing the requirement of such a formalised position in a formal chain of command, as opposed to requiring that there be proof that Deli} was a superior in the sense of having the material ability to prevent or punish the acts of persons subordinate to him.” (para. 304).
[95] Trial Judgement, para. 180.
[96] Trial Judgement, paras. 184 and 185.
[97] Trial Judgement, para. 180. The Chamber considered, for example, that the de jure relationship between gendarmes and the bourgmestre was limited. See also Trial Judgement, para. 186 where the Trial Chamber held that “the Accused, as bourgmestre, did not have de jure authority over reservists in Mabanza commune.”
[98] In this regard, the Trial Chamber pointed out, with reference to gendarmes, that the bourgmestre had to approach other officials if he needed military assistance (Trial Judgement, para. 181) and that he would have had to refer any problems that emerged to the commander of the gendarmerie in Kibuye town (Trial Judgement, para. 182).
[99] Appellant’s Brief, para. 2.74.
[100] See Respondent’s Brief, para. 179, the Defence refers to paras. 164, 200, 223, 304 and 322 of the Trial Judgement.
[101] Judgement, para. 153 (emphasis added). In this regard, the Trial Chamber refers to its finding in chapter V of the Judgement.
[102] Judgement, para. 151.
[103] See in particular paras. 163, 165, 183, 186 and 199 of the Trial Judgement.
[104] The Appeals Chamber held in para. 192 of its Celebici Appeal Judgement that “under Article 7(3), a commander or a superior is thus the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed”.
[105] Celebici Appeal Judgement, para.198.
[106] See para. 2.75 of the Appellant’s Brief.
[107] “Request of the Defence for an Order for Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z and AA”, The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, filed on 20 April 2000. The Prosecution responded on 10 May 2000 and the Motion was heard orally on 25 May 2000.
[108] At the hearing of 25 May 2000, the Defence clarified its position as follows: “Our request is intended to have the Court order the Prosecutor to disclose these confessional statements. And let me add that we fail to understand why the Prosecutor did not take this initiative. How can witnesses called to testify before you rely on the fact that they confess their guilt, and yet hide from you these confessional statements? This is why we believe that either the Prosecutor has this statement in her possession, or she has the means to get them. In any case, whatever the case, it is up to her to bring this document before this Court. And let me add that during our last trip to Rwanda, the Defence team contacted the Procureur of Kibuye to request disclosure of the files on these witnesses and this was rejected. It is, therefore, only the Office of the Prosecutor which, pursuant to the powers conferred on them, can procure these documents. These documents are indispensable for the determination of the truth. The documents are indispensable in determining the credibility of these witnesses. Therefore, under Rule 68, Defence is of the view that it is the responsibility of the Office of the Prosecutor to produce these documents, failing which the Office of the Prosecutor cannot rely on the evidence of these witnesses, evidence which is tainted with suspicion.” Cf. T, 25 May 2000, pp. 80 and 81.
[109] The Prosecution submits that, “[t]he Defence has informed the Prosecution that they had requested for the said evidence from the Third Party but that access was denied. Any attempt to impose a duty on the Prosecutor to exercise her statutory powers to obtain for the Defence evidence in the hands of a third party would be contrary to the provisions of Article 15 of the Statute of the Tribunal and also to existing case law.” Cf. “The Prosecutor’s Response to the Defence Motion under Rule 68 for the Disclosure of the Admission of Guilt by Witnesses Y, Z and AA,” The Prosecutor v. Ignace Bagilishema, Case No. ICTR- 95-1A-T, 10 May 2000, para. 5.
[110] The Trial Chamber indeed pointed out that “[t]he disclosure obligation under Rule 68 relates to “the existence of evidence known” to the Prosecutor. A literal interpretation might suggest that mere knowledge of exculpatory evidence in the hands of a third party would suffice to engage the responsibility of the Prosecutor under that provision. However, to adopt such a meaning, would, in the extreme, allow for countless motions to be filed with the sole intention of engaging the Prosecutor into investigations and disclosure of issues which the moving party considered were ‘known’ to the Prosecutor. This would not be in conformity with Article 15 of the Statute. Under that provision, the Prosecutor is responsible for investigations. She shall act independently and not receive instructions from any source. 7. The Chamber is inclined to equate ‘known’ to ‘custody and control’ or ‘possession’. This wording is used in Rules 66 (B) and 67 (C) of the Rules, which pertain to the inspection by one party of documents, books, photographs and tangible objects of the other party. Thus the obligation on the Prosecutor to disclose possible exculpatory evidence would be effective only when the Prosecutor is in actual custody, possession, or has control of the said evidence. The Prosecutor cannot disclose that which she does not have. [.. .]9. In the present case, the Prosecutor has stated categorically that she is not in possession of the written confessions of witnesses Y, Z and AA, and the Defence has brought no evidence to the contrary. Thus the Chamber must dismiss the Rule 68 motion of the Defence”. Cf. “Decision on the Request of the Defence for an order for Disclosure
by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z and AA,” The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, rendered on 8 June 2000, paras. 6, 7 and 9.
[111] Ibid., paras. 10 and 11.
[112] Appellant’s Brief, para. 3.39.
[113] T(A), 2 July 2002, p. 114. To demonstrate its point, the Prosecution advances a number of principles that apply before the Tribunal with respect to the use and evaluation of prior witness statements. The Prosecution advances the principle that “If a witness was not cross-examined on an inconsistency, the cross-examining Party—or the Trial Chamber—must request that the witness be recalled for additional cross-examination.” Cf. Appellant’s Brief, para. 3.31. The Prosecution grounds its argument specifically on a decision rendered by Trial Chamber II on 2 November 2001 in the Kajelijeli case. See T(A), 2 July 2002, pp. 87 to 95.
[114] The Prosecution states that its appeal on this point concerns the events at the Trafipro roadblock, the killing of Judith and the events at the Gatwaro stadium. The Prosecution cites paras. 617, 635, 747, 748, 916, 920 to 922, 952 to 954 and 961 of the Trial Judgement. Cf. T(A), 2 July 2002, pp. 102 and 103.
[115] T(A), 2 July 2002, p. 112.
[116] Prosecutor vSlobodan Milosevic, IT-02-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s Evidence, 30 September 2002, para. 24: “It would of course be quite wrong for the Trial Chamber, in determining the issues in the trial, to refer to material which may be available to it but which is not in evidence […].”
[117] T(A), 2 July 2002, pp. 116 and 117.
[118] Ibid., p. 120.
[119] See the questions put by the judges at the appeal hearing, particularly T(A), 2 July 2002, pp. 132 to 137. The Respondent submits that the Office of the Prosecutor not only did not object to those documents being admitted, but made use of the said documents, for example in the closing arguments. T(A), 2 July 2002, pp. 222 and 223.
[120] The Appeals Chamber tried to understand the actual basis of this ground of appeal, presented by the Prosecution during the hearing on appeal as follows: “It is not solely an issue of fairness to the prosecution, but that is not the basis only of the admission of the statements, and it can’t be solely as an issue of fairness or prejudice to the Prosecution’s case, because the ultimate determination has to be one of the truthfulness of the testimony of the witnesses, and that is exactly what the Trial Chamber looked at these statements for. They didn’t look at them for an issue in relation to the. I mean, they did look at them to see whether they supported the prosecution’s case, but what they looked at them for was veracity or truthfulness or accuracy, and if they are going to rely on it for that purpose, in my respectful submission, it’s not only an issue of fairness, it’s also an issue of ensuring the accuracy by the trier of fact that is making that factual determination. That is the position in a nutshell. The trier has the discretion even where a party has, for example, waived a right, the trier has the discretion to admit additional evidence even where the evidence was available at trial if they think it goes to miscarriage of justice. I am not saying that is the standard here, Your Honour, but the point being if you can imagine the Prosecution failing, clearly in this case, to ask for a re-hearing or reply case, but subsequently it finds out that the witness confessional statements were completely coerced and there is no doubt that they are absolutely not true.” T(A), 2 July 2002, pp. 137 to 139.
[121] Kambanda Appeal Judgement, para. 25. See also Akayesu Appeal Judgement, para. 113. The principle of waiver was also affirmed by ICTY Appeals Chamber in the Celebici Appeal Judgement (para. 640), Furundzija Appeal Judgement (para. 174) and Tadic Appeal Judgement (para. 55).
[122] See Introduction to the present Judgement (para. 7).
[123] Appellant’s Brief, para. 4.2.
[124] The alleged errors, as set out by the Appeals Chamber in the Introduction to this Judgement, are as follows: (i) First error: Application of a wrong criteria with regard to the assessment of evidence relating to the presence of the Accused at the Gatwaro Stadium during the period when the refugees were locked up and subjected to maltreatment, as well as during the Gatwaro attack; (ii) Second error: The Trial Chamber erred in its use of prior written statements;(iii) Third error: Erroneous finding relating to Witness Z.
[125] Trial Judgement, para. 531.
[126] Ibid, para. 532.
[127] Appellant’s Brief, para. 4.3 to 4.9, notably para. 4.7.
[128] Kupreskic Appeal Judgement, para. 39.
[129] Judgement, para. 532.
[130] Indeed, the Trial Chamber considered the testimonies of two witnesses, namely Witnesses A and AC, who claimed to have seen the Accused at the stadium, first by assessing the detail and logic therein, then, whenever it deemed it necessary, by comparing the testimonies to prior statements of the witnesses, and pointing out any inherent inconsistencies. See Trial Judgement, paras. 533 to 543.
[131] Indeed, the Trial Chamber stated, with regard to Witness A, that “[t]he circumstances of Witness A’s sighting of the Accused on this day are not clear.” (Trial Judgement, para. 547) and that “[a]s for the Accused’s conduct and other details concerning the course of his visit, the information supplied by Witness A was very limited.” (Trial Judgement, para. 548). It is only in “the absence of other details” that the Trial Chamber looked into prior statements of Witness A and stated that the “[t]he chronology of visits by the Accused as found in Witness A’s testimony does not coincide with that of his statement of 29 June 1999.” (Trial Judgement, para. 549). With respect to Witness AC, the Trial Chamber concluded that his testimony “does not convincingly corroborate that of Witness A.” (Trial Judgement, para. 551) and added that “[t]he doubt in the Chamber’s mind is not dispelled by consideration of the witness’s statement of 21 June 1999.” (Trial Judgement, para. 552). Finally, the Chamber concluded that “[t]he paucity of the evidence as to the Accused’s presence (including the conditions of observation in a crowded Stadium) adduced by the Prosecution from Witnesses A and AC, when considered together with the lack of mutual corroboration, the signs of uncertainty in the accounts of both witnesses as to the date of the sighting, and the suggestion by the two other Prosecution witnesses that the Accused was in Mabanza commune at 9 a .m. on the day in question, means that the Prosecution’s evidence of the Accused’s presence at the Stadium on 14 April 1994 falls short of the applicable standard thereof. ” (Trial Judgement, para. 553).
[132] The Trial Chamber considered the evidence of the three witnesses, namely Witnesses AA, A et G, who testified to having seen the Accused at the stadium on that date. Trial Judgement, para. 606. As concerns Witness AA, the Chamber stated that it would assess “his testimony and any credibility issues that may arise as a whole in chronological order.” (Trial Judgement, para. 607). After analysing the witness’ testimony and prior statements (Trial Judgement, para. 608 to 618), and mindful of the fact that the said testimony was to be treated “with caution” and that “other sources” were to be looked into “for corroboration” (Trial Judgement, para. 619), the Trial Chamber concluded that “[i]n view of the considerable number of difficulties presented by Witness AA’s testimony, the Chamber is unable to accept any of its elements unless they are strongly corroborated by other sources […]” (Trial Judgement, para. 636). As concerns Witness A, the Trial Chamber noted that his testimony was “very brief”, regarding the Accused’s alleged presence before the attack (Trial Judgement, para. 639). The Chamber noted that the information provided by Witness A in his prior statement was “difficult to interpret” (Trial Judgement, para. 640). Finally, the Trial Chamber found that “the evidence provided by Witness A was unclear.” (Trial Judgement, para. 641). Lastly, with respect to Witness G, the Chamber began by considering “certain points that go to the credibility of Witness G’s testimony” (Trial Judgement, para. 644), then, after analysing his testimony in detail, it found that the Prosecution’s evidence was insufficient (Trial Judgement, paras. 652 and 653).
[133] See for instance Trial Judgement, paras. 551, 608, 619, 621, 628, 629, 636 and 653.
[134] For example, at para. 636, the Trial Chamber stated that “In view of the considerable number and variety of difficulties presented by Witness AA’s testimony the Chamber is unable to accept any of its elements unless they are strongly corroborated by other sources.”
[135] See, for instance, Trial Judgement, paras. 536, 538, 540, 549, 550, 552, 610, 612, 615, 618, 622, 623 and 634.
[136] Kayishema/Ruzindana Appeal Judgement, para. 154, citing the Tadic Appeal Judgement, para. 65, the Aleksovski Appeal Judgement, para. 62 and the Celebici Appeal Judgement, paras. 492 and 506.
[137] The Prosecution takes issue with this type of corroboration. Indeed, at the Appeal hearing, the Prosecution stated: “With respect, this raises a number of problematic areas in that at least in the jurisdiction of which I am aware, a previous statement can ‘t corroborate a subsequent statement.” (Emphasis added). See T(A), 2 July 2002, p. 152. The Prosecution thus referred to para. 635 of the Judgement where the Trial Chamber held that “Witness AA’s confessional statement of 11 November 1999 to the Rwandan authorities corroborates the statement of 22 and 23 September 1999.” (Emphasis added).
[138] Appellant’s Brief, paras. 4.10 and 4.12.
[139] Emphasis added.
[140] Appellant’s Brief, para. 4.17. The Appeals Chamber sums up as follows the Prosecution’s allegations that the Trial Chamber committed an error of fact: (1) at para. 947, the Trial Chamber did not substantiate its finding that Witness Z was not credible and merely made reference to other parts of the Judgement (namely, Sections V.5.5 and V.5.6); the Trial Chamber proceeded in a similar manner at para. 948 of the Judgement; (2) the Prosecution fails to see how reference to Section V.5.6 of the Judgement may serve as a basis for the Trial Chamber’s general conclusion at para. 747 of the Judgement; similarly, according to the Prosecution, Section V.5.5, which refers to Section V.5.4.1 of the Judgement, does not substantiate such a finding; (3) moreover, the finding impugned by the Prosecution appears to be at variance with other findings in the Judgement. The evidence adduced by the Prosecution against the Accused in respect of the crimes committed in Bisesero comes indeed partly from Witness Z.
[141] Trial Judgement, para. 749.
[142] Idem, para. 749 (Emphasis added).
[143] Kayishema/Ruzindana Appeal Judgement, para. 165; Furundzija Appeal Judgement, para. 69; Celebici Appeal Judgement, para. 481.
[144] As recalled by the Appeals Chamber in the introduction to the present Judgement: (i) First error: Error relating to the assessment made by Trial Chamber regarding the evidence tendered with regard to Trafipro roadblock; (ii) Second error: Error in the assessment of the evidence relating to the murder of Judith; (iii) Third error: Error relating to the assessment of evidence relating to the presence of the Accused at the Gatwaro Stadium on 13, 14 and 18 April 1994.
[145] Indeed, the Appeals Chamber notes that the arguments advanced by the Appellant in the various grounds of appeal are very similar and can be grouped and analysed under three main headings, as set out below.
[146] Trial Judgement, paras. 935 to 938.
[147] Appellant’s Brief, paras. 4.32 to 4.34.
[148] Appellant’s Brief, paras. 4.35 and 4.36. In essence, the Prosecution’s argument presented before the Appeals Chamber repeats the one presented before the Trial Chamber. Para. 4.14 of the Indictment reads: “In particular, Ignace Bagilishema permitted and encouraged Interahamwe militiamen to set up roadblocks at strategic locations in and around Mabanza commune. The primary purpose of the said roadblocks was to screen individuals in order to identify and single out Tutsis.” In its opening arguments before the Trial Chamber, the Prosecution alleged that “In order to ensure that no Tutsi remained alive, be it those from within or outside the commune, the Accused set up road blocks within Mabanza to help screen those fleeing from as far away as Gitarama and Kigali.” (See on this point, Trial Judgement, para. 926). According to the Prosecution, Bagilishema was aware that Tutsis were in danger while crossing the roadblock, considering that he issued false identity cards and that the purpose of the roadblock was to identify and kill Tutsis.
[149] Testimony of Defence Witness KC. See Appellant’s Brief, para. 4.31 citing the Trial Judgement, para. 243.
[150] Testimony of Witness AB. See Appellant’s Brief, para. 4.32, citing T, 15 November 1999, p. 109.
[151] Testimony of Defence Witness RA. See Appellant’s Brief, para. 4.33, citing the Trial Judgement, para. 249.
[152] Testimony of Defence Witness ZJ. See Appellant’s Brief, para. 4.33 citing the Trial Judgement, para. 253.
[153] Testimony of the Accused. See Appellant’s Brief, para. 4.34 citing T, 6 June 2000, pp. 49 to 67.
[154] See Trial Judgement, para. 243 for Witness KC; Judgement, para. 249, for Witness RA; Trial Judgement, para. 253 for Witness ZJ and Judgement, para. 255 et seq. for the Accused. The relevant testimony of Witness AB appears to have been analysed under the section of the Judgement entitled “Roadblocks Sighted in Mabanza Commune” in the factual findings of the Trial Chamber (See Judgement, para. 887 et seq ).
[155] Trial Judgement, para. 110.
[156] Ibid, para. 935.
[157] Trial Judgement, para. 937.
[158] At para. 938 of the Trial Judgement, the Trial Chamber stated that “the true purpose of Trafipro or any other roadblock in Mabanza commune is best sought not in documentation or recalled oral instructions pertaining to its operations but rather in the operations themselves.” And the Trial Chamber thus concluded
that: “All that can be said at this point is that the Prosecution has not shown beyond reasonable doubt that the aim of the Accused, when he set up the Trafipro roadblock, was to screen out and kill Tutsi civilians.”
[159] This paragraph reads: “The two prosecution witnesses who regularly attended the Trafipro roadblock gave differing accounts of its purpose. Witness Z testified that the Accused asked him to erect a roadblock “because the enemies are escaping”. The witness understood the Accused to be referring to Tutsi in general, as well as to members of the RPF and RPF-sympathisers. Witness Y, on the other hand, said that anyone with proper identification, whether Tutsi, Hutu or Twa, could pass through the roadblock without experiencing problems. He explained that Rushimba and Rukanos had given him relevant instructions, which they said had come from the Accused. Witness AA, who was not a staff member at the Trafipro roadblock, testified that the Accused had set up roadblocks to control the movements of Inkotanyi attempting to infiltrate the commune.” (Footnotes omitted).
[160] Appellant’s Brief, para. 4.40. The Appellant refers to its arguments regarding the first ground of appeal.
[161] Appellant’s Brief, para. 4.44. In this instance, the Prosecution is referring to Rule 92bis of the Rules of ICTY and the case law relating thereto.
[162] Appellant’s Brief, para. 4.44.
[163] Ibid, para. 4.44.
[164] Para. 959 of the Trial Judgement reads: “Once again, the only evidence of the Accused’s direct involvement in the killing of Judith is the testimony of Witness Z. He claimed to have had a conversation with the Accused in front of the bureau communal, just after Judith was escorted past. ” Para. 960 of the Judgement reads: The Chamber accepts that Witness Z was involved in the killing of Judith. (According to Witness Y’s statement of 17 September 1999, Witness Z, Rushimba and he led Judith to her house, where she was killed by Rushimba). However, the Chamber cannot rely on other aspects of Witness Z’s account of the incident.” And the Trial Chamber added: “In his confession of 22 June 1998, Witness Z admitted his involvement in the murder of Judith but said nothing about an encounter with the Accused, in spite of mentioning him in relation to the killing of Pastor Muganga. He first referred to meeting the Accused in his statement of 18 September 1999, where he declared: “He asked us where we had found Judith, and before we could answer, he went on to say: ‘That’s okay.’ This is in contradiction with his testimony (as excerpted above), according to which the witness had the opportunity to reply to the Accused’s question before being told, “That’s fine”. Other inconsistencies are apparent but need not be entered into here. The point is that the supposed conversation between Witness Z and the Accused is not corroborated. Witness Y who, according to Witness Z, was only some meters ahead did not refer to any conversation between Witness Z and the Accused. It is possible, of course, that the Accused who was, according to Witness Y, in his office when Judith was taken past, took notice and came out to the entrance where he met Witness Z. However, this mere possibility cannot fortify the account of a witness whose unreliability is questionable (V.5.4.1 and 5.5).” See Trial Judgement, para. 961 (Footnotes omitted).
[165] Appellant’s Brief, para. 4.51.
[166] Ibid, para. 4.55.
[167] The Prosecution indeed considers that corroboration exists “as both witnesses testify in essence: “that Judith was apprehended near the roadblock; that she was Tutsi; that Rushimba brought her back to the roadblock; that she was taken to her house to be killed there; that she was taken past the window of the office of the Accused; and that Rushimba and Witness Y killed her, not Z”. See Appellant’s Brief, para. 4.57.
[168] The Prosecution submits that “[w]itness Y was not asked about the role of Witness Z, nor was he questioned about whether Witness Z was following him and meet with the Accused” (Appellant’s Brief, para. 4.55). It also contends that “[a]s Witness Z was 5 to 10 metres behind Witness Y, and continued on to Judith’s house, it is reasonable that Y may not have heard a conversation between Z and the Accused. This possibility is accepted by the Trial Chamber. Once again, it is noteworthy that Witness Y was not questioned in this regard” (Appellant’s Brief, para. 4.58).
[169] T(A), 2 July 2002, pp. 144 to 145.
[170] In its Appellant’s Brief, the Prosecution gives the example of the third paragraph of the Trial Chamber’s findings regarding the purpose of the Trafipro roadblock, namely para. 937 of the Trial Judgement (See Appellant’s Brief, para. 4.38 et seq.). At the Appeal hearing, the Prosecution also cited para. 920 in support of its argument (See T(A), 2 July 2002, pp. 150-151).
[171] Rule 92bis did not exist at the time of the trial. The Prosecution’s arguments with regard to Rule 92bis of the Rules of ICTY are therefore not relevant in this case. The Appeals Chamber notes that Rule 92bis has since been included in ICTY Rules. See T(A), 2 July 2002, p. 159.
[172] Trial Judgement, para. 24.
[173] During the hearing on appeal, the Prosecution indeed argued that it was somewhat illogical for the Trial Chamber to admit evidence as hearsay evidence in so far as the concerned witness was sitting in the witness box. See T(A), 2 July 2002, pp. 160 and 161.
[174] Appellant’s Brief, para. 4.66.
[175] The Prosecution refers, on this point, to para. 539 of the Trial Judgement which reads: “Also, Witness AC testified to seeing the Accused on 13 April 1994 at the Stadium, but at around 3 p.m. The Chamber does not attach significance to the fact that Witness A made his observation at 2 p.m., whereas Witness AC apparently saw him at 3 p.m. Witness A testified that he was giving only an estimate, as he had no watch. Moreover, it is quite understandable if both witnesses had difficulties in recalling the exact time of their observation almost six years after the event. However, Witness A testified that the Accused joined the refugees (“nous a retrouvg’) at around 2 p.m. before the gates of the Stadium were opened, whereas Witness AC observed him arrive at around 3 p.m. after the refugees were already inside. Moreover, if the Accused was present when the refugees from Mabanza were about to enter the Stadium, it seems unlikely that he would return at a later stage to ask whether the refugees he had sent had arrived, as suggested by Witness AC. ” See Appellant’s Brief, para. 4.64.
[176] Respondent’s Brief, para. 402.
[177] Respondent’s Brief, para. 408.
[178] Trial Judgement, para. 543.
[179] Appellant’s Brief, para. 4.73.
[180] Appellant’s Brief, para. 4.74. With respect to Witness A, the Prosecution argues that Witness A provided detailed information relating to the presence of Bagilishema at the Stadium and considers that the discrepancy observed by the Trial Chamber between the testimony of Witness A and his prior statements ought to have been put to the Witness for clarification (See Appellant’s Brief, paras. 4.75 and 4.76). Regarding Witness AC, the Prosecution submits that there was ample evidence upon which to conclude that the Witness AC was able to see the Respondent through the Stadium gates, and see the Accused’s car, which was parked on the other side of the Stadium wall (See Appellant’s Brief, para. 4.77).
Trial Judgement, para. 548.
Ibid, para. 549.
“The paucity of the evidence as to the Accused’s presence (including the conditions of observation in a crowded Stadium) adduced by the Prosecution from Witnesses A and AC, when considered together with the lack of mutual corroboration, the signs of uncertainty in the accounts of both witnesses as to the date of the sighting, and the suggestion by two other Prosecution witnesses that the Accused was in Mabanza commune at 9 a.m. on the day in question, means that the Prosecution’s evidence of the Accused’s presence at the Stadium on 14 April 1994 falls short of the applicable standard of proof. ” See Trial Judgement, para. 553.
Here the Prosecution is making reference to paras. 649 and 651 of the Trial Judgement. See Appellant’s Brief, paras. 4.87 and 4.88.
Appellant’s Brief, para. 4.87
Appellant’s Brief, para. 4.90. The Prosecution also argued that the fact that the witness may not have known Kayishema sufficiently to be able to clearly identify him does not necessarily affect the witness’ ability to recognise the Accused. See Appellant’s Brief, para. 4.89.
Trial Judgement, para. 10.
Ibid, para. 650.
Respondent’s Brief, para. 455.
Indeed, the Trial Chamber explained that “[a]lthough under favourable conditions of observation, a familiar face may be easily recognisable, albeit not necessarily distinctive, the Chamber is concerned as to how the witness was able to specifically identify the Accused and Kayishema amongst the attackers over this distance.” See Trial Judgement, para. 649.
“Notice of Appeal”, filed in English on 9 July 2001.
“Ordonnance (Designation d’unjuge de la mise en etat en appel) “, 26 September 2001.
“Order”, 19 October 2001.
“Decision on the Composition of the Appeals Chamber in Case No. ICTR-95-1A-A, 30 November 2001.
“Decision (demande de reports de delais) “, 1 October 2001.
“Prosecution’s Appeal Brief “, filed on 29 October 2001 and “Corrigendum relating to the Prosecution’s Appeal Brief, filed on 29 October 2001”, filed in English on 30 October 2001.
“Prosecution’s Urgent Motion for Authorisation to exceed the page limit to the Prosecution’s Appeal Brief and alternative Request for extension of time”, filed in English on 2 November 2001.
“Decision (Respondent’s Motion for Translation and for Additional Time; Prosecution’s Urgent Motion for Authorisation to Exceed the Page Limit to the Prosecution’s Appeal Brief and Alternative Request for Extension of Time)”, 30 November 2001.
“Prosecution’s Appeal Brief (reduced version)”, filed on 7 December 2001.
‘Prosecution’s Urgent Motion for Extension of Time to File its Appeals Brief in Compliance with the Practice Direction on the Length of Briefs and Motions on Appeal”, filed in English on 19 December 2001.
“Prosecution’s Appeal Brief (further reduced version)”, filed in English on 19 December 2001.
“Decision (Prosecution’s urgent motion for extension of time to file its appeals brief in compliance with the practice direction on the length of briefs and motions on appeal)”, 19 December 2001.
“Respondent’s Brief in Response”, filed on 7 February 2002. See also “Erratum au Memoire en reponse de l’Intime “, filed on 8 February 2002 and the two ” Corrigenda”, filed on 13 and 14 March 2002.
“Prosecution’s Reply Brief’, filed in English on 25 February 2002.
“Motion for leave to produce a Rejoinder to the Prosecution’s Reply Brief’, filed on 13 March 2002.
“Decision on the Motion for Leave to produce a Rejoinder to the Prosecution’s Reply Brief’, 20 March 2002.
“Prosecution’s Reply Brief’, filed in French on 11 April 2002.
“Requete de l ‘Intime en demande d ‘autorisation de produire une duplique au memoire en replique du Procureur) “, filed on 23 April 2002.
“Prosecution Response to the Respondent’s Second Motion for leave to file a Rejoinder”, filed in English on 1 May 2002.
“Decision (Requete en demande d ‘autorisation de produire une duplique au Memoire en Replique du Procureur), 23 May 2002.
“Respondent’s Motion to have the Prosecutor’s Notice of Appeal declared Inadmissible”, filed on 12 September 2001.
“Prosecution Response to the Respondent’s Motion to have the Prosecution’s Notice of Appeal declared Inadmissible and Prosecution’s Alternative Request for a Suspension of the Briefing Schedule and for an Extension of Time”, filed in English on 24 September 2001.
Mr. Roux’s letter to the President of ICTR Appeals Chamber, 26 September 2001.
“Decision (demande de reports de delais) “, 1 October 2001.
“Decision (Motion to have the Prosecution’s Notice of Appeal Declared Inadmissible)”, 26 October 2001.
“Respondent’s Motion for Translation and for Additional Time”, filed on 31 October 2001.
“Prosecution Response to the Respondent’s Motion for Translation of Documents and for Extensions of Time”, filed in English on 14 November 2001.
“Decision (Respondent’s Motion for Translation and for Additional Time; Prosecution’s Urgent Motion for Authorisation to Exceed the Page Limit to the Prosecution’s Appeal Brief and Alternative Request for Extension of Time)”, 30 November 2001.
“Respondent’s Motion for Supplementary Time-Limit”, filed on 22 January 2002.
“Decision on the Respondent’s Motion for Extension of Deadlines”, 25 January 2002.
“Prosecution’s Urgent Motion for an Extension of Time and for Permission to Exceed the Page Limits in its Reply Brief’, filed in English on 12 February 2002.
“Memoire en reponse a la requete en urgence du Procureur “, filed on 20 February 2002.
“Decision on the Prosecution’s Urgent Motion for an Extension of Time and for Permission to Exceed the Page Limits in its Reply Brief’, 21 February 2002.
“Motion for a Review of the Decision by the President of the Appeals Chamber”, filed on 12 December 2001.
“Prosecution Response to the Respondent’s Motion for a Review of the Pre-Hearing Judge’s Decision of 30 November 2001”, filed in English on 20 December 2001.
“Requete en demande de revision de l ‘ordonnance du President de la Chambre d ‘appel “, filed on 21 December 2001.
“Decision (Prosecution’s Urgent Motion for Extension of Time to File its Appeals Brief in Compliance with the Practice Direction on the Length of Briefs and Motions on Appeal)”, 19 December 2001. See infra “Summary of facts relating to filings on appeal”.
“Prosecution’s Response to Respondent’s ‘Requete en demande de revision de l ‘ordonnance du President de la Chambre d’appel de l’Intime “, filed in English on 4 January 2002.
“Decision (Motions for Review of the Pre-Hearing Judge’s Decisions of 30 November and 19 December 2001)”, 6 February 2002.
“Decision on the Motion for a Review of the Decision by the President of the Appeals Chamber; On the Motion Pursuant to Rule 73 of the Rules of Procedure and Evidence praying the Chamber to order the Prosecutor to Disclose to the Defence the Tapes containing the Recordings of Radio Muhabura; On the Motion for a Review of the Decision by the President of the Appeals Chamber”, 6 February 2002.
“Requete article 73 du RPP afin que la Chambre ordonne au Procureur de communiquer a la Defense les cassettes d ‘enregistrements de la radio Muhabura “, filed on 12 December 2001.
“Response to Respondent’s Motion under Rule 73 for an order for Disclosure of Recordings of Broadcasts on Radio Muhabura”, filed in English on 20 December 2001 and “Prosecution’s Supplemental Respondent’s Motion under Rule 73 for an order for Disclosure of Recordings of Broadcasts on Radio Muhabura”, filed in English on 28 January 2002.
[2341 “Decision on the Motion for a Review of the Decision by the President of the Appeals Chamber; On the Motion Pursuant to Article 73 of the Rules of Procedure and Evidence praying the Chamber to order the Prosecutor to Disclose to the Defence the Tapes containing the Recordings of Radio Muhabura; On the Motion for a Review of the Decision by the President of the Appeals Chamber”, 6 February 2002.
[2351 “Motion for Protection of Defence Witnesses”, filed on 8 March 2002.
[2361 “Prosecution Response to Appellant’s (sic) Witness Protection Motion”, filed in English on 22 March 2002.
[237] “Replique de l ‘intime a la reponse du Procureur a la requete en protection des temoins a decharge “, filed on 11 April 2002.
[238] “Decision on Motions raised under Rule 115”, 30 May 2002.
[2391 “Confidential Motion for leave to File New Evidence”, filed on 8 March 2002 and “Supplement to the Confidential Motion for Submission of New Evidence “, filed on 14 March 2002.
[2401 “Prosecution’s Response to Appellant’s (sic) Motion for Admission of Additional Evidence”, filed in English on 22 March 2002.
[2411 “Replique confidentielle de l ‘intime a la reponse du Procureur a la requete en presentation d’elements nouveaux “, filed on 25 April 2002.
[2421 “Prosecution’s Objection to the Respondent’s Reply on his Motion for Additional Evidence”, filed in English on 1 May 2002.
[2431 “Supplementary Motion for Leave to File New Evidence”, filed on 29 April 2002.
[2441 “Prosecution’s Response to the Respondent’s Additional Motion for Admission of New Evidence”, filed in English on 9 May 2002.
[2451 “Decision on Motions raised under Rule 115”, 30 May 2002.
[2461 Judgement, The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, 3 July 2002.