Nyiramasuhuko et al. (Butare) (ICTR-98-42A) Vol 1

Nyiramasuhuko et al. (Butare) (ICTR-98-42A) Vol 1

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-12-14 - Case/document no.: ICTR-98-42A - Collection: International Tribunal for Rwanda

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ICTR-98-42-A 14t December 2015 (20379/H-19058/H) Tribunal Pénal International pour le Rwanda International Criminal Tribunal for Rwanda Before: Registrar: Judgement of: ICTR Appeals Chamber 140 2015 Date: Гина К. Action: Chambers, Deten Copied TO DIPALAA < INS

IN THE APPEALS CHAMBER Judge Fausto Pocar, Presiding Judge Carmel Agius Judge Liu Daqun Judge Khalida Rachid Khan Judge Bakhtiyar Tuzmukhamedov Mr. Bongani Majola 14 December 2015

THE PROSECUTOR V. Pauline NYIRAMASUHUKO Arsène Shalom NTA HOBALI Sylvain NSABIMANA Alphonse NTEZIRYA YO Joseph KANYABASHI Élie NDAYAMBAJE Case No. ICTR-98-42-A Volume I Judgement SIGNATORE:. DATE! Counsel for Pauline Nyiramasuhuko Nicole Bergevin and Guy Poupart Counsel for Arsène Shalom Ntahobali Normand Marquis and Mylène Dimitri Counsel for Sylvain Nsabimana Josette Kadji and Pierre Tientcheu Weledji Counsel for Alphonse Nteziryayo Frédéric Titinga Pacéré and Gershom Otachi Bw'Omanwa Counsel for Joseph Kanyabashi Michel Marchand and Alexandra Marcil Counsel for Élie Ndayambaje Pierre Boulé and Claver Sindayigaya Office of the Prosecutor Hassan Bubacar Jallow James J. Arguin Deborah Wilkinson François Nsanzuwera Althea Alexis-Windsor Steffen Wirth Tajesh Adhihetty Jane Mukangira Alison McFarlane Chelsea Fewkes Ghazaleh Meskoob Nicole Rangel Mickael Herz 20379/H NAME / NOM: ROSETTE MUZIGO-MORRISON

CERTIFIED TRUF COPY OF THE ORIGINAL SEEN BY ME COPIE CERTIFIEE CONFORME A L'ORIGINAL PAR NOUS International Criminal Tribunal for Kwanda Tribunal pénal international pour le Rwanda

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ICTR-98-42-A 14t December 2015 (20379/H-19058/H) Tribunal Pénal International pour le Rwanda International Criminal Tribunal for Rwanda Before: Registrar: Judgement of: ICTR Appeals Chamber 140 2015 Date: Гина К. Action: Chambers, Deten Copied TO DIPALAA < INS

IN THE APPEALS CHAMBER Judge Fausto Pocar, Presiding Judge Carmel Agius Judge Liu Daqun Judge Khalida Rachid Khan Judge Bakhtiyar Tuzmukhamedov Mr. Bongani Majola 14 December 2015

THE PROSECUTOR V. Pauline NYIRAMASUHUKO Arsène Shalom NTA HOBALI Sylvain NSABIMANA Alphonse NTEZIRYA YO Joseph KANYABASHI Élie NDAYAMBAJE Case No. ICTR-98-42-A Volume I Judgement SIGNATORE:. DATE! Counsel for Pauline Nyiramasuhuko Nicole Bergevin and Guy Poupart Counsel for Arsène Shalom Ntahobali Normand Marquis and Mylène Dimitri Counsel for Sylvain Nsabimana Josette Kadji and Pierre Tientcheu Weledji Counsel for Alphonse Nteziryayo Frédéric Titinga Pacéré and Gershom Otachi Bw'Omanwa Counsel for Joseph Kanyabashi Michel Marchand and Alexandra Marcil Counsel for Élie Ndayambaje Pierre Boulé and Claver Sindayigaya Office of the Prosecutor Hassan Bubacar Jallow James J. Arguin Deborah Wilkinson François Nsanzuwera Althea Alexis-Windsor Steffen Wirth Tajesh Adhihetty Jane Mukangira Alison McFarlane Chelsea Fewkes Ghazaleh Meskoob Nicole Rangel Mickael Herz 20379/H NAME / NOM: ROSETTE MUZIGO-MORRISON

CERTIFIED TRUF COPY OF THE ORIGINAL SEEN BY ME COPIE CERTIFIEE CONFORME A L'ORIGINAL PAR NOUS International Criminal Tribunal for Kwanda Tribunal pénal international pour le Rwanda

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20378/H I. INTRODUCTION.. A. BACKGROUND... B. TRIAL JUDGEMENT C. THE APPEALS II. STANDARD OF APPELLATE REVIEW. 1 1 4 8 ...10 III. COMMON GROUNDS OF APPEAL ON FAIRNESS OF THE PROCEEDINGS.. ...13 A. ARREST AND INITIAL APPEARANCE (NYIRAMASUHUKO GROUND 2; NTAHOBALI GROUND 1.2; NTEZIRYAYO GROUND 9 IN PART; NDAYAMBAJE GROUND 15 IN PART)...

1. Nyiramasuhuko's Arrest and Initial Appearance.. ...13 .13 2. Nahobali's Initial Appearance... 16 3. Nteziryayo's Arrest and Initial Appearance ... ..19 4. Ndayambaje's Arrest and Initial Appearance ..21 B. JOINDER OF TRIALS (NYIRAMASUHUKO GROUNDS 1 IN PART AND 4; NTAHOBALI GROUND 1.4) 23 1. Applicable Law ..24 2. Joinder Decision ..26 (a) "Same Transaction" Requirement 26 (b) Factors Weighing in Favour of Joinder and Rights of the Accused 30 (c) Alleged Bias .. 32 3. Decision Denying Severance ...34 4. Order for Cross-Examination and Presentation of Defence Cases .. 38 5. Conclusion . .40 C. REPLACEMENT OF JUDGE MAQUTU (NYIRAMASUHUKO GROUND 5; NTAHOBALI GROUND 1.6; NDAYAMBAJE GROUND 16) ....

1. Reconsideration of the Appeal Decision on Continuation of Trial 2. Decisions Denying the Recall of Witnesses (a) 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses. (b) 29 June 2004 Decision (c) 6 May 2004 Decisions on Ndayambaje Motions to Recall Witnesses QAQ and QAR 3. Alleged Errors in the Trial Judgement.

4. Conclusion ... 42 ...43 ..46 ..46 50 52 54 57 D. ADDITION OF WITNESSES TO THE PROSECUTION'S WITNESS LIST (NYIRAMASUHUKO GROUND 10; NTAHOBALI GROUND 1.11) 58 E. PRESENCE OF PROSECUTION WITNESSES IN THE COURTROOM DURING OBJECTIONS (NTAHOBALI GROUND 1.9; NDAYAMBAJE GROUND 14) . F. CROSS-EXAMINATION OF PROSECUTION WITNESS TA (NYIRAMASUHUKO GROUND 12 ..65 IN PART; NTAHOBALI GROUND 1.5 IN PART) ... 67 G. REFUSAL TO RECALL WITNESSES (NYIRAMASUHUKO GROUND 7 IN PART; NTAHOBALI GROUND 1.5 IN PART).. 1. 3 March 2006 Decision. 2. 20 November 2008 Decision . 3. 9 December 2008 Decision on Motion to Recall Witness TK 4. 24 February 2009 Oral Decision.

5. Conclusion ... 71 ..72 74 ...77 ....79 83 H. NSABIMANA'S STATEMENTS (NYIRAMASUHUKO GROUNDS 4 AND 19 IN PART; NTAHOBALI GROUND 3.9 IN PART; NSABIMANA GROUNDS 6 IN PART AND 7)..

1. Exhibits P113 and P114 2. Exhibit P185... 3. 1996 Telephone Conversations.

4. Conclusion. ...84 ...85 ...93 ...95 96 i Case No. ICTR-98-42-A 14 December 2015

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20377/H I. PARTICIPATION OF A FORMER PROSECUTION LEGAL OFFICER IN THE PREPARATION OF THE TRIAL JUDGEMENT (NTAHOBALI GROUND 1.8; NDAYAMBAJE GROUND 13)... ...97 J. ALLEGATIONS OF FALSE TESTIMONY AND CONTEMPT (NYIRAMASUHUKO GROUND 7 IN PART; NTAHOBALI GROUNDS 1.3 AND 3.12; KANYABASHI GROUND 3.11) ...

1. Procedural Background 2. Amici Curiae Reports... (a) Communication of the Amici Curiae Reports (1) First Amicus Curiae Report.. (ii) Second Amicus Curiae Reports ...... a. Second Amicus Curiae Report Concerning Witness QA. b. Second Amicus Curiae Report Concerning Witnesses QY and SJ (b) Failure to Consider the Impact of the Amici Curiae Reports ...

3. Failure to Exclude Evidence and Apply the Requisite Caution 4. Conclusion .... ..99 .99 103 103 106 . 107 108 109 114 116 .121 K. RIGHT TO BE TRIED WITHOUT UNDUE DELAY (NIRAMASUHUKO GROUND 1 IN PART; NTAHOBALI GROUND 1.1; NTEZIRYAYO GROUND 9; KANYABASHI GROUND 6; NDAYAMBAJE GROUND 15 IN PART) ... 123 1. Length of the Delay, Complexity of the Proceedings, and Conduct of the Parties and Relevant Authorities 2. Prejudice.

3. Remedy .

4. Conclusion IV. APPEAL OF PAULINE NYIRAMASUHUKO A. FAIRNESS OF THE PROCEEDINGS (GROUNDS 8, 9, 11, AND 12 IN PART) 1. Appearance of Bias (Ground 8) ..

2. Expert Witness Guichaoua's Report and Testimony (Ground 9).. (a) Admission of the Guichaoua Report .... (b) Expert Witness Guichaoua's Testimony (c) Conclusion 3. Undue Limitation of Prosecution Witnesses Cross-Examinations (Ground 11) ..

4. Disclosure of Evidence (Ground 12 in part) (a) Disclosure of Names of the Prosecution Witnesses' Parents. (b) Disclosure of Statements of Former RPA Members.. (c) Conclusion B. INDICTMENT (GROUNDS 3, 14-18, AND 26 IN PART) 1. Amendment of the Indictment (Ground 3) (a) Leave to Amend the Indictment... (b) Dismissal of Requests for Additional Information 2. Conspiracy to Commit Genocide (Ground 18)...

3. Butare Prefecture Office (Grounds 14 to 17) (a) Killings. (b) Rapes.. (c) Superior Responsibility (d) Conclusion....

4. Distribution of Condoms (Ground 26 in part) .

5. Cumulative Effect of the Defects (Ground 14)..

6. Conclusion C. FABRICATION OF EVIDENCE AND GENOCIDE SURVIVOR GROUPS (GROUND 13) D. CONSPIRACY TO COMMIT GENOCIDE (GROUND 19) 1. Appearance of Bias.

2. Reliance on Nyiramasuhuko's Testimony..

3. Expert Evidence. 4. 27 April Directive 125 138 140 142 ..143 .144 144 146 148 151 152 153 153 154 155 155 156 156 158 160 162 171 173 176 185 191 192 194 196 198 200 201 203 204 207 ii Case No. ICTR-98-42-A 14 December 2015

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20376/H 5. Nsabimana's Swearing-In Ceremony .... (a) Kambanda's and Sindikubwabo's Speeches.. (i) Ntakirutimana Reports .. (ii) Expert Witnesses Des Forges and Reyntjens. (ili) Expert Witness Shimamungu... (iv) Witness RV (v) Interpretation of the Speeches.. (b) Commencement of the Widespread Killings in Butare Prefecture 6. Incoherent and Contradictory Findings ..

7. Conclusion E. ALIBIS (GROUNDS 20-22) 1. Notice of Alibi 2. Assessment of Alibi Evidence (a) Alibi for 14 to 16 May 1994. (b) Alibis for Early June to 19 June 1994... (i) Reversal of the Burden of Proof.. (ii) Nyiramasuhuko's Evidence ... (iii) Other Defence Evidence... a. Witness Denise Ntahobali. b. Witness Clarisse Ntahobali c. Witness Edmond Babin.

3. Conclusion... F. BUTARE PREFECTURE OFFICE (GROUNDS 23-25, 28-31) .

1. Imprecise and Improper Findings (a) Killings. (b) Rapes. (c) Conclusion 2. Assessment of Evidence (a) Unpleaded and Prejudicial Evidence. (b) Collusion. (c) Identification Evidence. (i) In-Court Identification (ii) Prior Knowledge... a. Witness SU b. Witness SD c. Witness SS d. Witness SJ iii) Identification at the Butare Prefecture Office.. a. Witness TA b. Witness QJ. c. Witness TK d. Witness RE e. Witness FAP f. Witness QY.. g. Witness QBQ (iv) Conclusion. (d) Mid-May Attack (e) Night of Three Attacks. (i) Timing and Number of Attacks (i) Failure to Consider Witness TA's and SD's Evidence.. (ili) Abductions of Mbasha's Wife and Children and of Unnamed Woman and Children ... 315 a. Same Attack. b. Mbasha's Wife and Children.. c. Unnamed Woman and Children 210 211 .211 213 215 216 218 220 222 229 230 230 233 234 238 . 240 240 246 246 249 250 252 253 253 . 253 262 265 265 266 271 274 ..274 275 276 277 278 281 282 282 285 286 289 291 293 294 297 298 307 308 ..314 316 319 323 ini Case No. ICTR-98-42-A 14 December 2015

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(iv) Nyiramasuhuko's Presence, Conduct, and Orders to Commit Rapes.. (v) Trifina.. (vi) Killing Locations and Abductions of Semanyenzi (vii) Conclusion ... (f) First Half of June Attacks 3. Ordering Responsibility 4. Superior Responsibility. (a) Superior-Subordinate Relationship and Effective Control over the Interahamwe.. (b) Superior Responsibility for Direct Participation in a Crime.... (c) Conclusion 5. Conclusion G. DISTRIBUTION OF CONDOMS (GROUNDS 26 IN PART AND 27) 1. Assessment of Evidence .

2. Nyiramasuhuko's Genocidal Intent 3. Conclusion.. V. APPEAL OF ARSENE SHALOM NTAHOBALI. A. FAIRNESS OF THE PROCEEDINGS.

1. Amendment of the Rules (Ground 1.7)....

2. Admissibility of Documentary Evidence (Ground 1.10) 3. Suspension of Lead Investigator (Ground 1.12) ...

4. Cumulative Effect of the Violations (Ground 1.13) .. B. INDICTMENT (GROUNDS 2.1 TO 2.7) .

1. Amendment of the Indictment (Ground 2.6) 2. Institut de Recherche Scientifique et Technique (Ground 2.1). (a) Whether the Defects Were Curable. (b) Whether the Defects Were Cured (c) Conclusion..

3. Hotel Ihuliro Roadblock (Ground 2.2 in part) ... (a) Committing Killings (b) Ordering the Killing of Léopold Ruvurajabo (c) Committing the Rape of a Tutsi Girl.......

4. Killing of the Rwamukwaya Family (Ground 2.3). (a) Whether the Defects Were Curable.. (b) Whether the Defects Were Cured (c) Conclusion...

5. Butare Prefecture Office (Ground 2.5 in part).. (a) Killings.. (b) Rapes. 6. École Évangéliste du Rwanda (Ground 2.4 in part) (a) Whether the Indictment Was Defective ... (b) Whether the Defects Were Cured (c) Conclusion..

7. Superior Responsibility (Grounds 2.2, 2.4 and 2.5 in part).. (a) Identification of Subordinates … (b) Criminal Conduct of Subordinates.. (c) Knowledge of the Subordinates' Criminal Conduct (d) Failure to Prevent or Punish.. (e) Conclusion 8. Cumulative Effect of the Defects (Ground 2.7) 9. Conclusion C. EXPERT WITNESS GUICHAOUA'S STATUS AND EVIDENCE (GROUND 3.7) ... D. ADMISSION AND ASSESSMENT OF CO-ACCUSED's EVIDENCE (GROUND 3.10)... E. ALIBIS (GROUND 3.11) iv Case No. ICTR-98-42-A 20375/H 324 329 332 335 335 341 348 349 355 355 356 .357 358 363 365 .366 .367 367 .371 372 376 .378 378 381 382 386 395 395 397 401 404 409 410 413 419 419 420 425 432 434 438 440 441 442 446 . 446 448 449 449 453 455 456 458 14 December 2015

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1. Alibi for Late April to Early May 1994...

2. Alibi for 26 or 27 May to 5 June 1994.

3. Conclusion. F. INSTITUT DE RECHERCHE SCIENTIFIQUE ET TECHNIQUE (GROUNDS 3.1 AND 4.5) 1. Assessment of Evidence (a) Inconsistencies and Insufficient Caution (b) Identification Evidence. (c) Exculpatory Evidence.. (d) Additional Evidence Admitted on Appeal (e) Conclusion 2. Ordering Responsibility.

3. Conclusion. G. HOTEL IHULIRO ROADBLOCK (GROUNDS 3.2, 3.3, AND 4.2, 4.3 IN PART).

1. Imprecise and Unsupported Findings ...

2. Date of Establishment of the Roadblock. (a) Evidence Relied Upon by the Trial Chamber.. (b) Failure to Consider Defence Evidence.. (c) Evidence on UNAMIR's Departure ..... (d) Defence Evidence and Reversal of Burden of Proof. (e) Conclusion 3. Killing of Léopold Ruvurajabo. (a) Assessment of Evidence. (i) Insufficient Caution (ii) Prior Inconsistent Statement (iii) Identification Evidence. (iv) Failure to Consider Evidence (v) Contradictory Findings... (vi) Additional Evidence Admitted on Appeal (vii) Conclusion (b) Superior Responsibility (c) Conclusion 4. Rape and Murder of a Tutsi Girl.. (a) Inconsistencies (b) Identification Evidence (c) Conclusion 5. Conclusion H. KILLING OF THE RWAMUKWAYA FAMILY (GROUNDS 3.4 AND 4.7).. I. BUTARE PREFECTURE OFFICE (GROUNDS 3.6, 3.9 IN PART, 4.2-4.4)..

1. Imprecise and Unsupported Findings ..... (a) Killings.. (i) 19 April to Mid-May Attacks (ii) Last Half of May Attacks... (iii) Night of Three Attacks and First Half of June Attacks. (b) Rapes .. (c) Conclusion 2. Assessment of the Evidence. (a) General Challenges.. (i) Reversal of the Burden of Proof ..... (ii) Unpleaded and Prejudicial Evidence (iii) Rejection of Admissible Evidence. (iv) Inference of Trauma.. (v) Expert Evidence … (vi) Exculpatory Evidence (b) Identification Evidence … 20374/H 459 463 468 469 469 470 475 478 480 483 483 485 486 487 491 492 494 497 498 502 ..502 502 502 505 507 507 509 511 512 512 516 516 517 522 525 525 ..526 .530 530 532 532 533 535 540 547 548 550 550 551 554 555 557 558 561 Case No. ICTR-98-42-A 14 December 2015

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(i) General Challenges a. Hearsay Evidence b. Identification Parade and In-Court Identification (ii) Mid-May Attack and Last Half of May Attacks (iii) Night of Three Attacks a. Witnesses TK and SJ i. Witness TK ii. Witness SJ b. Abduction of Mbasha's Wife and Children. c. The Vehicle (iv) Conclusion . (c) Mid-May Attack and Last Half of May Attacks. (1) Mid-May Attack. (ii) Last Half of May Attacks. (iii) Contradictory Findings and Evidence. (iv) Additional Credibility Challenges ... (v) Conclusion (d) Night of Three Attacks (i) Timing of the Night of Three Attacks... (ii) Credibility and Reliability of Prosecution Witnesses a. Witnesses QY and SJ b. Witness QBQ c. Witness FAP d. Witnesses SS and SU.. e. Witness RE (iii) Failure to Consider Witnesses TA's and SD's Evidence (iv) Abduction of Mbasha's Wife and Children .. (v) Other Abductions (vi) General Inconsistencies (vii) Conclusion (e) First Half of June Attacks (i) Rapes of Witness TA (ii) Killings..... (iii) Conclusion. (t) Number of Refugees Abducted and Killed 3. Ordering Responsibility.. (a) Ordering Killings... (b) Ordering Rapes... (c) Conclusion.

4. Superior Responsibility (a) Imprecise Findings (b) Assessment of Evidence (c) Conclusion 5. Conclusion ... J. ÉCOLE ÉVANGELISTE DU RWANDA (GROUNDS 3.5, 4.1, 4.2, AND 4.3 IN PART) 1. Imprecise Findings..

2. Assessment of Evidence (a) Reversal of Burden of Proof and Assessment of Exculpatory Evidence .. (b) Identification Evidence. (i) Witness RE (ii) Witness QY (iii) Witness SX (iv) Witness TB (v) Conclusion vi Case No. ICTR-98-42-A 20373/H 562 562 565 567 574 575 575 577 579 585 591 591 592 596 602 606 613 613 614 617 617 619 . 623 626 633 634 636 641 645 647 647 647 653 658 658 661 662 668 671 672 673 675 678 679 680 680 685 685 690 690 693 696 698 699 14 December 2015

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20372/H (c) Evidence Concerning Attacks. (i) Timing of Events and Number of Refugees.. (ii) Presence and Involvement of Ntahobali During Attacks... a. Ntahobali's Presence During the Attack Described by Witness RE. b. Ntahobali's Presence During the Attack Described by Witness QY c. Ntahobali's Presence During the Attacks Described by Witness SX (iti) Killings . (iv) Conclusion (d) Expert Evidence (e) Conclusion.

3. Aiding and Abetting Responsibility. (a) Absence from the Crime Scene. (b) Reliance on Prior Conduct.. (c) Authority over Interahamwe and Soldiers (d) Conclusion...

4. Superior Responsibility 5. Conclusion K. NEXUS BETWEEN CRIMES AND ARMED CONFLICT (GROUND 4.8) L. CRIME OF EXTERMINATION (GROUND 4.9)... M. CRIME OF PERSECUTION (GROUND 4.6).... VI. APPEAL OF SYLVAIN NSABIMANA.... A. INDICTMENT (GROUNDS 1, 2, AND 11).. B. NSABIMANA'S SWEARING-IN CEREMONY (GROUND 4) C. ADMISSION AND RELIANCE ON PREJUDICIAL EVIDENCE (GROUNDS 5, 6 AND 13 IN PART) 1. Evidence of Witnesses Not Identified As Testifying Against Nsabimana ..

2. Witness TK's Evidence of an Unpleaded Allegation 3. Conclusion .... D. BUTARE PREFECTURE OFFICE (GROUNDS 6 IN PART, 7-10, 12, 13 IN PART, 14).

1. Actus Reus (Grounds 8 to 10, and 12 in part) ... (a) Legal Duty to Act. (b) Substantial Assistance (c) Ability to Act. (d) Conclusion.

2. Mens Rea (Grounds 6 in part, 7, 12 and 13 in part, 14).. (a) Knowledge of Crimes. (i) Exhibits P113 and P114 (ii) Nsabimana's Testimony... (iji) Prosecution Evidence and Open and Notorious Nature of the Attacks ... (iv) Conclusion ... (b) Knowledge of Genocidal Intent of the Perpetrators... (c) Knowledge that His Failure to Act Assisted in the Commission of the Crimes.. (d) Conclusion 3. Conclusion VII. APPEAL OF ALPHONSE NTEZIRYAYO.. A. INDICTMENT (GROUNDS 1, 2, AND 3).

1. Ndayambaje's Swearing-In Ceremony (Ground 1) 2. Muyaga and Kibayi Meetings (Grounds 2 and 3). (a) Muyaga Commune Meeting.. (b) Kibayi Commune Meeting 3. Conclusion B. NDAYAMBAJE'S SWEARING-IN CEREMONY (GROUND 4) 1. Assessment of Prosecution Evidence. vii Case No. ICTR-98-42-A .. 699 699 703 705 709 714 716 718 718 719 719 720 721 723 725 725 731 732 .733 736 .743 .744 751 .753 .754 760 761 762 .762 762 764 765 769 769 770 770 772 776 779 779 782 784 784 785 786 786 791 794 799 804 806 806 14 December 2015

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20371/H (a) Witnesses QAQ and QAR (b) Insufficient Caution.. (c) Nteziryayo's Words and Order of Speeches (d) Date ... (e) Attendees (f) Time.. (g) Different Meeting.

2. Assessment of Defence Evidence.

3. Conclusion .... C. MUYAGA COMMUNE MEETING (GROUND 5).

1. Insufficient Caution .

2. Timing of the Meeting 3. Identification Evidence 4. Similarities Between Prosecution and Defence Evidence....

5. Nteziryayo's Presence Elsewhere From 17 June 1994 Onwards...

6. Conclusion ...... D. KIBAYI COMMUNE MEETING (GROUND 6) ....

1. Insufficient Caution 2. Identification Evidence.

3. Similarities and Differences Between Prosecution and Defence Evidence 4. Conclusion E. PREJUDICIAL ASSESSMENT OF EVIDENCE (GROUNDS 7 AND 8). VIII. APPEAL OF JOSEPH KANYABASHI.. A. VARIATION OF WITNESS LIST AND REOPENING OF CASE (GROUNDS 1.7, 3.9, AND 3.10).. 1. 15 February 2008 Decision. (a) Variation of the Witness List in Relation to Kabakobwa Hill.. (b) Variation of the Witness List in Relation to the Incitement by Megaphone. 2. 2 July 2008 Decision.. 3. 19 January 2009 Decision 4. Conclusion. B. INDICTMENT (GROUNDS 1.1, 2.1, 2.2, 2.7 IN PART, 3.1) 1. Kabakobwa Hill (Ground 1.1) 2. Matyazo Clinic (Grounds 2.1, 2.2, and 2.7 in part) . (a) Dates of the Attack... (b) Superior Responsibility.

3. Incitement by Megaphone (Ground 3.1)...

4. Conclusion ... C. KABAKOBWA HILL (GROUNDS 1.2-1.7).. D. MATYAZO CLINIC (GROUNDS 2.1 TO 2.6, 2.7 IN PART).. E. INCITEMENT BY MEGAPHONE (GROUNDS 3.2 TO 3.8)..

1. Assessment of Evidence. (a) Fabrication of Evidence. (b) Exculpatory Evidence (c) Modus Operandi ... (d) Late May 1994 Megaphone Announcement (i) Identification (ii) Credibility (iii) Corroboration (iv) Reversal of Burden of Proof (v) Relationships with Witnesses (vi) Conclusion. (e) Mid-June 1994 Megaphone Announcement (i) Identification viii Case No. ICTR-98-42-A ...807 ..807 810 815 819 822 824 828 .830 .831 ..832 834 836 838 840 ...843 .844 845 847 850 ..853 855 ..857 858 859 859 861 865 867 870 .871 .871 878 879 882 886 .894 . 896 ...897 902 902 903 908 909 911 911 914 917 918 922 923 925 925 14 December 2015

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20370/H (ii) Credibility. (iii) Reversal of Burden of Proof (iv) Conclusion (f) Killings. (g) Conclusion 2. Criminal Responsibility 3. Conclusion IX. APPEAL OF ÉLIE NDAYAMBAJE A. INDICTMENT (GROUNDS 1 TO 6) 1. Mugombwa Church (Grounds 1, 2, and 6 in part).. (a) Location, Dates, and Participation in the Attacks (b) Aiding and Abetting Responsibility..... (c) Direct and Public Incitement to Commit Genocide 2. Kabuye Hill (Grounds 5, and 6 in part) ..... (a) Interception at Ngiryi Bridge and Forced Return to Gisagara. (b) Transportation of Attackers. (c) Distribution of Weapons... (d) Authority Over Unidentified Attackers. (e) Responsibility for Aiding and Abetting ..

3. Ndayambaje's Swearing-In Ceremony (Grounds 3, and 6 in part) (a) Whether the Defect Was Curable.... (b) Whether the Defect Was Cured.

4. Abduction of Tutsi Women and Girls in Mugombwa (Grounds 4, and 6 in part) (a) Whether the Defect Was Curable. (b) Whether the Defect Was Cured.

5. Conclusion... B. BIAS (GROUND 8).. C. ALIBI (GROUND 7) 1. Notice of Alibi 2. Reversal of the Burden of Proof 3. Assessment of Alibi Evidence (a) Failure to Consider Evidence (b) Relationships with Alibi Witnesses (c) Assessment of the Alibi Evidence (i) Ndayambaje ....... (ii) Witness Tiziano (iii) Witness Stan . (iv) Witness MARVA (v) Witness GABON. (vi) Witness KEPIR 4. Conclusion .. D. DENIAL OF SITE VISITS (GROUND 12) ..... E. MUGOMBWA CHURCH (GROUNDS 9 IN PART, AND 17)..

1. Assessment of Witness QAR's Evidence … (a) Presence of Ndayambaje at Mugombwa Church... (b) Identification under Difficult Circumstances (c) Inconsistencies and Contradictions within Witness QAR's Evidence 2. Contradictions in Prosecution Evidence..

3. Lack of Corroboration.....

4. Assessment of Defence Evidence (a) Witness JAMES (b) Witness МАЛК. (c) Witness BOZAN 926 928 929 930 931 932 .935 ..936 937 937 939 944 947 953 .955 .957 958 959 960 .962 965 967 .973 975 975 982 983 988 988 994 997 998 .1000 1001 1001 1004 ...1007 1010 ...1012 ..1013 1015 ..1016 ...1020 1021 1021 1025 .1027 1031 1034 .1038 1038 1039 ..1041 ix Case No. ICTR-98-42-A 14 December 2015

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20369/H 5. Conclusion . F. KABUYE HILL (GROUNDS 9 IN PART, 10, 11, 18) 1. Interception of Tutsi Refugees at Ngiryi Bridge on 20 April 1994 and Attack on Kabuye Hill on 22 April 1994..

2. Attacks on Kabuye Hill on 23 and 24 April 1994 (a) Assessment of Prosecution Evidence. (1) Witness QAQ. (ii) Witness RT (iii) Witness TW (iv) Witness TP (v) Witness QAL (vi) Witnesses RV and FAU (vii) Witness EV (b) Assessment of Defence Evidence.

3. Additional Evidence Admitted on Appeal 4. Conclusion ... G. NDAYAMBAJE'S SWEARING-IN CEREMONY (GROUND 19) ...

1. Assessment of Prosecution Evidence… (a) Insufficient Caution. (b) Witness FAL (c) Witness FAG (d) Witness QAF (e) Witness RV... (f) Witness FAU (g) Witness TO.. (h) Witness TP (1) Witness QAL 0) Date 2. Assessment of Defence Evidence 3. Imprecise and Unsupported Findings 4. Conclusion H. ABDUCTION OF TUTSI WOMEN AND GIRLS IN MUGOMBWA (GROUND 20)...

1. Assessment of Prosecution Evidence.. (a) Absence of Corroboration .. (b) Credibility of Prosecution Witnesses.

2. Assessment of Defence Evidence. (a) Witnesses JAMES and BOZAN (b) Witness MUZIK (c) Witnesses ANGES, Stan, and Ndayambaje 3. Criminal Responsibility 4. Conclusion X. APPEAL OF THE PROSECUTION A. CRIME OF GENOCIDE (GROUND 1) 1. Committing Responsibility 2. Instigating Responsibility.

3. Aiding and Abetting Responsibility. B. CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE (GROUND 2) 1. Committing Responsibility.

2. Aiding and Abetting Responsibility C. CONCLUSION XI. SENTENCING APPEALS A. NYIRAMASUHUKO'S SENTENCING APPEAL (GROUND 32). X ....1045 1050 1051 1051 1054 1059 1061 1061 1064 1068 1069 1074 1078 .1079 .1079 1080 1082 1085 1089 1090 1092 1094 1098 1102 1107 .1109 1115 .1117 ..1118 ..1119 ..1119 ..1124 ..1129 ..1130 1133 1134 1135 1138 ...1140 .1143 1143 1145 1146 1150 1150 1151 1155 ..1156 1157 Case No. ICTR-98-42-A 14 December 2015

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20368/H 1. Aggravating Circumstances 2. Mitigating Circumstances.

3. Life Sentence 4. Conclusion. B. NTAHOBALI'S SENTENCING APPEAL (GROUND 5) 1. Gravity of the Offences.

2. Aggravating Circumstances 3. Mitigating Circumstances.

4. Comparability of Sentences.

5. Life Sentence 6. Conclusion C. NSABIMANA'S SENTENCING APPEAL (GROUNDS 15 AND 16) 1. Aggravating Circumstances..

2. Mitigating Circumstances..

3. Form and Degree of Participation in the Crimes.

4. Conclusion D. NTEZIRYAYO'S SENTENCING APPEAL (GROUNDS 10 AND 11).

1. Gravity of the Offences..

2. Aggravating Circumstances 3. Mitigating Circumstances.

4. Proportionality of Sentence 5. Comparability of Sentences.

6. Conclusion … E. KANYABASHI'S SENTENCING APPEAL (GROUND 8)..

1. Gravity of the Offences..

2. Aggravating Circumstances.

3. Mitigating Circumstances.

4. Proportionality of Sentence 5. Conclusion. F. NDAYAMBAJE'S SENTENCING APPEAL (GROUND 21) 1. Aggravating Circumstances..

2. Mitigating Circumstances.

3. Degree of Participation in the Crimes..

4. Comparability of Sentences 5. Life Sentence 6. Conclusion . XI. IMPACT OF THE APPEALS CHAMBER'S FINDINGS ON SENTENCES. A. NYIRAMASUHUKO B. NTAHOBALI... C. NSABIMANA D. NTEZIRYAYO E. KANYABASHI F. NDAYAMBAJE XIII. DISPOSITION. XIV. PARTIALLY DISSENTING OPINION OF JUDGE POCAR XV. JOINT DISSENTING OPINION OF JUDGE POCAR AND JUDGE AGIUS 1. Kanyabashi Indictment: Mid-June 1994 Incident.

2. Assessment of the Evidence: Late May 1994 Incident.

3. Conclusion xi ..1157 .1161 .1162 .1163 ..1164 ..1164 1165 1168 .1170 1171 1172 ...1173 1173 1174 .1176 1177 ..1178 .1178 1179 .1180 ..1183 1184 .1185 1186 ..1186 1187 1189 .1191 1192 .1193 ..1193 ..1196 .1198 1200 1200 .1201 ...1202 .1202 1202 .1204 1204 1205 . 1206 ..1208 ..1215 ..1217 1218 . 1220 .1222 Case No. ICTR-98-42-A 14 December 2015

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20367/H XVI. DISSENTING AND SEPARATE OPINIONS OF JUDGE AGIUS .1224 A. DISSENTING OPINION: NDAYAMBAJE'S AND NTEZIRYAYO'S ARREST AND INITIAL APPEARANCE...

1. Ndayambaje's Arrest and Initial Appearance (a) The Issue of Waiver.... (i) Whether Ndayambaje failed to raise the issues at trial . 1224 1224 1225 1226 (ii) Whether the Appeals Chamber should nevertheless consider Ndayambaje's submissions. (b) Conclusion...

2. Nteziryayo's Arrest and Initial Appearance ... B. DISSENTING OPINION: THE CRIME OF PERSECUTION AS A CRIME AGAINST HUMANITY C. SEPARATE OPINION: AIDING AND ABETTING... D. DISSENTING OPINION: SENTENCING....

1. Ntahobali's Appeal on the Gravity of the Offences in Sentencing...

2. Impact of the Appeals Chamber's Findings on Nyiramasuhuko's, Ntahobali's, and Ndayambaje's Sentences. XVII. PARTIALLY DISSENTING AND DISSENTING OPINIONS OF JUDGE LIU......1243 A. PARTIALLY DISSENTING OPINION: LEAVE TO AMEND INDICTMENT. B. DISSENTING OPINION: NTAHOBALI'S RESPONSIBILITY AT THE BUTARE PREFECTURE OFFICE 1245 1. Ordering Responsibility for Killings at the Mid-May Attack 2. Superior Responsibility C. PARTIALLY DISSENTING OPINION: SENTENCING 1. Double-Counting Nyiramasuhuko's Abuse of Authority 2. Consideration of Argument in Gravity of Offences XVIII. DISSENTING OPINION AND DECLARATION OF JUDGE KHAN.. . 1229 1232 1232 1235 1240 . 1240 . 1240 1241 1243 1245 1246 1250 1250 1251 ....1253 A. DISSENTING OPINION: NTAHOBALI'S RESPONSIBILITY AT THE BUTARE PREFECTURE OFFICE1253 1. The Trial Chamber Convicted Ntahobali for Ordering Killings in Relation to These Attacks...

2. The Absence of a Reasoned Opinion Does Not Invalidate the Verdict.

3. The Scope of Ntahobali's Liability in Relation to These Attacks.... 1253 1255 1256 4. The Record Sustains Ntahobali's Convictions for Ordering Killings During These Attacks. 1257 5. The Record Sustains Ntahobali's Superior Responsibility for Killings During These Attacks….

6. Number of Refugees Abducted and Killed. B. DECLARATION: JOINDER...

1. Examining the Theoretical Justifications for Joinder...

2. Considering Joinder in the Future.. XIX. ANNEX A: PROCEDURAL HISTORY A. BRIEFING.

1. Notices of Appeal 2. Appeal Briefs.

3. Response Briefs 4. Reply Briefs. B. ASSIGNMENT OF JUDGES C. STATUS CONFERENCE.. D. MOTIONS FOR STAY OF THE PROCEEDINGS, PROVISIONAL RELEASE, AND SEVERANCE E. MOTIONS FOR THE ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL F. APPEALS HEARING 1261 .1261 ..1262 .1263 1268 .1270 .1270 1270 1272 1273 1274 1275 .1275 .1276 .1276 ..1277 xii Case No. ICTR-98-42-A 14 December 2015

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XX. ANNEX B: CITED MATERIALS AND DEFINED TERMS. A. JURISPRUDENCE 1. Tribunal...

2. International Criminal Tribunal for the Former Yugoslavia (ICTY) 3. International Residual Mechanism for Criminal Tribunals...

4. Human Rights Committee...

5. African Commission on Human and People's Rights 6. Inter-American Court of Human Rights...

7. European Court of Human Rights. B. DEFINED TERMS...

1. Acronyms and Abbreviations 2. Filings of the Parties 20366/H ..1278 1278 .1278 1291 1296 . 1296 .1296 1296 1296 1297 ..1297 ...1302 xiii Case No. ICTR-98-42-A 14 December 2015 ти

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20365/H 1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 ("Appeals Chamber" and "Tribunal", respectively) is seised of the appeals of Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi, and Élie Ndayambaje ("co-Accused" and "co-Appellants") as well as of the Office of the Prosecutor ("Prosecution") against the judgement pronounced on 24 June 2011 and issued in writing in English on 14 July 2011 by Trial Chamber II of the Tribunal ("Trial Chamber") in the case of The Prosecutor v. Pauline Nyiramasuhuko et al.' I. INTRODUCTION A. Background 2. Pauline Nyiramasuhuko ("Nyiramasuhuko") was born in April 1946 in Rugara Cellule, Ndora Sector, Ndora Commune, Butare Prefecture, and is the mother of Arsène Shalom Ntahobali ("Ntahobali").? Nyiramasuhuko was appointed Minister of Family and Women's Development in the government of Rwanda on 16 April 1992 and continued to serve in this post under the interim government headed by Prime Minister Jean Kambanda ("Interim Government" and "Kambanda", respectively)

during the events of 1994? When she was appointed Minister, she was elected as a member of the Mouvement révolutionnaire national pour la démocratie et le développement ("MRND") National Committee, representing Butare Prefecture.* In 1994, she resided in Kigali and regularly returned to Butare Town. Nyiramasuhuko was arrested in Kenya and transferred to the Tribunal's detention facility in Arusha, Tanzania, on 18 July 1997.6 3. Ntahobali was born in 1970 in Israel' In April 1994, Ntahobali was both a student and part-time manager of Hotel Ihuliro located in Mamba Cellule, Butare-ville Sector, Ngoma oseph Kanyabashi, Elie Ndayambaj 4 June 2011, issued in writing on 14 July 2011 ("Trial Judgement' * That Judgemen, pas, 10, 6305. 1 Case No. ICTR-98-42-A 14 December 2015

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20364/H Commune, Butare Prefecture." He was arrested in Kenya on 24 July 1997 and transferred to the Tribunal's detention facility on the same day.' 4. Sylvain Nsabimana ("Nsabimana") was born on 29 July 1951 in Mbazi Commune, Butare Prefecture." He was a member of the Parti social démocrate ("PSD") from the time of the party's creation and served as the head of the Mbazi section of the PSD in Butare Prefecture." He became the head of the PSD in Kigali-rural Prefecture following his relocation to Kigali. 2 Nsabimana served as prefect of Butare from 19 April until 17 June 1994.13 He was arrested in Kenya on 18 July 1997 and transferred to the Tribunal's detention facility on the same day. 4 5. Alphonse Nteziryayo ("Nteziryayo") was born on 26 August 1947 in Akagashuma Cellule, Nyagahuru Sector, Kibayi Commune, Butare Prefecture! He graduated from the École des officiers in Kigali in 1973 and, between 1973 and 1991, occupied a series of senior military positions with the military police, the gendarmerie, and the Rwandan army. In September 1991, he was appointed to the Ministry of Interior and Communal Development, where he served as Director of Communal Police Matters until 17 June 1994, when he was appointed prefect of Butare, replacing Nsabimana."' Nteziryayo was arrested in Burkina Faso on 26 March 199818 and transferred to the Tribunal's detention facility on 21 May

1998.19 6. Joseph Kanyabashi ("Kanyabashi") was born in 1937 in Mpare Sector, Huye Commune, Butare Prefecture. ° He was a member of the PSD and served as bourgmestre of Ngoma Commune & Trial Judgement, paras. 18, 20. 9 Trial Judgement, paras. 23, 6295. 10 Trial Judgement, para. 27. 11 Trial Judgement, para. 30. 12 Trial Judgement, para. 30. 13 Trial Judgement, para. 31. 14 Trial Judgement, paras. 32, 6306. 15 Trial Judgement, para. 37. 16 Trial Judgement, paras. 39-45. 17 Trial Judgement, paras. 31, 45. 18 In the Trial Judgement, relying on the fourth annual report of the Tribunal to the Security Council of the United Nations and on a declaration from Nteziryayo's Counsel during his opening statement, the Trial Chamber stated that Nteziryayo was arrested on 24 April 1998. See Trial Judgement, paras. 49, 6309, referring to Fourth Annual Report 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, UN Doc. A/54/315 & S/1999/943, 7 September 1999, Annex, p. 2, Nteziryayo Opening Statement, T. 4 December 2006 p.

7. As a result of Nteziryayo's request for clarification of the date of his arrest, the Appeals Chamber instructed the Registrar to make written representations as to Nteziryayo's date of arrest. See Decision on Prosecution's Motion for Summary Dismissal or Alternative Remedies, 5 July 2013 ("5 July 2013 Appeal Decision"), paras. 19-23. On 14 March 2014, the Registrar indicated that the authorities of Burkina Faso provided the date of the arrest of Nteziryayo in Ouagadougou, Burkina Faso, as 26 March 1998. See The Registrar's Rule 33(B) Submission Concerning Alphonse Nteziryayo's Date of Arrest, 14 March 2014, para. 4, Annex B. Neither Nteziryayo nor the Prosecution has challenged this date in subsequent submissions. 19 Trial Judgement, para. 49. 20 Trial Judgement, para. 53. 2 Case No. ICTR-98-42-A 14 December 2015 The

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20363/H in Butare Prefecture from April 1974 until he left Rwanda in July 1994." Kanyabashi was arrested in Belgium on 28 June 1995 and transferred to the Tribunal's detention facility on 8 November 1996.22 7. Élie Ndayambaje ("Ndayambaje") was born on 8 March 1958 in Cyumba Sector, Muganza Commune, Butare Prefecture? He served as bourgmestre of Muganza Commune from 10 January 1983 to October 1992, and from 18 June 1994 until he left Rwanda for Burundi on 7 July 1994.24 Ndayambaje was arrested in Belgium on 28 June 1995 and transferred to the Tribunal's detention facility on 8 November 1996.25 8. The case of Nyiramasuhuko was initially joined to that of Ntahobali," the case of Nsabimana was joined to that of Nteziryayo," and the cases of Kanyabashi and Ndayambaje were pursued separately?8 The initial joint indictment against Nyiramasuhuko and Ntahobali was confirmed on 29 May 1997 and last amended on 1 March 2001.29 The initial joint indictment against Nsabimana and Nteziryayo was confirmed on 16 October 1997 and last amended on 12 August 19993º The initial indictment against Kanyabashi was confirmed on 15 July 1996 and last amended on 11 June 2001.3' The initial indictment against Ndayambaje was confirmed on 21 June 1996 and last amended on 11 August 199932 On 5 October 1999, a bench of Trial Chamber II granted the Prosecution's motion for joinder and ordered the joint trial

of the six accused.33 9. The joint trial of the co-Accused commenced on 12 June 2001 before a bench of Trial Chamber Il composed of Judges William H. Sekule, Arlette Ramaroson, and Winston 21 Trial Judgement, para. 53. 22 Trial Judgement, paras. 55, 6276, 6277. 23 Trial Judgement, para. 60. 24 Trial Judgement, paras. 63, 67. 25 Trial Judgement, paras. 69, 6285, 6286. 26 See Trial Judgement, paras. 13, 22, 6294. 27 See Trial Judgement, paras. 33, 48, 6307. 28 See Trial Judgement, paras. 55, 68, 6277, 6286. 29 Trial Judgement, paras. 13, 17, 22, 26, 6294. See also The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Amended Indictment As Per the Decision of Trial Chamber II of August 10th 1999, 1 March 2001 ("Nyiramasuhuko and Ntahobali Indictment"). 30 Trial Judgement, paras. 33, 35, 48, 51, 6307, 6317. See also The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999, 12 August 1999 ("Nsabimana and Nteziryayo Indictment"). 31 Trial Judgement, paras. 55, 58, 6277. See also The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber II of 12 August 1999, 31 May 2000 and 8 June 2001, 11 June 2001 ("Kanyabashi Indictment"). 32 Trial Judgement, paras. 68, 71, 6292, in. 14952. See also The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-1, Amended Indictment As Per the Decision of Trial Chamber Il of August 10th 1999, 11 August 1999 ("Ndayambaje Indictment"). 33 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-I, Decision on the Prosecutor's Motion for Joinder of Trials, 5 October 1999 ("Joinder Decision"), p.

18. See infra, Section II.B. 3 Case No. ICTR-98-42-A 14 December 2015

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20362/H C. M. Maqutu.* Judge Solomy B. Bossa was appointed to the bench assigned to this case on 20 October 2003 to replace Judge Maqutu, whose term of office ended on 24 May 2003.35 The trial resumed on 26 January 2004, with the continued presentation of the Prosecution case.36 The Prosecution closed its case on 18 October 2004 and the co-Accused presented their cases from 31 January 2005 to 2 December 200837 Four Prosecution witnesses were recalled and gave further testimonies on 23 and 24 February 200938 The closing arguments were heard from 20 to 30 April 2009.39 B. Trial Judgement 10. The Trial Chamber pronounced the Trial Judgement on 24 June 2011 and issued it in writing on 14 July 2011. The Trial Judgement was rendered on the basis of four indictments.

11. The events giving rise to this case concern crimes committed in Butare Prefecture. The Trial Chamber found that widespread killings did not occur in Butare before mid-April 1994.4° It also found established beyond reasonable doubt that from 9 April until 14 July 1994, and in particular between 9 April and 19 April 1994, members of the Interim Government agreed to issue directives to encourage the population to hunt down and kill Tutsis in Butare Prefecture." It determined in particular that, on 16 or 17 April 1994, the Interim Government decided to remove the longstanding prefect of Butare, Jean-Baptiste Habyalimana ("Habyalimana"), who had posed an obstacle to the killing of Tutsis in the prefecture and to replace him with Nsabimana for reasons other than maintaining peace.42 The Trial Chamber further determined that at the swearing-in ceremony of Nsabimana as new prefect of Butare that took place on 19 April 1994 ("Nsabimana's Swearing-In Ceremony"), President Théodore Sindikubwabo ("Sindikubwabo") and Prime Minister Kambanda made inflammatory speeches and called upon the population to kill Tutsis in the presence of many officials, including Nyiramasuhuko and Kanyabashi.43 The Trial Chamber held that the removal of Prefect Habyalimana, the appointment of Nsabimana as the new prefect, and Kambanda's and Sindikubwabo's speeches at Nsabimana's Swearing-In Ceremony contributed significantly to 34 See Trial Judgement, paras. 74, 6341, fn. 159. 35 See Trial Judgement, paras. 75, 6392, fn.

160. Judge Maqutu's term of office was only extended for the purposes of concluding two other trials. See ibid., fn.

160. See also infra, Section III.C 6 Trial Judgement, paras. 75, 6393 37 Trial Judgement, paras. 76-82, 84, 6423, 6433-6597. 38 Trial Judgement, paras. 84, 6604. 39 Trial Judgement, paras. 85, 6610. Trial Judgement, paras. 927, 930, 933. See also ibid., paras. 931, 984, 5741, 5753, 6155, 6158 1 Trial Judgement, para.

5676. See also ibid., paras. 583, 1939, 5669, 5733 i Trial Judgement, paras 80, 856, 523,36,932. 93-567 15 675. 5736. 4 Case No. ICTR-98-42-A 14 December 2015

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20361/H triggering the widespread killings in Butare Prefecture, including in the communes that had resisted such massacres until that time.** 12. The Trial Chamber found established beyond reasonable doubt that, from 20 April 1994 to late June 1994, mass killings, mainly of Tutsis, were perpetrated throughout Butare Prefecture in people's homes, in places where Tutsis had sought refuge, and at roadblocks that were mounted in response to encouragement from officials to target and kill Tutsis.45 13. The Trial Chamber found Nyiramasuhuko guilty of: conspiracy to commit genocide pursuant to Article 6(1) of the Statute of the Tribunal ("Statute") by entering into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture; 46 genocide, crimes against humanity (extermination and persecution), and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life, health, and physical or mental well-being of persons) pursuant to Article 6(1) of the Statute for ordering killings of Tutsis who had sought refuge at the office of Butare Prefecture in Butare Town, Ngoma Commune ("Butare Prefecture Office"), in May and June 1994;47 and - crime against humanity (rape) and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (outrages upon

personal dignity) pursuant to Article 6(3) of the Statute for failing to prevent and punish rapes perpetrated by Interahamwe at the Butare Prefecture Office in May and June 1994.48 The Trial Chamber determined that Nyiramasuhuko also bore responsibility as a superior under Article 6(3) of the Statute for the killings that she ordered at the prefectoral office and took this into account in sentencing. The Trial Chamber sentenced Nyiramasuhuko to life imprisonment.50 14. The Trial Chamber found Ntahobali guilty of: - genocide, crimes against humanity (extermination and persecution), and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life, health, and physical or mental well-being of persons) pursuant to Article 6(1) of the Statute for: (i) killing numerous Tutsis in late April 1994 at the roadblock erected near Hotel Thuliro 4 Trial Judgement, paras. 931, 933, 5670-5673. 45 See, e.g., Trial Judgement, paras. 933, 5675, 5676, 5741, 5742. 46 Trial Judgement, paras. 5676-5678, 5727, 6186. 47 Trial Judgement, paras. 5876, 5969, 5970, 6049-6051, 6098, 6099, 6120, 6166, 6167, 6186. See also infra, Section IV.F.1. 48 Trial Judgement, paras. 6087, 6088, 6093, 6183, 6186. See also infra, Section IV.F.1. 49 Trial Judgement, paras. 5886, 5970, 6052, 6207. See also infra, Section IV.F.4. 50 Trial Judgement, para. 6271. 5 Case No. ICTR-98-42-A 14 December 2015

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20360/H in Butare Town, including a girl he had first raped; (ii) ordering the killing of Léopold Ruvurajabo ("Ruvurajabo") at this roadblock in late April 1994, killings at the Institut de recherche scientifique et technique ("IRST") on 21 April 1994, and killings of Tutsis who had sought refuge at the Butare Prefecture Office in May 1994; and (iii) aiding and abetting the killing of an individual named Rwamukwaya and his family around 29-30 April 1994 as well as the killings of Tutsis abducted from the BER perpetrated between mid-May and early June 1994,52 and crime against humanity (rape) and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (outrages upon personal dignity) pursuant to Article 6(1) of the Statute for: (i) raping a young Tutsi girl near the Hotel Ihuliro roadblock in late April 1994 as well as Tutsi women who were taking refuge at the Butare Prefecture Office; (ii) ordering the rapes of Tutsi women at the prefectoral office; and (iii) aiding and abetting the rapes of a Tutsi woman by Interahamwe at the prefectoral office. 53 The Trial Chamber determined that Ntahobali also bore responsibility as a superior under Article 6(3) of the Statute for the killings and rapes committed by Interahamwe that he ordered at the prefectoral office, the killing of Ruvurajabo at the Hotel Ihuliro roadblock, and the killings committed by Interahamwe at or near the EER that he aided and abetted, and took this into account in sentencing. * The Trial Chamber sentenced Ntahobali to life imprisonment.

15. The Trial Chamber found Nsabimana guilty of genocide, crimes against humanity (extermination and persecution) and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il (violence to life, health, and physical or mental well-being of persons) pursuant to Article 6(1) of the Statute for aiding and abetting by omission the killing of Tutsis who had sought refuge at the Butare Prefecture Office by failing to discharge 51 Ntahobali submits that the Trial Chamber should have referred to this roadblock as the "EER roadblock" instead of "Hotel Ihuliro roadblock" as the roadblock was located opposite the École évangéliste du Rwanda ("EER") and 50 to 100 metres from the hotel. See Ntahobali Notice of Appeal, para.

8. The Appeals Chamber notes that the Trial Chamber carefully reviewed the evidence concerning the location of the roadblock and referred to the roadblock in relation to its proximity to the Hotel Ihuliro. See Trial Judgement, para.

3108. See also ibid., Section 3.6.23.4.2, paras. 3107, 3111, 3113. The Appeals Chamber finds that the expression "Hotel Thuliro roadblock" accurately reflects the evidence adduced by both Prosecution and Defence witnesses and will therefore, for the sake of clarity and consistency, refer to the roadblock which the Trial Chamber found was located in the proximity of the EER and the garage known as the "MSM garage" and very close to Hotel Ihuliro as the "Hotel Ihuliro roadblock" throughout this Judgement. $2 Trial Judgement, paras. 5876, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. See also infra, Sections V.G.1, V.I.1, V.J.1. 53 Trial Judgement, paras. 6086, 6094, 6184-6186. 54 Trial Judgement, paras. 5847-5849, 5886, 5917, 5971, 6056, 6086, 6220. 55 Trial Judgement, para. 6271. 6 Case No. ICTR-98-42-A 14 December 2015

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20359/H his duty to provide assistance to people in danger and to protect civilians against acts of violence."6 The Trial Chamber sentenced Nsabimana to 25 years of imprisonment.7 16. The Trial Chamber found Nteziryayo guilty of committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making speeches that constituted direct appeals to the population to kill Tutsis at public meetings held in Muyaga and Kibayi Communes in mid to late June 1994 and at Ndayambaje's swearing-in ceremony as the new bourgmestre of Muganza Commune that took place on 22 June 1994.58 The Trial Chamber sentenced Nteziryayo to 30 years of imprisonment."9 17. The Trial Chamber found Kanyabashi guilty of: committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making megaphone announcements on two occasions in May and June 1994 directly calling on the population to kill Tutsis; ° and - genocide, crimes against humanity (extermination and persecution), and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life, health, and physical or mental well-being of persons) as a superior pursuant to Article 6(3) of the Statute for failing to prevent and punish the killings of Tutsis perpetrated by Ngoma commune policemen at Kabakobwa Hill on 22 April 1994 and by soldiers

at Matyazo Clinic in late April 1994.61 The Trial Chamber sentenced Kanyabashi to 35 years of imprisonment. 2 18. The Trial Chamber found Ndayambaje guilty of: committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by directly inciting a crowd outside Mugombwa Church to kill the Tutsis who were taking refuge in the church on 20 and 21 April 1994 and by making a speech containing s6 Trial Judgement, paras. 5893, 5899, 5900, 5903, 5906, 5972, 6057-6059, 6102, 6103, 6122, 6170, 6171, 6186. 57 Trial Judgement, para. 6271. 58 Trial Judgement, paras. 6022-6029, 6036, 6186. The Trial Chamber found that Ndayambaje was re-appointed bourgmestre of Muganza Commune on 18 June 1994 but that his swearing-in ceremony was held on 22 June 1994. See ibid., paras. 67, 4645. Trial Judgement, para. 6271. 60 Trial Judgement, paras. 6009-6013, 6037, 6186. 61 Trial Judgement, paras. 5809, 5826, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174, 6186. Judge Ramaroson dissented with respect to the Trial Chamber's conclusions regarding Matyazo Clinic. The Appeals Chamber notes that the Trial Chamber on a few occasions in the Trial Judgement and Kanyabashi in his appeal submissions also referred to the clinic in Matyazo as the "dispensary" or "health center". For the sake of clarity, the Appeals Chamber will use the terminology most commonly used in the Trial Judgement and will refer to the clinic in Matyazo Sector, Ngoma Commune, Butare Prefecture, as the "Matyazo Clinic" throughout this Judgement. 2 Trial Judgement, para. 6271. 7 Case No. ICTR-98-42-A 14 December 2015

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20358/H inciting statements to commit genocide at his swearing-in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994;63 and genocide, crimes against humanity (extermination and persecution), and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life, health, and physical or mental well-being of persons) pursuant to Article 6(1) of the Statute for aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill from 22 to 24 April 1994 as well as instigating the killings of Tutsi women and girls abducted from Mugombwa Sector after his swearing-in ceremony on 22 June 1994.64 The Trial Chamber sentenced Ndayambaje to life imprisonment. 5 C. The Appeals 19. Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, Ndayambaje, and the Prosecution filed appeals against the Trial Judgement.

20. Nyiramasuhuko initially advanced 32 grounds of appeal against her convictions and sentence in her notice of appeal but formally abandoned Ground 6 of her appeal. She requests that the Appeals Chamber stay the proceedings, or set aside her convictions and acquit her of all counts or, in a further alternative, reduce her sentence.*7 21. Ntahobali advanced 44 grounds of appeal against his convictions and sentence in his notice of appeal but formally abandoned Grounds 3.8 and 4.10 of his appeal. He requests that the Appeals Chamber set aside his convictions and acquit him of all counts or, in the alternative, order a retrial or, in a further alternative, reduce his sentence. 9 22. Nsabimana advanced 16 grounds of appeal against his convictions and sentence in his notice of appeal but formally abandoned Ground 3 of his appeal. He requests that the Appeals Chamber set aside his convictions and acquit him of all counts or, in the alternative, substantially reduce his sentence, at least to the time already served." 63 Trial Judgement, paras. 5995-6002, 6026-6029, 6038, 6186. 64 Trial Judgement, paras. 5949, 5976, 5977, 6064-6066, 6107, 6108, 6125, 6175, 6176, 6186. 65 Trial Judgement, para. 6271. 6 Nyiramasuhuko Notice of Appeal, pp. 6-54; Nyiramasuhuko Appeal Brief, paras. 7 (French), 8. 6 Nyiramasuhuko Notice of Appeal, p. 55; Nyiramasuhuko Appeal Brief, e.g., paras. 71 (at p.

20), 142, 185, 283, 377, 509, 584, 585, 598, 685, 1295, 1296, 1315. 68 Ntahobali Notice of Appeal, pp. 6-56; Ntahobali Appeal Brief, paras. 771, 983 69 Ntahobali Notice of Appeal, p. 56; Ntahobali Appeal Brief, p. 299. 10 Nsabimana Notice of Appeal, pp. 2-13; Nsabimana Appeal Brief, paras. 57, 58. " Nsabimana Notice of Appeal, p. 13; Nsabimana Appeal Brief, p. 67. 8 Case No. ICTR-98-42-A 14 December 2015

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20357/H 23. Nteziryayo advances 11 grounds of appeal against his conviction and sentence.2 He requests that the Appeals Chamber set aside his convictions and acquit him on all counts or, in the alternative, reduce his sentence to time served. 3 24. Kanyabashi advanced 36 grounds of appeal against his convictions and sentence in his notice of appeal and separately developed 33 grounds of appeal in his appeal brief?* He requests that the Appeals Chamber set aside his convictions, acquit him on all counts, and order his immediate release or, in the alternative, stay the proceedings or, in a further alternative, substantially reduce his sentence.5 25. Ndayambaje advances 21 grounds of appeal against his convictions and sentence.?6 He requests that the Appeals Chamber set aside his convictions, acquit him on all counts, grant him financial compensation for the prejudice suffered, and order his immediate release or, in the alternative, reduce his sentence to time served and order any other appropriate remedy."?

26. The Prosecution advances two grounds of appeal against Kanyabashi's acquittals on the counts of genocide and direct and public incitement to commit genocide in relation to the speech he gave at Nsabimana's Swearing-In Ceremony on 19 April 1994?8 It requests that the Appeals Chamber set aside Kanyabashi's acquittals and enter findings of guilt of genocide and direct and public incitement to commit genocide based on the speech he made at this event and, consequently, increase Kanyabashi's sentence to life imprisonment or, in the alternative, substantially increase his prison sentence?" 27. In response to the Prosecution's appeal, Kanyabashi advances seven supplementary grounds of appeal challenging the Trial Chamber's findings related to Nsabimana's Swearing-In Ceremony. 80 28. The Appeals Chamber heard oral submissions regarding these appeals from 14 to 22 April 2015. 12 Nteziryayo Notice of Appeal, pp. 5-23; Nteziryayo Appeal Brief, pp. 11-112. 73 Nteziryayo Notice of Appeal, paras. 76, 77; Nteziryayo Appeal Brief, p. 114. separately." See Kanyabashi Appeal Brief, paras. 147, 362, 363, 382. He also formally abandoned a number of sub- grounds in his appeal brief. See ibid., paras. 80, 147, 256, 305, 328. Kanyabashi Notice of Appeal, paras. 18, 18, 25, 28, 33-35; Kanyabashi Appeal Brief, paras. 395-397. 76 Ndayambaje Notice of Appeal, pp. 6-42; Ndayambaje Appeal Brief, pp. 14-143. 77 Ndayambaje Notice of Appeal, p. 43; Ndayambaje Appeal Brief, p. 144. 78 Prosecution Notice of Appeal, paras. 2-5; Prosecution Appeal Brief, paras. 10-40. 79 Prosecution Appeal Brief, paras. 41-44. See also Prosecution Notice of Appeal, paras. 3, 5. 80 Kanyabashi Response Brief, pp. 11-72. Case No. ICTR-98-42-A 14 December 2015

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20356/H II. STANDARD OF APPELLATE REVIEW 29. The Appeals Chamber recalls the applicable standard of appellate review pursuant to Article 24 of the Statute. The Appeals Chamber reviews only errors of law which have the potential to invalidate the decision of a trial chamber and errors of fact which have occasioned a miscarriage of justice.'1 30. Regarding errors of law, the Appeals Chamber has stated: an error of law. 82 31. Where the Appeals Chamber finds an error of law in the trial judgement arising from the application of an incorrect legal standard, it will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.83 In so doing, the Appeals Chamber not only corrects the legal error, but, where necessary, also applies the correct legal standard to the evidence contained in the trial record and determines whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the appellant before that finding may be confirmed on appeal. The Appeals Chamber will not review the entire trial record de novo. Rather, it will in principle only take into account evidence referred to by the trial chamber in the body of the trial judgement or in a related footnote, evidence contained in the trial record and referred to by the parties, and, where applicable, additional evidence admitted on appeal.®5 32. •

Regarding errors of fact, it is well established that the Appeals Chamber will not lightly overturn findings of fact made by a trial chamber: Where the Defence alleges an erroneous finding of fact, the Appeals Chamber must give deference to the Trial Chamber that received the evidence at trial, and it will only interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous. Furthermore, the erroneous finding will be revoked or revised only if the error occasioned a miscarriage of justice. 8 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 13; Hategekimana Appeal Judgement, para. 6; Vahimana et al. Appeal Judgement, para.

11. See also Akayesu Appeal Judgement, paras. 16, 17; Furundzija Appeal Judgement, para. 40. 82 Ntakirutimana Appeal Judgement, para. 11 (internal reference omitted). See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 14; Akayesu Appeal Judgement, para. 179; Furundzija Appeal Judgement, para. 35. 83 See Blaskié Appeal Judgement, para.

15. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 15; Bagosora and Nsengiyumva Appeal Judgement, para. 17; Karera Appeal Judgement, para. 9. 84 See Blaskié Appeal Judgement, para.

15. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 15; Bagosora and Nsengiyumva Appeal Judgement, para. 17; Karera Appeal Judgement, para.

9. See, e.g., Dordevié Appeal Judgement, para. 15; Sainovié et al. Appeal Judgement, para. 21; Boskoski and Tarculovski Appeal Judgement, para. 12; Milosevié Appeal Judgement, para. 14. 8 Krstic Appeal Judgement, para. 40 (internal references omitted). See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 16; Niyitegeka Appeal Judgement, para. 8; Akayesu Appeal Judgement, para. 178; Furundzija Appeal Judgement, para. 37; Serushago Appeal Judgement, para. 22. 10 Case No. ICTR-98-42-A 14 December 2015

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20355/H The same standard of reasonableness and the same deference to factual findings of a trial chamber apply where the Prosecution appeals against an acquittal.8 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 impugned finding. However, considering that it is the Prosecution that bears the burden at trial of proving the guilt of the accused beyond 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." A convicted person must show that the trial chamber's factual errors create a reasonable doubt as to his guilt.? The Prosecution must show that, where account is taken of the errors of fact committed by the trial chamber, all reasonable doubt of the accused's guilt has been eliminated. °1 33. The Appeals Chamber recalls that, where additional evidence has been admitted on appeal and an alleged error of fact is raised, but there is no error in the legal standard applied in relation to the factual finding, the following two-step standard will apply: The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If

that is the case, then no further examination of the matter is necessary as a matter of law. If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.*2 34. A party cannot merely repeat on appeal arguments that did not succeed at trial, unless it can demonstrate that the trial chamber's rejection of those arguments constituted an error warranting the intervention of the Appeals Chamber. Arguments which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits. 94 87 Bagilishema Appeal Judgement, para.

13. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 16; Seromba Appeal Judgement, para. 11; Rutaganda Appeal Judgement, para.

24. See Bagilishema Appeal Judgement, para.

13. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 16; Seromba Appeal Judgement, para. 11; Rutaganda Appeal Judgement, para.

24. See Bagilishema Appeal Judgement, para.

14. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para, 16; Seromba Appeal Judgement, para, 11; Rutaganda Appeal Judgement, para.

24. See Bagilishema Appeal Judgement, para.

14. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 16; Seromba Appeal Judgement, para.

11. See Bagilishema Appeal Judgement, para.

14. See also, e.g., Karemera and Ngirumpatse Appeal Judgement, ara. 16; Seromba Appeal Judgement, para. 11; Rutaganda Appeal Judgement, para. 24 Blaskié Appeal Judgement, para. 24(c). See also Sainovic et al. Appeal Judgement, para. 25; Lukic and Lukié Appea Judgement, para. 14; KrajiSnik Appeal Judgement, para. 15; Kvodka et al. Appeal Judgement, para. 426. 93 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 17; Niyitegeka Appeal Judgement, para. 9; Rutaganda Appeal Judgement, para.

18. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 17; Niyitegeka Appeal Judgement, para. 9; Rutaganda Appeal Judgement, para. 18; Kupreskié et al. Appeal Judgement, para. 23. 11 Case No. ICTR-98-42-A 14 December 2015

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20354/H 35. In order for the Appeals Chamber to assess arguments on appeal, the appealing party must provide precise references to relevant transcript pages or paragraphs in the decision or judgement to which the challenge is made. Moreover, the Appeals Chamber cannot be expected to consider a party's submissions in detail if they are obscure, contradictory, vague, or suffer from other formal and obvious insufficiencies. Finally, the Appeals Chamber has inherent discretion in selecting which submissions merit a detailed reasoned opinion in writing, and it will dismiss arguments which are evidently unfounded without providing detailed reasoning."7 Rutaganda Appeal Judgement, para. 19; Kunarac et al. Appeal Judgement, para. 44. 6 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 18; Niyitegeka Appeal Judgement, para. 10; Kunarac et al. Appeal Judgement, para. 43, referring to Kayishema and Ruzindana Appeal Judgement, para.

137. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 18; Rutaganda Appeal Judgement, para. 19; Kunarac et al. Appeal Judgement, paras. 47, 48. 12 Case No. ICTR-98-42-A 14 December 2015

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20353/H III. COMMON GROUNDS OF APPEAL ON FAIRNESS OF THE

PROCEEDINGS A. Arrest and Initial Appearance (Nyiramasuhuko Ground 2; Ntahobali Ground 1.2; Nteziryayo Ground 9 in part; Ndayambaje Ground 15 in part) 36. Nyiramasuhuko, Ntahobali, Nteziryayo, and Ndayambaje allege violations of their right to a fair trial in the context of their arrests and initial appearances? The Appeals Chamber will examine their grounds of appeal in turn. Before doing so, the Appeals Chamber recalls that, according to Articles 19(2) and 20(4)(a) of the Statute, an accused is entitled to be informed promptly and in detail in a language which he understands of the nature and cause of the charges against him. Furthermore, pursuant to Article 19(3) of the Statute and Rule 62 of the Rules of Procedure and Evidence of the Tribunal ("Rules"), once an accused is taken into the custody of the Tribunal, the accused is to appear before a trial chamber or a judge without delay to be formally charged." 1. Nyiramasuhuko's Arrest and Initial Appearance 37. Nyiramasuhuko was arrested in Kenya and transferred to the custody of the Tribunal on 18 July 1997.100 Her initial appearance took place on 3 September 1997!01 On 2 March 2000, Nyiramasuhuko filed a motion alleging that, following her arrest, the Tribunal failed to promptly inform her of the nature and cause of the charges against her and that her initial appearance was not held without delay. 102 On 12 October 2000,

Judge Kama, sitting as a single judge of Trial Chamber II of the Tribunal, found that the Registrar transmitted to Nyiramasuhuko all relevant documents informing her of her rights and the charges against her on 26 July 1997 and, while "deploring] this delay", considered that it did not constitute "a substantial violation of [her] fundamental rights", 103 Judge Kama also found that Nyiramasuhuko's initial appearance was not 98 Nyiramasuhuko Notice of Appeal, para. 1.8; Nyiramasuhuko Appeal Brief, paras. 67-71 (pp. 20, 21); Ntahobali Notice of Appeal, paras. 15-18; Ntahobali Appeal Brief, paras. 32-43; Ndayambaje Appeal Brief, para. 308; AT. 17 April 1994 pp. 18, 19; AT. 21 April 2015 pp. 7-10, 62, 63. See also Kajelijeli Appeal Judgement, para. 250 ("The Appeals Chamber emphasizes that Rule 62 is unequivocal that an initial appearance is to be scheduled without delay."). 100 Trial Judgement, paras. 14, 6295. 101 Trial Judgement, paras. 14, 6296. 102 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Motion for the Exclusion of Evidence and Restitution of Property Seized, 2 March 2000 (originally filed in French, English translation filed on 31 March 2000) ("2 March 2000 Motion"), paras. 3, 7-13, 19, 67, 69-71, 73. 103 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day) ("12 October 2000 Decision"), paras. 18, 19. The Trial Chamber further noted that the Registrar transmitted the indictment to her on 9 August 1997. See ibid., para. 19. 13 Case No. ICTR-98-42-A 14 December 2015

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20352/H without delay as required under Rule 62 of the Rules but that this delay had not caused her serious and irreparable prejudice. 104 38. On 25 June 2003, after the commencement of trial, Nyiramasuhuko requested a stay of the proceedings against her as a remedy for the accumulation of the alleged violations of her fair trial rights, a request which the Trial Chamber denied on 20 February 2004.105 The Trial Chamber found that Nyiramasuhuko had failed to demonstrate that her fair trial rights were violated as a result of delays in the trial proceedings. 106 It also rejected Nyiramasuhuko's submissions related to her right to be promptly informed of the reasons of her arrest and her right of initial appearance without delay on the grounds that Nyiramasuhuko had failed: (i) to raise objections in this regard prior to the 25 June 2003 Motion and that the belatedness of her submissions had a purely disruptive effect; and (ii) to show that the alleged violations caused her material prejudice. 07 Nyiramasuhuko requested certification to appeal this decision, highlighting her 2 March 2000 Motion, in which she had raised objections relating to her arrest and initial appearance, and the resulting 12 October 2000 Decision 08 On 19 March 2004, the Trial Chamber acknowledged that Nyiramasuhuko had previously raised these objections but determined that the issues of violation of her

rights were res judicata and denied her request for certification based on a lack of legal basis. 109 39. Nyiramasuhuko submits that the Trial Chamber "erred in law and in fact in failing to consider the previous violations of [her] rights in the course of her arrest and initial appearance, which violations were pleaded cumulatively with the alleged violations of her right to be tried fairly and without undue delay in her [25 June 2003 Motion].»l10 The Appeals Chamber understands Nyiramasuhuko to argue that the Trial Chamber erred in its 20 February 2004 Decision in failing to re-assess and cure the prejudice suffered as a result of the violation of her right to be promptly informed of the nature and cause of the charges against her, which were assessed in the 12 October 2000 Decision, and the violation of her right of initial appearance without delay, which 104 12 October 2000 Decision, para. 20. 105 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Requête de Pauline Nyiramasuhuko en arrêt des procédures pour abus de procédures (délais déraisonnables et procès inéquit[a Jble, 25 June 2003 ("25 June 2003 Motion "); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for a Stay of Proceedings and Abuse of Process, 20 February 2004 ("20 February 2004 Decision"), p. 6. 06

20 February 2004 Decision, paras. 13-17. 107 20 February 2004 Decision, paras. 23-25. 108 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Pauline Proceedings and Abuse of Process", 27 February 2004 (originally filed in French, English translation filed on 12 March 2004), paras. 12-16. 109 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Certification to Appeal the "Decision on Defence Motion for a Stay of Proceedings and Abuse of Process", 19 March 2004 ("19 March 2004 Decision"), paras. 21, 27, 28, p. 8. 110 Nyiramasuhuko Notice of Appeal, heading Ground 2, p. 8. 14 Case No. ICTR-98-42-A 14 December 2015

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20351/H was alleged in her 25 June 2003 Motion, in light of "the other violations of her fair trial rights" Ill In support of her contention, Nyiramasuhuko argues that the Trial Chamber failed to consider that the issue of the accumulation of violations had not been ruled upon in the 12 October 2000 Decision and, consequently, that the question of prejudice was not res judicata. 12 Nyiramasuhuko also requests that the Appeals Chamber take into account the violations of her rights that have been found at trial and to grant her an appropriate remedy. '13 40. The Prosecution responds that Nyiramasuhuko's arguments should be summarily dismissed as they misrepresent the Trial Chamber's findings and Nyiramasuhuko fails to articulate any error. "14 41. Nyiramasuhuko's submissions fail to acknowledge that, in the 20 February 2004 Decision, the Trial Chamber rejected her submission that her fair trial rights were violated as a result of delays in the trial proceedings. 15 Her submissions also ignore that the Trial Chamber did assess the prejudice allegedly resulting from the purported violations of her right to be promptly informed of the nature and cause of the charges against her and her right to initial appearance without delay, finding that Nyiramasuhuko had failed to show material prejudice. 6 Although the Trial Chamber originally erred in finding that Nyiramasuhuko had failed to raise the issue of the violation of these two particular rights earlier in the proceedings, l17 Nyiramasuhuko does not demonstrate that the Trial Chamber erred in finding that she had not shown that she suffered material prejudice for the alleged violations of these rights.

42. As regards Nyiramasuhuko's request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision. 18 The Appeals Chamber recalls that "any 1l1 Nyiramasuhuko Notice of Appeal, para. 1.8; Nyiramasuhuko Appeal Brief, para. 67 (p. 20), referring to 12 October 2000 Decision, 20 February 2004 Decision, 19 March 2004 Decision. Nyiramasuhuko's submissions are particularly unclear, especially with respect to which Trial Chamber's decision or finding is being challenged as well as with respect to which "other violations of her fair trial rights" she is referring. Although Nyiramasuhuko's ground of appeal could be summarily dismissed based on her failure to properly identify the challenged finding and the lack of clarity of her submissions, the Appeals Chamber will examine the merits of what it understands her challenges to be. 112 Nyiramasuhuko Appeal Brief, paras. 68-70 (p. 20). 113 Nyiramasuhuko Appeal Brief, para. 71 (p. 21). 114 Prosecution Response Brief, paras. 90-96. 115 See 20 February 2004 Decision, paras. 13-16. 116 See 20 February 2004 Decision, para.

25. The Appeals Chamber notes that, in its 19 March 2004 Decision, the Trial Chamber found that the issues of violations of certain of her rights were res judicata, not the question of the prejudice suffered as a result of the accumulation of the violation of her rights. See 19 March 2004 Decision, para. 28. 117 See 20 February 2004 Decision, paras. 18-26. 118 See Nyiramasuhuko Appeal Brief, para. 71 (p. 21). The Appeals Chamber notes that Nyiramasuhuko has failed to identify in her submissions any other violation recognised by the Trial Chamber that may require remedy and will therefore limit its consideration to the violations of her rights to be informed of the charges against her and of initial appearance without delay, which are expressly discussed in her submissions under this ground of appeal. 15 Case No. ICTR-98-42-A 14 December 2015

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20350/H violation, even if it entails a relative degree of prejudice, requires a proportionate remedy" 119 The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered. 120 In practice, "the effective remedy accorded by a Chamber for violations of an accused's fair trial rights will almost always take the form of equitable or declaratory relief."121 The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy. 22 Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko's claim is therefore dismissed.

43. Based on the foregoing, the Appeals Chamber dismisses Ground 2 of Nyiramasuhuko's appeal.

2. Ntahobali's Initial Appearance 44. Ntahobali was arrested in Kenya and transferred to the custody of the Tribunal on 24 July 1997.23 He appeared before the Trial Chamber for the first time 41 days later on 3 September 1997 but, in the absence of legal representation, did not enter a plea. 24 Ntahobali entered a plea in the presence of his counsel on 17 October 1997, 86 days after his arrest and transfer to the Tribunal. 125 On 26 November 2008, the Trial Chamber concluded that the failure of Ntahobali's counsel to appear in court on 3 September 1997 and the delay between 3 September 1997 and the initial appearance on 17 October 1997 were attributable to Ntahobali's counsel. 126 The Trial Chamber, however, considered that, even if Ntahobali's initial appearance had been held on 3 September 1997 as initially scheduled, it was not without delay as required under Rule 62 of the Rules. 127 The Trial Chamber further concluded that this delay had not caused serious 119 André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 ("Rwamakuba Appeal Decision"), para.

24. See also Kajelijeli Appeal Judgement, para. 255. 120 Rwamakuba Appeal Decision, para.

27. Rwamakuba Appeal Decision, para. 27 and references cited therein. 122 Cf. Rwamakuba Appeal Decision, para. 27; The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007 ("Rwamakuba Decision"), para. 69; Bagosora et al. Trial Judgement, para. 97. 123 Trial Judgement, paras. 23, 6295. 124 See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for a Stay of Proceedings for Undue Delay, 26 November 2008 ("26 November 2008 Decision"), para.

45. Ntahobali made his first appearance on 3 September 1997 before a bench of Trial Chamber Il composed of Judges Kama, Pillay, and Sekule. For the sake of legibility, the Appeals Chamber will refer to this bench of Trial Chamber II, to the benches that ruled on all pre-trial motions in the separate cases before their joinder, and to the bench that ultimately ruled on the joint case as the "Trial Chamber". 125 Trial Judgement, paras. 23, 6297; 26 November 2008 Decision, paras. 43, 45. 126 26 November 2008 Decision, paras. 49, 53. 127 26 November 2008 Decision, para. 53. 16 Case No. ICTR-98-42-A 14 December 2015

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20349/H and irreparable prejudice so as to warrant the stay of proceedings and immediate release requested by Ntahobali. 128 45. Ntahobali submits that the Trial Chamber erred in the 26 November 2008 Decision in finding that the delay between 3 September and 17 October 1997 was attributable to his counsel and in failing to acknowledge that his right to initial appearance without delay was violated during this period. 29 Relying on the Kajelijeli Appeal Judgement, Ntahobali argues that he should not be blamed for the unavailability of his counsel, and that it was the responsibility of the Tribunal to ensure that the appointed counsel would be available for the initial appearance or to find an alternative solution. 130 Ntahobali asserts that the length of the delay to be taken into account for the evaluation of the violation should accordingly be 86 days and not 41 days. 131 46. In addition, Ntahobali submits that, regardless of the length of the delay, the Trial Chamber erred in not granting a remedy for the violation of his right to initial appearance without delay and that the Appeals Chamber should correct this error. 32 He contends that the appropriate remedy in this case is a financial compensation if he is acquitted or, should this not be the case, a substantial reduction of his sentence. 133 47. The Prosecution responds that Ntahobali's arguments should be dismissed as he

fails to establish any error in the Trial Chamber's findings. 134 It asserts that the delay between the first attempted initial appearance on 3 September 1997 and the initial appearance on 17 October 1997 is attributable to Ntahobali and that his reliance on the Kajelijeli Appeal Judgement is misplaced as the circumstances differ. 135 The Prosecution also submits that Ntahobali fails to describe any prejudice that would warrant a remedy of any kind for the 41-day delay between his arrest and the initial appearance scheduled for 3 September 1997, and that his failure to raise the issue for I1 years shows that the delay did not result in any prejudice.136 48. The Appeals Chamber sees no error in the Trial Chamber's finding that the delay between 3 September 1997 and 17 October 1997 was attributable-to Ntahobali's counsel. The Appeals 128 26 November 2008 Decision, para. 53. 129 Ntahobali Notice of Appeal, paras. 15, 16; Ntahobali Appeal Brief, para.

35. In his reply brief, Ntahobali contends it does not mean that he agreed to the delay or was not prejudiced by it. See Ntahobali Reply Brief, para.

6. Reply Brief, para.

5. Ntahobali Appeal Brief, para. 39. 132 Ntahobali Notice of Appeal, para. 16; Ntahobali Appeal Brief, paras. 40, 42, 43. 133 Ntahobali Notice of Appeal, para.

17. See also Ntahobali Appeal Brief, para. 43; Ntahobali Reply Brief, para. 9. 134 Prosecution Response Brief, paras. 741, 746. 135 Prosecution Response Brief, paras. 742-745. Ntahobali replies that the fact that the circumstances of his case were different from that of the Kajelijeli case did not prevent the Tribunal from appointing a duty counsel to ensure that his rights were respected. See Ntahobali Reply Brief, para. 5. 17 Case No. ICTR-98-42-A 14 December 2015

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20348/H Chamber notes that the first scheduled initial appearance was postponed due to the absence of Ntahobali's counsel, who was unavailable and had not made any arrangement for a colleague to represent his client on 3 September 1997.137 When asked whether he wished to enter his plea in the absence of his assigned counsel or "to do that only in the presence of [his] counsel", Ntahobali unambiguously responded that he "prefer[red] to wait" for his assigned counsel 38 The new initial appearance was scheduled on 17 October 1997 as a result of Ntahobali's counsel's declared unavailability until mid-October 1997.139 49. The Appeals Chamber considers that the circumstances of this case differ from the situation in the Kajelijeli case, in which the Appeals Chamber found that the delay in the holding of the initial appearance was attributable to the Tribunal notwithstanding any attribution of fault to Kajelijeli'40 Unlike in Ntahobali's case, Kajelijeli's initial appearance was held 211 days after his transfer to the Tribunal as a result of difficulties in assigning him a counsel, the Registrar's failure to assign a duty counsel, and the Registry's difficulties in finding a date acceptable to all counsel representing Kajelijeli's co-indicted 41 Further, unlike Kajelijeli, Ntahobali was given the opportunity to enter his plea on 3 September 1997 but preferred to wait for his assigned

counsel. The Appeals Chamber considers that when, like in Ntahobali's case, the counsel for an accused explicitly requests the date of the initial appearance to be postponed and the accused expresses his preference for entering his plea in the presence of his assigned counsel rather than entering it at an earlier opportunity, the delay caused by the postponement of the initial appearance is not attributable to the Tribunal. 142 50. Turning to the question of remedy for the 41-day delay between Ntahobali's arrest and his first scheduled initial appearance on 3 September 1997, the Appeals Chamber recalls that the Trial Chamber found that this violation of Ntahobali's right had not caused him serious and irreparable 136 Prosecution Response Brief, para. 747. 137 26 November 2008 Decision, paras. 49, 50; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, T. 3 September 1997 pp. 4-6. The Trial Chamber explained that, although Ntahobali's counsel was aware on 21 August 1997 that he would not be available until mid-September and suggested that one of his colleagues replace him to represent Ntahobali at the initial appearance, once officially notified of the date of the hearing "there is no evidence that [he] made the necessary arrangement for his colleague to be present in Arusha o represent Ntahobali on 3 September 1997." See 26 November 2008

Decision, para. 49, referring to The Prosecutor 1 auline Nyiramasuhuko and Arsène Shalom Ntahobali. Case No. ICTR-97-21-T. The Registrar's Further Submission Regarding the « Réponse de Arsène Shalom Ntahobali aux soumissions du Greffier relativement à la requête de Ntahobali en arrêt des procédures », 31 October 2008 ("Registrar 31 October 2008 Submissions"), Appendix III. 13, 3 September 1997 pp. 4, 5. See also ibid., pp. 3, 4 (French). See 26 November 2008 Decision, para. 50, referring to Registrar 31 October 2008 Submissions, Appendix V. See also ibid., paras. 5, 7. 40 See Kajelijeli Appeal Judgement, para. 253. 141 See Kajelijeli Appeal Judgement, paras. 248-250. 142 Cf. Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, dated 31 May 2000, filed 1 June 2000 (originally filed in French, English translation filed on 4 July 2001) ("Semanza Appeal Decision"), paras. 110, 111. 18 Case No. ICTR-98-42-A 14 December 2015

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20347/H prejudice and therefore did not warrant the stay of proceedings and immediate release which Ntahobali requested as relief. 43 Ntahobali fails to show that the Trial Chamber erred in so finding In addition, the Appeals Chamber considers that, by recognising that his right to initial appearance without delay had been violated, the Trial Chamber granted him a declaratory remedy for the 41-day delay. 4 Apart from alleging that the appropriate remedy on appeal is a financial compensation or a reduction of his sentence, Ntahobali has not developed any argument demonstrating that the Trial Chamber granted a remedy which was not proportionate to the gravity of any harm he suffered. 145 51. Based on the foregoing, the Appeals Chamber dismisses Ground 1.2 of Ntahobali's appeal.

3. Nteziryayo's Arrest and Initial Appearance 52. In the Trial Judgement, the Trial Chamber stated that Nteziryayo was arrested in Burkina Faso on 24 April 1998.146 He was transferred to the custody of the Tribunal on 21 May 1998 and his initial appearance took place on 17 August 1998.147 53. Under Ground 9 of his appeal, Nteziryayo alleged a violation of his rights as a result of the delay between his arrest and his initial appearance.48 However, on 5 July 2013, the Appeals Chamber granted the Prosecution's request for summary dismissal of this allegation on the ground that Nteziryayo had waived his right to raise the issue on appeal. 49 As a result of Nteziryayo's request for clarification of the date of his arrest, the Appeals Chamber further instructed the Registrar to make written representations as to Nteziryayo's date of arrest. 150 On 14 March 2014, the Registrar indicated that the authorities of Burkina Faso provided the date of the arrest of Nteziryayo as 26 March 1998.151 54. At the appeals hearing, Nteziryayo requested that the Appeals Chamber reconsider its decision to dismiss his allegation of violation of his right to initial appearance without delay on the ground that the delay between his arrest and initial appearance now appeared to be 144 days and not 143 26 November 2008 Decision, para. 53; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom

Ntahobali, Case No. ICTR-97-21-T, Arsène Shalom Ntahobali's Motion for Stay of Proceedings Due to Unreasonable Delay 22 August 2008 (originally filed in French, English translation filed on 9 March 2009) ("22 August 2008 Motion"), Parse spr, para 12, 38 Feet 26 made Apol Decision, para. 27. 145 See supra, para. 42, referring to Rwamakuba Appeal Decision, para. 27. 146 See Trial Judgement, paras. 49, 6309. See supra, fn. 18 147 Trial Judgement, paras. 49, 50, 6312. 148 See Nteziryayo Notice of Appeal, para. 66; Nteziryayo Appeal Brief, paras. 265-277. 149 5 July 2013 Appeal Decision, paras. 14-18, 23. 150 5 July 2013 Appeal Decision, paras. 19-23. 151 See supra, fn. 18. 19 Case No. ICTR-98-42-A 14 December 2015

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20346/H 115 days as initially presumed 52 In the alternative, Nteziryayo requested that the Appeals Chamber find that special circumstances justifying the non-application of the waiver principle exist or that it exercise its discretion suo motu to consider the allegation in the interests of justice. 153 55. The Prosecution responded that Nteziryayo's requests should be dismissed. 154 56. The Appeals Chamber recalls that it may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.!5S The Appeals Chamber, Judge Agius dissenting, finds that Nteziryayo does not demonstrate any error of reasoning in the 5 July 2013 Appeal Decision. The Appeals Chamber further finds that Nteziryayo also does not show that reconsideration of the decision, which summarily dismisses his allegation of violation of his rights as a result of the delay between his arrest and his initial appearance, is necessary to prevent an injustice. The decision was not premised on the length of the delay but on Nteziryayo's "failure to raise the issue in the nearly 14 years that the trial proceedings lasted in his case."1S6 The fact that his arrest occurred a month earlier than the date relied upon in the 5 July 2013 Appeal Decision does not therefore affect the Appeals

Chamber's rationale. Similarly, the Appeals Chamber does not consider that the correction of Nteziryayo's date of arrest constitutes a special circumstance that would justify the non-application of the waiver principle. 157 57. For these reasons, the Appeals Chamber, Judge Agius dissenting, declines to reconsider its 5 July 2013 Appeal Decision and examine on the merits Nteziryayo's allegation of violation of his right resulting from the delay between his arrest and initial appearance. 152 AT. 17 April 1994 pp. 18, 19. 153 AT. 17 April 1994 p. 19. 154 AT. 17 April 1994 p.

35. The Prosecution argued that Nteziryayo was "mixing" issues as the issue "struck" in the 5 July 2013 Appeal Decision related to the delay between his transfer to the Tribunal and his initial appearance, not to the violation of his rights while being detained in Burkina Faso. It submitted that Nteziryayo could not aggregate the time spent in detention in Burkina Faso to calculate the delay before his initial appearance in Arusha as there is no relationship between the two issues. See idem. The Appeals Chamber notes that the Prosecution's arguments stem from a misunderstanding of both the 5 July 2013 Decision which addressed the allegation of delay between Nteziryayo's arrest and initial appearance and Nteziryayo's oral arguments at the appeals hearing. 155 See, e.g., Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR1lbis, Decision on Bernard Munyagishari's Motion for Reconsideration of the Decision on Appeals Against Referral Decision, 8 July 2013 ("Munyagishari Appeal Decision"), para. 13; Kajelijeli Appeal Judgement, para. 203; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza's Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005 ("Barayagwiza 4 February 2005 Appeal Decision"), p. 2. 156 5 July 2013 Appeal Decision, para.

16. As recalled in the 5 July 2013 Appeal Decision, it is settled jurisprudence that if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal. See 5 July 2013 Appeal Decision, para. 15 and references cited therein. 20 Case No. ICTR-98-42-A 14 December 2015

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20345/H 4. Ndayambaje's Arrest and Initial Appearance 58. Ndayambaje was arrested in Belgium on 28 June 1995.158 On 11 January 1996, the Trial Chamber requested Belgium to defer the criminal proceedings against him in favour of the competence of the Tribunal. 159 On 21 June 1996, Ndayambaje's initial indictment was confirmed and an arrest warrant was issued. 6 Ndayambaje was transferred to the custody of the Tribunal on 8 November 1996 and his initial appearance took place on 29 November 1996.161 59. Ndayambaje submits that he was illegally detained from 24 January 1996 - the date from which he was allegedly detained on behalf of the Tribunal - until 13 August 1996 as there was no indictment issued by the Tribunal against him during that period. 162 Ndayambaje also complains that three months elapsed between the issuance of his initial indictment and his initial appearance, which took place 21 days after his transfer to the custody of the Tribunal. 163 He asserts that these delays violated his right to be promptly informed of the charges against him and that the Appeals Chamber should remedy this violation. 64 At the appeals hearing, Ndayambaje further submitted that he was deprived of his right to counsel from 24 January 1996 until 22 November 1996, which caused him prejudice. l65 60. The Prosecution objected to Ndayambaje's contentions at the appeals hearing on the

ground that he had waived his right to raise them on appeal since he had failed to raise them at trial and in his notice of appeal. 166 61. Ndayambaje orally replied that: (i) he had raised the issue of his right to counsel of his own choosing in a motion dated 28 November 1996 and indicated all relevant delays relating to his right to be informed of the charges against him in a motion dated 15 August 2002; (ii) his arguments related to these violations cannot be disassociated from his arguments on his right to be tried without undue delay; and (iii) the seriousness of the violations requires the intervention of the Appeals Chamber, which could intervene proprio motu to correct a miscarriage of justice. 67 158 Trial Judgement, paras. 69, 6285. 159 Trial Judgement, para. 6285. 160 Trial Judgement, paras. 68, 6286. 161 Trial Judgement, paras. 69, 70, 6286, 6287. 162 Ndayambaje Appeal Brief, para. 308, referring to Exhibit D704. 163 Ndayambaje Appeal Brief, para. 308. 164 Ndayambaje Appeal Brief, para.

308. See also AT. 21 April 2015 pp. 4, 7-9. 165 AT. 21 April 2015 pp. 4, 9, 10. raising it for the first time at the appeals hearing. See idem. 167 AT. 21 April 2015 p.

62. Ndayambaje added that he would not object to the Prosecution filing written submissions 21 Case No. ICTR-98-42-A 14 December 2015

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20344/H 62. The Appeals Chamber notes that Ndayambaje failed to raise the allegations of violations of his right to be promptly informed of the charges against him and his right to counsel in his notice of appeal. The Appeals Chamber, Judge Agius dissenting, considers that Ndayambaje has further failed to demonstrate that he raised these allegations of violations of his rights at trial, and to identify the error allegedly committed by the Trial Chamber which would justify the intervention of the Appeals Chamber. The Appeals Chamber, Judge Agius dissenting, is of the view that, contrary to Ndayambaje's argument, these allegations were not raised in the motions he referred to during the appeals hearing. 168 Given the specificity of these allegations and the nature of his submissions on his right to be tried without undue delay, the Appeals Chamber is also not persuaded by Ndayambaje's argument that these allegations were encompassed in his submissions related to his right to be tried without undue delay.

63. The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal. 169 The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje's appeal as well as Ndayambaje's new allegation of error raised at the appeals hearing. translation filed on 3 October 2002). 169 See supra, fn.

157. This waiver principle has been applied to allegations of fair trial violations. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of le defence); Akayesu Appeal Judgement, paras. 361, 370, 375, 376 (right to be informed promptly and in detail of th lature of the charges): Celebiéi Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to th attention of judges to the proceedings); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing); Tadic Appeal Judgement, para. 55 (right to equality of arms). 22 Case No. ICTR-98-42-A 14 December 2015

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20343/H B. Joinder of Trials (Nyiramasuhuko Grounds 1 in part and 4; Ntahobali Ground 1.4) 64. The cases against Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje were initially not joined together.?7 On 5 October 1999, the Trial Chamber granted the Prosecution's motion for joinder and ordered the joint trial of the six accused.'"' In the course of the proceedings, the Trial Chamber dismissed several requests from the co-Accused secking severance pursuant to Rule 82(B) of the Rules. 172 65. On 19 June 2001, the Trial Chamber decided that the order for the cross-examination of the Prosecution witnesses would follow the order in which the co-Accused were cited on the cover of the Joinder Decision and, thus, that Nyiramasuhuko would have to cross-examine first among the co-Accused. 73 During a status conference held on 18 October 2004, the Trial Chamber decided to follow the same order for the presentation of the Defence cases, explaining that remedies were available should any prejudice arise in the course of the trial. 174 66. In the Trial Judgement, the Trial Chamber held that it would not reconsider the Joinder Decision and concluded that "the joinder did not create an injustice."175 The Trial Chamber also stated that it would not reconsider its 18 October 2004 Oral Decision that required Nyiramasuhuko to present her case first among the co-Accused. 176 170 The cases of Nyiramasuhuko and Ntahobali were joined initially, as were the cases of Nsabimana and Nteziryayo. The cases of Kanyabashi and Ndayambaje were initially pursued separately. See supra, para. 8 71 Joinder Decision, p.

18. The bench of Trial Chamber II which ordered the joint trial was composed of Judges Pillay, Sekule, and Güney. As mentioned above, for the sake of legibility, the Appeals Chamber will refer to this bench of Trial Chamber Il as the "Trial Chamber". The Appeals Chamber rejected the appeals lodged against the Joinder Decision for lack of jurisdiction or as filed out of time. See Pauline Nyiramasuhuko and Arsène Shalom Ntahobali v. The Prosecutor, Case No. ICTR-97-21-A, Decision (Appeal Against Trial Chamber Il's Decision of 5 October 1999), 17 April 2000, p. 3 (rejecting Nyiramasuhuko's appeal on the ground that a right of appeal against an interlocutory decision arises only out of a decision on a preliminary motion brought under Rule 72 of the Rules); Pauline Nyiramasuhuko and Arsène Shalom Ntahobali v. The Prosecutor, Case No. ICTR-97-21-A, Decision (Appeal Against Trial Chamber Il's Decision of 5 October 1999), 17 April 2000, p. 3 (rejecting Ntahobali's appeal on the same basis as Nyiramasuhuko's); Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-I, Decision (Appeal Against Trial Chamber Il's Decision of 5 October 1999), 17 April 2000, pp. 2, 3 (rejecting Kanyabashi's appeal as filed out of time). See, e.g., The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Motion for Separate Proceedings, a New

Trial, and Stay of Proceedings, 7 April 2006 ("7 April 2006 Decision"); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for Reconsideration of the "Decision on Ntahobali's Motion for Separate Trial", 22 February 2005; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Motion for Separate Trial, 2 February 2005 ("2 February 2005 Decision"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Motion for Separate Trials, 8 June 2001 ("g June 2001 Decision"); The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Defence Motion for Separate Trial, 25 April 2001 ("25 April 2001 Decision"); The Prosecutor v. Sylvain Nsabimana, Case No. ICTR-97-29A-T, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimana, signed 8 September 2000, filed 11 September 2000 ("8 September 2000 Decision"). 173 T. 19 June 2001 pp. 145, 146. 174 Status Conference, T. 18 October 2004 pp. 16, 17 (closed session) ("18 October 2004 Oral Decision"). 175 Trial Judgement, para. 148. 176 Trial Judgement, paras. 150-152. Case No. ICTR-98-42-A 14 December 2015

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20342/H 67. Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in granting the Prosecution's motion for joinder of trials.!" In addition, Nyiramasuhuko asserts that the Trial Chamber erred in rejecting her motion for severance and that her right to a fair trial was violated as a result of the order for cross-examination and presentation of the Defence cases. 178 68. Before examining Nyiramasuhuko's and Ntahobali's arguments, the Appeals Chamber recalls that a trial chamber's decision on joinder, severance, or the order of cross-examination and presentation of cases, like any decision related to the general conduct of trial proceedings, is a matter within the discretion of the trial chamber. 79 This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.180 In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party. 181 The Appeals Chamber will only reverse a trial chamber's discretionary decision where it is found to be based on an incorrect interpretation of the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber's discretion. 182 1.

Applicable Law 69. Joinder and severance of trials are governed by Rules 48 and 82 of the Rules. Rule 48 of the Rules provides that "[persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged or tried." A transaction is defined under Rule 2 of the Rules as "[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan." It has been held that, pursuant to Rule 2 of the Rules, a common scheme, strategy, or plan therefore includes 177 Nyiramasuhuko Notice of Appeal, paras. 1.15-1.18; Nyiramasuhuko Appeal Brief, paras. 143-169; Ntahobali Notice of Appeal, paras. 26-31; Ntahobali Appeal Brief, paras. 75-70 78 Nyiramasuhuko Notice of Appeal, paras. 1.7, 1.17, 1.19-1.22; Nyiramasuhuko Appeal Brief, paras. 65-68, 166 17 Nizeyinama Appeal Judgement, Para, 92; Rukundo Appal Judgement, nara 147; Thémeste Bagusora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze's Motion for Severance, Retention of the Briefing Schedule and Judicial Bar to the Untimely Filing of the Prosecution's Response Brief, 24 July 2009 ("Ntabakuze Appeal Decision on Severance"), para. 24; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.16, Decision on Appeal Concerning the Severance of Matthieu Ngirumpatse, 19 June 2009, para. 16; Prosecutor v. Jadranko Prlié et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber's Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel's Request for Leave to File an Amicus Curiae Brief, 4 July 2006 ("Prlié et al. Appeal Decision on Joinder"), p.

3. See also Rule 90(F) of the Rules. 180 See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19. 181 See, e.g., Nizeyimana Appeal Judgement, para. 286; Sainovié et al. Appeal Judgement, para. 29; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para.

19. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 85; Renzaho Appeal Judgement, para. 143; Kalimanzira Appeal Judgement, para. 14. 24 Case No. ICTR-98-42-A 14 December 2015

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20341/H one or a number of events at the same or different locations. 183 There is no requirement under Rules 2 and 48 of the Rules that the events constituting the "same transaction" take place at the same time or be committed together!"* In deciding whether the case against more than one accused should be joined pursuant to Rule 48 of the Rules, a trial chamber should base its determination upon the factual allegations contained in the indictments and related submissions. 185 70. Where a trial chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted, 186 Rule 82 of the Rules provides: (A) In joint trials, each accused shall be accorded the same rights as if he were being tried separately. (B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.

71. In light of Rule 82 of the Rules, it is therefore appropriate for a trial chamber deciding on a motion for joinder pursuant to Rule 48 of the Rules to consider and weigh the following factors: i) protection of the fair trial rights of the accused pursuant to Article 20 of the Statute; (i) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (iti) protection of the interests of justice. Factors that a trial chamber may look to in the interests of justice include: (i) avoiding the duplication of evidence; ii) promoting judicial economy; (iti) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (iv) ensuring consistency of verdicts. 187 183 Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletié's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused, 27 January 2006 ("Miletic Appeal Decision on Joinder"), para. 7; Prosecutor v. Vinko Pandurevic and Milorad Trbié, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurevid's Interlocutory Appeal against the Trial Chamber's Decision on Joinder of Accused, 24 January 2006 "Pandurevic Appeal Decision on Joinder"), para.

7. Cf. Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2, Decisior on Interlocutory Appeals Against the Trial Chamber's Decision to Amend the Indictment and for Joinder, 25 October 2006 ("Gotovina Appeal Decision on Joinder"), para. 16; Pandurevié Appeal Decision on Joinder, para.

7. The Appeals Chamber considers that, although these decisions were taken in the context of joinder of cases where the Prosecution requested both joinder of the charges and consequently of the trials, this jurisprudence applies mutatis mutandis to cases, like the present case, where only joinder of trials was requested on the basis of several confirmed indictments. 185 Gotovina Appeal Decision on Joinder, para. 16; Miletié Appeal Decision on Joinder, para. 7; Pandurevic Appeal Decision on Joinder, para.

7. Appeal Decision on Joinder, para.

17. Decision on Joinder, para.

8. Cf. also Ntabakuze Appeal Decision on Severance, para. 25. 25 Case No. ICTR-98-42-A 14 December 2015

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20340/H 2. Joinder Decision 72. Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in: (i) its assessment of the "same transaction" requirement; (ii) its assessment of the factors weighing in favour of joinder and the rights of the accused; and (iii) showing bias in the Joinder Decision.!88 (a) "Same Transaction" Requirement 73. In the Joinder Decision, the Trial Chamber decided to apply the following "guidelines" or "test" to determine whether the co-Accused were accused of crimes committed in the course of the same transaction within the meaning of Rule 48 of the Rules: 1. The acts of the [a]ccused must be connected to material elements of a criminal act [... ;] 2. The criminal acts to which the acts of the accused are connected must be capable of specific determination in time and space; 3. The criminal acts to which the acts of the accused are connected must illustrate the existence of a common scheme, strategy or plan. 189 74. The Trial Chamber found that the first and second prongs of the test were satisfied as most of the co-Accused, according to their indictments, "held official positions in the Government»190 and the events in which the co-Accused were alleged to have participated "occurred between 1 January to 31 December 1994 in various Communes in Butare."191 The Trial Chamber found that the third prong was also satisfied on the grounds that: (i) all

co-Accused were alleged to have "elaborated, adhered to and executed" a national plan to exterminate the Tutsis; (ii) "[a]mong the most common facts alleged are the role the accused played in the incitement of people to exterminate the Tutsi, the training of militiamen and the distribution of weapons"; and (iii) "the acts the Accused are alleged to have committed, such as Genocide and Conspiracy to Commit Genocide" correspond to a number of events being part of a common scheme, strategy, or plan. 192 The Trial Chamber concluded that, in the instant case, there was "sufficient showing of "same transaction'" 193 188 In addition, Nyiramasuhuko submits in her appeal brief that the Trial Chamber erred in finding that the joinder of trials could be granted on the basis of Rule 48 of the Rules as such an interpretation would make the addition of Rule 48bis of the Rules superfluous. See Nyiramasuhuko Appeal Brief, para.

143. However, because Nyiramasuhuko failed to raise this specific allegation of error in her notice of appeal, even though she amended it twice, and the Prosecution did not respond to it, the Appeals Chamber declines to consider this argument as it exceeds the scope of Nyiramasuhuko's appeal. Joinder Decision, para. 8, relying on The Prosecutor v. Aloys Ntabakuze and Gratien Kabiligi, Case No. ICTR-97- 34-I, Decision on the Defence Motion Requesting an Order for Separate Trials, 1 October 1998. See also ibid., paras. 7, 920 Joinder Decision, para. 10. 191 Joinder Decision, para. 11. 192 Joinder Decision, para. 12. 193 Joinder Decision, para.

13. The Appeals Chamber observes that the phrase "same transaction" in Rule 48 of the Rules, translated as "même operation" in the French version of the Rules, was incorrectly translated in the French 26 Case No. ICTR-98-42-A 14 December 2015

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20339/H 75. Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in concluding that the alleged criminal acts against the co-Accused were part of the "same transaction" for the purpose of joining trials under Rule 48 of the Rules 94 Specifically, Nyiramasuhuko and Ntahobali contend that the Trial Chamber erred in finding that the fact that most of the co-Accused held official positions in the government was sufficient in itself to connect them with alleged criminal acts.95 Pointing out that he did not hold any official position in the government, Ntahobali argues that the first condition was not met in his case.196 76. Nyiramasuhuko and Ntahobali also argue that the Trial Chamber erred in generally relying on the fact that all alleged events occurred between 1 January and 31 December 1994 in various communes of Butare Prefecture without examining whether the factual allegations against the co-Accused specifically connected them in time and space and illustrated the existence of a common plan. 197 77. Nyiramasuhuko and Ntahobali further submit that the Trial Chamber erred in relying on the count of conspiracy to commit genocide to find a connection between their alleged acts and a common plan. 98 In particular, Nyiramasuhuko contends that the Trial Chamber erred in relying on the broad allegation in paragraph 5.1 of each indictment against the co-Accused that a

national plan to exterminate the Tutsis existed, "whereas it should have sought out sufficient factual allegations of the criminal acts to which the Accused [were] connected through joint participation in a common plan."199 According to Nyiramasuhuko and Ntahobali, the factual basis set out by the Prosecution in the indictments did not support the count of conspiracy 20 Nyiramasuhuko also asserts that the Trial Chamber erred in holding that the charges of conspiracy to commit genocide and genocide were version of the Joinder Decision as "entreprise criminelle commune", which is a distinct legal concept translated into English as "joint criminal enterprise". Consequently, the Appeals Chamber will solely rely on the original English version of the Joinder Decision in this Judgement. See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-I, Décision relative à la requête du Procureur en jonction d'instances, 5 October 1999 (originally filed in English, French translation filed on 25 October 1999), paras. 5-13, 17. In her notice of appeal and appeal brief originally filed in French, Nyiramasuhuko relied on the French version of the Joinder Decision and refers to the notion of "entreprise criminelle commune". See Nyiramasuhuko Notice of Appeal, para. 1.16 (French); Nyiramasuhuko Appeal Brief, paras. 144, 146, 151, 152, 161, 163 (French). The Appeals Chamber

considers that a plain reading of Nyiramasuhuko's submissions shows that she intended to challenge the Trial Chamber's finding that the "same transaction" requirement of Rule 48 of the Rules was satisfied and will address her submissions accordingly. 194 Nyiramasuhuko Notice of Appeal, paras. 1.15, 1.16; Nyiramasuhuko Appeal Brief, paras. 144-156; Ntahobali Notice of Appeal, para. 28; Ntahobali Appeal Brief, paras. 66-70. 195 Nyiramasuhuko Appeal Brief, para. 146; Ntahobali Appeal Brief, para.

67. Nyiramasuhuko argues that, pursuant to the jurisprudence of the Tribunal, the Prosecution cannot rely on the status of an accused to establish such allegation. See Nyiramasuhuko Appeal Brief, para. 146, referring to The Prosecutor v. Casimir Bizimungu et al., Cases No. ICTR-99-50-T, Decision on the Prosecutor's Motion for Joinder, 6 July 2000, para. 71. 196 Ntahobali Appeal Brief, para. 67. 197 Nyiramasuhuko Appeal Brief, paras. 147, 148; Ntahobali Appeal Brief, para. 68. 198 Nyiramasuhuko Appeal Brief, paras. 149-156; Ntahobali Appeal Brief, paras. 68, 70. 199 Nyiramasuhuko Appeal Brief, para. 149 (emphasis omitted). Nyiramasuhuko adds that none of the elements of the plan listed in paragraph 5.1 of the indictments was imputed to any of the co-Accused. See ibid., para. 150. 200 Nyiramasuhuko Appeal Brief, para. 149; Ntahobali Appeal Brief, para. 70. 27 Case No. ICTR-98-42-A 14 December 2015

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20338/H factual allegations that could demonstrate their participation in a crime committed as part of a common plan since they constitute the "legal definition of the material elements."201 Nyiramasuhuko and Ntahobali argue that, had the Trial Chamber tried to identify in the indictments the common factual allegations supporting the existence of a common scheme, strategy, or plan connecting the co-Accused, it would have concluded that the joinder of trials was unreasonable.202 78. The Prosecution responds that most of Nyiramasuhuko's and Ntahobali's arguments should be dismissed as the criteria applied by the Trial Chamber have been superseded by the jurisprudence of the Appeals Chamber203 and that "it is now evident that there are no mandatory criteria for purposes of determining joinder other than the need for sufficient factual allegations that the persons whose cases are to be joined participated in a common scheme, strategy, or plan."204 The Prosecution further contends that neither Nyiramasuhuko nor Ntahobali demonstrates that the Trial Chamber erred in the exercise of its discretion in concluding that there were sufficient alleged facts that the co-Accused had participated in a common scheme, strategy, or plan. 205 79. Ntahobali replies that he contested the Joinder Decision on the basis of the criteria used by the Trial Chamber and maintains that the Trial Chamber

erred in law and in fact based on these criteria. 206 80. The Appeals Chamber notes that Nyiramasuhuko and Ntahobali do not challenge the "guidelines" or "test" identified and followed by the Trial Chamber or the applicable law as such, but rather their application by the Trial Chamber. With respect to the applicable law, the Appeals Chamber clarified a few years after the Joinder Decision that the "same transaction" may be found to exist even where the alleged crimes of the accused are different, or are carried out in different geographical areas or over different periods of time, as long as the acts or omissions of the accused whose cases are to be joined are alleged to form part of a common scheme, strategy, or plan.207 81. Comparing the guidelines adopted by the Trial Chamber with the Appeals Chamber's jurisprudence, the Appeals Chamber considers that the third prong of the Trial Chamber's guidelines - the criminal acts to which the acts of the accused are connected must illustrate the existence of a common scheme, strategy, or plan - is the only relevant criterion for the 201 Nyiramasuhuko Appeal Brief, para. 151; Nyiramasuhuko Reply Brief, paras. 4, 5. See also Ntahobali Appeal Brief, B yiramashuko Appeal Brief, paras. 152-156; tahobali Appeal Brief, paras. 69, 70. See also Nyiramasuhuko Reply 205 Prosecution Response Brief, paras. 11, 31, 32. 206 Ntahobali Reply Brief, para. 19. 28 Case No. ICTR-98-42-A 14 December 2015

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20337/H interpretation of the "same transaction" requirement under Rule 48 of the Rules. 208 The Appeals Chamber will therefore only examine Nyiramasuhuko's and Ntahobali's submissions that there were insufficient factual allegations in the indictments to support a finding that their alleged acts or omissions formed part of a common scheme, strategy, or plan.

82. Turning to Nyiramasuhuko's and Ntahobali's submissions regarding the co-Accused's connection to a common scheme, the Appeals Chamber observes that the Trial Chamber noted that, in each relevant indictment, the Prosecution alleged that "there existed a national plan to exterminate the Tutsi": It is alleged, in Paragraph 5.1 of the concise statement of facts, that from the late 1990s to July 1994, inter alia, members of the Government, political leaders and other personalities conspired among themselves and worked out a plan with intent to exterminate the civilian population and eliminate members of the opposition. It is further alleged that all the accused [...] elaborated, adhered to and executed the said plan with the aim of exterminating the Tutsi. Among the most common facts alleged are the role the accused played in the incitement of people to exterminate the Tutsi, the training of militiamen and the distribution of weapons.

83. The Trial Chamber also held that "the acts the Accused are alleged to have committed, such as Genocide and Conspiracy to Commit Genocide" corresponded to "a number of events, at the same or different locations and being part of a common scheme, strategy or plan."210 The formulation of the Trial Chamber's latter statement may be confusing as the crimes charged against an accused should be distinguished from the alleged acts and omissions of the accused that give rise to his responsibility for the crimes charged. However, reading the Trial Chamber's statement in context, the Appeals Chamber understands that the Trial Chamber was satisfied that the alleged acts and omissions of the accused, charged as genocide and conspiracy to commit genocide in the relevant indictments, constituted events that were part of a common scheme, strategy, or plan.

84. In support of its conclusion, the Trial Chamber did not make explicit references to specific paragraphs in each indictment, save for paragraph 5.1 which alleged the existence of a national plan to exterminate the Tutsis and the co-Accused's adhesion and execution of the plan. However, the Trial Chamber further stated that the "most common facts alleged are the role the [co-Accused] played in the incitement of people to exterminate the Tutsi, the training of militiamen and the distribution of weapons."2l1 In the view of the Appeals Chamber, this reflects that, contrary to Nyiramasuhuko's and Ntahobali's submissions, the Trial Chamber relied on the factual allegations 207 See Pandurevic Appeal Decision on Joinder, para. 17. 208 Pandurevié Appeal Decision on Joinder, para. 17. 209 Joinder Decision, para. 12. 210 Joinder Decision, para. 12. 211 Joinder Decision, para. 12. 29 Case No. ICTR-98-42-A 14 December 2015

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20336/H in the indictments that connected the co-Accused to this plan, prior to concluding that these allegations were sufficient to support a finding that the alleged acts or omissions formed part of a common scheme, strategy, or plan. A review of the paragraphs of the indictments listed as underpinning the charges of conspiracy to commit genocide and genocide supports the Trial Chamber's finding regarding the existence of a common scheme connecting the co-Accused for the purpose of Rule 48 of the Rules.212 85. In light of the above, the Appeals Chamber finds that Nyiramasuhuko and Ntahobali have failed to demonstrate that the Trial Chamber erred in finding that the co-Accused were accused of crimes committed in the course of the same transaction. (b) Factors Weighing in Favour of Joinder and Rights of the Accused 86. In the Joinder Decision, the Trial Chamber stated that the joinder "will not cause undue delay, since none of the trials has started or is about to start" and that, rather, the joinder "will promote efficiency and avoid delay in bringing those accused of involvement in one criminal transaction to trial.»213 The Trial Chamber specified that "the accused jointly tried does not lose any of the protection" under Articles 19 and 20 of the Statute.214 It also considered that the joinder will allow for a better administration of justice by ensuring "a better protection

of the victims' and witnesses' physical and mental safety, and by eliminating the need for them to make several journeys and to repeat their testimony."215 87. Nyiramasuhuko submits that the date of the commencement of trial is only one of the factors of undue delay and that the Trial Chamber erred in failing to consider: (i) the delays that had already occurred, notably the fact that the co-Accused had been in pre-trial detention for at least two years, and that the joinder would infringe her right to be tried without undue delay;216 and (ii) "other factors, such as 'concurrent presentation of evidence that is unrelated to the Accused.»217 212 For the count of conspiracy to commit genocide, see Nyiramasuhuko and Ntahobali Indictment, paras. 6.22, 6.25, 6.32, 6.33, 6.36-6.38, 6.51, 6.52, 6.55, 6.56, p. 38; Nsabimana and Nteziryayo Indictment, paras. 5.8, 5.12, 5.13, 6.21, 6.22, 6.25, 6.28, 6.29, 6.33, 6.41, 6.51-6.59, p. 41, Kanyabashi Indictment, paras. 5.8, 5.12, 5.13, 6.22, 6.26, 6.41, 6.43- 6.46, 6.58, 6.62-6.64, p. 41; Ndayambaje Indictment, paras. 5.8, 5.13, 6.33, 6.34, 6.50, 6.54, p.

40. For the count of genocide, see Nyiramasuhuko and Ntahobali Indictment, paras. 5.8, 6.25, 6.27, 6.30-6.34, 6.36, 6.39, 6.47, 6.52-6.56, pp. 38, 39; Nsabimana and Nteziryayo Indictment, paras. 5.8, 5.12, 5.13, 6.21, 6.22, 6.26, 6.28, 6.29, 6.33, 6.37, 6.38, 6.51-6.59, p. 42; Kanyabashi Indictment, paras. 5.8, 5.12, 5.13, 6.22-6.26, 6.41-6.46, 6.58-6.64, pp. 41, 42; Ndayambaje Indictment, paras. 5.8, 5.13, 6.34, 6.50-6.54, pp. 40, 41. 213 Joinder Decision, para. 15. 214 Joinder Decision, para. 15. 215 Joinder Decision, para. 16. 216 Nyiramasuhuko Appeal Brief, para.

164. See also Nyiramasuhuko Reply Brief, paras. 7, 8. 217 Nyiramasuhuko Appeal Brief, para.

165. See also ibid., para.

163. In their notices of appeal, Nyiramasuhuko and Ntahobali further argued that the Trial Chamber erred in concluding that the cross-examinations were enough to remedy the prejudice suffered as a result of the joinder. The Appeals Chamber notes, however, that Nyiramasuhuko and 30 Case No. ICTR-98-42-A 14 December 2015

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20335/H 88. Nyiramasuhuko further submits that the Trial Chamber erred in holding that her "rights could be given up in order to ensure a better protection of witnesses" as Article 19(1) of the Statute "cannot be interpreted as permitting subordination of the fundamental rights of an accused to the said protection.'218 She asserts that Rule 75(A) of the Rules clearly states that measures for the protection of witnesses may be ordered provided that they are consistent with the rights of the accused. 219 89. The Prosecution responds that Nyiramasuhuko fails to show any discernible error in the Trial Chamber's findings that joinder would not result in undue delay and that it would protect victims and witnesses from the hardships of multiple trials.220 90. The Appeals Chamber understands Nyiramasuhuko's submission on the length of the pre-trial detention and the "concurrent presentation of evidence" as alleging that, had the Trial Chamber considered the time already spent in detention and the fact that the co-Accused would present evidence irrelevant to the other accused's cases, it would have determined that the joinder would unduly delay the proceedings?2) The Appeals Chamber rejects this contention. The Joinder Decision reflects that the Trial Chamber did not ignore the time already spent in pre-trial detention but was convinced that the joinder would "promote efficiency and

avoid delay in bringing those accused of involvement in one criminal transaction to trial."222 A plain reading of the Joinder Decision shows that the Trial Chamber was aware of the importance of bringing the co-Accused to trial as early as possible and was of the view that the joinder would not unduly delay the proceedings. Nyiramasuhuko does not demonstrate any error in the Trial Chamber's exercise of its discretion in this regard. Further, the Appeals Chamber considers that, while aware of the possibility that the trial may be lengthened as a result of the concurrent presentation of unrelated evidence, the Trial Chamber could not have effectively taken this particular factor into account when it ruled on the Prosecution's motion for joinder as, at that stage, the scope of unrelated evidence to be presented by the co-Accused was hypothetical and speculative. Ntahobali failed to reiterate and develop with argument their allegation in their appeal briefs. Accordingly, the Appeals Chamber dismisses these unsubstantiated allegations without further consideration. See Nyiramasuhuko Notice of Appeal, para. 1.22; Ntahobali Notice of Appeal, para.

30. In the absence of any identification of error on the part of the Trial Chamber, the Appeals Chamber also declines to address Nyiramasuhuko's argument that, in support of the joinder, the Prosecution claimed that only half a dozen witnesses were common for three co-accused, while the joinder concerned six co-accused and the Prosecution announced that it would call 103 witnesses. See Nyiramasuhuko Appeal Brief, para. 169. 218 Nyiramasuhuko Appeal Brief, para. 167. 219 Nyiramasuhuko Appeal Brief, para. 168. 220 Prosecution Response Brief, paras. 16-21. 221 The Appeals Chamber notes that Nyiramasuhuko failed to raise an allegation of error with respect to the factors considered by the Trial Chamber to weigh in favour of the joinder in her notice of appeal. However, since the Prosecution did not object on this basis and responded to Nyiramasuhuko's submissions, the Appeals Chamber exercises its discretion to consider the arguments developed in her appeal brief. 22 Joinder Decision, para. 15. 31 Case No. ICTR-98-42-A 14 December 2015

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20334/H 91. With respect to Nyiramasuhuko's argument relating to the protection of witnesses, the Appeals Chamber recalls that minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence are factors that a trial chamber may take into account in determining whether joinder would be in the interests of justice?23 Contrary to Nyiramasuhuko's allegation, the Trial Chamber neither stated nor implied that her fair trial rights could be "given up" for the protection of the witnesses. The Trial Chamber expressly held that there must be a balance between the rights of the accused and the protection of witnesses.224 Nyiramasuhuko does not demonstrate how the Trial Chamber erred in its approach or in balancing the rights of the accused and the protection of witnesses in the Joinder Decision 25 92. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate any error in the Trial Chamber's assessment of the factors weighing in favour of joinder and, therefore, dismisses her contentions in this respect. (c) Alleged Bias 93. Nyiramasuhuko submits that the Trial Chamber's statement that "To]n the basis of the separate Indictments, it is clear that sufficient elements of each charge have been established to show probability that the Accused participated in a common scheme, strategy, or plan with one another or that they

conspired to commit genocide" shows the Trial Chamber's bias and lack of objectivity, especially as it implicitly shifted the burden of proof. 26 94. The Prosecution responds that Nyiramasuhuko's arguments should be dismissed as she makes no attempt to meet the high threshold required to establish a reasonable apprehension of bias on behalf of the Trial Chamber227 The Prosecution contends that, read in context, the excerpts she quotes cannot support an allegation of actual or apparent bias but, on the contrary, reflect that the Trial Chamber withheld judgement on whether or not a conspiracy existed and refrained from looking for prima facie evidence to support joinder. 228 223 Gotovina Appeal Decision on Joinder, para. 17; Miletié Appeal Decision on Joinder, para. 8; Pandurevié Appeal Decision on Joinder, para. 8. 224 Joinder Decision, para. 16. 225 See Pandurevié Appeal Decision on Joinder, para. 22 ("under the Statute and the Rules of the International Tribunal it is within the discretion of the Trial Chamber to balance the rights of an accused against its obligation to provide fo the protection of witnesses"), fn. 50 and references cited therein. A mashi neil that the Tria Chine red in eminal arrive a reader for in, count of conspiracy against her, thereby showing bias is discussed under Ground 3 of Nyiramasuhuko's appeal in Section IV.B.1 below. See Nyiramasuhuko Appeal Brief, paras. 159-161. 227 Prosecution Response Brief, paras. 12, 15. 228 Prosecution Response Brief, paras. 12-14. 32 Case No. ICTR-98-42-A 14 December 2015

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20333/H 95. The Appeals Chamber recalls that a presumption of impartiality attaches to the judges of the Tribunal and that this presumption cannot be easily rebutted. 29 It is for the appealing party alleging bias to rebut the presumption of impartiality enjoyed by judges of this Tribunal. 230 96. In the Joinder Decision, the Trial Chamber expressly emphasised that it was "not called upon at this stage of the proceedings to judge the merits of the charges against the Accused", but only to determine whether, "on the basis of legal and factual assessment", there existed a justification for holding a joint trial.?" In the course of its decision, the Trial Chamber reiterated that "in view of the present stage of the proceedings, [it] will not, at this time, address the issue of whether or not a conspiracy existed" because it was "a substantive issue of the forthcoming Trial on the merits."232 Just before making the impugned statement, it also stated that there was "no need in its view for an enquiry into whether there [was] prima facie evidence in support of a joint trial."33 Just after the statement with which Nyiramasuhuko takes issue, the Trial Chamber again stressed that "[a]lthough the additional charge of Conspiracy ha[d] been allowed in the amended Indictment, the Prosecutor will have to convince the Trial Chamber in due course that this charge will hold in law and in

fact."234 Later in the decision, it repeated that it was "not determining a question of fact, nor assessing the truth of the acts alleged, but [was] making a determination about whether or not there existfed] a basis for Joinder'235 and that it was "the Prosecutor's burden to prove guilt beyond reasonable doubt" 236 97. Read in context, the impugned statement could not reasonably be understood as a pre-judgement by the Trial Chamber or a shift in the burden of proof as suggested by Nyiramasuhuko. Rather, the statement simply reflects that the Trial Chamber was satisfied that there were sufficient factual allegations in the indictments supporting the allegations that the co-Accused participated in a common scheme, strategy, or plan or conspired to commit genocide. 229 Karemera and Ngirumpatse Appeal Judgement, para. 24; Hategekimana Appeal Judgement, para. 16; Nahimana et al. Appeal Judgement, para. 48; Akayesu Appeal Judgement, para.

91. See also Renzaho Appeal Judgement, para. 43 ("[...] in the absence of evidence to the contrary, Judges are presumed to be impartial when ruling on the issues before them"); Furundzija Appeal Judgement, para.

197. The Appeals Chamber notes that Nyiramasuhuko failed to raise her allegations concerning the Trial Chamber judges' alleged bias and the shift of the burden of proof in her notice of appeal. However, since the Prosecution did not object on this basis and responded to Nyiramasuhuko's submissions, the Appeals Chamber exercises its discretion to consider the arguments developed in her appeal brief. Renzaho Appeal Judgement, para. 23; Karera Appeal Judgement, para. 254; Niyitegeka Appeal Judgement, para.

45. See also Rutaganda Appeal Judgement, paras. 39-125. While the possibility is not ruled out that decisions rendered by a judge or a chamber could suffice to establish bias, it was held that this would be "truly extraordinary". See infra, Section IV.A.

1. Joinder Decision, para. 4. 232 Joinder Decision, para. 13. 233 Joinder Decision, para. 13. 234 Joinder Decision, para. 13. 235 Joinder Decision, para. 14. 236 Joinder Decision, para. 15. 33 Case No. ICTR-98-42-A 14 December 2015

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20332/H 98. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contention that the Trial Chamber showed bias and lack of objectivity, or shifted the burden of proof in the Joinder Decision.

3. Decision Denying Severance 99. In the course of the proceedings, the Trial Chamber dismissed several requests from the co-Accused seeking separate trials pursuant to Rule 82 of the Rules 237 On 7 April 2006, the Trial Chamber denied Nyiramasuhuko's request for a separate trial, concluding that she had not demonstrated the existence of a conflict of interests between her defence strategy and that of Nsabimana and Kanyabashi that would cause her serious prejudice, and that it would not be in the interests of justice to grant the request238 The Trial Chamber rejected Nyiramasuhuko's claims that its decisions regarding the timing of the disclosure of the materials relied upon by her co-accused and the fact that she would cross-examine and present her case first had caused her prejudice.239 The Trial Chamber emphasised that the Rules provided for remedies, which were available should any prejudice arise within the course of the trial, including cross-examination, further cross-examination, recall, or rebuttal evidence.240 100. With respect to whether a separate trial was in the interests of justice, the Trial Chamber found that the "instant case raises complex issues of law and fact" and that a joint trial might last longer than that of a single accused without encroaching upon the right to be tried without undue delay241 It added that Nyiramasuhuko's submissions that the trials of all accused would be concluded by now had the joinder been denied were "hypothetical and speculative" 242 The Trial Chamber concluded that, on balance, "the length of the proceedings ha[d] not violated [...] Nyiramasuhuko's right to be tried without undue delay, given the complexity of the present case 237 See supra, fn.

172. Ntahobali submits that the Trial Chamber erred in the 2 February 2005 Decision "by failing to take that opportunity to minimize the prejudice caused to [him) and by failing to allow severance." See Ntahobali Notice of Appeal, para. 27; Ntahobali Appeal Brief, para.

71. See also Ntahobali Appeal Brief, para.

65. However, Ntahobali argues that the Trial Chamber erred without particularising any alleged error of law or fact in the 2 February 2005 Decision. See Ntahobali Notice of Appeal, paras. 26, 27; Ntahobali Appeal Brief, para.

71. In these circumstances, the Appeals Chamber dismisses Ntahobali's contention without further consideration. Under Ground 15 of his appeal related to the right to be tried without undue delay, Ndayambaje submits that the Trial Chamber erred in the 25 April 2001 Decision in finding that the requested severance would create further delays. He asserts that the joinder did not protect his rights but rather violated them by unnecessarily prolonging the delays. See Ndayambaje Appeal Brief, para. 305, referring to 25 April 2001 Decision, para.

17. See also Ndayambaje Notice of Appeal, para.

121. In the absence of any substantiation of Ndayambaje's allegation of error, the Appeals Chamber dismisses his contention without further consideration. 238 7 April 2006 Decision, paras. 68, 71, 80, p. 22. 239 7 April 2006 Decision, paras. 59-61, 69. 240 7 April 2006 Decision, para. 70. 241 7 April 2006 Decision, para. 75. 242 7 April 2006 Decision, para. 76. 34 Case No. ICTR-98-42-A 14 December 2015

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20331/H and taking into account the other elements that make up the interests of justice within the ambit of Rule 82(B) [of the Rules] [...], as well as the advanced stage of the proceedings. *243 101. Nyiramasuhuko submits that the Trial Chamber erred in denying her request for a separate trial.24 She contends that the Trial Chamber failed to provide a reasoned opinion in support of its conclusions that: (i) she had not demonstrated a conflict of interests between her defence strategy and that of Nsabimana and Kanyabashi;45 and (ii) she had not been prejudiced by the Trial Chamber's decisions to present her case first and to allow her co-accused to present evidence without disclosing it to her in due time. 246 She also argues that the Trial Chamber erred in finding that alternative remedies were available should any prejudice arise from the joint case without assessing whether those alternative remedies could cure the alleged prejudice and without taking into account their "uncertain nature" 247 102. In addition, Nyiramasuhuko contends that the Trial Chamber erred in its assessment of whether a separate trial was in the interests of justice?48 In particular, she submits that the Trial Chamber failed to provide a reasoned opinion in analysing the complexity of the case.249 In her view, the Trial Chamber erred in concluding that her right to a fair trial without undue delay

was outweighed by the advantages of a joint trial and the need to protect witnesses, and in finding that her right to a fair trial without undue delay was not violated. 250 103. The Prosecution responds that the 7 April 2006 Decision was sufficiently reasoned and that Nyiramasuhuko does not identify how the Trial Chamber's reasoning is lacking or erroneous.?51 It submits that Nyiramasuhuko's claims are unsupported by arguments or references to the record and should accordingly be summarily dismissed. 252 243 7 April 2006 Decision, para. 79. para. 1.20. The Appeals Chamber recalls that merely referring the Appeals Chamber to arguments set out at trial is insufficient as an argument on appeal. The Appeals Chamber therefore declines to consider this part of her contentions further. See, e.g., Nchamihigo Appeal Judgement, para. 369; Haragija and Morina Appeal Judgement, para. 26. 246 Nyiramasuhuko Appeal Brief, paras. 171, 174, referring to 7 April 2006 Decision, para. 69. 247 Nyiramasuhuko Appeal Brief, para.

175. See also Nyiramasuhuko Reply Brief, para. 14. 248 Nyiramasuhuko Appeal Brief, paras. 176-179. 249 Nyiramasuhuko Appeal Brief, para. 176, referring to 7 April 2006 Decision, para.

75. Nyiramasuhuko also refers to Ground 1 of her appeal, in which she alleges a violation of her right to be tried without undue delay. Nyiramasuhuko's arguments directly related to undue delay have been addressed in Section III.K below. Nyiramasuhuko Appeal Brief, paras. 177-179. 251 Prosecution Response Brief, paras. 22, 23. 252 Prosecution Response Brief, paras. 23, 24. 35 Case No. ICTR-98-42-A 14 December 2015

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20330/H 104. Nyiramasuhuko replies that the few paragraphs that served as reasoning in the 7 April 2006 Decision do not respond to the detailed arguments she developed in her request for severance.253 105. The Appeals Chamber emphasises that, while a trial chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning and to discuss each submission.254 Contrary to Nyiramasuhuko's claim, the Appeals Chamber considers that the 7 April 2006 Decision was sufficiently reasoned. The Trial Chamber expressly stated that it had reviewed "all arguments, including the portions of transcripts in support of the alleged conflict of interests" prior to reaching its decision on Nyiramasuhuko's arguments on the conflict of interests, which it summarised at length in the decision, and provided reasons for rejecting her submissions.? The Trial Chamber also expressly rejected Nyiramasuhuko's contention that subsequent decisions, including decisions to present her case first and to allow her co-accused to present evidence without disclosing it to her in due time, had aggravated the prejudice on the ground that they "were legally made" 256 The Appeals Chamber considers that Nyiramasuhuko merely disagrees with the Trial Chamber's assessment without showing any error in its reasoning and rejects her claim that the Trial Chamber failed to provide a reasoned opinion.

106. The Appeals Chamber also sees no error in the Trial Chamber's finding that the Rules provided for several remedies should any prejudice arise in the course of the trial, including cross-examination, further cross-examination, recall, or rebuttal evidence? In light of the Trial Chamber's conclusion that Nyiramasuhuko had failed to demonstrate any prejudice, the Appeals Chamber finds no merit in Nyiramasuhuko's claim that the Trial Chamber should have conducted an assessment of whether the remedies available could have cured any future alleged prejudice or considered the "uncertain nature" of the remedies.

107. With respect to Nyiramasuhuko's challenge to the Trial Chamber's finding that separate trials would not be in the interests of justice, the Appeals Chamber rejects Nyiramasuhuko's claim that the Trial Chamber failed to provide a reasoned opinion in support of its conclusion that the case 253 Nyiramasuhuko Reply Brief, para. 12. 254 See Article 22(1) of the Statute; Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para.

165. See also Kvocka et al. Appeal Judgement, para. 23. a the ra ps eviewed in 1.28 36: 35, 152,59. 1. 6,8 The Appeal charaC am ere resty refer nicel Chamber expressly noted that it is not up to the Trial Chamber to decipher parties' pleadings and that many of th portions of the transcripts cited and relied upon by the Defence were not properly referenced, if referenced at al See ibid., para. 62. 256 g April 2006 Decision, para. 69. 257 7 April 2006 Decision, para. 70. 36 Case No. ICTR-98-42-A 14 December 2015

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20329/H raised complex issues of law and fact258 In the circumstances of this case — the largest case ever heard before the Tribunal involving numerous allegations, crimes that occurred in several locations and on different dates, and given the broad scope of the counts charged?59 - the Appeals Chamber considers that the Trial Chamber was not required to articulate in any further detail its conclusion that the instant case raised "complex issues of law and fact."260 108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber's finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co-accused's right to be tried without undue delay? The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay. 262 Nyiramasuhuko also fails to demonstrate any error in the Trial Chamber's conclusion that her submissions to the effect that trials of all accused would have been concluded by the time the Trial Chamber issued its 7 April 2006 Decision had joinder been denied were "hypothetical and speculative."263 The Appeals Chamber finds that, although the joinder added some degree of complexity

to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko's case.264 109. The Appeals Chamber also observes that, contrary to what Nyiramasuhuko suggests, the Trial Chamber did not conclude that her right to a fair trial without undue delay was outweighed by the advantages of a joint trial and the need to protect witnesses?65 In the impugned decision, the Trial Chamber balanced relevant factors such as the length of the proceedings with the advantages of a joint trial, including the protection of witnesses, and the advanced stage of the proceedings to determine whether the severance requested by Nyiramasuhuko was in the interests of justice.266 The 7 April 2006 Decision reflects that the Trial Chamber did not "prioritize" the protection of 258 7 April 2006 Decision, para. 75. 259 See Trial Judgement, para. 1. 260 7 April 2006 Decision, para. 75. 261 See 7 April 2006 Decision, para. 75. 262 Prosecutor v. Sefer Halilovié, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 ("Halilovic Appeal Decision"), para.

17. See also Ndindiliyimana et al. Appeal Judgement para. 43; Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Renzaho Appea Judgement, para. 238; Nahimana et al. Appeal Judgement, para. 1074. 263 j April 2006 Decision, para. 76. 264 Gotovina Appeal Decision on Joinder, para.

44. See also Neumeister v. Austria, European Court of Human Rights, No. 1936/63, Judgment, 27 June 1968 ("ECHR Neumeister Judgment"), para. 21 ("[the course of the investigation would probably have been accelerated had the Applicant's case been severed from those of his co-accused, but nothing suggests that such a severance would here have been compatible with the good administration of justice".). See Nyiramasuhuko Appeal Brief, paras. 177-179. 266 7 April 2006 Decision, paras. 77, 78. 37 Case No. ICTR-98-42-A 14 December 2015

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20328/H witnesses as alleged by Nyiramasuhuko,267 but reached its conclusion on whether severance should be granted after balancing issues relevant to such a determination.

110. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's challenges against the 7 April 2006 Decision made under Ground 1 of her appeal.

4. Order for Cross-Examination and Presentation of Defence Cases 111. In her closing submissions, Nyiramasuhuko alleged that she was prejudiced by the fact that she had been required to cross-examine and to present her case first among the co-Accused 268 In the Trial Judgement, the Trial Chamber found that Nyiramasuhuko only offered a "general allegation of prejudice" and that she had not suggested any new fact or material change in circumstances that might justify reconsideration of the 18 October 2004 Oral Decision which decided that she would have to present her case first amongst the co-Accused. 26 The Trial Chamber recalled that to the extent that an accused who had presented his evidence earlier was prejudiced by the order of the presentation of the cases, he may present rejoinder evidence as provided by the Rules, and that the co-Accused "were granted considerable freedom to cross-examine other Defence witnesses" in this case.270 It added that it would consider the order of the presentation of the cases and any concomitant prejudice in evaluating testimony and other evidence offered by each accused.271 112. Nyiramasuhuko reiterates on appeal that the Trial Chamber erred in directing her to cross-examine first despite the fact that she had drawn its attention to the potential conflict of interests with Nsabimana and, subsequently, in deciding, without prior consultation

of the parties, that she had to present her case first. 272 In this respect, she argues that the Trial Chamber's decision that the will-say statements of Defence witnesses be filed 21 days before they testified caused her serious prejudice as she had to present her defence without knowing the evidence her co-accused 267 See Nyiramasuhuko Appeal Brief, para. 178. 268 See Trial Judgement, para. 149, fn. 286. 269 Trial Judgement, para.

150. See also ibid., paras. 149, 151. 270 Trial Judgement, para. 151. 271 Trial Judgement, para. 152, referring to ibid., paras. 160-203, Section 2.7 "Evidentiary Matters". In Section 2.7 of the Trial Judgement, the Trial Chamber noted that: "[when an accused in a joint trial testifies before other co-accused present their cases, the Chamber will take this fact into consideration when assessing the weight of testimony of each accused relative to evidence subsequently presented, in recognition of the fact that the accused testified without the benefit of knowing what subsequent witnesses would say about their evidence beyond the indication provided in those witnesses' will-say statements". The Trial Chamber also stated that it "is cognisant of the rule that in joint trials, each accused is entitled to the same rights as he or she would be in an individual trial. In this regard, the Chamber has been attentive to the risk that one Accused's evidence will prejudice another Accused, and will diligently assure that the guarantees of Rule 82 (A) are respected." See ibid., paras. 189, 191 (internal references omitted). Nyiramasuhuko Appeal Brief, para.

180. See also Nyiramasuhuko Notice of Appeal, para. 1.19; Nyiramasuhukc Appeal Brief, para. 373; Nyiramasuhuko Reply Brief, paras. 15, 16 38 Case No. ICTR-98-42-A 14 December 2015

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20327/H would adduce and knowing that she had a conflict of interests with some of her co-accused. 273 Nyiramasuhuko also contends that her right, provided for in Rule 82 of the Rules, to be tried in a joint trial as if she would be tried alone was violated as a result of the Trial Chamber's reliance on statements made by her co-accused Nsabimana as well as by Kanyabashi Defence Expert Witness Filip Reyntjens and Nsabimana Defence Witness Charles Karemano to convict her. 274 In her view, such reliance was in contradiction with the Trial Chamber's commitment to consider the order of the Defence cases in reaching its conclusions.275 113. The Prosecution responds that Nyiramasuhuko fails to establish that the Trial Chamber abused its discretion and made a discernible error in its decisions on the order of cross-examinations and the time-limits imposed for Defence disclosures of will-stay statements.276 The Prosecution adds that Nyiramasuhuko omits to mention that the witnesses she refers to were relied upon where corroborated. 277 114. The Appeals Chamber considers that Nyiramasuhuko's arguments fall short of demonstrating any error in the Trial Chamber's exercise of its discretion in the control of the order of interrogating witnesses and presenting evidence provided for in Rule 90(F) of the Rules. Nyiramasuhuko fails to substantiate her contention that the alleged conflict of

interests between her defence and that of Nsabimana required that she not present her case first. Nyiramasuhuko also fails to consider that the parties were given the opportunity to be heard on the order of the presentation of the Defence cases, and that the Trial Chamber expressly referred to her counsel's objection on this matter when making its decision 278 Nyiramasuhuko also does not substantiate her contention that she was prejudiced by the Trial Chamber's decision regarding the timing for the filing of the witnesses' will-say statements with any specific examples or supporting references.279 115. With respect to Nyiramasuhuko's contention pertaining to her right under Rule 82 of the Rules to be tried in the joint trial as if she were tried alone, the Appeals Chamber notes that it has addressed and rejected Nyiramasuhuko's arguments relating to Nsabimana's statements in Section M.H below. As for the Trial Chamber's reliance on Expert Witness Reyntjens and 273 Nyiramasuhuko Notice of Appeal, paras. 1.17, 1.21; Nyiramasuhuko Appeal Brief, para.

181. See also Nyiramasuhuko Appeal Brief, para. 373. 278 Nyiramasuhuko Notice of Appeal, paras. 1.17, 1.21; Nyiramasuhuko Appeal Brief, paras. 182-184. Nyiramasuhuko also asserts that her right to be tried as if she was tried alone was violated as the Prosecution presented evidence against her through Prosecution Witnesses SD and QJ without having informed her of its intention to do so. See Nyiramasuhuko Appeal Brief, para.

166. In the absence of any substantiation or reference supporting this allegation, the Appeals Chamber declines to entertain it. 275 Nyiramasuhuko Appeal Brief, para. 182. 276 Prosecution Response Brief, paras. 25-27. 277 Prosecution Response Brief, paras. 28, 29. 278 See 18 October 2004 Oral Decision, pp. 7-16. 39 Case No. ICTR-98-42-A 14 December 2015

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20326/H Witness Karemano in support of Nyiramasuhuko's conviction for conspiracy to commit genocide,28' the Appeals Chamber does not see how relying on Defence evidence presented by other co-accused is "contrary"281 to the Trial Chamber's commitment to "consider the order of Defence cases and any concomitant prejudice in evaluating testimony and other evidence offered by each Accused.'282 Moreover, Rule 82(A) of the Rules does not, as a matter of principle, bar trial chambers from relying on the evidence presented by a co-defendant where that evidence supports the Prosecution case. Trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record. 2*3 As noted by the Trial Chamber, the Rules provide for remedies where the presentation of incriminating evidence through co-accused after the close of the Prosecution case may prejudice one of the co-accused. In the instant case, the evidence of Witnesses Reyntjens and Karemano upon which the Trial Chamber relied was already part of the Prosecution case-in-chief and was only accepted as corroborative of Prosecution evidence.284 The record shows that Nyiramasuhuko was also afforded the opportunity to cross-examine these witnesses at length and Nyiramasuhuko does not show that she requested further cross-examination, recall, or the presentation of rejoinder evidence. Accordingly, Nyiramasuhuko does not demonstrate how the Trial Chamber's reliance on this evidence violated her fair trial rights or caused her prejudice.

116. In light of the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's contentions related to the order of cross-examination and presentation of the Defence cases.

5. Conclusion 117. The Appeals Chamber finds that Nyiramasuhuko and Ntahobali have not demonstrated any error in relation to the joinder of trials. The Appeals Chamber further finds that no demonstration of error has been made by Nyiramasuhuko as to the Trial Chamber's 7 April 2006 Decision denying severance or its order for cross-examination and presentation of the cases. For the foregoing 279 See Nyiramasuhuko Notice of Appeal, paras. 1.17, 1.21; Nyiramasuhuko Appeal Brief, para. 181, referring only to Bi See Trial Judgement, paras. 879, 884, 888, 896, 897, 931, 932, 5670-5673. The Appeals Chamber will not adres Nyiramasuhuko's argument to the extent that it relates to the Trial Chamber's reliance on these witnesses in support of the factual findings on the basis of which she was not convicted. See Nyiramasuhuko Notice of Appeal, paras. 1.17, 1.21, referring to Trial Judgement, paras. 194, 457, 477, 516, 589, 783-785, 791-794, 801, 806, 807, 879, 883, 888, 896, 897, 931, 932, 5558. 281 Nyiramasuhuko Appeal Brief, para. 182. 282 Trial Judgement, para.

152. See also ibid., paras. 189, 191. 283 The Appeals Chamber also highlights that a joint trial may give rise to adverse defence strategies and that "the mere possibility of mutually antagonistic defences does not in itself constitute a conflict of interests capable of causing serious prejudice" within the meaning of Rule 82(B) of the Rules. See Gotovina Appeal Decision on Joinder, para.

37. See also infra, Section V.D. 284 See Trial Judgement, paras. 879, 884, 888, 896, 897, 931, 932. 40 Case No. ICTR-98-42-A 14 December 2015 au,

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20325/H reasons, the Appeals Chamber dismisses the relevant part of Ground 1 and Ground 4 of Nyiramasuhuko's appeal, as well as Ground 1.4 of Ntahobali's appeal. 411 Case No. ICTR-98-42-A 14 December 2015

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20324/H C. Replacement of Judge Magutu (Nyiramasuhuko Ground 5; Ntahobali Ground 1.6; Ndayambaje Ground 16) 118. On 12 June 2001, the joint trial in this case started before Trial Chamber II, composed of Judges William H. Sekule, Arlette Ramaroson, and Winston C. M. Maqutu 285 Judge Maqutu's term of office ended on 24 May 2003.286 On 15 July 2003, the two remaining judges, Judges Sekule and Ramaroson, acting pursuant to Rule 15bis(D) of the Rules, 287 found that the interests of justice were best served by continuing the trial with a substitute judge?88 The Appeals Chamber upheld this decision on 24 September 2003.289 Judge Solomy B. Bossa was appointed to the bench of Trial Chamber Il assigned to this case on 20 October 2003, and certified that she was familiar with the proceedings on 5 December 2003.290 The trial resumed on 26 January 2004, with the continued presentation of the Prosecution case?! On 30 March 2004, the Trial Chamber granted the Prosecution's request to drop 30 witnesses from its witness list and add three new witnesses.292 119. Following the appointment of Judge Bossa, Nyiramasuhuko, Ntahobali, and Ndayambaje requested the recall of some of the Prosecution witnesses who had testified prior to the replacement of Judge Maqutu.293 The Trial Chamber granted Ndayambaje's request to recall Prosecution Witness TO on a specific issue but denied the other requests.?94 285 See Trial Judgement, paras. 74, 6341, fn. 159. 286 See Trial Judgement, para. 75, fn.

160. Judge Maqutu's term of office was only extended for the purposes of concluding two other trials. See ibid., fn. 160. 287 Rule 15bis(D) of the Rules provides that, if a judge is unable to continue sitting in a part-heard case, the remaining judges may nonetheless decide to continue the proceedings with a substitute judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. 288 The Prosecutor v. Pauline Nviramasuhuko et al., Case No. ICTR-98-42-T, Decision in the Matter of Proceedings under Rule 15bis(D), 15 July 2003 ("Decision on Continuation of Trial"), para. 34, p.

22. See also Trial Judgement, Bara.

75. The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 ("Appeal Decision on Continuation of Trial"), para.

37. See also Trial Judgement, fn. 162. 290 Trial Judgement, paras. 75, 6392; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Certification in the Matter of Proceedings under Rule 15bis(D), 5 December 2003 ("Judge Bossa Certification"). 291 Trial Judgement, paras. 75. 6393. 292 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecutor's Motion to Drop and Add Witnesses, 30 March 2004 ("30 March 2004 Decision"), pp. 8, 9. 293 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Motion to Recall Witness "QAQ" Pursuant to the Appeals Chamber's "Decision in the Matter of Proceedings Under Rule 15bis(D)" of 24 September 2003, 23 December2003 (originally filed in French, English translation filed on 12 March 2004) (confidential); The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Motion to Recall Witness QAR, Pursuant to the Appeals Chamber's "Decision in the Matter of Proceedings Under Rule 15 bisD)", 19 December 2003 (originally filed in French, English translation filed on 22 April 2004); The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Motion to Recall Witness "TO" Pursuant to the Appeals Chamber's "Decision in the Matter of Proceedings Under Rule 15bis(D)" of 24 September 2003, 19 December 2003 (originally filed in French, English translation filed on 12 March 2004); The Prosecutor v. Pauline

Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête aux fins de rappeler les témoins à charge TA, QJ, TK, SJ, SU, SS, QBP, RE, FAP, SD et QY afin qu'ils soient entendus à nouveau sur les évènements allégués s'être déroulés aux bureaux de la Préfecture et avant un lien avec les actes reprochés à Pauline Nyiramasuhuko à cet endroit, dans son acte d'accusation, ou, à défaut, d'ordonner le procès séparé ou l'arrêt des procédures contre Pauline Nyiramasuhuko, 8 April 2004 ("Nyiramasuhuko Motion to Recall 42 Case No. ICTR-98-42-A 14 December 2015

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20323/H 120. In the Trial Judgement, the Trial Chamber rejected Nyiramasuhuko's claim that she had been prejudiced by the fact that Judge Bossa had not heard all Prosecution witnesses in person. 295 121. Nyiramasuhuko, Ntahobali, and Ndayambaje allege on appeal that the trial was rendered unfair by the fact that the substitute judge did not see or hear most of the witnesses upon whom the Trial Chamber ultimately relied in finding them guilty. In particular, Ntahobali submits that the Appeal Decision on Continuation of Trial should be reconsidered. Moreover, Nyiramasuhuko, Ntahobali, and Ndayambaje assert that the Trial Chamber erred in dismissing their requests to recall some of the witnesses? In addition, Nyiramasuhuko and Ntahobali argue that the Trial Chamber committed additional errors on this issue in the Trial Judgement298 The Appeals Chamber will examine these contentions in turn.

1. Reconsideration of the Appeal Decision on Continuation of Trial 122. In the Appeal Decision on Continuation of Trial, the Appeals Chamber found that the Trial Chamber did not err in concluding that it was in the interests of justice to continue the proceedings with a substitute judge.299 The Appeals Chamber noted the contention that it would not be possible for the substitute judge to evaluate the witnesses' demeanour in assessing their credibility given the absence of video-recordings of their testimonies.30° However, the Appeals Chamber declined to address this point as it had not been previously raised before the two remaining trial judges and held Witnesses"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Arsène Shalom Ntahobali's Motion to Recall Witnesses, 19 May 2004 (originally filed in French, English translation filed on 31 May 2004) ("Ntahobali 19 May 2004 Motion to Recall Witnesses"). 294 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Motion for Recall of Witnesses, 29 June 2004 ("29 June 2004 Decision"), p. 10; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Recall of Witnesses TA, QJ, TK, SJ, SU, SS, QBP, RE, FAP, SD and QY or, in Default a Disjunction of Trial or a Stay

of Proceedings Against Nyiramasuhuko, 6 May 2004 ("6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses"), para. 36, p. 7; The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "QAQ" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 ("6 May 2004 Decision on Motion to Recall Witness QAQ"), p. 4; The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "QAR" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 ("6 May 2004 Decision on Motion to Recall Witness QAR"), p. 4; The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "TO" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 ("6 May 2004 Decision on Motion to Recall Witness TO"), para. 10, p. 4. 295 Trial Judgement, paras. 156, 159. 296 Ntahobali Notice of Appeal, paras. 39-43, 47; Ntahobali Appeal Brief, paras. 103-111. 297 Nyiramasuhuko Notice of Appeal, paras. 1.25; Nyiramasuhuko Appeal Brief, paras. 197-221; Ntahobali Notice of Appeal, para. 44; Ntahobali Appeal Brief, paras. 112-114; Ndayambaje Notice of Appeal, paras. 127-132; Ndayambaje Appeal Brief, paras. 318-328. Nyiramasuhuko Notice of Appeal, paras. 1.23, 1.24, 1.26-1.29; Nyiramasuhuko Appeal Brief, paras. 186-196, 222- 242; Ntahobali Notice of Appeal, paras. 46-48; Ntahobali Appeal Brief, paras. 114-118. 299 Appeal Decision on Continuation of Trial, paras. 22, 37. 300 Appeal Decision on Continuation of Trial, paras. 30-35. 43 Case No. ICTR-98-42-A 14 December 2015

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20322/H that, in any event, the two judges were entitled to regard the question of adequacy of the records, including the availability of video-recordings, as a matter for the substitute judge.'°] 123. Ntahobali submits that reconsideration of the Appeal Decision on Continuation of Trial is warranted on the grounds that: (i) the Appeals Chamber committed a clear error of reasoning in refusing to take into account the absence of video-recording:302 and (ii) it is necessary to prevent an injustice, given the change of circumstances caused by the subsequent withdrawal of 30 Prosecution witnesses and the fact that, as a result, Judge Bossa would have heard almost none of the Prosecution witnesses who testified on four incidents for which he was convicted 303 Ntahobali contends that a new trial should have been ordered and that, given the length of the proceedings to date, the only remedy is to stay the proceedings.304 124. The Prosecution responds that Ntahobali's request for reconsideration should be struck or summarily dismissed as improperly filed because an appeal brief should only include arguments in support of alleged errors made by the trial chamber. 30S It argues that Ntahobali should have filed a separate motion for reconsideration with the Appeals Chamber 30 In the alternative, the Prosecution submits that Ntahobali fails to demonstrate a clear error of reasoning or that

reconsideration is necessary to prevent an injustice. 307 125. Nahobali replies that the importance of the issue justifies that the Appeals Chamber consider his arguments. 308 126. The Appeals Chambers recalls that once a trial judgement is pronounced, any request for reconsideration of a decision taken within the framework of first instance proceedings must be raised through the notice of appeal and the appeal brief.309 The Appeals Chamber therefore rejects the Prosecution's argument that Ntahobali has improperly sought reconsideration of an interlocutory appeal decision through his appeal. 301 Appeal Decision on Continuation of Trial, paras. 31-33. 302 Ntahobali Appeal Brief, paras. 103-107. 303 Ntahobali Appeal Brief, paras. 109-111. See also Ntahobali Notice of Appeal, paras. 39, 40, 47. 304 Ntahobali Appeal Brief, paras. 108, 118. 305 Prosecution Response Brief, para. 37. 306 Prosecution Response Brief, para.

37. Prosecution Response Brief, paras. 38, 39. 308 Ntahobali Reply Brief, para. 25. 309 Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la Requête de l'appelant Jean-Bosco Barayagwiza demandant l'examen de la requête de la Défense datée du 28 Juillet 2000 et réparation pour abus de procédure, 23 June 2006 ("Barayagwiza 23 June 2006 Appeal Decision"), para.

27. The Appeals Chamber has in the past reconsidered previous interlocutory decisions in an appeal judgement. See Kajelijeli Appeal Judgement, paras. 203-207. 44 Case No. ICTR-98-42-A 14 December 2015

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20321/H 127. Under the settled jurisprudence of the Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.310 The Appeals Chamber emphasises that the exercise of this reconsideration power is only designed to apply in exceptional circumstances.3" Indeed, the Appeals Chamber recalls that reconsideration is an exception to the principle that prior interlocutory appeal decisions are binding in continued proceedings in the same case as to all issues definitively decided by those decisions.312 This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues. 313 128. The Appeals Chamber notes that Ntahobali waited nearly a decade, and until after the completion of the trial proceedings, to seek reconsideration of the Appeal Decision on Continuation of Trial through his appeal against the Trial Judgement, without explaining why he did not seek reconsideration earlier. The Appeals Chamber stresses that a "matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied" 314

As held in the Celebici Appeal Judgement, "the requirement that the issue must have been raised during the proceedings is not simply an application of a formal doctrine of waiver, but a matter indispensable to the grant of fair and appropriate relief.*315 By failing to raise this matter before the Appeals Chamber prior to the completion of the trial proceedings, Ntahobali deprived the Appeals Chamber of the opportunity to re-examine whether it was in the interests of justice to continue the trial with a substitute judge.

129. In these circumstances, the Appeals Chamber declines to exercise its discretionary power to consider Ntahobali's request for reconsideration of the Appeal Decision on Continuation of Trial. Accordingly Ntahobali's request for reconsideration is dismissed. 310 See, e.g., Munyagishari Appeal Decision, para. 13; Kajelijeli Appeal Judgement, para. 203; Barayagwiza 4 February 2005 Appeal Decision, p. 2. 311 See, e.g., Prosecutor v. Zoran Zigié, Case No. IT-98-30/1-A, Decision on Zoran Zigic s "Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005", 26 June 2006, para. 5; Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 204. 312 See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202. 313 See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202. 314 See Celebiéi Appeal Judgement, para.

641. It is settled jurisprudence that a party should not refrain from making an objection to a matter which was apparent during the course of the trial to raise it only on appeal in the event of an adverse finding against that party. See Nahimana et al. Appeal Judgement, para. 215; Niyitegeka Appeal Judgement, vara. 199; Celebici Appeal Judgement, para. 640; Tadic Appeal Judgement, para. 55. 15 See Celebiéi Appeal Judgement, para. 641. 45 Case No. ICTR-98-42-A 14 December 2015

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20320/H 2. Decisions Denying the Recall of Witnesses 130. In the Appeal Decision on Continuation of Trial, the Appeals Chamber emphasised that, in the absence of video-recordings, "the recomposed Trial Chamber may, on a motion by a party or proprio motu, recall a witness on a particular issue which in the view of the Trial Chamber involves a matter of credibility which the substitute judge may need to assess in the light of the witness's demeanour:"316 The Trial Chamber rejected a number of requests filed by Nyiramasuhuko, Ntahobali, and Ndayambaje to recall Prosecution witnesses who had not testified before Judge Bossa mainly because they had failed to demonstrate any particular issue involving a matter of credibility which the substitute judge may have needed to assess in light of the witness's demeanour. 317 131. Nyiramasuhuko, Ntahobali, and Ndayambaje submit that the Trial Chamber erred in rejecting their respective requests 318 The Appeals Chamber will address their submissions in turn. (a) 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses 132. On 6 May 2004, the Trial Chamber dismissed Nyiramasuhuko's motion to recall 11 Prosecution witnesses who had testified in relation to events at the Butare Prefecture Office prior to Judge Maqutu's replacement 319 Recalling the Appeal Decision on Continuation of Trial, the Trial Chamber found that Nyiramasuhuko sought

a complete re-hearing of the specified witnesses without demonstrating any particular issue that involved a matter of credibility which the substitute judge needed to assess in light of the witness's demeanour.320 In response to the argument that Judge Bossa had not heard the bulk of the evidence against Nyiramasuhuko, the Trial Chamber explained that the decision to continue the trial was based on an evaluation of the totality of the pertinent circumstances, including the number of witnesses remaining to be heard321 It further recalled the Appeals Chamber's statement that it is not "useful to lay down a hard and fast 316 Appeal Decision on Continuation of Trial, para.

35. See also ibid., paras. 34, 38. 317 See 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, paras. 32, 36, p. 7; 29 June 2004 Decision, paras. 45, 48, p. 10; 6 May 2004 Decision on Motion to Recall Witness QAQ, para. 9, p. 4; 6 May 2004 Decision on Motion to Recall Witness QAR, para. 12, p. 4. 318 Nyiramasuhuko Notice of Appeal, para. 1.25; Nyiramasuhuko Appeal Brief, paras. 205-221; Ntahobali Notice of Appeal, para. 44; Ntahobali Appeal Brief, paras. 112-114; Ndayambaje Notice of Appeal, paras. 126-132; Ndayambaje Appeal Brief, paras. 318-328. 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, paras. 1, 2, 9, 36. On 25 May 2004, Nyiramasuhuko's motion for certification to appeal the Decision on Nyiramasuhuko Motion to Recall Witnesses was dismissed by the Trial Chamber as filed out of time. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Motion for Certification to Appeal the "Decision on Defence Motion for Recall of Witnesses TA, QJ, TK, SJ, SU, SS, QBP, RE, FAP, SD and QY or, in Default a Disjunction of Trial or a Stay of Proceedings Against Nyiramasuhuko", 25 May 2004, pp. 2, 3. 320 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para.

32. See also ibid., paras. 30, 31. 321 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para. 33. 46 Case No. ICTR-98-42-A 14 December 2015

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20319/H relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge.*322 The Trial Chamber added that: in considering whether to recall a witness, it must be born in mind that the substitute judge has certified that she has familiarized herself with the records of the proceedings. Those records include audio-recordings in which the substitute judge can assess the credibility of the witnesses in light of their demeanour when giving evidence in court. 323 The Trial Chamber concluded that no case had been made by Nyiramasuhuko for the re-hearing of the witnesses as a whole324 The Trial Chamber ultimately relied on certain aspects of the testimonies of the witnesses Nyiramasuhuko sought to recall in support of a number of findings against her. 25 133. Nyiramasuhuko submits that the Trial Chamber erred in dismissing her motion. 26 In particular, she contends that the Trial Chamber erred in relying on the "rules" for the recall of witnesses enunciated in the Appeal Decision on Continuation of Trial as these "rules" could no longer be applied in the new circumstances arising from the withdrawal of 30 Prosecution witnesses.327 The Appeals Chamber understands Nyiramasuhuko to argue that the Trial Chamber misinterpreted the Appeal Decision on Continuation of Trial in which,

according to her, the Appeals Chamber considered that there was a limit as to the proportion of witnesses heard beyond which the trial would be rendered unfair. In her view, this limit was clearly reached as the substitute judge had not seen 11 of the 12 witnesses who testified against her in relation to the Butare Prefecture Office events. According to Nyiramasuhuko, the proportion of witnesses not heard by the substitute judge no longer permitted the Trial Chamber to exercise its discretion to continue the trial without recalling the witnesses. 328 134. Nyiramasuhuko further submits that the Trial Chamber erred in stating that she did not raise any "particular issue" that would justify the requested recall as she had asked in the alternative that the witnesses be recalled solely to testify on the allegations raised against her in relation to the Butare Prefecture Office 329 Nyiramasuhuko also argues that the Trial Chamber erred in stating that Judge Bossa could assess the demeanour of witnesses based on the audio-recordings as a witness's demeanour needs also to be observed through the witness's "non-verbal language" 330 She adds that, 322 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para. 33, quoting Appeal Decision on Continuation of Trial, para. 27. 323 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para. 34. 324 6 May 2004 Decision on

Nyiramasuhuko Motion to Recall Witnesses, paras. 33, 35. 325 See, e.g., Trial Judgement, paras. 2644, 2686, 2687, 2697, 2698, 2718, 2738, 2743, 2773, 2775. 326 Nyiramasuhuko Appeal Brief, paras. 205, 221. 327 Nyiramasuhuko Appeal Brief, paras. 206, 210-212. 328 Nyiramasuhuko Appeal Brief, paras. 213-220. See also ibid., para. 239. 329 Nyiramasuhuko Appeal Brief, para. 208, referring to Nyiramasuhuko Motion to Recall Witnesses, p. 27.. 330 Nyiramasuhuko Appeal Brief, paras. 191-193. 47 Case No. ICTR-98-42-A 14 December 2015

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20318/H since all Prosecution witnesses testified in Kinyarwanda, it was difficult, if not impossible, for any judge not proficient in this language to "listen" to the original audio-recordings. 331 135. Nyiramasuhuko contends that the Trial Chamber's refusal to recall the relevant witnesses in the new circumstances arising from the modification of the Prosecution's witness list violated her right to a fair trial, especially as the Trial Chamber relied on these witnesses to hold her criminally responsible.332 136. The Prosecution responds that Nyiramasuhuko mostly repeats arguments already rejected at trial and that she does not demonstrate that the Trial Chamber committed an error warranting the intervention of the Appeals Chamber. 333 137. The Appeals Chamber highlights that, like all decisions relating to the conduct of the proceedings before them, decisions on requests to recall witnesses are matters within the discretion of trial chambers.34 The Appeals Chamber did not suggest otherwise in the Appeal Decision on Continuation of Trial, but merely stated that "the recomposed Trial Chamber may, on a motion by a party or proprio motu, recall a witness" 335 The Appeal Decision on Continuation of Trial did not strip the Trial Chamber of its discretion to determine whether recalling witnesses was necessary or dictate that the substitute judge was required to hear a certain proportion of witnesses to ensure a fair trial. The Appeals Chamber therefore rejects Nyiramasuhuko's contention that the Trial Chamber misinterpreted the Appeal Decision on Continuation of Trial and erred in considering that it retained discretion to decide whether or not to recall the witnesses.

138. The question before the Appeals Chamber is whether the Trial Chamber exercised its discretion consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.336 In this regard, the Appeals Chamber reiterates that in order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber committed a discernible error resulting in prejudice to that party. 337 139. As discussed above, Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in misinterpreting the Appeal Decision on Continuation of Trial338 Nyiramasuhuko also does not 331 Nyiramasuhuko Appeal Brief, para. 196. 332 Nyiramasuhuko Appeal Brief, paras. 199-204, 222-224. 333 Prosecution Response Brief, paras. 34-36. 120204227 Basel, e.8., Ndahimana Appeal Judgement, para. 14; Lukié and Lukid Appeal Judgement, para. 17; Setaka Appeal Judge entr apara. 137. 48 Case No. ICTR-98-42-A 14 December 2015

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20317/H show that the Trial Chamber erred in finding that she did not raise any particular issue which involved a matter of credibility that the substitute judge needed to assess in light of the witness's "visually observable" demeanour.339 Nyiramasuhuko's alternative request in her motion that witnesses be recalled to testify solely on the factual allegations raised against her in relation to the Butare Prefecture Office is not the same as raising particular issues involving a matter of credibility which the substitute judge may need to assess in light of the witness's "visually observable" demeanour.

140. Turning to Nyiramasuhuko's contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an "unbending requirement" 340 the Appeals Chamber is not convinced that audio-recordings alone allow a substitute judge to thoroughly assess all aspects of the witness's demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.* 341 141. That being said, in the case at hand, Nyiramasuhuko fails to point to any particular aspect of any witness's demeanour in court which could not have been properly assessed without seeing or hearing the witness live. Judge Bossa certified that she had familiarised herself with the record of the proceedings 342 and the impugned decision reflects that she did not consider that there were any credibility matters that she needed to assess in light of the witnesses' "visually observable" demeanour in court 343 Against this background, the Appeals Chamber considers that the Trial Chamber's denial of the Nyiramasuhuko Motion to Recall Witnesses was not so unfair or unreasonable as to constitute an abuse of the Trial Chamber's discretion.

142. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's challenges against the 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses. 339 See 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para.

32. See also ibid., paras. 30, 31. 340 The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 ("Karemera et al. 20 April 2007 Appeal Decision"), para. 42, quoting Appeal Decision on Continuation of Trial, para.

25. See also Prosecutor v. Vojislav Seselj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 ("But [the substitute judge] may feel that, even in the absence of video-recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved".). The Appeals Chamber notes that the Oxford Dictionary defines "demeanour" as the "manner of comporting oneself outwardly or towards others". 342 See Judge Bossa Certification. 343 Cf. 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para. 33. 49 Case No. ICTR-98-42-A 14 December 2015

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20316/H (b) 29 June 2004 Decision 143. On 29 June 2004, the Trial Chamber denied a request from Ntahobali to recall all the Prosecution witnesses who were heard before the appointment of Judge Bossa or, at a minimum, the 14 Prosecution witnesses who testified against him.3" The Trial Chamber found that parts of Ntahobali's request were "nothing else than an attempt to relitigate issues that were already determined in the [Appeal Decision on Continuation of Trial].*345 The Trial Chamber further stated that: Submissions by the Defence indistinctly refer to miscellaneous demeanours of witnesses, among which are aggressiveness and threats against counsels, reluctance to answer questions, evasiveness, lack of emotion, material inconsistencies, hesitations, doubts, silences, confusing answers, and arrogance. The Defence also referred to "non-verbal demeanour" of witnesses without further explanation. The Trial Chamber notes that the first series of demeanours are reflected in the written transcripts and/or audio-recordings of the witnesses' testimony in court. The Trial Chamber further notes that none of these alleged demeanours constitutes a particular issue which involves a matter of credibility which the substitute Judge may need to assess in the light of the witness' demeanour. Nowhere does the Defence identify such a particular issue 346 144. Ntahobali submits that the Trial

Chamber erred in rejecting his request to recall the Prosecution witnesses 347 First, Ntahobali contends that the Trial Chamber erred in finding that the question of the recall of the witnesses was an issue that had already been litigated in the Appeal Decision on Continuation of Trial348 He contends that the Trial Chamber ignored his argument that his request was based on the change of circumstances caused by the withdrawal of 30 witnesses from the Prosecution's witness list and the fact that, as a result, Judge Bossa would see none or almost none of the witnesses who testified against him in relation to certain incidents.349 In Ntahobali's view, the Trial Chamber erred in failing to determine whether this new situation required the recall of witnesses. 350 145. Second, Ntahobali submits that the Trial Chamber erred in stating that the aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance of witnesses were reflected in the transcripts and audio-recordings of the testimonies. 35l He asserts that, contrary to the Trial Chamber's finding, such behaviour constituted "particular issues" which, given the new circumstances, should have required the recalls sought 352 344 29 June 2004 Decision, paras. 1, 48, p.

10. Ntahobali referred to Prosecution Witnesses TA, SJ, QCB, TK, TN, FAP, SS, QY, RE, SD, QBP, QJ, SU, and Ghandi Shukri. See ibid., para. 12. 29 June 2004 Decision, para. 39. 30 Nandal Noticion pal, 5. 4 a id Are 6 tie, para. 112. 348 Ntahobali Appeal Brief, para. 113. 349 Ntahobali Appeal Brief, para. 113, referring to Niahobali 19 May 2004 Motion to Recall Witnesses, paras. 28-36. 350 Ntahobali Appeal Brief, para. 113. 351 Ntahobali Appeal Brief, para. 114. 352 Ntahobali Appeal Brief, para. 114. 50 Case No. ICTR-98-42-A 14 December 2015

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20315/H 146. The Prosecution did not specifically respond to these arguments.

147. The Appeals Chamber observes that, contrary to Ntahobali's suggestion, the Ntahobali Motion to Recall Witnesses was not premised on the contention that the withdrawal of 30 Prosecution witnesses created a new situation which required the recall of witnesses he had requested. While Ntahobali clearly referred to the new situation arising from the withdrawal of 30 Prosecution witnesses and the fact that, as a result, Judge Bossa would not have seen or heard any of the Prosecution witnesses testifying on four important crime scenes, his main contention was that the interests of justice required that Judge Bossa see and hear all the testimonies which she was expected to assess.?54 The Trial Chamber was correct in stating that this contention had already been determined in the Appeal Decision on Continuation of Trial. It also bears noting that, in line with the Appeals Chamber's guidance in that decision, the Trial Chamber considered whether it was necessary to recall the requested witnesses to testify on particular issues that the substitute judge would need to assess in light of the witnesses' "visually observable" demeanour. 355 By concluding that there was no need to recall these witnesses, the Trial Chamber implicitly determined that the situation did not require the recalls sought.

148. The Appeals Chamber is of the view that transcripts or audio-recordings of a witness's testimony in court do not necessarily always allow a judge to assess thoroughly the witness's possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. The 29 June 2004 Decision, however, shows that Judge Bossa did not consider that there were issues with the demeanour of witnesses raised by Nahobali that she needed to assess by seeing them testify. This reflects that Judge Bossa, together with the two other judges, considered that she was in a position to properly assess the demeanour issues raised by Ntahobali on the basis of the written transcripts and/or audio-recordings of the witnesses' testimony. Ntahobali submits in broad terms that all of the demeanour issues he raised constituted "particular issues" justifying the recall sought in light of the new circumstances.35 However, he fails to explain how the Trial Chamber erred in finding that none of these issues required that the witnesses be recalled for Judge Bossa to assess their credibility by observing their demeanour in court first-hand. The Appeals Chamber recalls that it is not a second trier of fact and that a party cannot simply repeat arguments on appeal that did not succeed at trial in the hope that the Appeals Chamber will consider them afresh 357 353 See Ntahobali 19 May 2004

Motion to Recall Witnesses, paras. 41, 44. 354 See Ntahobali 19 May 2004 Motion to Recall Witnesses, paras. 16, 17, 29-34. 355 29 June 2004 Decision, paras. 44-48. 356 See Ntahobali Appeal Brief, para. 114, fn. 197, referring to Ntahobali 19 May 2004 Motion to Recall Witnesses, paras. 73, 74, 95, 102, 109, 115, 121, 128, 135, 141, 147, 153 Karera Appeal Judgement, para. 86; Semanza Appeal Judgement, para. 9. 51 Case No. ICTR-98-42-A 14 December 2015

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20314/H 149. Recalling the Trial Chamber's broad discretion in the conduct of the proceedings before it and in the absence of a demonstration of error, the Appeals Chamber dismisses Ntahobali's challenges against the 29 June 2004 Decision. (c) 6 May 2004 Decisions on Ndayambaje Motions to Recall Witnesses AQ and QAR 150. On 6 May 2004, the Trial Chamber granted Ndayambaje's request to recall Prosecution Witness TO on the ground that there was a particular issue "which may involve a matter of credibility which the substitute judge may need to assess in the light of the witness' demeanour."358 The same day, the Trial Chamber denied Ndayambaje's requests to recall Prosecution Witnesses QAQ and QAR on the grounds that the issues of credibility raised by Ndayambaje were related to the substance of the evidence and that Ndayambaje had failed to raise any specific issue which involved a matter of credibility that the substitute judge may have needed to assess in light of the witnesses' demeanour.359 The Trial Chamber ultimately relied on the evidence of Witnesses QAQ and QAR in support of a number of findings against Ndayambaje. 360 151. Ndayambaje submits that by rejecting his requests to recall Witnesses QAQ and QAR whereas Judge Bossa did not see them testify, the Trial Chamber deprived him of a fair trial and caused him serious prejudice.361 He argues that, without seeing the

witnesses' explanations on the many contradictions and inconsistencies in their testimonies, Judge Bossa was not in a position to properly assess their evidence. "2 In Ndayambaje's view, Article 11(2) of the Statute was implicitly violated as he was in fact convicted by only two judges.363 He highlights that the credibility of Witnesses QAQ and QAR was highly contested at trial, that Witness QAR was the sole witness the Trial Chamber relied upon in finding him guilty in relation to the events at Mugombwa Church, and 358 6 May 2004 Decision on Motion to Recall Witness TO, para. 10, p. 4. 359 6 May 2004 Decision on Motion to Recall Witness QAQ, para. 9, p. 4; 6 May 2004 Decision on Motion to Recall Witness QAR, para. 12, p. 4. 360 See Trial Judgement, paras. 1194-1246 (Mugombwa Church), 1409, 1431, 1448, 1452 (Kabuye Hill), 4746 abductions of Tutsi women and girls) 61 Ndayambaje Notice of Appeal, paras. 128-132; Ndayambaje Appeal Brief, paras. 318, 322, 327, 328. The Appeals Chamber notes that, in his notice of appeal, Ndayambaje further submitted that the decision to continue the trial with a substitute judge constitutes an error of law. See Ndayambaje Notice of Appeal, para.

126. The Appeals Chamber notes that Ndayambaje failed to substantiate this allegation in his appeal brief and dismisses it as a result. The Appeals Chamber also notes that, in his appeal brief, Ndayambaje develops arguments related to the Trial Chamber's decision to recall Witness TO on a limited basis and the assessment of Witness TO's evidence. See Ndayambaje Appeal Brief, paras. 321, 324. The Appeals Chamber observes that Ndayambaje not only failed to give notice of his contentions pertaining to the evidence of Witness TO in his notice of appeal, but that he also failed to articulate the alleged error committed by the Trial Chamber in relation to the recall of Witness TO. In these circumstances, the Appeals Chamber will not examine Ndayambaje's contentions in this regard. Ndayambaje also submits that the replacement of Judge Maqutu resulted in an adjournment of the hearing that delayed the entire proceedings and caused him prejudice. See Ndayambaje Notice of Appeal, para.

127. This argument is dealt with below in paragraph 364 under Section III.K. 362 Ndayambaje Appeal Brief, paras. 323, 328. 363 Ndayambaje Appeal Brief, para.

324. Pointing out that the testimonies of Witnesses QAQ and QAR were not recorded on video, Ndayambaje argues that it was improper for Judge Bossa to evaluate the credibility of the witnesses 52 Case No. ICTR-98-42-A 14 December 2015

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20313/H that Witness QAQ's testimony was considered as largely corroborative of Prosecution evidence for a number of events.364 Ndayambaje requests that the Appeals Chamber exclude the testimonies of Witnesses QAQ and QAR and quash the findings of guilt based solely on Witness QAR's testimony.365 152. The Prosecution responds that Ndayambaje's submissions should be summarily dismissed as he does not show that the rejection of his requests to recall Witnesses QAQ and QAR constituted an error warranting the intervention of the Appeals Chamber. 366 The Prosecution contends that Ndayambaje does not identify any specific aspects of the witnesses' testimonies that the Trial Chamber would not have relied upon, had Judge Bossa seen the witnesses testify 367 153. The Appeals Chamber observes that the decisions denying the recall of Witnesses QAQ and QAR indicate that Judge Bossa, along with the two other judges.on the bench, considered that Ndayambaje had failed to raise specific issues in the evidence of these two witnesses that involved matters of credibility which the judges needed to assess in light of the witnesses' "visually observable" demeanour. 368 While Ndayambaje contests the credibility of the two witnesses, he does not demonstrate that the Trial Chamber erred in finding that he had failed to raise specific issues of this sort in his motions seeking the recall of Witnesses QAQ and QAR.

154. Turning to Ndayambaje's argument that he was convicted by only two judges, the Appeals Chamber recalls its finding in the Appeal Decision on Continuation of Trial that the question of adequacy of the record, including the availability of video-recordings, was a matter for the substitute judge? In this case, Judge Bossa certified her familiarisation with the record despite the absence of video-recordings,370 which demonstrates that she considered that the record of proceedings provided to her was sufficient to enable her to appreciate what had happened. 371 The decisions denying the recall of Witnesses QAQ and QAR further reveal that Judge Bossa did on the basis of the written transcripts and audio recordings of the proceedings as the role of the trial judge cannot be fulfilled by an assessment "on paper". See ibid., para. 325; Ndayambaje Notice of Appeal, para.

127. Appeal Brief, para, 376; Ndayambaje Reply Brief, para.

124. Ndayambaje Notice of Appeal, para. 132; Ndayambaje Appeal Brief, paras. 327, referring to Mugombwa Church and the abduction of Tutsi women and girls in June 1994. 366 Prosecution Response Brief, paras. 40-42. 367 Prosecution Response Brief, para. 41. 368 6 May 2004 Decision on Motion to Recall Witness QAQ, para. 9; 6 May 2004 Decision on Motion to Recall Witness QAR, para. 12. 369 Appeal Decision on Continuation of Trial, paras. 31-33. 370 See Judge Bossa Certification. 371 Cf. Appeal Decision on Continuation of Trial, para. 33 ("But [the substitute judge] may feel that, even in the absence of video-recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved".). 53 Case No. ICTR-98-42-A 14 December 2015

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20312/H not consider that there were issues in relation to the evidence of these two witnesses which involved credibility matters that she needed to assess by observing the witnesses' demeanour 372 Ndayambaje does not demonstrate that this determination was so unfair or unreasonable as to constitute an abuse of the Trial Chamber's discretion.

155. Based on the foregoing, the Appeals Chamber dismisses Ndayambaje's challenges against the 6 May 2004 Decision on Motion to Recall Witness QAQ and the 6 May 2004 Decision on Motion to Recall Witness QAR.

3. Alleged Errors in the Trial Judgement 156. In the Trial Judgement, the Trial Chamber stated that: The Nyiramasuhuko Defence avers that Nyiramasuhuko was prejudiced by the fact that Judge Bossa was not present during the presentation of the Prosecution's case and, consequently, did not hear all the Prosecution witnesses testify in person, as she was only appointed to the Bench in 2004.373 The Trial Chamber rejected Nyiramasuhuko's contention, reasoning as follows: As contemplated by the [Appeal Decision on Continuation of Trial], Judge Bossa did not personally hear all of the Prosecution's evidence in this case. She did, however, familiarise herself with the evidence adduced before she joined the current Bench on the basis of both the written transcripts and audio recordings of the proceedings. Where it was necessary to assess a particular witness' credibility in light of the witness' demeanour, the Chamber granted the motions to recall particular witnesses to be re-heard on specific issues. In such cases, involving Witnesses QCB, QY, SJ, QBQ and QA, Judge Bossa based her assessment of the witness' demeanour on the testimony given when the witness was recalled. The Trial Chamber's approach to this issue has already been endorsed by the Appeals Chamber, and the Nyiramasuhuko Defence demonstrates no new fact, material change in circumstance, or legal error associated with the

Chamber's approach. Accordingly, the Chamber will not reconsider its decision on this issue. 374 157. Nyiramasuhuko submits that the Trial Chamber distorted her closing arguments and failed to understand that she was not requesting reconsideration of the decisions on the continuation of the trial with a substitute judge but, instead, that she was arguing that the withdrawal of 30 Prosecution witnesses constituted new circumstances which led to the violation of her fair trial rights.?7s She argues that the Trial Chamber therefore erred in finding that she had not demonstrated the existence of any new fact, material change in circumstance, or legal error related to the Appeals Chamber's approach since it was not her argument 376 158. Nyiramasuhuko further contends that the Trial Chamber erred by suggesting that Prosecution Witnesses QCB, SJ, QBQ, and QA were recalled to allow Judge Bossa to assess their 372 Cf. 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, para. 32. 373 Trial Judgement, para. 156 (internal reference omitted). 374 Trial Judgement, para. 159 (internal reference omitted). 375 Nyiramasuhuko Appeal Brief, paras. 186-189. 376 Nyiramasuhuko Appeal Brief, para. 190. 54 Case No. ICTR-98-42-A 14 December 2015

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20311/H credibility, arguing that they were recalled for other reasons.3" Similarly, Ntahobali contends that the Trial Chamber erred by stating that it adopted the practice of recalling witnesses that Judge Bossa had not observed in court on specific issues as, in fact, it rejected the entirety of his requests to recall witnesses.378 159. Ntahobali and Nyiramasuhuko submit that, despite their arguments in this respect at trial and the importance of this factor, the Trial Chamber's failure in the Trial Judgement to refer to the behaviour of the Prosecution witnesses when assessing these witnesses' credibility caused them prejudice 379 This, Nyiramasuhuko argues, amounts to a failure to provide a reasoned opinion and leads to the conclusion that the credibility and reliability of the testimonial evidence was not properly evaluated by the Trial Chamber, which renders the trial unfair.380 Nyiramasuhuko and Nahobali also contend that they were ultimately tried by only two judges in violation of Article 11 of the Statute.381 As relief, Nyiramasuhuko and Ntahobali request a permanent stay of proceedings.* In the alternative, Nyiramasuhuko requests her acquittal on all counts, and Ntahobali requests the exclusion of the testimonial evidence that Judge Bossa did not observe. 383 In a further alternative, Ntahobali argues that the Appeals Chamber should not accord to the Trial Chamber's findings the deference normally due on the ground that the trial judges observed the witnesses in person.384 160. The Prosecution did not specifically respond to these arguments.

161. The Appeals Chamber observes that the Trial Chamber addressed Nyiramasuhuko's claim that it was necessary to recall the relevant witnesses in light of the reduction of the number of Prosecution witnesses in the 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses. 385 Since Nyiramasuhuko's claim had already been adjudicated, the Appeals Chamber finds that the Trial Chamber did not err in considering that, by raising it again in her closing arguments, Nyiramasuhuko was seeking reconsideration of the approach the Trial Chamber had taken. In light of Nyiramasuhuko's closing arguments and the relevant portion of the Trial Judgement, the Appeals Chamber finds no merit in Nyiramasuhuko's argument that the Trial Chamber failed to address her contention. 377 Nyiramasuhuko Appeal Brief, paras. 197, 198. 378 Ntahobali Appeal Brief, para. 115. 379 Nyiramasuhuko Appeal Brief, paras. 225, 228, 233, 238; Ntahobali Appeal Brief, para. 116. specific Prosecution wine Ber ding the 5,170, 9, 23, 236 357, Should have to po expres thy dischased a of taken into consideration. See ibid., paras. 234, 235. 383 Nyiramasuhuko Appeal Brief, para. 242; Ntahobali Appeal Brief, para. 118. 55 Case No. ICTR-98-42-A 14 December 2015

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20310/H 162. With respect to Nyiramasuhuko's submission that the Trial Chamber erred by suggesting that Prosecution Witnesses QCB, SJ, QBQ, and QA were recalled to allow Judge Bossa to assess their credibility, the Appeals Chamber notes that, regardless of the reason why these witnesses were recalled, Judge Bossa was able to observe their demeanour in court. The Appeals Chamber also finds no merit in Ntahobali's contention that the Trial Chamber's rejection of his requests to recall witnesses demonstrates that the Trial Chamber did not recall witnesses where it was necessary to assess their credibility in light of their demeanour.

163. As for the arguments concerning the absence of reference in the Trial Judgement to the observable demeanour of the witnesses when testifying, the Appeals Chamber recalls that a trial chamber is not required to articulate each step of its reasoning and to discuss each submission made at trial. 386 With regard to factual findings, a trial chamber is only required to make findings of those facts which are essential to the determination of guilt on a particular count. 387 It is to be presumed that the trial chamber has evaluated all the evidence presented to it, as long as there is no indication that the trial chamber completely disregarded any particular piece of evidence.388 Having carefully reviewed the specific instances pointed out by Nyiramasuhuko and Ntahobali in support of their claim, the Appeals Chamber is not persuaded that the absence of express reference to specific behaviour of witnesses in the Trial Judgement indicates that the Trial Chamber disregarded these aspects when assessing their credibility. The Trial Judgement generally reflects a detailed and careful assessment of the testimonial evidence and the fact that the Trial Chamber did not explicitly discuss the elements pointed out by Nyiramasuhuko and Ntahobali fails to demonstrate that the Trial Chamber did not properly assess the credibility and reliability of the witnesses.

164. The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement. 389 In the present case, Judge Bossa certified her familiarisation with the record despite the absence of video-recordings, and the decisions challenged by the appellants under these grounds of appeal reveal that she did not consider that there were particular issues which involved credibility matters that she needed to assess in light of the witnesses' "visually observable" demeanour in court. This indicates that Judge Bossa, together with the two other judges, considered that she was in a position to properly assess the testimonies of the relevant witnesses and appropriately perform 384 Ntahobali Appeal Brief, para. 118. 385 6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses, paras. 1, 6, 33. 386 See, e.g., Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para.

165. See also Kvocka et al. Appeal Judgement, para.

23. Kvocka et al. Appeal Judgement, para.

23. See also Karera Appeal Judgement, para. 20; Ndindabahizi Appeal Judgement, para.

75. Kvocka et al. Appeal Judgement, para.

23. See also Karemera and Ngirumpatse Appeal Judgement, para. 215 Karera Appeal Judgement, para. 20; Ndindabahizi Appeal Judgement, para. 75 56 Case No. ICTR-98-42-A 14 December 2015

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20309/H her duties in this case. Nothing in the Trial Judgement suggests that such an assessment did not take place and that the appellants were only tried by the two judges who observed all testimonies live. The Appeals Chamber accordingly dismisses these arguments.

4. Conclusion 165. For the foregoing reasons, the Appeals Chamber dismisses Ground 5 of Nyiramasuhuko's appeal, Ground 1.6 of Ntahobali's appeal, and Ground 16 of Ndayambaje's appeal in their entirety. 389 See supra, para. 140. 57 Case No. ICTR-98-42-A 14 December 2015

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20308/H D. Addition of Witnesses to the Prosecution's Witness List (Nyiramasuhuko Ground 10; Ntahobali Ground 1.11) 166. On 30 March 2004, the Trial Chamber granted the Prosecution's request to remove 30 witnesses from its witness list and, against the objections of the co-Accused, to add Expert Witness Évariste Ntakirutimana as well as Witnesses FA and FCC. 390 The Trial Chamber found that it was in the interests of justice to add these prospective witnesses to the Prosecution's witness list. 391 The Prosecution ultimately did not call Witness FCC to testify.392 167. In their closing submissions, Ntahobali and Nyiramasuhuko argued that their right to prepare their defence had been violated by a lack of sufficient notice of Witnesses Ntakirutimana's and FA's evidence, and requested the exclusion of their evidence. 393 In the Trial Judgement, the Trial Chamber found that no prejudice had been established as a result of Witnesses Ntakirutimana and FA being permitted to testify and found no reason to reconsider its 30 March 2004 Decision. 394 The Trial Chamber relied on the evidence of Witness Ntakirutimana in finding Nyiramasuhuko liable for conspiracy to commit genocide39 and on that of Witness FA in relation to several of Ntahobali's convictions 396 The Trial Chamber did not rely on Witness FA's evidence in support of any of Nyiramasuhuko's convictions. 397 168. Nyiramasuhuko

submits that the Trial Chamber erred in its 30 March 2004 Decision in concluding that the addition of Witnesses Ntakirutimana, FA, and FCC to the Prosecution's witness list at a late stage of the proceedings was in the interests of justice. 398 She contends that the Trial 390 30 March 2004 Decision, paras. 10-19, 37, pp. 8, 9. The Appeals Chamber notes that, in the Trial Judgement, the Trial Chamber referred to Expert Witness Ntakirutimana at times as "Francis" Ntakirutimana (see Trial Judgement, paras. 589, 594, 695, p. 151) and at times as "Evariste" Ntakirutimana (see ibid., paras. 194, 457, 476, 3602, 3768, 4446, 6400, pp. 880, 921, 1080). The Appeals Chamber observes that Expert Witness Ntakirutimana testified that his name was "Évariste Ntakirutimana". See Évariste Ntakirutimana, T. 13 September 2004 pp. 3, 4. The Appeals Chamber therefore considers the Trial Chamber's reference to "Francis" to be a typographical error. 391 30 March 2004 Decision, paras. 31-33. Witness FA testified on 30 June and 1 July 2004, Expert Witness Ntakirutimana testified on 13 and 14 September 2014. 392 See T. 9 September 2004 p. 39 (closed session). 393 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Arsène Shalom Ntahobali's Final Trial Brief and Annexes Thereto, 17 February 2009 (originally filed in French, English translation filed on 20 July 2009) (confidential) ("Ntahobali Closing Brief"'), paras. 80, 81. Ntahobali's submissions were presented on his behalf and on behalf of Nyiramasuhuko. See idem. See also Trial Judgement, para.

2923. Trial Judgement, paras. 460-462, 2926. The Trial Chamber emphasised that Witness FA was only called on 30 June 2004, at the end of the Prosecution case, and that Expert Witness Ntakirutimana was not called until after the end of the Prosecution case, in September 2004. See ibid., paras. 461, 2925, fn. 8099. 395 Trial Judgement, paras. 868, 873, 875-877, 882-884, 890, 893, 897, 898, 919-921. 396 In particular, the Trial Chamber relied on Witness FA's evidence in relation to Ntahobali's convictions regarding crimes committed at the Hotel Ihuliro roadblock, the killing of members of the Rwamukwaya family, and as corroborative evidence with respect to the Butare Prefecture Office. See Trial Judgement, paras. 2345, 2346, 2666 (Butare Prefecture Office), 3118, 3119, 3123, 3128, 3141, 3144 (Hotel Ihuliro roadblock), 3203-3207, 3209-3213, 3219 (killing of the Rwamukwaya family). 397 Trial Judgement, paras. 3145-3150. 398 Nyiramasuhuko Notice of Appeal, para. 1.68; Nyiramasuhuko Appeal Brief, para.

384. See also Nyiramasuhuko Notice of Appeal, para. 3.60. 58 Case No. ICTR-98-42-A 14 December 2015

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20307/H Chamber erred in effectively authorising the Prosecution to mould its case in light of the evidence already presented, emphasising that the Prosecution was in possession of Witness Ntakirutimana's report since December 2002 and had failed to give notice of its intention to call an expert witness in support of its allegations concerning Nsabimana's Swearing-In Ceremony. 3%9 Nyiramasuhuko also argues that the considerable time she had to spend investigating and preparing for the testimonies of Witnesses FA and FCC and convincing an expert to come testify to counter Witness Ntakirutimana's evidence prejudiced her in the preparation of her defence. 4º According to Nyiramasuhuko, the Trial Chamber failed to strike a proper balance between the Prosecution's obligation to present the best available evidence and her fundamental right to prepare her defence. 401 Nyiramasuhuko requests that the Appeals Chamber recognise "the cumulative violation of Article 20(4)(b) of the Statute" and order a complete stay of proceedings. 402 169. Ntahobali submits that the Trial Chamber erred in concluding that the addition of Witness FA to the Prosecution's witness list was in the interests of justice. 03 He contends that the Trial Chamber failed to address some of his arguments and failed to consider or erroneously minimised the prejudice arising from: (i) the impossibility of cross-examining

witnesses who had already testified on matters to be raised by Witness FA in her forthcoming testimony; (ii) the addition of the witness at such an advanced stage of the proceedings; and iii) the disclosure of the witness's identity and unredacted statements ten years after the alleged facts. 104 170. Ntahobali also contends that, contrary to the Trial Chamber's finding, the time period between the disclosure of Witness FA's particulars and her taking the stand was insufficient for him to adequately prepare for cross-examination.405 Like Nyiramasuhuko, he argues that the Trial Chamber erred in its assessment of the balance that had to be struck between the Prosecution's obligation to present the best available evidence and his right to be afforded adequate time and 399 Nyiramasuhuko Notice of Appeal, paras. 1.70, 1.71; Nyiramasuhuko Appeal Brief, paras. 379-382. 400 Nyiramasuhuko Notice of Appeal, para. 1.72; Nyiramasuhuko Appeal Brief, paras. 381, 382. 401 Nyiramasuhuko Notice of Appeal, para. 1.72; Nyiramasuhuko Appeal Brief, para. 383. 402 Nyiramasuhuko Appeal Brief, para. 385. 403 Ntahobali Notice of Appeal, para. 69; Ntahobali Appeal Brief, paras. 131, 132, 140. 404 Ntahobali Notice of Appeal, para. 69; Ntahobali Appeal Brief, paras. 131-135, 140. In particular, Ntahobali argues that the Trial Chamber failed to consider his arguments that: (i) when Witness FA's identity

was finally disclosed, 44 Prosecution witnesses had already testified, including all the witnesses who testified about the crime scenes Witness FA would cover; (ii) the substantial lapse of time between the events and the disclosure of Witness FA's particulars rendered the investigations into her allegations extremely difficult; and (iii) despite being in possession of Witness FA's statements since 26 November 1996 and asserting that her evidence constituted the best available evidence, the Prosecution did not explain why it had not included Witness FA in its original witness list. See Ntahobali Appeal Brief, paras. 133-135, referring to The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-T, Réponse de Arsène Shalom Ntahobali à la Requête du Procureur pour retirer de sa liste de témoins trente témoins et y ajouter trois nouveaux témoins, 23 February 2004 ("Ntahobali Response to Prosecution Motion to Vary Witness List"), paras. 50, 53-61. 405 Ntahobali Appeal Brief, para. 134. 59 Case No. ICTR-98-42-A 14 December 2015

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20306/H facilities to prepare his defence. 4* Relying on trial decisions of the ICTY in the Mrksié et al. case, Ntahobali argues that the Trial Chamber should have denied the addition of Witness FA given the closing stage of the Prosecution case and the Prosecution's failure to explain why the request was not presented at an earlier stage."? Ntahobali further argues that the Trial Chamber erred in allowing the Prosecution to substitute a number of witnesses with a single witness whose testimony did not cover the same facts. 408 171. In addition, Ntahobali submits that, in the Trial Judgement, the Trial Chamber erred in failing to acknowledge that his rights had been prejudiced, a finding which would have required the exclusion of Witness FA's evidence.40' He contends that the Trial Chamber erred in relying on Witness FA's evidence for convicting him even though it was clear that the Prosecution merely added this evidence to mould its case in light of the evidence already presented. 410 Ntahobali requests that the Appeals Chamber exclude the evidence of Witness FA in its entirety, and consequently overturn his convictions for the murder of members of the Rwamukwaya family and in relation to the events at the Hotel Ihuliro roadblock. 411 172. The Prosecution responds that Nyiramasuhuko and Ntahobali fail to show any error or abuse of discretion in the Trial Chamber's decision to

authorise the addition of Witnesses Ntakirutimana and FA and do not substantiate their claim that the addition of these witnesses caused them prejudice. 412 It further contends that, in support of its request to add Witness FA, it specifically argued that other witnesses who could have testified to the events at the Hotel Ihuliro roadblock were deceased, making the witness's evidence unique and valuable to prove several counts. 413 173. Ntahobali replies that his ability to investigate Witness FA's allegations was greatly affected by the hearings held at the time and the need to investigate another new witness and prepare for the 406 Ntahobali Appeal Brief, para. 136. 407 Ntahobali Appeal Brief, para. 137, referring to Prosecutor v. Mile Mrksié et al., Case No. IT-95-13/1-T, Decision on Prosecution Motion to Amend Its Rule 65 ter List, 6 June 2006, paras. 3-6, Prosecutor.v. Mile Mrksié et al., Case No. IT-95-13/1-T, Decision on Prosecution Motion to Amend Its Rule 65ter Witness List, 28 April 2006, paras. 3-5. 408 Ntahobali Appeal Brief, para.

139. Ntahobali argues that the Prosecution sought to remove these witnesses primarily because it had become apparent that they lacked credibility. See Ntahobali Reply Brief, para. 39. 409 Ntahobali Appeal Brief, paras. 131, 140. 410 Ntahobali Notice of Appeal, para. 69; Ntahobali Appeal Brief, para.

138. Ntahobali avers that Witness FA is the only Prosecution witness to implicate him in relation to the murder of members of the Rwamukwaya family and to testify about meetings at the Hotel Ihuliro. He contends that Witness FA added several elements in respect of the crimes committed at the Hotel Ihuliro roadblock allowing the Prosecution to re-fashion its case, irreparably affecting the integrity of the proceedings. See Ntahobali Appeal Brief, para. 138. 411 Ntahobali Appeal Brief 140, referring to Trial Judgement, paras. 3108-3113, 3118-3128, 3141-3144, 3203-3219. The Appeals Chamber recalls that it has elected to refer to the roadblock which Ntahobali refers to as the "BER roadblock" as the "Hotel Ihuliro roadblock" throughout this Judgement. See supra, fn. 51. 412 Prosecution Response Brief, paras. 104-107, 754, 756, 757. 413 Prosecution Response Brief, para. 761, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Prosecutor's Motion to Drop and Add Witnesses, 12 January 2004 ("Prosecution Motion to Vary Witness List"), paras. 7, 20. 60 Case No. ICTR-98-42-A 14 December 2015

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20305/H cross-examination of expert witnesses. 4* He also submits that, despite the Prosecution's assertion that Witness FA was added because of the death of a number of other prospective witnesses, none of the removed witnesses was expected to testify about the events at Hotel Ihuliro and its roadblock. 415 174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.416 The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party's witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference. 417 175. In the view of the Appeals Chamber, the 30 March 2004 Decision reflects that the Trial Chamber duly considered the potential prejudice caused to the Defence by

the addition of Witnesses Ntakirutimana, FA, and FCC to the Prosecution's witness list at that stage of the proceedings, 18 Notably, the Trial Chamber recalled that it was required to take into consideration the "prejudice to the Defence, including elements of surprise, on-going investigations, replacements and corroboration of evidence" and to balance the Prosecution's duty to present the best available evidence against the right of the accused to have adequate time and facilities to prepare his defence 414 Ntahobali Reply Brief, para.

35. See also ibid., para. 34. 415 Ntahobali Reply Brief, para. 39. 416 See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution's Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadzic, Case No. IT-95-5/18-T, Decision on Prosecution's Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momcilo Perisié, Case No. IT-04- 81-T, Decision on Prosecution's Motion to Substitute Expert Witness, 30 October 2009 ("Perisic 30 October 2009 Decision"), para. 6; Prosecutor v. Vlastimir Dordevié, Case No. IT-05-87/1-T, Decision on Prosecution's Motion to Add Milan Dakovié to the Rule 65ter Witness List, 21 May 2009 ("Đordevié 21 May 2009 Decision"), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor's Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para.

13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23. 417 See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware's Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 ("Ngirabatware Appeal Decision"), para. 12; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi's Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 ("21 August 2007 Appeal Decision"), para. 10; Prosecutor v. Milan Milutinovié et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 ("Milutinovié et al. Appeal Decision"), paras. 9, 10. 418 See 30 March 2004 Decision, paras. 28-30. 61 Case No. ICTR-98-42-A 14 December 2015

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20304/H and his right to be tried without undue delay. 419 The Trial Chamber took into account that Witness Ntakirutimana's report and the redacted statements of Witnesses FA and FCC had been disclosed to the parties on 12 January 2004 and that the Prosecution submitted that it would not call them "for at least two months following disclosure of their identities to the Defence or call the expert witness until the end of its case."420 In granting the Prosecution's motion, the Trial Chamber also directed that the newly added witnesses testify at the end of the Prosecution case "[iln consideration of the interests of the Accused and the fair administration of the proceedings". 421 It further ordered that the unredacted witness statements be disclosed immediately "in order to avoid any delay which could prejudice the Defence in its preparation" 422 In the Trial Judgement, the Trial Chamber emphasised that Witness FA was only called on 30 June 2004, at the end of the Prosecution case, and that Witness Ntakirutimana was called after the Defence cases had already started, in September 2004.423 176. Nyiramasuhuko does not demonstrate how the time the Trial Chamber allocated for the preparation of the testimonies of the new witnesses was insufficient to prepare an adequate defence. On this matter, it bears noting that Nyiramasuhuko cross-examined Witnesses Ntakirutimana and FA424 and

called Expert Witness Shimamungu to counter Expert Witness Ntakirutimana's evidence.425 Likewise, Nyiramasuhuko does not substantiate her claim that the time she had to spend investigating and preparing for the testimonies of Witnesses Ntakirutimana, FA, and FCC prejudiced her in the preparation of her defence or that she was not given enough time to prepare for the hearing of these three Prosecution witnesses.

177. Turning to Ntahobali's argument that the Trial Chamber failed to consider some of his submissions, the Appeals Chamber recalls that, as a general rule, a trial chamber is not required to articulate every step of its reasoning for each finding it makes126 and that it is within its discretion 419 30 March 2004 Decision, para.

28. See also ibid., para. 36. 420 30 March 2004 Decision, paras. 31, 34. 421 30 March 2004 Decision, para.

36. See also ibid., para. 42, p. 8. 122 30 March 2004 Decision, para.

39. See also ibid., para. 42, p.

8. The Trial Chamber noted that the Prosecution had disclosed the redacted version of Witness FA's statement on 12 January 2004. See ibid., para. 31. 423 Trial Judgement, paras. 461, 2925, fn.

8099. See Witness FA, T. 1 July 2004 pp. 51-53, 58-85 (closed session), 54-57; Évariste Ntakirutimana, T. 14 September 2004 pp. 30-33. Nyiramasuhuko Expert Witness Eugène Shimamungu testified from 15 to 17, from 21 to 24, and from 29 March 2005 to 1 April 2005. The Appeals Chamber also notes that Nyiramasuhuko introduced Expert Witness Shimamungu's report into evidence. See Exhibit D278B ("Butare 1994: Political Communication of the 'Abatabazi' Interim Government and its Impact on the Population") (confidential); Exhibit D279B (Annex 2 of Shimamungu Report entitled "Schedule 2: Comparative Table of Translations of Speeches of President Théodore Sindikubwabo, on 19 April 1994 in Butare"); Exhibit D280 (French version of Annex 3 of Shimamungu Report entitled "Annexe 3: Les Occurrences de la racine [+ Kor-]dans le discours de Theodore Sindikubwabo"). See, e.g., Ntabakuze Appeal Judgement, para. 161; Nchamihigo Appeal Judgement, para. 165; Musema Appea udgement, paras. 18, 20; Celebici Appeal Judgement, para.

498. The Appeals Chamber considers that, although 62 Case No. ICTR-98-42-A 14 December 2015

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20303/H as to which arguments to address.427 While the Trial Chamber did not expressly address some of Ntahobali's objections to the addition of Witness FA, the 30 March 2004 Decision reflects that the Trial Chamber appropriately balanced the Prosecution's right to vary its witness list against the co-Accused's fair trial rights and potential prejudice before concluding that the addition of Witness FA was in the interests of justice.

178. The Appeals Chamber observes that Ntahobali is correct in his submission that none of the 30 prospective witnesses dropped by the Prosecution was expected to testify about events at the Hotel Thuliro roadblock.429 The Prosecution's contention that it requested the addition of Witness FA because other witnesses who could testify about these events were deceased therefore does not explain why Witness FA was not included in the original witness list. However, the purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call "after the commencement of [trial". Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.430 The Appeals Chamber further notes that the addition of Witness FA was not granted on the basis of a substitution. Rather, the Trial Chamber examined the materiality of the witness's proposed testimony to the case before it, determined that it "could address specific factual circumstances which [were] relevant to the case", 431 and concluded that the witness's addition would be in the interests of justice. 432 Even though the Prosecution had failed to provide a cogent explanation as to why Witness FA was not included in its original witness list, it was within the purview of the Trial Chamber to reach these conclusions and to grant leave to add Witness FA to the Prosecution's witness list.

179. Ntahobali largely repeats submissions made at trial but does not show how the Trial Chamber abused its discretion in finding that it was in the interests of justice to authorise the developed in the context of findings reached in a trial judgement, this rule equally applies to trial chambers' findings in interlocutory decisions. 427 Kvocka et al. Appeal Judgement, para.

23. See also Haradinaj et al. Appeal Judgement, para. 128; Furundäija Appeal Judgement, para.

69. The Trial Chamber did not expressly address Ntahobali's arguments that: (i) the addition of Witness FA at this late stage of the proceedings made it impossible for him to cross-examine witnesses who had already testified on matters raised by Witness FA in her upcoming testimony; (ii) the substantial lapse of time between the events and the disclosure of Witness FA's particulars rendered the investigations into her allegations extremely difficult; and (iti) the Prosecution had not explained why Witness FA had not been included in its original witness list. See Ntahobali Response to Prosecution Motion to Vary Witness List, paras. 26, 27, 49, 50, 53; 30 March 2004 Decision, paras. 28-39. 429 See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. 98-42-T, Prosecutor's Pre-Trial Brief Pursuant to Rule 73bis(B), 11 April 2001 ("Prosecution Pre-Trial Brief"), "List of Intended Prosecution Witnesses Butare Cases - Witness Summaries Grid (6 April 2001) Appendix" ("Witness Summaries Grid"). 430 See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu's Request to Vary His Witness List, 26 May 2008, paras. 5, 6. 431 See 30 March 2004 Decision, para.

32. See also ibid., paras. 28, 33. 432 See 30 March 2004 Decision, paras. 28, 32, 33. 63 Case No. ICTR-98-42-A 14 December 2015

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20302/H addition of Witness FA. In particular, like Nyiramasuhuko, he does not demonstrate how the time the Trial Chamber allocated for the preparation of the testimony of Witness FA was insufficient to conduct the necessary investigation. Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,433 the Appeals Chamber finds that Ntahobali's reliance on the Mrksié et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.434 The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand. 435 It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party's presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis.

180. The Appeals Chamber thus finds that, like those of Nyiramasuhuko, Ntahobali's submissions fail to demonstrate an error in the Trial Chamber's exercise of its discretion in granting the Prosecution's request to add Witness FA to its witness list. Likewise, the Appeals Chamber finds that Ntahobali fails to demonstrate the existence of prejudice which the Trial Chamber should have considered in the Trial Judgement. In the absence of a demonstration of an error in the 30 March 2004 Decision and of any subsequent prejudice, there is no merit in Nyiramasuhuko's and Ntahobali's submission that the Trial Chamber should not have relied upon Witnesses Ntakirutimana's and FA's testimonies. Nyiramasuhuko's and Ntahobali's argumentt36 that the Prosecution should not have been permitted to mould its case is also not pertinent in light of the express provision in the Rules allowing the Prosecution to amend its witness list in the course of the presentation of its case.

181. Accordingly, the Appeals Chamber dismisses Ground 10 of Nyiramasuhuko's appeal and Ground 1.11 of Ntahobali's appeal. * steer and readie tuber 200 . 7-98.321-1, iside in Pose on Poon on Amen i Prestons Witness List (Dr. Fagel), 3 November 2008, p. 3 434 Haradinaj et al. Appeal Judgement, para. 39 136 The Appeals Chamber notes that the jurisprudence Ntahobali relies upon with respect to his argument relates tr notice of charges. See Ntahobali Appeal Brief, para. 138, referring to Naletilié and Martinovié Appeal Judgemen 64 Case No. ICTR-98-42-A 14 December 2015

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20301/H E. Presence of Prosecution Witnesses in the Courtroom During Objections (Ntahobali Ground 1.9; Ndayambaje Ground 14) 182. In the Trial Judgement, the Trial Chamber recalled that it determined on 30 January 2004 that, for the remainder of the trial, witnesses would be excluded from the courtroom during objections and associated arguments raised during the course of their testimony, 437 183. Ntahobali and Ndayambaje submit that the Trial Chamber erred in law and in fact in failing to exclude the witnesses from the courtroom during objections by the parties prior to 30 January 2004.438 They argue that the witnesses' presence made it possible for them to adjust their testimony based on the arguments advanced by the parties 39 and that, by applying the non-exclusion rule during the major part of the presentation of the Prosecution evidence, the Trial Chamber put the Prosecution at an undue advantage. 410 Ntahobali and Ndayambaje contend that this violated their rights to equality of arms and to a fair trial, causing them serious prejudice. 441 Ntahobali requests a stay of the proceedings or, alternatively, compensation. 442 Ndayambaje requests that the testimonies of Prosecution Witnesses QAR, TO, and QAQ be excluded from the record. 443 184. The Prosecution did not respond to these submissions. 144 185. The Appeals Chamber observes that Ndayambaje does not point to any

instance in the trial record demonstrating that the witnesses he refers to may have adjusted their testimonies upon hearing the parties' arguments relating to objections. Similarly, Ntahobali does not demonstrate that he actually suffered any prejudice as a result of the Trial Chamber not excluding witnesses from the 437 Trial Judgement, para. 154, referring to T. 30 January 2004 p. 10. 438 Ntahobali Notice of Appeal, paras. 58-63; Ndayambaje Notice of Appeal, paras. 113-115. Ntahobali contends that the situation concerns Prosecution Witnesses Shukry, TA, QJ, QCB, TN, SJ, TK, SU, QBP, RE, SD, SS, QY, and FAP Ndayambaje refers specifically to Prosecution Witnesses QAR, TO, and QAQ. See Ntahobali Notice of Appeal, para. 60; Ndayambaje Notice of Appeal, para. 113. +39 Ndayambaje Notice of Appeal, para. 113 440 Ntahobali Notice of Appeal, paras. 58, 59. 441 Ntahobali Notice of Appeal, paras. 59, 61; Ndayambaje Notice of Appeal, paras. 114, 115. Ntahobali explained that he could not develop Ground 1.9 in his appeal brief due to the word limit imposed on the brief. Likewise, Ndayambaje did not develop his arguments in his appeal brief, simply referring to his notice of appeal. See Nahobali Appeal Brief, para. 129; Ndayambaje Appeal Brief, para.

294. In contrast, Nyiramasuhuko formally abandoned Ground 6 of her appeal relating to the presence of witnesses during the parties' objections. See Nyiramasuhuko Appeal Brief, para.

7. Based on the language used in their appeal briefs, the Appeals Chamber considers that neither Ntahobali nor Ndayambaje has abandoned their respective ground of appeal and is of the view that the arguments Ntahobali and Ndayambaje developed in their notices of appeal in support of their allegations of error should be addressed as a matter of fairness. 442 Ntahobali Notice of Appeal, paras. 62, 63 (French). 443 Ndayambaje Notice of Appeal, para. 115. 444 The Prosecution explained that it considers that, by not presenting arguments in his appeal brief, Ntahobali has abandoned his Ground 1.9. See Prosecution Response Brief, para.

753. The Appeals Chamber further notes that, contrary to its submission, the Prosecution failed to address Ndayambaje's Ground 16. See ibid., para. 2169 and Section I. 65 Case No. ICTR-98-42-A 14 December 2015

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20300/H courtroom during arguments pertaining to objections prior to 30 January 2004. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in the conduct of proceedings before them, including in the modalities of examination of witnesses,445 and that, in order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber committed a discernible error resulting in prejudice to that party. 446 Having failed to demonstrate any prejudice, the Appeals Chamber dismisses Ntahobali's and Ndayambaje's submissions.

186. Accordingly, the Appeals Chamber dismisses Ground 1.9 of Ntahobali's appeal and Ground 14 of Ndayambaje's appeal. 445 See Lukié and Lukic Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 182; Prlié et al. Appeal Decision on Joinder, p.

3. Judgemen, Na. imana Appeal Judgement, para. 14; Lukie and Lukie Appeal Judgement, para, 17; Serako Appeal 66 Case No. ICTR-98-42-A 14 December 2015

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20299/H F. Cross-Examination of Prosecution Witness TA (Nyiramasuhuko Ground 12 in part; Ntahobali Ground 1.5 in part) 187. On 24 October 2001, the Trial Chamber denied Nyiramasuhuko's and Ntahobali's oral request for the postponement of the cross-examination of Prosecution Witness TA.147 Nyiramasuhuko and Ntahobali argued that they were not able to conduct the cross-examination of Witness TA as the Prosecution had failed to disclose the identity and unredacted statements of most of its protected witnesses expected to give evidence in relation to the same allegations about which Witness TA was to testify. 48 The Trial Chamber held that the "parties ha[d] sufficient information upon which they could carry on their cross-examination" 449 Ntahobali's counsel conducted the cross-examination of Witness TA from 29 October to 1 November 2001, while Nyiramasuhuko's counsel cross-examined Witness TA on 1, 5, and 6 November 2001.450 188. On 24 November 2008, Ntahobali requested the Trial Chamber to exclude the evidence of Witness TA or, alternatively, to recall the witness for further cross-examination, notably on the ground that the Prosecution's delayed disclosure of the full unredacted statements and personal particulars of its other witnesses impaired his right to effectively cross-examine Witness TA. 451 The Trial Chamber dismissed Ntahobali's request on 19 January 2009 on the basis

that the issue of the Prosecution's failure to comply with its disclosure obligations was settled and did not need re-litigation since measures were taken to remedy these failures, including and not limited to the issuance of warnings to Prosecution counsel, and that the request had no legal basis.452 The Trial Chamber relied on Witness TA's evidence in finding Nyiramasuhuko and Ntahobali criminally liable for crimes perpetrated at the Butare Prefecture Office. 453 189. Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in dismissing their request to postpone the cross-examination of Witness TA on the crimes allegedly committed during attacks at the Butare Prefecture Office despite the fact that they had not been provided with the identity and the unredacted statements of several protected witnesses the Prosecution intended to 447 Witness TA, T. 24 October 2001 pp. 83-85 ("24 October 2001 Oral Decision"). 448 Witness TA, T. 24 October 2001 pp. 69-74, 79, 80. 449 24 October 2001 Oral Decision. 450 Witness TA testified on 24, 25, 29, 30, and 31 October 2001 as well as on 1, 5, 6, 7, and 8 November 2001. Witnesses" ), paras. 54, 57, 101-105, p. 26. 452 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for Exclusion of Evidence or for Recall of Witnesses, 19 January 2009 ("19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses"), paras. 20, 27, p. 6, referring to 26 November 2008 Decision, para. 61. 453 Trial Judgement, paras. 2644, 2653, 2773. 67 Case No. ICTR-98-42-A 14 December 2015

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20298/H call in relation to these allegations.* They argue that, as a result, they were not able to counter Witness TA's allegations with the information contained in the other witnesses' statements, which prevented them from conducting an effective cross-examination of the witness in violation of their fundamental rights. Ntahobali points out that the Trial Chamber itself had recognised that the provision of all unredacted statements and identities of all witnesses was crucial to allow him to prepare an adequate defence. 456 Nyiramasuhuko also highlights that her convictions relating to the attack conducted at the prefectoral office in mid-May 1994 were based solely on the evidence of Witness TA. 457 190. Ntahobali further submits that the Trial Chamber erred in its 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses in denying the request to recall Witness TA for further cross-examination. 458 He contends that the issuance of warnings did not remedy the prejudice he suffered for not being able to cross-examine Witness TA effectively.459 Ntahobali argues that because he was deprived of the relevant statements when cross-examining Witness TA, he could not, for instance, question her on her ties with other witnesses whom she denied knowing. 460 191. The Prosecution responds that Nyiramasuhuko and Ntahobali fail to demonstrate how they were prejudiced in

their material ability to prepare their defence. 461 192. It is not disputed that, at the time of Witness TA's cross-examination, the Prosecution had failed to comply with its disclosure obligations pursuant to Rules 66(A)(ii) and 69(C) of the Rules, which provided that the Prosecution shall disclose to the Defence "[nJo later than 60 days before the date set for trial, copies of the statements of all witnesses whom the Prosecutor intends to call to 454 Nyiramasuhuko Notice of Appeal, para. 1.77; Nyiramasuhuko Appeal Brief, paras. 388-390; Ntahobali Notice of Appeal, para. 35; Ntahobali Appeal Brief, paras. 97-99; Ntahobali Reply Brief, para.

22. Ntahobali specifies that he was not provided with the identity and the unredacted statements of 34 protected witnesses. See Ntahobali Appeal Brief, para. 98, referring to Ntahobali 24 November 2008 Motion to Recall Witnesses, paras. 56, 57; Witness TA, T. 24 October 2001 pp. 69-83. Nyiramasuhuko's and Ntahobali's other allegations of error under Grounds 12 and 1.5 of their respective appeals are addressed in other sections of this Judgement. See infra, Sections III.G, IV.A.4. Ntahobali further challenges the Trial Chamber's 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses with respect to the amendment of Rule 90(G) of the Rules. This allegation of error is examined infra in Section V.A.1. 455 Nyiramasuhuko Notice of Appeal, para. 1.77; Nyiramasuhuko Appeal Brief, para. 390; Ntahobali Notice of Appeal, para. 35; Ntahobali Appeal Brief, para.

99. See also Nyiramasuhuko Reply Brief, para. 229. 456 Ntahobali Appeal Brief, para. 99, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Disclosure of Evidence, 1 November 2000 (originally filed in French, English translation filed on 27 November 2001) ("1 November 2000 Decision"), para. 33, and The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions by Nyiramasuhuko, Ndayambaje and Kanyabashi on, Inter Alia, Full Disclosure of Unredacted Prosecution Witness Statements, 13 November 2001, para.

16. Nyiramasuhuko Appeal Brief, para. 391, referring to Trial Judgement, para. 2644. 458 Ntahobali Notice of Appeal, para. 35; Ntahobali Appeal Brief, paras. 100, 101. 459 Ntahobali Appeal Brief, para. 100. 460 Ntahobali Appeal Brief, para. 101; Trial Judgement, para. 2176. 461 Prosecution Response Brief, paras. 70-72, 75-77. 68 Case No. ICTR-98-42-A 14 December 2015

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20297/H testify at trial" and that "the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence" 462 Prior to Witness TA's testimony, the Trial Chamber had stressed the importance of disclosing the statements of the witnesses that the Prosecution intended to call so that the accused could be in a position to prepare their defence and, in particular, to fully cross-examine the witnesses.463 Nonetheless, the Trial Chamber held that, since "disclosures ha[d] been made" for a "big part" of the witnesses listed for the session, it "imagine[d] parties ha[d] sufficient information upon which they could carry on their cross-examination once the witness testifies."464 193. The Appeals Chamber considers that the Trial Chamber's ruling does not reflect proper consideration of whether the material disclosed to the Defence was indeed sufficient for adequate preparation and, in particular, for allowing Ntahobali and Nyiramasuhuko to fully cross-examine Witness TA. By merely relying on the fact that a "big part" of the necessary disclosure had been made for that session, the Trial Chamber failed to consider Ntahobali's and Nyiramasuhuko's argument that some of the information which the Prosecution had failed to disclose at the time of Witness TA's testimony would have been relevant to

their cross-examinations.465 The Appeals Chamber considers that, in the absence of a proper consideration of whether the Defence had indeed sufficient information to be able to fully cross-examine Witness TA, the Trial Chamber's conclusion that "parties ha[d] sufficient information upon which they could carry on their cross-examination" was so unreasonable as to constitute an abuse of the Trial Chamber's discretion. The Appeals Chamber therefore concludes that the Trial Chamber committed a discernible error in its 24 October 2001 Oral Decision.

194. However, the Appeals Chamber finds that neither Nyiramasuhuko nor Ntahobali demonstrates that the Trial Chamber's error resulted in prejudice. 466 Indeed, while Nyiramasuhuko and Ntahobali contend that they were prejudiced by their inability to counter Witness TA with the 462 Rule 69(C) of the Rules was amended at the 12" plenary session held on 5 and 6 July 2002 to read: "Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by Trial Chamber to allow adequate time for preparation of the Prosecution and the Defence". The Appeals Chamber observes that the Prosecution does not dispute that it failed to disclose the identity and unredacted statements of seven protected witnesses relevant to the allegations relating to the Butare Prefecture Office. See Prosecution Response Brief, paras. 70, 71. In these circumstances, the Appeals Chamber finds it unnecessary to discuss Ntahobali's contention that he was not provided with the identity and statements of 34 Prosecution witnesses. 1 November 2000 Decision, para.

33. See also The Prosecutor v. Sylvain Nsabimana, Case No. ICTR-97-29-T, Decision on Defence Motion to Limit Possible Evidence to Be Disclosed to the Defence and to Exclude Certain Material Already Disclosed by the Prosecutor, 3 May 2000, p. 5. 464 24 October 2001 Oral Decision. 465 The Appeals Chamber notes that the transcripts of 24 October 2001 do not reflect that this argument was addressed at any point. See 24 October 2001 Oral Decision; Witness TA, T. 24 October 2001 pp. 69-74, 79, 80. The Appeals Chamber recalls that, in order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber committed a discernible error resulting in prejudice to that party. See supra, 69 Case No. ICTR-98-42-A 14 December 2015 154

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20296/H information contained in the witnesses' statements not disclosed at the time, they fail to identify which information contained therein would in fact have been material to their cross-examination of Witness TA. As the only demonstration of prejudice, Ntahobali refers to his inability to question Witness TA on her ties with Witness QBP, whom she denied knowing. Ntahobali, though, refers to information provided by Witness QBP in her testimony before the Trial Chamber, rather than to information provided through any of the witness's prior statements. 467 195. Additionally, in the absence of any demonstration of prejudice resulting from his inability to cross-examine Witness TA on the basis of the information that had not been disclosed at the time, the Appeals Chamber also dismisses Ntahobali's challenge to the 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses without further consideration.

196. For the foregoing reasons, the Appeals Chamber dismisses the relevant parts of Ground 12 of Nyiramasuhuko's appeal and Ground 1.5 of Ntahobali's appeal. 467 See Ntahobali Appeal Brief, para. 101, referring to Witness QBP, T. 29 October 2002 pp. 80, 81 (closed session) (French). 70 Case No. ICTR-98-42-A 14 December 2015

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20295/H G. Refusal to Recall Witnesses (Nyiramasuhuko Ground 7 in part; Ntahobali Ground 1.5 in part) 197. During the course of the trial, Nyiramasuhuko and Ntahobali submitted several motions requesting the recall of Prosecution witnesses for further cross-examination, including Witnesses QBQ, QCB, QJ, QY, TA, and TK.468 The Trial Chamber denied some of these requests 69 and partially granted the others.470 In its decisions, the Trial Chamber set out that the jurisprudence of the Tribunal allowed for the recall of witnesses if good cause had been shown by the moving party. 41 The Trial Chamber stated that, in the assessment of good cause, it would have to consider the purpose of the proposed testimony and the moving party's justification for not having sought such evidence when the witness originally testified.472 The Trial Chamber emphasised that: The recall of a witness should be granted only in the most compelling of circumstances where further evidence is of significant probative value and not of a cumulative nature, such as to explore inconsistencies between a witness's testimony and a declaration obtained subsequently. In case of inconsistencies, the Defence may request the recall of a witness if prejudice can be shown from its inability to put these inconsistencies to that witness. If there is no need for the witness's explanation of the inconsistency, because it is

minor or its nature is self-evident, then the witness will not be recalled. 473 468 See Witness SJ, T. 24 February 2009 pp. 55-58 (closed session) ("24 February 2009 Oral Decision"); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Nyiramasuhuko's Motion for Exclusion of Alternatively for Admission of Documents into Evidence or for Recall of Witness TK, signed 9 December 2008, filed 10 December 2008 ("9 December 2008 Decision on Motion to Recall Witness TK"), p. 2; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Nyiramasuhuko's Motion for Exclusion of Evidence or Admission of the Testimony of Witness QBQ in the Trial of Désiré Munyaneza, or Recall of Witness QBQ, signed 9 December 2008, filed 10 December 2008 ("9 December 2008 Decision on Motion to Recall Witness QBQ"), p. 2; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for the Exclusion of Evidence or for Recall of Prosecution Witnesses QY, SJ, and Others, 3 December 2008 ("3 December 2008 Decision"), p. 2; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions for Recall and Further Cross-Examination of Prosecution Witness QCB, 20 November 2008 ("20 November 2008 Decision"), p. 2; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision

on Ntahobali's Strictly Confidential Motion to Recall Witnesses TN, QBQ, and QY, for Additional Cross-Examination - Rule 54, 73(A), 90(G), Rules of Procedure and Evidence, signed 3 March 2006, filed 4 March 2006 ("3 March 2006 Decision"), paras. 1-15. 469 See 24 February 2009 Oral Decision; 3 December 2008 Decision, p. 7; 20 November 2008 Decision, para. 51; 9 December 2008 Decision on Motion to Recall Witness TK, para. 61. 470 See 3 March 2006 Decision, para. 48; 9 December 2008 Decision on Motion to Recall Witness QBQ, para. 69. 471 9 December 2008 Decision on Motion to Recall Witness TK, para. 37; 9 December 2008 Decision on Motion to Recall Witness QBQ, para. 56; 3 December 2008 Decision, para. 21; 20 November 2008 Decision, para. 35; 3 March 2006 Decision, para. 32. 3 March 2006 Decision, para. 32. 473 9 December 2008 Decision on Motion to Recall Witness TK, para. 37; 9 December 2008 Decision on Motion to Recall Witness QBQ, para. 56; 3 December 2008 Decision, para. 21; 20 November 2008 Decision, para.

35. See also 3 March 2006 Decision, paras. 32, 33. 71 Case No. ICTR-98-42-A 14 December 2015

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20294/H 198. Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in denying their various requests to recall Witnesses QBQ, QCB, QJ, QY, TA, and TK for further cross-examination. 474 They contend that by relying on the very witnesses whom it did not recall in finding them guilty, the Trial Chamber violated their fair trial rights. Nyiramasuhuko requests that the Appeals Chamber invalidate the Trial Judgement or, at a minimum, exclude the evidence of all witnesses implicated by Prosecution Witnesses SJ and QY to have been part of an alleged collusion. 476 Ntahobali requests that the Appeals Chamber stay the proceedings against him or, in the alternative, exclude the evidence of the concerned witnesses in the determination of his guilt, or draw the relevant inferences based on the information before it. 477 199. Before turning to Nyiramasuhuko's and Ntahobali's specific challenges, the Appeals Chamber reiterates that, like all decisions relating to the conduct of the proceedings before them, decisions on requests to recall witnesses are matters within the discretion of trial chambers. 478 1. 3 March 2006 Decision 200. On 9 January 2006, Ntahobali moved the Trial Chamber for the recall of Witness QY and requested permission to further cross-examine her on three issues, namely: (i) the number of times she was raped near the EER; (ii) the identity of the man who

allegedly raped her at the EER; and (iii) her presence in Kibcho and Gikongoro.479 Ntahobali argued that inconsistencies in relation to these matters became apparent after Witness QY's subsequent testimony in the Muvunyi case. 180 474 Nyiramasuhuko Notice of Appeal, para. 1.40; Nyiramasuhuko Appeal Brief, paras. 248-251; Ntahobali Notice of Appeal, paras. 32-34, 36; Ntahobali Appeal Brief, paras. 73, 75-96. See also AT. 15 April 2015 p.

17. The Appeals Chamber notes that, in her appeal brief, Nyiramasuhuko challenges the Trial Chamber's 9 December 2008 Decision on Motion to Recall Witness QBQ, but failed to raise the alleged error in her notice of appeal, even though she amended it twice. See Nyiramasuhuko Appeal Brief, para.

248. Similarly, Ntahobali challenges the Trial Chamber's 3 December 2008 Decision denying the recall of, inter alia, Witnesses TK, QJ, and TA, but failed to raise this allegation in his notice of appeal. See Ntahobali Appeal Brief, para.

88. Because these allegations of error exceed the scope of Nyiramasuhuko's and Ntahobali's appeals as defined in their notices of appeal and the Prosecution did not respond to these new allegations, the Appeals Chamber declines to consider them. Nyiramasuhuko Notice of Appeal, para. 1.41; Nyiramasuhuko Appeal Brief, para. 248-251; Ntahobali Notice of Appeal, paras. 34, 36, 37; Ntahobali Appeal Brief, paras. 95, 102. Nyiramasuhuko Appeal Brief, paras. 251, 282. 477 Ntahobali Notice of Appeal, para. 37; Ntahobali Appeal Brief, para.

102. The Appeals Chamber observes that, in his notice of appeal, Ntahobali further requested that the Appeals Chamber either: (i) order a re-trial; (ii) admit into evidence transcripts from the Canadian case against Désiré Munyaneza, the admission of which the Trial Chamber had denied; or, at a very minimum, (iii) apply caution towards the evidence of the witnesses concerned; (iv) award him compensation for the numerous violations of his fair trial rights. See Ntahobali Notice of Appeal, paras. 37, 38. In his appeal brief, Ntahobali specifically argues that a re-trial would be inappropriate as it would violate his right to a fair trial and does not reiterate this specific alternative relief. See Ntahobali Appeal Brief, para. 102. 478 See supra, para. 137. 479 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête de Arsène Shalom Ntahobali pour faire rappeler les témoins TN, QBQ, QY, pour un contre-interrogatoire supplémentaire, 9 January 2006 (confidential) ("Ntahobali 9 January 2006 Motion to Recall Witnesses"), paras. 72-77, 80, 81, 83-87, 480 Ntahobali 9 January 2006 Motion to Recall Witnesses, paras. 3, 5, 90-94, referring to The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T ("Muvunyi case"). 72 Case No. ICTR-98-42-A 14 December 2015

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20293/H The Trial Chamber granted Ntahobali's motion to recall Witness QY in respect of the latter two issues.481 It denied Ntahobali's request to put questions to the witness concerning the number of times she was raped at the EER on the ground that the discrepancies in the witness's testimonies in this respect did "not seem to relate directly to the Accused" and did not therefore warrant the witness's recall. 482 201. Ntahobali submits that the Trial Chamber erred in denying his request to recall Witness QY on the subject matter of the number of times she was raped near the EER. 483 He contends that the Trial Chamber erred in finding that the contradictions regarding the number of alleged rapes did not seem to directly relate to the co-Accused.484 According to him, there is no requirement that the contradictions in a witness's testimony have a direct link to the accused in order for a chamber to grant a request for recall. 485 Ntahobali argues that, in fact, it is established jurisprudence that a witness may be recalled for impeachment purposes 486 In this regard, he points out that the Trial Chamber authorised the recall of Witness QY in relation to questions pertaining to the identity of the rapist which, he submits, was not more directly linked to the co-Accused than the number of 487 rapes.

202. The Prosecution did not specifically respond to Ntahobali's submissions.

203. The Appeals Chamber observes that Ntahobali does not dispute the legal standard for the recall of witnesses set out by the Trial Chamber in its 3 March 2006 Decision. 488 In the legal standard, the Trial Chamber did not set out as a requirement to authorise a recall that the contradictions in the witness's testimonies must directly relate to the accused. However, the Appeals Chamber considers that, in exercising its discretion in deciding whether an issue is of such nature or importance as to require further explanation from the witness, a chamber is entitled to look at all factors it deems to be relevant, including whether a discrepancy directly relates to the accused. Contrary to Nahobali's contention, the Trial Chamber did not elevate this consideration to the level of being a criterion for authorising a recall,489 Rather, the Trial Chamber considered whether the question was of such centrality to the accused's responsibility that it required further 481 3 March 2006 Decision, paras. 46-48, p. 14. 482 3 March 2006 Decision, para.

45. See also ibid., p.

14. Ntahobali Appeal Brief, para.

76. See also Ntahobali Notice of Appeal, paras, 32, 33. The Appeals Chamber 485 Ntahobali Appeal Brief, para. 77. 486 Ntahobali Appeal Brief, para. 77. 487 Ntahobali Appeal Brief, para. 77. 488 See Ntahobali Notice of Appeal, paras. 32-38; Ntahobali Appeal Brief, paras. 73-102. 489 See 3 March 2006 Decision, paras. 32, 33. 73 Case No. ICTR-98-42-A 14 December 2015

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20292/H explanation from the witness and found that it did not rise to this level. Given that the impugned discrepancy related to whether Witness QY was raped once at the EER or twice in the course of one evening, 49 the Appeals Chamber finds no error in the Trial Chamber's conclusion. Conversely, the Appeals Chamber finds that the issue of the identity of the rapist, which the Trial Chamber found to justify the recall of Witness QY, was directly related to Ntahobali's alleged responsibility for ordering, aiding and abetting, and as a superior.*" Ntahobali therefore fails to demonstrate that the Trial Chamber erred in authorising the recall of Witness QY on that matter while refusing her recall on the subject matter of the number of times she was raped.

204. The Appeals Chamber therefore dismisses Ntahobali's challenge against the 3 March 2006 Decision. 2. 20 November 2008 Decision 205. On 1 October 2008, Ntahobali moved the Chamber for the recall of Witness QCB. 492 Ntahobali argued that, since his testimony before the Trial Chamber, Witness QCB had given several statements to the Canadian police between 2000 and 2004 and testified in 2007 before a Canadian court in the case against Désiré Munyaneza ("Munyaneza" and "Munyaneza case", respectively), which, according to Ntahobali, revealed a number of inconsistencies in Witness QCB's evidence. 493 Ntahobali requested Witness QCB's recall so as to question him further in relation to six specific matters, including the location of the killing of Ruvurajabo and the presence of Munyaneza and Pierre-Célestin Halindintwali ("Halindintwali") at "roadblocks 5 and 6" 494 206. The Trial Chamber denied Ntahobali's request in its entirety. At the outset, the Trial Chamber found that Witness QCB's statements to the Canadian police provided by Ntahobali in support of his request lacked sufficient indicia of reliability as they consisted of visibly edited, unsigned documents, and contained several words in Kinyarwanda that had not been translated into French. 495 It thus considered that their content had to be assessed with caution and in the context of Witness QCB's subsequent testimony

before the Canadian court. 496 490 See 3 March 2006 Decision, para. 45 491 3 March 2006 Decision, paras. 45, 46, 48. 492 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête de Arsène Shalom Ntahobali en rappel du témoin QCB, 1 October 2008 (confidential) ("Ntahobali 1 October 2008 Motion to Recall Witness QCB"). 493 Ntahobali 1 October 2008 Motion to Recall Witness QCB, paras. 9, 10, 13, 14, 25, 32, 33, 39, 40, 43, 44, 56, 63, 69. 494 Ntahobali 1 October 2008 Motion to Recall Witness QCB, paras. 20, 30, 32, 41, 42. 495 20 November 2008 Decision, para. 36. 496 20 November 2008 Decision, para. 36. 74 Case No. ICTR-98-42-A 14 December 2015

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20291/H 207. In relation to the location of the killing of Ruvurajabo, the Trial Chamber found that, while there appeared to be an inconsistency in Witness QCB's account between his testimony before the Trial Chamber and the statement he had given to the Canadian police on 16 October 2000, his subsequent statements given to the Canadian police as well as his testimony before the Canadian court seemed to accord with the account he gave before the Trial Chamber. 497 After having recalled its finding on the reliability of the statements Witness QCB had given to the Canadian police, the Trial Chamber concluded that, when viewed in the context of the witness's testimony in the Munyaneza case, it could find no discrepancy in the witness's account in relation to the location of the killing of Ruvurajabo and denied Ntahobali's request for recall. 498 208. With respect to the presence of Munyaneza and Halindintwali at roadblocks 5 and 6, the Trial Chamber considered that Witness QCB's testimony before it and his subsequent statements to the Canadian police did not appear to be inconsistent." Specifically, the Trial Chamber noted that, in his testimony before the Trial Chamber, Witness QCB stated that roadblock 5 was manned by Ntahobali and Interahamwe and roadblock 6 was manned by Interahamwe.500 The Trial Chamber observed that the witness was not asked about the presence of Munyaneza

or Halidintwali at either roadblock when he gave evidence before the Trial Chamber.º' On this basis, the Trial Chamber considered that "omitting to mention [...] Munyaneza and [...] Halidintwali, without having been specifically asked about their presence, [did] not amount to an inconsistency which would require the recall of the [w]itness. "502 209. Ntahobali argues that the Trial Chamber erred in denying his request to recall Witness QCB for further cross-examination on the issues of the location of Ruvurajabo's killing and the presence of Munyaneza and Halindintwali at roadblocks 5 and 6.503 With respect to the location of Ruvurajabo's killing, Ntahobali contends that the Trial Chamber erred in finding that Witness QCB's 16 October 2000 statement given to the Canadian police lacked reliability and in relying on the fact that the witness's subsequent statements and testimony before the Canadian court seemed to accord with his testimony before the Tribunal.5º4 According to Ntahobali, 497 20 November 2008 Decision, para. 37. 498 20 November 2008 Decision, para. 37. 499 20 November 2008 Decision, para. 38. 500 20 November 2008 Decision, para. 38. 501 20 November 2008 Decision, para. 38. 502 20 November 2008 Decision, para. 38. 503 Ntahobali Appeal Brief, paras. 78, 80. The Appeals Chamber notes that Ntahobali failed to develop his contention that the Trial Chamber erred in denying his motion for reconsideration of the 20 November 2008 Decision and therefore dismisses it as unsubstantiated. See Ntahobali Notice of Appeal, paras. 32, 33; Ntahobali Appeal Brief, para. 78 fn. 109. 504 Ntahobali Appeal Brief, para. 79, referring to 20 November 2008 Decision, para. 37. 75 Case No. ICTR-98-42-A 14 December 2015

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20290/H safeguarding the fairness of the proceedings would have required the Trial Chamber to recall the witness for further cross-examination on this matter, which is a material fact in issue. 0s 210. Regarding the presence of Munyaneza and Halindintwali at roadblocks 5 and 6, Ntahobali asserts that no reasonable trial chamber would have expected the Defence to question the witness about the presence of these two individuals when the witness denied knowing them during his testimony before the Trial Chamber. Ntahobali argues that the contradiction only transpired after Witness QCB testified before the Canadian court, 507 211. The Prosecution did not specifically respond to Ntahobali's submissions.

212. In relation to the recall on the location of the killing of Ruvurajabo, the Appeals Chamber observes that the Trial Chamber did not exclude Witness QCB's 16 October 2000 statement from consideration but stated that it would assess it with caution and in the context of the witness's testimony before the Canadian court. 508 The Appeals Chamber recalls that the assessment of material for the purposes of admission as evidence as well as the weighing of evidence are matters within the purview of trial chambers to which the Appeals Chamber must accord deference.S09 While in this case the Trial Chamber did not assess the material for the purposes of admission but for the purposes of considering whether there was an inconsistency between the witness's testimony before it and his subsequent statements, the Appeals Chamber considers that the same standard of reasonableness and the same deference applies. In the present instance, the Appeals Chamber finds no error in the Trial Chamber's cautious approach to edited, unsigned statements such as Witness QCB's 16 October 2000 statement. The Appeals Chamber also finds no error in the Trial Chamber's approach in considering the said statement within the context of the other statements Witness QCB made to the Canadian police and his subsequent testimony in the Munyaneza case to determine whether his subsequent statements revealed an

inconsistency as to the issue in question. Accordingly, the Appeals Chamber finds that Ntahobali fails to demonstrate any discernible error in the Trial Chamber's decision to deny Ntahobali's request to further question Witness QCB on the issue of the location of the killing of Ruvurajabo. SOS Ntahobali Appeal Brief, para. 79. 506 Ntahobali Appeal Brief, para. 80. 507 Ntahobali Appeal Brief, para. 80. 508 20 November 2008 Decision, para. 36. 509 See, e.g., Sainovié et al. Appeal Judgement, para. 23; Rutaganda Appeal Judgement, para. 33; Halilovié Appeal рага. 7. 76 Case No. ICTR-98-42-A 14 December 2015

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20289/H 213. With respect to the issue pertaining to the presence of Munyaneza and Halindintwali at roadblocks 5 and 6, the Appeals Chamber notes that Ntahobali largely repeats his arguments put forth at trial.510 Ntahobali does not demonstrate how the Trial Chamber erred in finding that Witness QCB's omission to mention Munyaneza and Halindintwali in the absence of specifically being asked about them did not amount to an inconsistency that would require his recall. 511 214. In light of the foregoing, the Appeals Chamber dismisses Ntahobali's challenges against the 20 November 2008 Decision. 3. 9 December 2008 Decision on Motion to Recall Witness TK 215. On 13 October 2008, Nyiramasuhuko moved the Trial Chamber for the exclusion of the evidence of Witness TK or, alternatively, the admission into evidence of transcripts of her testimony in the Munyaneza case or, in a further alternative, her recall for additional cross-examination on specific topics.512 On 14 October 2008, Niahobali joined Nyiramasuhuko's request for further cross-examination of Witness TK on matters relevant to his case.$13 On 9 December 2008, the Trial Chamber denied Nyiramasuhuko's and Ntahobali's requests to recall Witness TK. 514 The Trial Chamber held that apparent contradictions between a witness's statement to Tribunal investigators which were not repeated during the witness's testimony before the

Tribunal and testimony given before another court do not prejudice the accused and therefore cannot justify a recall. 515 It also explained that: (i) Witness TK provided explanations for some of the contradictions; (ii) some of the discrepancies were minor; (iii) some of the differences within the witness's evidence or omissions did not amount to inconsistencies; and (iv) some of the Defence's assertions were mere speculations.$16 510 See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête de Arsène Shalom Ntahobali en reconsidération de la Décision du 20 Novembre 2008 concernant le témoin @CB, 25 November 2008. 511 20 November 2008 Decision, para, 38. 512 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête de Pauline Nyiramasuhuko en exclusion de preuve ou, alternativement en versement de preuve de parties de témoignage rendu dans le procès de Désiré Munyaneza ou alternativement en rappel de témoin, 13 October 2008 (confidential). In December 2008, the Trial Chamber partially granted Ntahobali's request to recall Prosecution Witnesses SJ and QY on the basis that there were discrepancies between their testimonies before the Trial Chamber and their evidence in the Munyaneza case in Canada as to their knowledge of other Prosecution witnesses, including Witness TK, and in light of the

witnesses' alleged admissions in the Munyaneza case that they had lied when testifying before the Trial Chamber upon the instructions of Tribunal employees. The Trial Chamber denied Ntahobali's request to recall all other Prosecution witnesses who had testified against him to be questioned on whether they also had been unduly influenced. See 3 December 2008 Decision, paras. 23-28, p. 7. 513 9 December 2008 Decision on Motion to Recall Witness TK, para. 13. 514 9 December 2008 Decision on Motion to Recall Witness TK, para. 51, p. 13. 515 9 December 2008 Decision on Motion to Recall Witness TK, paras. 39, 44. 516 9 December 2008 Decision on Motion to Recall Witness TK, paras. 40-43, 45-49. 77 Case No. ICTR-98-42-A 14 December 2015

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20288/H 216. Nyiramasuhuko argues that the Trial Chamber erred in law and in fact by denying her motion to recall Witness TK in order to explore the inconsistencies and "relevant omissions" between Witness TK's testimony before the Trial Chamber and the testimony the witness gave in 517 the Munyaneza case.

217. Ntahobali submits that the Trial Chamber erred in denying the recall of Witness TK on the numerous contradictions revealed after her testimony in the Munyaneza case concerning: (i) the time of the death of her parents; (ii) whether family members accompanied her when she fled from Gikongoro to Butare; (iji) her parents' presence at the Butare Prefecture Office; (iv) the murder of a number of men at the Butare Prefecture Office; and (v) her knowledge about Witness SI's travels to Arusha 518 Ntahobali argues that the Trial Chamber erred in concluding that a contradiction between a witness's statement to Tribunal investigators not repeated during the witness's testimony before the Tribunal and the witness's testimony before another court cannot justify a recall, and in finding that the alleged contradictions were minor or did not amount to contradictions. 519 He argues that the denial of Witness TK's recall eventually resulted in her being judged a credible witness and being relied upon by the Trial Chamber in convicting him of crimes committed at the prefectoral office. 20 218. The Appeals Chamber notes that the Prosecution did not specifically respond to Nyiramasuhuko's and Ntahobali's submissions in its response brief. In response to a question from the Appeals Chamber at the appeals hearing, the Prosecution submitted that the Trial Chamber's reasoning in relation to the discrepancy in Witness TK's evidence concerning the death of her parents was correct. $21 219. The Appeals Chamber notes that Nyiramasuhuko has failed to develop arguments supporting her allegation concerning the recall of Witness TK and therefore dismisses it without further consideration.

220. Turning to Ntahobali's submissions, the Appeals Chamber notes that, apart from stating that a contradiction can become apparent only after subsequent testimony,522 Ntahobali fails to demonstrate how the Trial Chamber erred in holding that any apparent contradiction between a witness's statement to Tribunal investigators not repeated during the witness's testimony before the Tribunal and the witness's testimony before another court does not prejudice the accused and 517 Nyiramasuhuko Notice of Appeal, para. 1.40; Nyiramasuhuko Appeal Brief, para. 248. 518 Ntahobali Notice of Appeal, paras. 32, 33; Ntahobali Appeal Brief, paras. 81-87. 519 Ntahobali Appeal Brief, paras. 82-86 520 Ntahobali Appeal Brief, paras. 86, 95. 521 AT. 16 Аргії 2015 рр. 15, 17, 18 522 Ntahobali Appeal Brief, para. 82. 78 Case No. ICTR-98-42-A 14 December 2015

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20287/H therefore could not justify a recall. Recalling the Tribunal's general preference for live testimonys23 and the trial chambers' discretionary power in deciding whether to recall witnesses,24 the Appeals Chamber finds no error in the Trial Chamber's approach.

221. The Appeals Chamber considers that Ntahobali's remaining arguments reflect mere disagreement with the Trial Chamber's assessment of the alleged contradictions. Ntahobali fails to demonstrate any error in the Trial Chamber's conclusions that the Defence's assertions as to discrepancies were based on mere speculation or did not amount to inconsistencies which, if not put to the witness, would prejudice the accused and warrant the recall of the witness. 25 222. Accordingly, the Appeals Chamber dismisses Ntahobali's challenges against the 9 December 2008 Decision on Motion to Recall Witness TK. 4. 24 February 2009 Oral Decision 223. On 24 February 2009, after the completion of the recall testimony of Witnesses QY and SJ,526 Nyiramasuhuko and Ntahobali jointly moved the Trial Chamber for the recall of several other Prosecution witnesses, including Witnesses QJ, TA, and TK, based on the evidence given by Witnesses QY and SJ which suggested that there was a possibility of contamination of other witnesses who came to Arusha at the same time as these witnesses did and stayed in the same safe houses.527 Nyiramasuhuko submitted that she should be allowed to recall all witnesses who travelled to Arusha together with other witnesses and testified about the events at the Butare Prefecture Office. 528 In particular, she argued that these witnesses should be questioned as to whether "they

were invited to say they didn't know each other" because the evidence given by Witness SJ upon recall, namely that Withess SJ was instructed to deny knowing two other Prosecution witnesses, was "of the utmost importance for the credibility of [the] trial". 529 224. Acknowledging that, on 3 December 2008, the Trial Chamber rejected as speculative his motion for the recall of witnesses other than Witnesses QY and SJ, Ntahobali argued that the situation had changed with Witness SI's recall evidence since "the witness said before [the Trial 523 See supra, para. 140. 524 See supra, para. 137. 525 9 December 2008 Decision on Motion to Recall Witness TK, para. 49. 526 Witness QY, T. 23 February 2009 pp. 36-68 (closed session) 527 Witness SJ, T. 24 February 2009 pp. 55-57 (closed session). $28 Witness SJ, T. 24 February 2009 p. 56 (closed session). 529 Witness SJ, T. 24 February 2009 p. 56 (closed session). See also ibid., pp. 15-17, 19, 20 (closed session). 79 Case No. ICTR-98-42-A 14 December 2015

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20286/H Chamber] that Witnesses TK, QJ, and TA were present when she received instructions to lie, as well as other witnesses that had [come] from Butare", 530 225. The Trial Chamber denied the oral motion, finding that "there [was] entirely no basis that would justify the recall of witnesses that have been mentioned in the submissions", 531 The Trial Chamber considered that Nyiramasuhuko and Ntahobali "talked about possible possibilities [sic], but [..] having heard these witnesses and having heard the issues that were canvassed and demonstrated before the Trial Chamber during these proceedings, [it was] satisfied that there's no basis that has been demonstrated that could justify the recall of the witnesses concerned. 532 226. Nyiramasuhuko submits that the Trial Chamber erred in denying the oral request to recall Witnesses TA and TK.533 She argues that, in light of Witnesses QY's and SI's admissions that they provided false testimony, the Trial Chamber's refusal to recall Witnesses TA and TK was particularly serious, as it deprived her of the opportunity to demonstrate that other Prosecution witnesses had also been instructed to lie.34 Nyiramasuhuko argues that this, in turn, affected her ability to conduct an effective defence by demonstrating the lack of credibility of Prosecution witnesses and their "conspiracy to lie" 535 In support of her argument, Nyiramasuhuko relies

on a decision rendered by the trial chamber seised of the Karemera et al. case, granting a request for the recall of a Prosecution witness on the basis of suspicion of collusion between witnesses.536 227. Ntahobali submits that the Trial Chamber erred in finding that the requests to recall Witnesses QJ, TA, and TK lacked legal basis.37 He points out that Witness SJ testified that Witnesses QJ, TA, and TK were present when a Prosecution employee gave instructions to deny knowing other witnesses, which, in his view, raised serious probabilities that Witnesses QJ, TA, and TK received the same instructions.38 He argues that Witness TA's testimony that she did not know any other witnesses despite contradictory evidence that she did should have led a reasonable trier of fact to find that the allegations of instructions to lie were more than mere "possibilities" and, as a 530 Witness SJ, T. 24 February 2009 p. 56 (closed session). 531 Witness SJ, T. 24 February 2009 pp. 57, 58 (closed session). 532 Witness SJ, T. 24 February 2009 pp. 57, 58 (closed session). 533 Nyiramasuhuko Notice of Appeal, para. 1.40; Nyiramasuhuko Appeal Brief, para.

248. Nyiramasuhuko also refers to the denial of Witness QBP's recall but the Appeals Chamber was unable to find any reference to this witness in the impugned oral decision. See Nyiramasuhuko Appeal Brief, para. 248, fn.

180. Nyiramasuhuko Appeal Brief, para. 248. $35 Nyiramasuhuko Appeal Brief, para. 249. 536 Nyiramasuhuko Appeal Brief, para. 250, referring to The Prosecutor v. Édouard Karemera et al., Case No. ICTR- 98-44-T, Consolidated Decision on Joseph Nzirorera's Motion to Recall Witness BGU and "Requête de M. Ngirumpatse visant au rappel du témoin GBU", 6 August 2008, paras. 7, 9. The Appeals Chamber notes that Ntahobali relies on the same decision to support his arguments. See Ntahobali Appeal Brief, para. 94. 537 Ntahobali Notice of Appeal, para. 32; Ntahobali Appeal Brief, para. 88. 538 Ntahobali Appeal Brief, paras. 89-91, referring to Witness SJ, T. 23 February 2009 pp. 92, 93 (closed session) (French). See also AT. 15 April 2015 pp. 17, 19, 20 and 23-25 (closed session). 80 Case No. ICTR-98-42-A 14 December 2015

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20285/H result, grant the request for recall.39 According to Ntahobali, the impossibility of challenging the credibility of Witnesses QJ, TA, and TK regarding these allegations of collusion and the Trial Chamber's reliance on these witnesses to find him guilty caused him serious prejudice. 540 228. The Prosecution did not specifically respond to Nyiramasuhuko's and Ntahobali's submissions.

229. The Appeals Chamber observes that the Trial Chamber heard Witnesses QY and SJ state that they had been instructed by Tribunal interpreters to deny knowledge of other witnesses, including Witnesses QJ, TA, and TK, prior to testifying in the instant proceedings.541 The Trial Chamber also heard from Witness SJ that she once travelled to Arusha together with Witness TK and on another occasion with Witness QJ,$42 and that while she was alone when she received the instruction from the interpreter to deny knowing the other witnesses,543 "[i]t used to happen that we discussed this as we chatted and to ask how we were going to deny that we knew our neighbours."$44 Witness SJ explained that when she was asked by the Trial Chamber in her previous testimony about who was with her in the safe house, she answered the way she had been instructed to answer, namely that there were many witnesses she did not know who had come from Butare. $45 When she was asked, upon recall, whether she recalled the names of other witnesses who were with her when this instruction was given to her, she stated that there were many others, but that she only remembered the names of Witnesses QJ, TA, and TK. On the second day of her recall testimony, however, Witness SJ insisted that she had been alone when she was instructed to deny knowing other witnesses and that she could not confirm that Witnesses QJ, TA,

and TK had received the same instructions.547 230. The Appeals Chamber is of the view that a reasonable trier of fact could have considered that the suspicions raised by the testimonies of Witnesses QY and SJ were sufficient to warrant the recall of Witnesses QJ, TK, and TA for questioning on whether they were also instructed to deny 539 Ntahobali Appeal Brief, paras. 92, 93, referring to Witness TA, T. 7 November 2001 pp. 131-136 (closed session) (French); Witness SJ, T. 24 February 2009 pp. 22, 23 (closed session) (French); Witness QBP, T. 29 October 2002 pp. 80, 81 (closed session) (French). Ntahobali Appeal Brief, para. 95. $41 The Appeals Chamber observes that, in her testimony upon recall, Witness QY admitted that she untruthfully stated before the Trial Chamber that she did not know Witnesses QBQ and SJ upon the instructions of a Tribunal interpreter. See Witness QY, T. 23 February 2009 pp. 40-43, 51 (closed session). Likewise, Witness SJ admitted that she knew Witnesses QJ, TA, and TK and that she had been instructed by Tribunal interpreters to deny knowing them and therefore lied before the Tribunal in her previous testimony before the Trial Chamber. See Witness SJ, T. 23 February 2009 pp. 82, 84 (closed session); T. 24 February 2009 p. 17 (closed session). $42 Witness SJ, T. 23 February 2009 pp. 82, 83 (closed session). 543 Witness SJ, T. 23 February 2009 p. 83 (closed session); T. 24 February 2009 p. 19 (closed session). $44 Witness SJ, T. 23 February 2009 p. 84 (closed session). See also T. 24 February 2009 p. 18 (closed session). 545 Witness SJ, T. 23 February 2009 p. 84 (closed session). 546 Witness SJ, T. 23 February 2009 p. 83 (closed session). 547 Witness SJ, T. 24 February 2009 pp. 19, 20 (closed session). 81 Case No. ICTR-98-42-A 14 December 2015

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20284/H knowing other witnesses. However, the Appeals Chamber emphasises that when an appellant challenges a discretionary decision by a trial chamber, the issue is not whether a reasonable trier of fact could have reached a different conclusion or whether the Appeals Chamber agrees with that decision, but whether the trial chamber has correctly exercised its discretion in reaching that decision. As recalled earlier, a trial chamber enjoys considerable discretion in the conduct of the proceedings before it and the Appeals Chamber will only reverse a trial chamber's discretionary decision where it is found to be based on an incorrect interpretation of the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber's discretion.549 231. In the present case, the Appeals Chamber understands Nyiramashuko and Ntahobali to allege that the Trial Chamber's decision is both based on a patently incorrect conclusion of fact and is so unfair or unreasonable as to constitute an abuse of the trial chamber's discretion, Given the inconclusiveness of the evidence before the Trial Chamber concerning whether Witnesses QJ, TA, and TK were also instructed to deny knowing other witnesses, the Appeals Chamber finds no error in the Trial Chamber's conclusion that the joint Defence request was based on

"possibilities" 550 Noting that Witnesses QY's and SJ's evidence did not give rise to an indication of collusion between witnesses551 but was limited in nature since it only pertained to the issue whether witnesses knew each other, the Appeals Chamber is further not persuaded that the Trial Chamber's decision denying the recall of Witnesses TK, QJ, and TA was so unfair or unreasonable as to constitute an abuse of discretion.

232. In relation to Nyiramasuhuko's reliance on a decision rendered by the trial chamber seised of the Karemera et al. case, the Appeals Chamber recalls that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another. The Appeals Chamber therefore does not find persuasive the argument that the Trial Chamber erred simply 548 See, e.g., Setako Appeal Judgement, para. 19; Nchamihigo Appeal Judgement, para. 18; Haradinaj et al. Appeal Judgement, para.

39. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 85; Renzaho Appeal Judgement, para. 143; Kalimanzira Appeal Judgement, para. 14. 550 See also infra, Section II.J. s51 The Appeals Chamber recalls that: collusion has been defined as an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose. If an agreement between witnesses for the purpose of untruthfully iris ting antes however, intere is of cold, in is tiefe not have co ve cach und Rule 95 or See Kanyarukiga Appeal Judgement, para. 238 (internal references omitted), referring to Karera Appeal Judgement, para. 234, relying on Black's Law Dictionary, 6* Edition. 52 Haradinai et al. Appeal Judgement, para.

39. Case No. ICTR-98-42-A 14 December 2015

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20283/H because another trial chamber of the Tribunal had authorised the recall of witnesses on the basis of suspicion of collusion.

233. The Appeals Chamber therefore dismisses Nyiramasuhuko's and Ntahobali's challenges against the 24 February 2009 Oral Decision.

5. Conclusion 234. For the foregoing reasons, the Appeals Chamber concludes that Nyiramasuhuko and Ntahobali have failed to demonstrate any discernible error in the exercise of the Trial Chamber's discretion with respect to its 3 March 2006 Decision, 20 November 2008 Decision, 9 December 2008 Decision on Motion to Recall of Witness TK, and 24 February 2009 Oral Decision. Accordingly, the Appeals Chamber dismisses the relevant parts of Ground 7 of Nyiramasuhuko's appeal and Ground 1.5 of Niahobali's appeal. Case No. ICTR-98-42-A 83 14 December 2015

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20282/H H. Nsabimana's Statements (Nyiramasuhuko Grounds 4 and 19 in part; Ntahobali Ground 3.9 in part; Nsabimana Grounds 6 in part and 7) 235. In the course of the trial, the Trial Chamber admitted into evidence the transcript of a journalist's interview with Nsabimana dated 1 October 1994,553 a letter written by Nsabimana in 1996,554 and the transcript of a March 1996 phone interview between Prosecution Expert Witness Alison Des Forges and Nsabimana"s as Exhibits P114, P113, and P185, respectively. The Trial Chamber also heard Witness Des Forges's testimony concerning phone conversations she had with Nsabimana in March and April 1996.556 236. Nyiramasuhuko, Ntahobali, and Nsabimana submit that the Trial Chamber erred in law and in fact in relying on Exhibits P113, P114, and P185 as well as on the testimony of Witness Des Forges concerning Nsabimana's 1996 phone conversations to establish their criminal responsibility.557 237. Prior to considering the challenges with respect to each piece of evidence, the Appeals Chamber observes that the Trial Chamber did not rely on Exhibits P114 and P185 in support of any of Nyiramasuhuko's convictions. Contrary to Nyiramasuhuko's submissions,9 the Trial Judgement reflects that Exhibits P114 and P185 were relied upon in relation to Nsabimana's Swearing-In Ceremony only to rebut Nsabimana's assertion that he did not understand the 5S3

Exhibit P114 (Interview with Nsabimana, dated 1 October 1994). The English translation of the document was admitted as Exhibit P114A and the French original as Exhibit P114B. The Appeals Chamber conducted its analysis on the basis of the English version as it was the version the Trial Chamber relied upon. It will refer to this version as "Exhibit P114" in this Judgement. 554 Exhibit P113 (The Truth About the Massacres in Butare, by Nsabimana). The English version of the document initialed by Nsabimana was admitted as Exhibit P113A and the French translation as Exhibit P113B. The Appeals . Chamber conducted its analysis on the basis of the English version as it was the version the Trial Chamber relied upon It will refer to this version as "Exhibit P113" in this Judgement. Nsabimana tendered the French original of the letter, which was admitted as Exhibit D494A. 55S Exhibit P185 (Telephone conversation with Alison Des Forges, March 1996). The French original was admitted as Exhibit P185A and the English translation as Exhibit P185B. The Appeals Chamber conducted its analysis on the basis of the English version as it was the version the Trial Chamber relied upon. It will refer to this version as "Exhibit P185" in this Judgement. 556 Alison Des Forges, T. 9 June 2004 p. 51, referring to conversations of 25 March and 3 April 1996. 557 Nyiramasuhuko Notice of Appeal, para. 1.17;

Nyiramasuhuko Appeal Brief, paras. 182-184, 658; Ntahobali Notice of Appeal, paras. 278, 279; Ntahobali Appeal Brief, paras. 772-783; Nsabimana Notice of Appeal, paras. 64, 66, 75-79; Nsabimana Appeal Brief, paras. 160-179, 269-307. Ntahobali also contends that the Trial Chamber erred in assessing Exhibit P113 and Witness Des Forges's testimony on her phone conversations with Nsabimana. Similarly, Nsabimana submits that the Trial Chamber erred in assessing Exhibits P113 and P114. See Ntahobali Appeal Brief, paras. 759, 774, 775, 778, 780, 782; Nsabimana Notice of Appeal, paras. 64-66; Nsabimana Appeal Brief, paras. 180-202, 303, 305. These allegations have been addressed together with Ntahobali's and Nsabimana's submissions regarding the assessment of the evidence of each relevant incident. See infra, Sections V.G, V.I.2(v), VI.D.2(a)(i). The Appeals Chamber also notes that Nyiramasuhuko further challenges the Trial Chamber's reliance on a correspondence from Nsabimana to the Prosecutor dated 20 January 1997 admitted as Exhibit D492 (Correspondence from Nsabimana to the Prosecutor of the Tribunal, Carla Del Ponte, 20 January 1997). See Nyiramasuhuko Appeal Brief, para.

658. However, since the Trial Chamber did not rely on Exhibit D492 in support of any of its findings, the Appeals Chamber declines to address Nyiramasuhuko's contention in relation to this particular exhibit. 558 Nyiramasuhuko Appeal Brief, para. 658. 84 Case No. ICTR-98-42-A 14 December 2015

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20281/H inflammatory nature of the speeches made during the ceremony$60 Accordingly, the Appeals Chamber declines to address Nyiramasuhuko's contentions as they relate to Exhibits P114 and P185 and will only examine her claim concerning Witness Des Forges's testimony about phone conversations the witness had with Nsabimana.

1. Exhibits P113 and P114 238. During Witness Des Forges's testimony on 8 June 2004, the Trial Chamber admitted into evidence Exhibit P113, a letter written by Nabimana entitled "The Truth about the Massacres in Butare", 61 which Nabimana sent to Witness Des Forges after telephone conversations between the two in March and April 1996.562 The Trial Chamber also admitted as Exhibit P114, the transcript of a journalist's interview of Nsabimana dated 1 October 1994.563 In admitting Exhibits P113 and P114, the Trial Chamber observed that Witness Des Forges's expert report relied upon these documents and determined that they could be admitted through her. 64 During his examination-in- chief, Nabimana affirmed that Exhibit P113 was the English version of a letter he wrote in French and sent to Witness Des Forges in both French and English S65 Nabimana explained that he was not the one who communicated Exhibit P114 to Alison Des Forges, but that he did not object to the introduction of the document in order not to hinder the progress of the proceedings and because what was contained in the document was not 100 percent different from his own way of seeing things or his own writing on certain issues.$66 239. In the Trial Judgement, the Trial Chamber noted the objections raised by Nsabimana that Exhibits P113 and P114 were accepted only for the purpose of "establishing the basis for Des

Forges'[s] opinions" and "contradictions, if necessary" 567 The Trial Chamber rejected these contentions, noting that its deliberations on the admission of Exhibits P113 and P114 necessarily "implicate[d] the weight and probative value" to be attributed to these exhibits." 568 The Trial Chamber further recalled that "Nabimana acknowledged that Prosecution Exhibit P113 was his 559 Nyiramasuhuko Appeal Brief, para. 658. 560 See Trial Judgement, paras. 887-890. 561 See Alison Des Forges, T. 8 June 2004 pp. 47-49. 562 See Alison Des Forges, T. 8 June 2004 pp. 35, 36; Exhibit P113 (The Truth About the Massacres in Butare, by Nsabimana). 563 Alison Des Forges, T. 8 June 2004 p. 54; Exhibit P114 (Interview with Nabimana, dated 1 October 1994). $64 Alison Des Forges, T. 8 June 2004 pp. 49 ("On the basis of all the above the Chamber finds that Nsabimana document is admissible and that it maybe [sic] admitted through the Expert Witness Dr. Alison Des Forges who is relying on it as one of the sources of information for the opinion she makes in her report."), 60-62. See also Alison Des Forges, T. 9 June 2004 p. 12. 565 Nsabimana, T. 17 October 2006 pp. 34, 35. $66 Nsabimana, T. 13 November 2006 p. 15 (French) ("Je me suis pas opposé, simplement parce que ce qui est dedans n'est pas ... n'est pas 100% différent de ma pensée, de ma façon de voir et différent de ce que j'ai écrit, dans certains cas."); T. 22 November 2006 p. 47 (French). s67 Trial Judgement, paras. 603, 2799. Case No. ICTR-98-42-A 14 December 2015

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20280/H own, including all that it entails, but that he preferred to rely on the French version of the document introduced as Defence Exhibit 494" and that "Nsabimana stated that Prosecution Exhibit P114 reflected his own views."569 The Trial Chamber further stated that, "[blased upon Nsabimana's acknowledgement that these documents were authentic", it would evaluate the weight and probative value of Exhibits P113 and P114 in light of the other evidence, including the testimonies of Witness Des Forges and Nsabimana about these exhibits.570 240. The Trial Chamber relied on Exhibit P113 in finding Ntahobali criminally liable for killings perpetrated at the Hotel Thuliro roadblockS? In particular, the Trial Chamber found that Exhibit P113 corroborated other evidence that Tutsis were beaten, raped, and killed at the roadblock572 as well as additional evidence that Ntahobali manned the roadblock and utilised it to abduct and kill Tutsis$73 The Trial Chamber also relied on Exhibits P113 and P114 in finding that Nsabimana was aware of the night-time attacks at the Butare Prefecture Office, posted gendarmes or soldiers at the prefectoral office sometime between 5 and 15 June 1994, and was aware of a plan to kill Tutsis and of the genocidal intent of those who perpetrated crimes at this office. 74 241. Nsabimana and Ntahobali submit that the Trial Chamber erred in admitting and relying

on Exhibits P113 and P114 to establish their criminal responsibility.575 In particular, Nsabimana contends that the Trial Chamber violated his right to a fair trial in failing to consider whether the admission of these documents would infringe his fair trial rights, in particular his right to remain silent, 57 and in failing to anticipate that their admission would cause him prejudice.577 568 Trial Judgement, paras. 604, 2800 569 Trial Judgement, para. 2800, referring to Nsabimana, T. 22 November 2006 pp. 39, 40. See also Trial Judgement, B0 Trial Judgement, para, 2800. See also ibid, para. 604. 571 Trial Judgement, paras. 3113, 3118-3127, 3141-3144, 5842, 5844, 5845, 5971, 6053-6056, 6077-6081, 6094, 6100, 6101, 6121, 6168, 6169, 6184, 6185. 572 Trial Judgement, paras. 3143, 3144, referring to Exhibit P113 (The Truth About the Massacres in Butare, by Nsabimana), p. K0016630 (Registry pagination) ("[i]n town, there were some killings at the roadblocks. Some roadblocks were manned by soldiers, others by the Interahamwe, or both at the same time. Among the most formidable roadblocks was the one in front of the house of the University Rector, Ntahobari [sic], whose son Sharom was in charge of it"). See also Trial Judgement, para. 3009. 573 Trial Judgement, paras. 3127, 3128. Nsabimana's testimony that he did not understand the inflammatory nature of President Sindikubwabo's speech

at the 19 April 1994 ceremony during which he was sworn-in as prefect of Butare. See Trial Judgement, paras. 886-890. The Appeals Chamber notes, however, that Nsabimana was not convicted in relation to this event and that the Trial -30a 312812, 5904, 5906, The Trial Chamber also elied on Exhibit Pla in rejection Chamber did not rely on its finding about Nsabimana's understanding of the nature of Sindikubwabo's speech in support of any of Nsabimana's convictions. On this matter, see infra, Section VI.B. Ntahobali Appeal Brief, paras. 772-779; Nsabimana Appeal Brief, paras. 160-179, 269-307. The Appeals Chamber notes that, while also referring to Exhibit P114 in his notice of appeal, Ntahobali did not develop any submissions with respect to this particular piece of evidence in his appeal brief. The Appeals Chamber therefore dismisses Ntahobali's undeveloped allegation of error concerning Exhibit P114. By contrast, Nsabimana challenges the use of both Exhibits P113 and P114 and developed submissions in respect of both exhibits in his appeal brief. 576 Nsabimana Appeal Brief, paras. 276, 281-288, 298-300, 304, 306. Nsabimana refers in particular to Articles 19(1), 20(4)(a), and 20(4)(g) of the Statute and to Rules 85, 89(B) and (D), and 95 of the Rules. See ibid., paras. 298, 302, 304; 86 Case No. ICTR-98-42-A 14 December 2015

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20279/H He acknowledges that he did not object to the admission of the documents, but stresses that he did not know at the time that they could be used against him. 78 242. Ntahobali argues that the Trial Chamber violated Rule 89(C) of the Rules by admitting Exhibit P113 given the fact that it was a statement by a co-accused and "double hearsay" evidence.579 In Ntahobali's view, statements of a co-accused posterior to the 1994 events lack sufficient reliability and probative value given the obvious incentive of the author to limit his responsibility while accusing his co-accused.$80 He also asserts that its "nature of double-hearsay" deprived the statement of any probative value.81 Ntahobali contends that the Trial Chamber should have refused to admit Exhibit P113 into evidence as the probative value of the statement was outweighed by the prejudice he suffered. 582 243. Nsabimana also contends that it was erroncous for the Trial Chamber to consider that the document admitted as Exhibit P114, a document which was neither signed nor initialed by him and of which Witness Des Forges did not disclose the origin, was his writing. 583 He argues that the fact that he said that the views in the document did not differ completely from his own views did not make him the author of the document and did not allow the Trial Chamber to attribute extracts from the document to him.' 584 244. In

addition, Ntahobali and Nsabimana submit that the Trial Chamber erred in using Exhibits P113 and P114 in convicting them given that the Trial Chamber: (i) admitted these exhibits for the limited purpose of identifying one of the sources relied upon by Witness Des Forges in formulating her expert opinions and of establishing contradictions;585 and (ii) stated that an accused's writing or statement could not be considered as proof of its content but only in the evaluation of the credibility of his testimony. 586 Nsabimana submits that, in contravention of well-established jurisprudence that requires trial chambers to specify the purpose for admission of a Nsabimana Reply Brief, para.

132. Nsabimana highlights that the Trial Chamber was aware that the statements reflected in Exhibits P113 and P114 were against his interests. See ibid., para. 299, referring to Trial Judgement, para. 2802. 577 Nsabimana Appeal Brief, para.

278. Nsabimana argues that "at the time the document was produced, [he] could have been uninformed or was not informed that the document would be used (and will be used) as evidence against him, in violation of his right not to incriminate himself." See ibid., para. 279 (emphasis omitted). Nsabimana does not specify whether he refers to Exhibit P113 or Exhibit P114 in this regard. 578 Nsabimana Appeal Brief, paras. 279, 301; Nsabimana Reply Brief, paras. 118, 119. 579 Ntahobali Notice of Appeal, para. 279; Ntahobali Appeal Brief, paras. 777-779. 580 Ntahobali Appeal Brief, paras. 777, 778. 581 Ntahobali Appeal Brief, para. 779. 582 Ntahobali Appeal Brief, para. 779. 583 Nsabimana Appeal Brief, paras. 171, 173-175, fn.

122. See also Nsabimana Reply Brief, paras. 80, 81, 84, 114-116. Nsabimana Appeal Brief, para. 177. 585 Ntahobali Appeal Brief, para. 774, referring to Alison Des Forges, T. 8 June 2004 pp. 47-49; Nsabimana Appeal Brief, paras. 163, 165, 274, 275, referring to Alison Des Forges, T. 8 June 2004 p. 53 (French); Nsabimana Reply Brief, pariahobali Appeal Bricf, para. 173; Nsabimana Notice of Appeal, para. 76; Nsabimana Appeal Bricf, paras, 160, 161, 163-167, 178, 179, 294-297. 87 Case No. ICTR-98-42-A 14 December 2015

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20278/H statement, the Trial Chamber failed to indicate that the documents could be used for proof of their contents.587 Ntahobali stresses that, because he relied on the Trial Chamber's representations that Exhibit P113 would only be admitted as a source relied upon by the expert witness or to evaluate the credibility of his testimony, he did not defend against its content, as he did not understand that it would be used for the purpose of establishing facts in support of his guilt.588 In the same vein, Nsabimana argues that he was prejudiced as, had he known that Exhibits P113 and P114 could be relied upon by the Trial Chamber as it did, he would have prepared an adequate defence. 589 Ntahobali adds that, to the extent Exhibit P113 was used to support Witness Des Forges's testimony, it could not be used to assess the acts and conduct of the co-Accused given Witness Des Forges's status as an expert witness. 590 245. The Prosecution responds that neither Ntahobali nor Nsabimana demonstrates that the Trial Chamber abused its discretion in admitting Exhibits P113 and P114.59l According to it, both exhibits were properly admitted under Rule 89(C) of the Rules.592 As regards Exhibit P114 in particular, the Prosecution emphasises that Nsabimana stated that the document reflected his own views, that it could be used, and that he "hafd] nothing against it" 593 It also argues that

Nsabimana never questioned its admissibility or authenticity.594 246. The Prosecution further responds that the Trial Chamber's rulings reflect that Exhibits P113 and P114 were not admitted for the restricted purpose of assessing credibility and that the Trial Chamber did not abuse its discretion in admitting the documents. It argues that the 23 November 2006 Oral Decision relied upon by Nsabimana was not a general statement of law that all written statements by accused persons would be dealt with in a particular manner, but rather referred specifically to the use of an interview Nsabimana gave to Tribunal investigators which was not presented during the Prosecution case-in-chief." In the Prosecution's view, Exhibits P113 and 587 Nsabimana Appeal Brief, paras. 270-273. See also Nsabimana Reply Brief, paras. 127-129. 588 Ntahobali Appeal Brief, para. 776. 589 Nsabimana Appeal Brief, para. 179. 590 Ntahobali Appeal Brief, para. 775. 591 Prosecution Response Brief, paras. 1129, 1130, 1324, 1325, 1327, 1331, 1335, 1338. The Prosecution adds that Nsabimana's contentions should be dismissed as he merely repeats arguments already unsuccessfully advanced at trial. See ibid., para. 1303, referring to The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97- 29-T, Final Trial Brief of Sylvain Nsabimana's Trial, 17 February 2009 (originally filed in French, filed in English on 6 April 2009) (confidential) ("Nsabimana Closing Brief"), paras. 203, 204. 592 Prosecution Response Brief, para.

1332. See also ibid., paras. 1333, 1334. 593 Prosecution Response Brief, para. 1328, referring to Nsabimana, T. 22 November 2006 p. 35. 594 Prosecution Response Brief, para.

1327. See also ibid., para. 1310. 595 Prosecution Response Brief, paras. 1129, 1130, 1331, 1334, 1335, 1338. 596 Prosecution Response Brief, para.

1308. See also ibid., paras. 1309-1312. 88 Case No. ICTR-98-42-A 14 December 2015

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20277/H P114 were not admitted as prior statements and it was correct for the Trial Chamber to ascribe to them weight and probative value, given that Nsabimana accepted their contents as his own.597 247. Nsabimana replies that, contrary to the Prosecution's submissions, he never stated or accepted that the content of Exhibits P113 and P114 reflected the truth and that merely stating that Exhibit P114 could be used does not mean that he conceded that the document was his or approved its content. 598 He also maintains that the 23 November 2006 Oral Decision should have applied to Exhibits P113 and P114 and stresses that these exhibits were not adduced by the Prosecution for the proof of their contents. He reiterates that he did not have any interest in objecting to the admissibility of Exhibits P113 and P114 since he assumed that they were admitted only to support Witness Des Forges's expert opinion. 600 248. The Appeals Chamber notes that, although his co-accused objected to the admission of Exhibits P113 and P114 partly because Exhibit P114 was unsigned and Exhibit P113 was not tendered by him, Nsabimana did not object to their admission and did not raise any allegation of violation of his right against self-incrimination or any other fair trial right when the documents were admitted. 01 Nsabimana did not raise any claim of this sort when questioned on the exhibits

during cross-examination or in his closing submissions.602 To the contrary, he stated that he accepted Exhibit P113, which he had signed, and made it clear that he had "nothing against" Exhibit P114 and that it could be used in cross-examination. 3 The record also reflects that Nsabimana is the one who communicated Exhibit P113 to the Prosecution in 1997 "to help the ICTR establish the truth'604 and that Nsabimana's counsel requested the admission of the original French version of Exhibit P113, arguing that there was no reason not to admit this document written by Nsabimana. 05 The Appeals Chamber does not consider that Nsabimana's purported incomprehension that Exhibits P113 and P114 could be used against him prevented him from raising at trial any violation of his fair trial rights when the documents were admitted, regardless of the weight and probative value subsequently attributed to them by the Trial Chamber. Recalling that a "matter must be raised 597 Prosecution Response Brief, para.

1329. See also ibid., para. 1310. 598 Nsabimana Reply Brief, paras. 79, 122-124. 599 Nsabimana Reply Brief, paras, 85-89, referring to Nsabimana, T. 23 November 2006 p. 61. 600 Nsabimana Reply Brief, paras. 116-119. 601 Alison Des Forges, T. 8 June 2004 pp. 50-63. 602 See Nsabimana Closing Brief, paras. 202-205. 603 Nsabimana, T. 17 October 2006 p. 42 (French). Nsabimana's counsel also stated that Nsabimana did not contest Exhibit P113. See ibid., p. 39 (French). 601 See Exhibit D492 (Correspondence from Nsabimana to the Prosecutor of the Tribunal, Carla Del Ponte, dated 20 January 1997), p. 1. 605 Nsabimana, T. 17 October 2006 pp. 44, 45 (French). 89 Case No. ICTR-98-42-A 14 December 2015

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20276/H with the court at the time the problem is perceived in order to enable the problem to be remedied", 606 the Appeals Chamber dismisses Nsabimana's submissions in this respect.

249. As to Ntahobali's contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document's contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.607 Likewise, Ntahobali's argument that the Trial Chamber erred in admitting Exhibit P113 because it was double-hearsay has no merit, as the Rules do not prohibit the admission of hearsay evidence as long as it is of probative value. 608 Ntahobali does not show that Exhibit P113 was so lacking in terms of indicia of reliability that it lacked probative value and was therefore inadmissible. He also fails to substantiate his claim that the probative value of the statement was outweighed by the prejudice he allegedly suffered. In this regard, the Appeals Chamber observes that Ntahobali was able to cross-examine Nsabimana, who was the author of the statement.""" Thus, any prejudice that might have resulted from admitting an out-of-court statement by a co-accused was effectively remedied.

250. Regarding Nsabimana's challenge to the Trial Chamber's consideration of the document admitted as Exhibit P114 as his own writing, the Appeals Chamber observes that the exhibit is an unsigned document entitled "Interview with Sylvain Nsabimana" dated 1 October 1994, which does not contain information about the circumstances of the interview or the person who conducted the interview or who transcribed it. The Appeals Chamber notes that Witness Des Forges testified that she had received a copy of Exhibit P114 from Nsabimana. 10 During his cross-examination, Nsabimana explained that: When Ms. Des Forges tendered this document interview with Sylvain Nsabimana of the lst of October 1994, the French version, like the English here, I did not want to challenge this document simply not to hinder the advance that the Chamber needs to make in these proceedings, but I don't know who gave this document to Ms. Des Forges. If you are interested, I can tell you roughly how she had this document from what I imagine, but I am not the one who gave this document to Ms. Des Forges. I did not oppose it simply because what is said in here is not a hundred percent different from my thinking, my view, and it is [not] different from what I wrote in some instances, 606 See Celebiéi Appeal Judgement, para.

641. See also supra, para. 128. 607 See Prosecutor v. Vujadin Popovié et al., Case No. IT-05-88-AR73.1, Decision on Appeals against Decision Admitting Material Related to Boroveanin's Questioning, 14 December 2007, para. 50 ("However, it would be wrong to exclude certain evidence solely because of the supposedly intrinsic lack of reliability of the content of a suspect's questioning in relation to persons who later became that suspect's co-accused."). See, e.g., Nahimana et al. Appeal Judgement, paras. 215, 509 ("The Appeals Chamber recalls first that it is settled jurisprudence that hearsay evidence is admissible as long as it is of probative value, and that it is for Appellant Nahimana to demonstrate that no reasonable trier of fact would have taken this evidence into account because it was second-degree hearsay evidence, which he has failed to do." (internal references omitted)), referring, inter alia, to Gacumbitsi Appeal Judgement, paras. 115, 133, Naletilié and Martinovié Appeal Judgement, para. 217, Semanza appeal Judgement, para.

159. Nsabimana, T. 17 October 2006 pp. 48-82; T. 18 October 2006 pp. 4-87. 610 Alison Des Forges, T. 8 June 2004 p.

50. See also ibid., pp. 54, 57. 90 Case No. ICTR-98-42-A 14 December 2015

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20275/H otherwise, apart from this document which is in English and even the one in French, I have the same observations [...].611 251. When questioned about specific passages of Exhibit P114 in cross-examination, Nsabimana confirmed in one instance that what was written was exact, 12 in two others that it was not, 613 that it was "very probable" that he had said particular words contained in the document to someone, 514 or referred to his examination-in-chief.15 More importantly, Nsabimana also expressly stated that the words contained in Exhibit P114 were not necessarily his and insisted that he could not accept the statements in the document as his and was referring to his testimony for his views on the questions that were asked to him 616 It is in this context that Nsabimana stated that the exhibit could be used and that he had "nothing against it."617 A careful review of the transcripts, together with the video-recording, of the relevant parts of Nabimana's testimony reflects that Nsabimana unambiguously denied authorship of Exhibit P114 and insisted that the views attributed to him in the document were not necessarily his as he had never seen the document before and could not be sure it was a proper transcription of the interview he had given.18 When specifically asked if he 611 Nsabimana, T. 13 November 2006 p.

14. See also T. 13 November 2006 p. 15 (French). 612 Nsabimana, T. 27 November 2006 pp. 16, 17 (concerning a discussion he had with Bashimiki and Ndungutse regarding the post of Butare Prefect). Nsabimana, T. 22 November 2006 pp. 37, 38 (French) and p. 37 (English). 614 Nsabimana, T. 22 November 2006 p. 44. 615 Nsabimana, T. 13 November 2006 p. 12. 616 Nsabimana, T. 13 November 2006 pp. 32 ("Monsieur le Président, je suis prêt à répondre à la question, mais malheureusement, je suis en train de répondre dans un document qui... les paroles ne sont pas nécessairement les miennes. Mais je vous dis que... Permettez-moi de m'exprimer, une minute. Je vous ai expliqué les conditions dans lesquelles ce document, il a été reçu ici. Comme c'est un exhibit, Monsieur le Président m'avait proposé que... qu'on discute les questions posées. Je ne suis pas contre, mais dès que l'on : 'C'est bien ça ?', se référant sur ce document, je suis obligé de réagir. Et quand je réagis, généralement, ça ne donne pas... ça ne fait pas votre affaire. [...] Mais me dire : 'Est-ce que c'est bien ça?', je suis obligé de vous dire 'non', puisque je ne connais pas ce document comme étant pas le mien (sic) - vu la façon dont ce document a été transmis à Madame Des Forges. C'est tout. [...] Monsieur le Président, l'auteur du document ou celui qui a transcrit le document à partir de sources que je ne connais pas,

il l'a écrit. Donc, c'est bien ça qui est écrit."), 33 ("Mais maintenant... maintenant, vous m'opposez à quelque chose où je vous dis que ça n'appartient qu'à un autre auteur. Comment voulez-vous que je vous fasse la comparaison ?") (French); T. 22 November 2006 p. 43 ("I would like to add that I didn't give an interview to Madam Des Forges. We are dealing with a document, but which doesn't tell us to whom this interview was given, and I will not fail to mention that each time we refer to this document."). See also ibid., p. 30 ("Ms Kadji: Mr. President, I think the witness has answered this question and he has explained to us his answer, and he has told us the problems of this document. Now, we want to have confirmed, word-for-word, what is written in this document. He has explained himself, Mr. President."). Having examined the original video-recording of Nsabimana's testimony, the Appeals Chamber notes that some aspects of his testimony were not fully or accurately transcribed in the French or English transcripts. The Appeals Chamber has referred to the version of the transcripts that accurately transcribed Nsabimana's live testimony and has deliberately omitted specific aspects of the transcripts when neither the English nor the French version accurately reflected the live testimony. See, in particular, video-recording of Nabimana's testimony of 22 November 2006, at

20:00-23:00. 617 Nsabimana, T. 22 November 2006 p. 35. 618 Nsabimana, T. 22 November 2006 p. 45 ("I have the impression that it must have been Mr. Greg Barrow of the BBC at the YMCA. He was with his friend, James Stanley. That is the impression I have, and it would appear to me that this interview either - was given in English, I believe. I didn't speak French in that interview, which is why, well, the English, that is there, seems to be broken English to me. I don't have the document with me. I think those are the two people that I might have talked, and I think they are the ones who - they are the only ones whom I would have given a document, if they had it on video. This is not a transcription. I never had a video. I never had a transcript. And I've also been in contact with Ken Barrow and Stanley, but I never had this document. But I think it came from those people, and they are the ones who might have sent it to Madam Des Forges, that is the videocassette, and she's the one who might have put everything together to produce this document. But at the time that Madam Des Forges was producing this Case No. ICTR-98-42-A 14 December 2015

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20274/H agreed with the content of Exhibit P114, in particular that he was aware of a plan to exterminate the Tutsis, he responded that he did not.619 252. In these circumstances, the Appeals Chamber considers that the Trial Chamber erred in finding that Nsabimana stated that Exhibit P114 "reflected his own views" or "contained a faithful reflection of what he said during the interview»620 and acknowledged that the document was "authentic" 621 The Trial Chamber also erred in relying on the exhibit as proof of Nsabimana's views, especially in finding that Nsabimana was aware of the plan to exterminate Tutsis when Nsabimana expressly testified to the contrary. 22 The Appeals Chamber will discuss the impact of this finding when examining Nsabimana's submissions on his responsibility for aiding and abetting by omission crimes committed at the Butare Prefecture Office in relation to which the Trial Chamber relied upon Exhibit P114.23 Accordingly, the Appeals Chamber considers it unnecessary to discuss Nsabimana's remaining arguments regarding Exhibit P114 summarised above.

253. Turning to Ntahobali's and Nsabimana's arguments that the Trial Chamber's use of Exhibit P113 was inconsistent with its own decisions, the Appeals Chamber observes that, in admitting Exhibit P113 during Witness Des Forges's testimony, the Trial Chamber noted that it was relevant and probative of her expert opinion and a source relied upon in her expert report. 24 However, the Trial Chamber's oral decision to admit the statement in no way reflects that the Trial Chamber limited its use to supporting Witness Des Forges's expert opinion. Indeed, although Exhibit P113 was admitted through Witness Des Forges, the Trial Chamber's rulings reflect that it was not admitted as expert opinion evidence. 25 Ntahobali's argument that Exhibit P113 was used beyond the limitations imposed on expert evidence is therefore without merit.

254. The Appeals Chamber also notes that, contrary to Ntahobali's and Nsabimana's submissions, the Trial Chamber did not state that co-accused's statements shall only be used for the purposes of assessing the credibility of their testimonies. Ntahobali and Nsabimana advance their arguments by referring to oral rulings and decisions of the Trial Chamber which reflect the Trial I tried to imagine from where the document has come. Unfortunately I never had it either, from those journalists or Madam Des Forges herself."). 619 Nsabimana, T. 22 November 2006 p. 45 ("My answer to you is no, Counsel. As the things are here and as you put them, it is not the same thing. We can agree on certain terms and certain words and certain things, but not as you put it, which is why I'm refusing. That is why I'm telling you I was not aware of that plan."). 620 Trial Judgement, para. 887. 621 Trial Judgement, para. 2800, referring to Nsabimana, T. 22 November 2006 pp. 39, 40. See also Trial Judgement, Ba Trial Judgement, para, 5904, fn. 14768; sabimana, T. 22 November 2006 p.

45. See supra, para. 251. 623 See infra, Section VI.D.2(a)(i). 624 Alison Des Forges, T. 8 June 2004 p. 49. 625 Alison Des Forges, T. 8 June 2004 pp. 60-62. See also Nsabimana, T. 17 October 2006 p.

43. The Appeals Chamber notes that the same principle was applied by the Trial Chamber in relation to Exhibit P115, which, as Exhibit P113, was 92 Case No. ICTR-98-42-A 14 December 2015

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20273/H Chamber's discretionary decision to limit the use of statements from the co-Accused to prosecutorial authorities for impeachment purposes and could not reasonably be interpreted as applying to all statements by the co-Accused. 2 It also bears noting that, when Nsabimana's counsel sought the admission of Exhibit D494, the French original of Exhibit P113, the Trial Chamber did not accept the arguments that Exhibit P113 had not been admitted for the purpose of establishing the truth of its contents. 627 255. In light of the foregoing, the Appeals Chamber finds that Ntahobali and Nsabimana have failed to demonstrate that the Trial Chamber erred in admitting or placing undue reliance on Exhibit P113. Although the Appeals Chamber does not find that the Trial Chamber erred in admitting Exhibit P114, it finds that the Trial Chamber erred in considering Exhibit P114 as reflecting Nsabimana's views and in placing undue reliance on it as a result.

2. Exhibit P185 256. During the cross-examination of Nsabimana, the Prosecution tendered a French transcript of a March 1996 phone interview between Witness Des Forges and Nsabimana that the Trial Chamber admitted as Exhibit P185.628 Nsabimana authenticated the document when it was admitted. 29 As indicated in the Trial Judgement, Exhibit P185 reflects that Nsabimana saw a Peugeot 504 that belonged to someone "he knew" 630 Exhibit P185 further reflects that Nsabimana learned that the person that he saw in the vehicle was named "Shalom" 631 257. The Trial Chamber found Ntahobali responsible for aiding and abetting the killing of the Rwamukwaya family based, in part, on evidence that Ntahobali was in possession of Rwamukwaya's Peugeot 504 around the time the members of the Rwamukwaya family were used as a source of Witness Des Forges's expert report and was tendered by the Prosecution during her testimony. See Alison Des Forges, T. 9 June 2004 p. 12. 626 See Ntahobali Appeal Brief, para. 773, referring to Nsabimana, T. 21 November 2006 pp. 71-74 (oral ruling relating to an interview of Nsabimana given to Prosecution investigators dated 18 July 1997); Nsabimana Appeal Brief, paras. 160, 161, 163-167, 178, 179, 294-297, referring to Nsabimana, T. 23 November 2006 p. 61 (oral ruling relating to an interview of Nsabimana by Prosecution investigators dated 18 July 1997), The

Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion to Admit Kanyabashi's Custodial Statements, 15 September 2006, para. 18 (relating to an interview of Kanyabashi given to Belgian authorities upon his arrest dated 28 June 1995), and The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Oral Motion to Cross-Examine Ntahobali Using Ntahobali's Statements to Prosecution Investigators in July 1997, 15 May 2006, para. 82 (relating to two interviews of Ntahobali by Prosecution investigators dated 24 and 27 Nsabimana. T. 17 October 2006 pp. 40-43. 628 Nsabimana, T. 27 November 2006 pp. 65, 66. 629 Trial Judgement, para. 887, referring to Nsabimana, T. 27 November 2006 pp. 64-66. The Trial Chamber noted that, while testifying, Nsabimana recognised Exhibit P185 as having been attached to a letter he sent to the Prosecution in January 1997. See Trial Judgement, para. 887, referring to Nsabimana, T. 27 November 2006 pp. 64-66. 630 Trial Judgement, paras. 2405, 3214, referring to Exhibit P185 (Telephone conversation with Alison Des Forges, March 1996), p. K0045092 (Registry pagination). 631 Exhibit P185 (Telephone conversation with Alison Des Forges, March 1996), p. K0045092 (Registry pagination). 93 Case No. ICTR-98-42-A 14 December 2015

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20272/H killed. 32 In assessing this evidence, the Trial Chamber observed that, during his testimony, Nsabimana agreed that the owner of the Peugeot 504 he referred to in Exhibit P185 was Rwamukwaya. 633 The Trial Chamber further observed that, contrary to what was contained in Exhibit P185, Nsabimana testified that he saw Ntahobali driving a different Peugeot 504.634 The Trial Chamber noted that Nsabimana's testimony departed from Exhibit P185, expressed concern that his testimony was intended to protect Ntahobali, and concluded that, in light of other consistent evidence, "the Peugeot 504 in which Nsabimana saw Ntahobali is the one belonging to Rwamukwaya". 635 258. Similar to his submissions concerning Exhibit P113, Ntahobali argues that statements of co-accused posterior to the events lack sufficient probative value and that Exhibit P185 should not have been admitted as it constitutes double-hearsay.636 Ntahobali also contends that the Trial Chamber improperly used Exhibit P185 for purposes beyond evaluating the credibility of its author.637 He adds that the Trial Chamber erred when it preferred the account in Exhibit P185, which it had elsewhere stated it would view with caution, over Nsabimana's testimony that contradicted Exhibit P185.º38 259. The Prosecution responds that the Trial Chamber did not abuse its discretion in admitting and using Exhibit P185.639 260. The

Appeals Chamber reiterates that posterior statements of co-accused and hearsay evidence are not per se barred from admission under Rule 89 of the Rules because of their alleged intrinsic lack of probative value '40 Ntahobali's arguments in this respect are therefore rejected. '41 261. The Appeals Chamber finds that Ntahobali also fails to demonstrate that the Trial Chamber erred in its use of Exhibit P185. Contrary to his assertion, the Trial Judgement indicates that the Trial Chamber limited the use of Exhibit P185 to the purposes of impeachment, relying only on testimonial evidence to establish Ntahobali's possession of Rwamukwaya's vehicle. 642 632 Trial Judgement, paras. 3213-3215, 3219, 5852-5855, 6053-6055, 6100, 6101, 6121, 6168, 6169. 633 Trial Judgement, para. 3214, referring to Nsabimana, T. 28 November 2006 pp. 11, 12. 634 Trial Judgement, para. 3214, referring to Nsabimana, T. 28 November 2006 p. 11. 635 Trial Judgement, para. 3214. 636 Ntahobali Appeal Brief, paras. 777-779. 637 Ntahobali Appeal Brief, paras. 773, 774. 638 Ntahobali Appeal Brief, paras. 779, 781. 639 Prosecution Response Brief, paras. 1129, 1130. See supra, para. 249. 641 The Appeals Chamber observes that none of the parties objected to the admission of the document when questioned in this respect by the Presiding Judge. See Nsabimana, T. 27 November 2006 p. 65. 642 Trial Judgement, para.

3219. Noting the discrepancy with Exhibit P185, the Trial Chamber decided to disregard the testimony of Nsabimana that he did not see Ntahobali in Rwamukwaya's Peugeot 504 and instead relied on the consistent testimony of several witnesses who gave evidence that Ntahobali was in possession of Rwamukwaya's 94 Case No. ICTR-98-42-A 14 December 2015

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20271/H 262. Accordingly, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber committed an error in relation to Exhibit P185. 3. 1996 Telephone Conversations 263. The Appeals Chamber observes that, when assessing Witness TA's evidence concerning an attack at the Butare Prefecture Office that occurred in mid-May 1994, the Trial Chamber noted that the statement, which Nsabimana gave to Witness Des Forges during a telephone conversation in 1996, that "soldiers and others were coming to take away women to rape them and other people were being selected to be killed»643 was "consistent" with the testimony of Witness TA. 644 When considering the number of refugees abducted and killed from the prefectoral office, it noted that "Des Forges testified that Nsabimana told her he did not know how many refugees were taken away from the (Butare Prefecture Office], but that he did know that this was happening.».45 The Trial Chamber found Nyiramasuhuko and Ntahobali criminally responsible for ordering the killings of Tutsi refugees taken from the prefectoral office during this specific attack and Ntahobali responsible for raping Witness TA during the attack.646 264. Nyiramasuhuko submits that, by relying on Witness Des Forges's testimony about Nsabimana's statement during their 1996 telephone conversations to corroborate Witness TA's testimony, the Trial

Chamber contradicted its own position that prior statements from co-Accused would be admitted for the sole purpose of testing the credibility of the witness.4? She argues that this aspect of Witness Des Forges's testimony should not have been admitted as "[this kind of extrajudicial statement, made after the fact and overwhelmingly against an accused to limit his own responsibility, is inadmissible against co-accused at common law" 648 Ntahobali asserts that the Trial Chamber should not have admitted Witness Des Forges's testimony about Nsabimana's statements during her 1996 telephone conversations with him as it was hearsay and lacked sufficient probative value. 49 265. The Prosecution did not respond to Nyiramasuhuko's and Ntahobali's arguments concerning this aspect of Witness Des Forges's testimony. vehicle around that time. See ibid., paras. 3213, 3214. The Trial Chamber also used Exhibit P185 in assessing Nsabimana's testimony regarding Sindikubwabo's 19 April 1994 speech. See ibid., paras, 887, 889. 643 Trial Judgement, para. 2632, referring to Alison Des Forges, T. 9 June 2004 p. 51. 644 Trial Judgement, para. 2632. 645 Trial Judgement, para. 2774, referring to Alison Des Forges, T. 9 June 2004 p. 51. 646 See infra, Sections IV.F.1, V.I.1. 647 Nyiramasuhuko Appeal Brief, para. 184, referring to Nsabimana, T. 21 November 2006 pp. 73-75. 648 Nyiramasuhuko Appeal Brief, para. 184, referring to R v. Mc Fall [1980] I.R.C.S. 321. 649 Ntahobali Appeal Brief, para. 779. 95 Case No. ICTR-98-42-A 14 December 2015

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20270/H 266. The Appeals Chamber considers that Nyiramasuhuko's arguments fail to appreciate that Witness Des Forges's testimony on Nsabimana's oral statements constitutes testimonial evidence and is not akin to a prior statement given by an accused outside a courtroom. As such, the impugned aspect of Witness Des Forges's testimony is not subject to any rules the Trial Chamber may have adopted regarding accused's prior statements or the jurisprudence that Nyiramasuhuko cites in support of her claim. The Appeals Chamber further observes that the Trial Chamber's oral ruling upon which Nyiramasuhuko relies in support of her claim was confined to the use of statements given by a co-accused to Tribunal investigators.650 Nyiramasuhuko's arguments are therefore rejected.

267. Turning to Ntahobali's contention, the Appeals Chamber observes that Witness Des Forges was allowed to testify as an expert in history and the human rights situation in Rwanda up to and including the events of 1994.651 The Appeals Chamber recalls that expert witnesses are ordinarily afforded significant latitude to offer opinions within their expertise and that their views need not be based upon first-hand knowledge or experience. 52 It is also settled jurisprudence that experts are allowed to rely on a variety of sources in support of their conclusions and that this may include hearsay.53 Niahobali's argument that the impugned aspect of Witness Des Forges's testimony should have been excluded because it was hearsay is therefore without merit. Ntahobali's unsubstantiated claim that it lacked probative value is likewise rejected.

268. Accordingly, the Appeals Chamber concludes that Nyiramasuhuko and Ntahobali have not demonstrated that the Trial Chamber erred in admitting Witness Des Forges's testimony concerning her 1996 telephone conversations with Nsabimana or in placing undue reliance on this aspect of Witness Des Forges's testimony.

4. Conclusion 269. Based on the foregoing, the Appeals Chamber dismisses the relevant parts of Grounds 4 and 19 of Nyiramasuhuko's appeal, Ground 3.9 of Ntahobali's appeal, and the part of Ground 7 of Nsabimana's appeal related to Exhibit P113. However, the Appeals Chamber finds that the Trial Chamber erred in considering Exhibit P114 as reflecting Nsabimana's views and in placing undue reliance on it as a result. The impact of this finding will be discussed in Section VI.D.2 below. 650 See Nyiramasuhuko Appeal Brief, para. 184, referring to Nsabimana, T. 21 November 2006 pp. 73-75 (oral ruling relating to an interview of Nsabimana given to Prosecution investigators dated 18 July 1997); supra, para. 254. 651 Trial Judgement, para. 194, referring to Alison Des Forges, T. 7 June 2004 pp. 57-59. 652 Bagosora and Nsengiyumva Appeal Judgement, para. 225; Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para.

303. Bagosora and Nsengiyumva Appeal Judgement, para. 226. 96 Case No. ICTR-98-42-A 14 December 2015

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20269/H I. Participation of a Former Prosecution Legal Officer in the Preparation of the Trial Judgement (Ntahobali Ground 1.8; Ndayambaje Ground 13) 270. In the Trial Judgement, the Trial Chamber noted that, on reviewing the procedural history of the case in July 2009, it became aware that Chile Eboe-Osuji ("Eboe-Osuji"), the then Chief of the Chambers Support Section at the Tribunal, had participated in the present case as an employee of the Office of the Prosecutor in 1998 and 1999.654 Considering the issue proprio motu, the Trial Chamber stated that: As an immediate precautionary measure, and before Mr. Eboe-Osuji had participated in any deliberations relating to the guilt or innocence of any of the various Accused, the Chamber determined he would preliminarily not be involved in the judgement drafting process. After reviewing relevant case law, the Trial Chamber concluded that it is unclear whether Mr. Eboe-Osuji's participation would raise a conflict of interest which would impact on the fair trial rights of the various Accused. However, out of an abundance of caution and intent on preserving both justice and the appearance of justice, the Chamber determined in November 2009 that Mr. Eboe-Osuji's involvement from the judgement drafting process would be excluded. oss 271. Ntahobali and Ndayambaje submit that Eboe-Osuji's participation in the preparation of the Trial

Judgement undoubtedly affects their right to a fair trial.656 Specifically, Ntahobali asserts that Eboe-Osuji's participation in the work of the Trial Chamber in this case prior to his exclusion in November 2009 constitutes a serious conflict of interest or, at least, an appearance of conflict of interest 657 He adds that the Trial Chamber erred in: i) failing to take precautionary measures when Eboe-Osuji was hired as the Chief of the Chambers Support Section to avoid this situation; (ii) not providing sufficient details about the extent of Eboe-Osuji's participation in the work of the Trial Chamber; and (iti) allowing the prejudice to persist even though it became aware of the situation in July 2009.68 Ndayambaje submits that, as a party to the proceedings, Eboe-Osuji should not have participated in the drafting of the Trial Judgement and that there is a "glaring absence of a semblance of justice" 65º He "leaves it to the Appeals Chamber to demand further information about the actual involvement of Eboc-Osuji in the Chamber's deliberations", 660 As a relief, Ntahobali 654 Trial Judgement, para.

204. The Trial Chamber noted that Eboe-Osuji was listed as counsel for the Prosecution on six decisions. See tbid., para. 204, fn. 375. 655 Trial Judgement, para. 204 (internal reference omitted). 656 Ntahobali Notice of Appeal, para. 54; Ndayambaje Notice of Appeal, paras. 110, 111. 657 Ntahobali Notice of Appeal, para. 54. 658 Ntahobali Notice of Appeal, para.

55. Ntahobali explained that he could not develop Ground 1.8 in his appeal brief due to the word limit imposed for this brief. Likewise, Ndayambaje did not develop further arguments in his appeal brief, simply referring to his notice of appeal. See Ntahobali Appeal Brief, para. 128; Ndayambaje Appeal Brief, para.

293. Based on the language used in their appeal briefs, the Appeals Chamber considers that neither Ntahobali nor Ndayambaje has abandoned their respective ground of appeal and is of the view that the arguments Ntahobali and Ndayambaje developed in their notices of appeal in support of their allegations of error should be addressed as a matter of fairness. 659 Ndayambaje Notice of Appeal, paras. 110, 112. 660 Ndayambaje Notice of Appeal, para. 109. 97 Case No. ICTR-98-42-A 14 December 2015

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20268/H requests a stay of the proceedings or, alternatively, any other reasonable remedy. 61 Ndayambaje requests the Appeals Chamber to reverse all the findings of guilt entered against him, 662 272. The Prosecution did not respond to these submissions. 663 273. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to the judges of the Tribunal and which cannot be easily rebutted. It also emphasises that legal officers assisting judges at the Tribunal are not subject to the same standards of impartiality as the judges of the Tribunal,665 and that judicial decision-making is the sole purview of the judges.66 Legal officers merely provide assistance to the judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the judges. 067 274. The Appeals Chamber observes that Ntahobali and Ndayambaje do not point to any element which may suggest that Eboe-Osuji participated in the judicial decision-making process or may have exercised any undue influence on this process. The Trial Judgement reflects that the Trial Chamber excluded Eboe-Osuji from participating in any deliberations relating to the guilt or innocence of the co-Accused, and that he was excluded from all aspects of the Trial Judgement drafting process from July 2009.668 Ntahobali and Ndayambaje do not provide support for the assertion that the impartiality or appearance of impartiality of the judicial-making process and, consequently, their fair trial rights, may have been affected by Eboe-Osuji's limited involvement in this case prior to July 2009.

275. For the foregoing reasons, the Appeals Chamber dismisses Ground 1.8 of Ntahobali's appeal and Ground 13 of Ndayambaje's appeal. 661 Ntahobali Notice of Appeal, paras. 56, 57. 662 Ndayambaje Notice of Appeal, para. 112. 663 The Prosecution explained that it considers that, by not presenting arguments in his appeal brief, Ntahobali has abandoned Ground 1.8 of his appeal. See Prosecution Response Brief, para.

753. The Appeals Chamber further notes that, contrary to its submission, the Prosecution failed to address Ndayambaje's Ground 13. See ibid., para. 2169, Section I. 664 Karemera and Ngirumpatse Appeal Judgement, para. 24; Hategekimana Appeal Judgement, para. 16; Nahimana et al. Appeal Judgement, para. 48; Akayesu Appeal Judgement, para, 91. See also Renzaho Appeal Judgement, para. 43 ("in the absence of evidence to the contrary, Judges are presumed to be impartial when ruling on the issues before them"); Furundzija Appeal Judgement, para. 197. 665 See The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 ("Bizimungu et al. Appeal Decision"), B Haleekimana Appeal Judgement, para, 20; Bizimungu et al. Appeal Decision, para. 9. 667 Bizimungu et al. Appeal Decision, para. 9. 668 Trial Judgement, para. 204. 98 Case No. ICTR-98-42-A 14 December 2015

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20267/H J. Allegations of False Testimony and Contempt (Nyiramasuhuko Ground 7 in part; Ntahobali Grounds 1.3 and 3.12; Kanyabashi Ground 3.11) 276. Nyiramasuhuko, Ntahobali, and Kanyabashi submit that the Trial Chamber erred in relation to the allegations of false testimonies by Prosecution Witnesses QA, QY, and SJ.669 1. Procedural Background 277. Witness QA testified at trial in March 2004 and, upon Kanyabashi's request, was recalled for further cross-examination in October 2008 on specific inconsistencies within his testimony and statements made in Rwanda. 70 While being further cross-examined, Witness QA admitted to having lied during his testimony in 2004 about statements made by Kanyabashi and Nsabimana in 1994 and that, "[for the most part, [his] testimony was [...] lies", 671 On 7 November 2008, the Trial Chamber found that there were strong grounds to believe that Witness QA may have willingly and knowingly given false testimony with the intent to mislead it.72 As a result, the Trial Chamber directed the Registrar to appoint an independent amicus curiae to investigate the allegations of Witness QA's false testimony pursuant to Rule 91(B) of the Rules as well as the allegations of intimidation and bribery related to the witness's appearances before it pursuant to Rule 77 of the Rules, and to report back to it as soon as practicable. 73 278. Witness SJ testified at

trial in May and June 2002,674 and Witness QY in March 2003 and April 2006.675 On 3 December 2008, upon Ntahobali's request, the Trial Chamber ordered the recall of both witnesses regarding possible lies in their testimonies and the circumstances surrounding such lies676 Upon their recall in February 2009, Witnesses QY and SJ testified that, upon instruction from Prosecution staff, they had falsely denied knowing certain Prosecution witnesses 669 Nyiramasuhuko Notice of Appeal, paras. 1.32-1.39, 1.42, 1.43; Nyiramasuhuko Appeal Brief, paras. 243-247, 252-283; Ntahobali Notice of Appeal, paras. 19-25, 289-293; Ntahobali Appeal Brief, paras. 44-64; 819-839; Kanyabashi Notice of Appeal, sub-para. 3.11, para. 25; Kanyabashi Appeal Brief, paras. 358-361. The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motion to Re-Open His Case and to Recall Prosecution Witness QA, signed 2 July 2008, filed 3 July 2008 ("2 July 2008 Decision"), paras. 34-36, p. 10, fn. 14. 671 Witness QA, T. 30 October 2008 p. 49 (closed session). See also T. 29 October 2008 pp. 15, 16 (closed session), T. 30 October 2008 p. 24 (closed session) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for ar Investigation Relative to False Testimony and Contempt of Court, 7 November 2008 ("7 November 2008 Decision"), paras. 22, 23. 73 7 November 2008 Decision, para. 27, p. 7 674 Witness SJ testified from 28 to 30 May 2002 and from 3 to 5 June 2002. 675 Witness QY testified on 19, 20 and from 24 to 26 March 2003 as well as on 10 April 2006. 676 3 December 2008 Decision, paras. 24, 26, p.

7. Ntahobali sought the recall of Witnesses QY and SJ following their testimonies in the trial of Munyaneza held in Canada in April 2007 where, according to him, they admitted knowing several Prosecution witnesses they had denied knowing when testifying in this case. See ibid., para. 3. 99 Case No. ICTR-98-42-A 14 December 2015

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20266/H when they in fact knew them." On 19 March 2009, the Trial Chamber found that there were strong grounds to believe that Witnesses QY and SJ may have knowingly and wilfully provided false testimonies with the intent to mislead it.78 The Trial Chamber ordered the Registrar to appoint an independent amicus curiae to investigate the allegations of false testimonies of Witnesses QY and SJ pursuant to Rule 91(B) of the Rules and coercion by "certain staff of this Tribunal" with respect to these witnesses' testimonies pursuant to Rule 77 of the Rules, and to report back to it as soon as practicable. 679 279. On 2 July 2009, the amicus curiae designated by the Registrar ("First Amicus Curiae") filed confidentially and ex parte his report on the result of his investigations into the allegations concerning Witnesses QA's, QY's, and SJ's testimonies, 680 On 30 October 2009, noting multiple omissions in the First Amicus Curiae Report, including a failure to conduct and/or report on some of the investigations it had requested, the Trial Chamber directed the Registrar to appoint a new amicus curiae to investigate the allegations outlined in its prior decisions and to report back to it. 81 On 4 March 2010, the Trial Chamber denied motions by Ntahobali, Nyiramasuhuko, and Kanyabashi to transmit the First Amicus Curiae Report to the parties. 682 280. The second amicus curiae designated

by the Registrar ("Second Amicus Curiae") filed confidentially and exparte his report on the investigations he conducted into the allegations concerning Witness QA's testimony on 25 March 2010 and his report concerning the allegations related to the testimonies of Witnesses QY and SJ on 18 May 2010.83 677 Witness QY, T. 23 February 2009 pp. 37-62 (closed session); Witness SJ, T. 23 February 2009 pp. 82-85 (closed session). 678 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for an Investigation into False Testimony and Kanyabashi's Motion for an Investigation into Contempt of Court Relative to Prosecution Witnesses QY and SJ, 19 March 2009 ("19 March 2009 Decision"), para. 14. 679 19 March 2009 Decision, paras. 15-17, pp. 5, 6. 680 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Report of Boniface Njiru Amicus Curiae Appointed by the International Criminal Tribunal for Rwanda to Investigate and Report to the Trial Chamber II [on] False Testimony and Contempt of Court Relative to Prosecution Witnesses QA, QY and SJ, 2 July 2009 ("First Amicus Curiae Report") (confidential). The ex parte status of the report was lifted by the Trial Chamber on 2 September 2011. See infra, para. 288. 681 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Order, 30 October 2009 ("30 October 2009 Order"),

pp. 3, 4. 582 The Prosecutor v. Pauline Nviramasuhuko et al., Case No. ICTR-98-42-T, Decision Regarding Ntahobali, Nyiramasuhuko, and Kanyabashi's Motions to Transmit the Amicus Curiae Report, signed 4 March 2010, filed 5 March 2010 ("4 March 2010 Decision"), p. 7. 683 The Prosecutor v. Pauline Nyiramasuhuko et al., ICTR-98-42-T, Report of Amicus Curiae on Rule 77 and Rule 91 Investigation Related to Witness QY and SJ, 18 May 2010 ("Second Amicus Curiae Report Concerning Witnesses QY and SJ") (confidential); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Report of Amicus Curiae on Rule 77 and Rule 91 Investigation Related to Witness QA, 25 March 2010 ("Second Amicus Curiae Report Concerning Witness QA") (confidential) (collectively "Second Amicus Curiae Reports"). The ex parte status of the Second Amicus Curiae Report Concerning Witnesses QY and SJ was lifted by the Trial Chamber on 2 September 2011, whereas the ex parte status of the Second Amicus Curiae Report Concerning Witness QA was lifted by the Appeals Chamber on 18 March 2013. See infra, para. 288. 100 Case No. ICTR-98-42-A 14 December 2015

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20265/H 281. In the Trial Judgement, the Trial Chamber noted that "since their testimony in the present case, Prosecution Witnesses QA, QY and SJ ha[d] become the subject of on-going investigations before the Tribunal for false testimony and contempt of court."684 The Trial Chamber stated that without prejudice to any formal proceedings for false testimony and contempt which may come before the Tribunal, it will "treat these witnesses' testimony with added caution. "685 282. On 2 September 2011, after the delivery of the Trial Judgement, the Trial Chamber issued a decision in which it found that sufficient grounds existed to believe that Witness QA knowingly and wilfully gave false testimony in this case, issued an order in lieu of an indictment against Witness QA, and directed the Registry to appoint a new amicus curiae to prosecute the matter.86 The same day, the Trial Chamber issued a second decision, in which it found that, despite evidence that Witnesses SJ and QY falsely denied knowing other Prosecution witnesses in their 2002 and 2003 testimonies, it would not be efficient or effective to initiate proceedings against them.687 The Trial Chamber further considered that there was no prima facie case of contempt against any Prosecution staff and insufficient information to justify initiating proceedings against the Prosecution counsel who had prepared Witnesses QY and SJ for

trial.688 In this decision, the Trial Chamber considered that, "in the interests of transparency", the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning Witnesses QY and SJ should be released to the parties. 689 283. On 18 March 2013, the Appeals Chamber granted Kanyabashi's request to lift the ex parte status of the Second Amicus Curiae Report Concerning Witness QA in the interests of justice and transparency, and directed the Registry to disclose it to the parties without delay.690 284. Nyiramasuhuko, Ntahobali, and Kanyabashi submit that the Trial Chamber violated their right to a fair trial in the context of the false testimonies of Witnesses QA, QY, and SJ.691 684 Trial Judgement, para. 200. 685 Trial Judgement, paras. 200, 203. See also ibid., paras. 201, 202. 686 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony [of] Witness QA, 2 September 2011 ("2 September 2011 Decision Concerning Witness QA") (confidential), para. 33, p. 10. 687 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony and Witnesses QY and SJ, 2 September 2011 ("2 September 2011 Decision Concerning Witnesses QY and SJ") (confidential), paras. 12, 13, 31-33, p. 11. 688 2 September 2011 Decision Concerning Witnesses QY and SJ, paras. 35-38, p. 11. 689 2 September 2011 Decision Concerning Witnesses QY and SJ, para.

40. On 23 November 2012, the Appeals

BESE Chamber clarified that the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning Witnesses QY and SJ were part of the record on appeal. See Decision on Arsène Shalom Ntahobali's Motion to Present Additional Evidence, 23 November 2012 ("23 November 2012 Appeal Decision"), p. 2. 690 Decision on Kanyabashi's Motion for Disclosure of the Amicus Curiae Report Concerning Witness QA, 18 March 2013 ("18 March 2013 Decision") (confidential), paras. 14, 16. 101 Case No. ICTR-98-42-A 14 December 2015

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20264/H They contend that the Trial Chamber erred in failing: (i) to communicate the First Amicus Curiae Report and the Second Amicus Curiae Reports (collectively "Amici Curiae Reports") before the delivery of the Trial Judgement; (ii) to consider the impact of Amici Curiae Reports on the credibility of the Prosecution evidence; and (iii) to take into account that the acts of the Prosecution as revealed in the Amici Curiae Reports affected the fairness of the proceedings. 92 In addition to their arguments related to the Amici Curiae Reports, Nyiramasuhuko and Ntahobali also argue that the Trial Chamber erred in failing to exclude the evidence of Witnesses QY and SJ as a result of their lies or, in the alternative, to apply the requisite caution in assessing both their testimonies and the evidence of the witnesses who were also allegedly instructed to lie. 693 285. Nyiramasuhuko and Ntahobali request the Appeals Chamber to order a stay of proceedings, or, in the alternative, to exclude or treat with appropriate caution the testimony of Witnesses QY and SJ as well as the testimonies of all witnesses implicated by Witnesses QY and SJ.694 Kanyabashi requests the reversal of his conviction for public and direct incitement to commit genocide. 695 286. The Appeals Chamber will first address the contentions related to the Amici Curiae Reports before turning to Nyiramasuhuko's and

Ntahobali's additional submissions. 691 Nyiramasuhuko Notice of Appeal, paras. 1.32, 1.34-1.39, 1.42, 1.43; Nyiramasuhuko Appeal Brief, paras. 243-247, 252-282; Ntahobali Notice of Appeal, paras. 19-21, 24, 25, 289-293; Ntahobali Appeal Brief, paras. 44-64, 819-839; Kanyabashi Notice of Appeal, sub-paras. 3.11.1, 3.11.2; Kanyabashi Appeal Brief, paras. 358-361. See also AT. 15 April 2015 pp. 17-20 and 23-25 (closed session); AT. 16 April 2015 pp. 20, 21 (closed session). In their respective notices of appeal, Nyiramasuhuko and Ntahobali also contended that the Trial Chamber erred in failing to issue a decision on whether to initiate false testimony proceedings against Witnesses QA, QY, and SJ prior to the delivery of the Trial Judgement. Ntahobali further argued that the Trial Chamber erred by merely noting in the 2 September 2011 Decision Concerning Witnesses QY and SJ that there was insufficient evidence from the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning Witnesses QY and SJ to initiate false testimony proceedings against the two witnesses. See Nyiramasuhuko Notice of Appeal, para. 1.33; Ntahobali Notice of Appeal, paras. 22, 23. However, neither Nyiramasuhuko nor Ntahobali reiterated or substantiated these allegations in their appeal briefs. Accordingly, the Appeals Chamber rejects them without further consideration. 692 Nyiramasuhuko Notice of

Appeal, paras. 1.32, 1.35-1.38, 1.42; Nyiramasuhuko Appeal Brief, paras. 243-247, 252-254, 256-265, 272, 281; Ntahobali Notice of Appeal, paras. 20, 21, 24, 289-291; Ntahobali Appeal Brief, paras. 45, 47-64, 821, 830-836; Kanyabashi Notice of Appeal, sub-paras. 3.11.1, 3.11.2; Kanyabashi Appeal Brief, paras. 325, 693 Nyiramasuhuko Notice of Appeal, paras. 1.34, 1.43; Nyiramasuhuko Appeal Brief, paras. 255-257, 259, 261, 265, 266, 268, 270-275, 279, 282; Ntahobali Appeal Brief, paras. 821-823, 825-829. * Nyiramasuhuko Appeal Brief, paras. 282, 283; Ntahobali Notice of Appeal, paras. 24, 292, 293; Ntahobali Appeal Brief, paras. 64, 829, 839. 695 Kanyabashi Appeal Brief, para.

361. See also Kanyabashi Notice of Appeal, para.

25. Case No. ICTR-98-42-A 14 December 2015

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20263/H 2. Amici Curiae Reports (a) Communication of the Amici Curiae Reports 287. As noted above, the Trial Chamber denied Ntahobali's, Nyiramasuhuko's, and Kanyabashi's requests for transmission of the First Amicus Curiae Report to the parties on 4 March 2010.6%6 In its decision, the Trial Chamber stated that the reports were not commissioned to evaluate the credibility of Witnesses QA, QY, and SJ but to guide it in addressing conduct that interfered with its administration of justice.69 After noting that the parties had ample opportunity to raise issues of credibility regarding the testimonies of these witnesses and to cross-examine them, the Trial Chamber found that the parties had an adequate opportunity to direct the Chamber's attention to any issues of importance and concluded that the First Amicus Curiae Report did not affect the co-Accused's fair trial rights and that its non-disclosure did not prejudice them.8 It further observed that it had not yet received the report from the Second Amicus Curiae and that, upon receipt and review of it and after making its decision thereon, it may consider whether to disclose both reports to the parties. 699 The Trial Chamber pronounced the Trial Judgement on 24 June 2011 and issued it in writing on 14 July 2011.700 288. In September 2011, the Trial Chamber decided that the First Amicus Curiae Report and the Second Amicus Curiae

Report Concerning Witnesses QY and SJ should be released to the parties in the interests of transparency.?01 The Second Amicus Curiae Report Concerning Witness QA was communicated to the parties pursuant to the Appeals Chamber's decision of 18 March 2013702 289. There is no reference to the Amici Curiae Reports in the Trial Judgement.?03 290. Nyiramasuhuko, Ntahobali, and Kanyabashi submit that the Trial Chamber erred in law in refusing or failing to communicate the Amici Curiae Reports to them prior to the delivery of the Trial Judgement? They contend that, by doing so, the Trial Chamber deprived them of the 696 4 March 2010 Decision, p. 7. 697 4 March 2010 Decision, para. 23. 698 4 March 2010 Decision, paras. 24, 25. 699 4 March 2010 Decision, para. 26. 700 Trial Judgement, para. 6615. 701 See 2 September 2011 Decision Concerning Witnesses QY and SJ, para. 40. 702 See 18 March 2013 Decision, para. 16. 703 See infra, para. 322. 70* Nyiramasuhuko Notice of Appeal, paras. 1.35, 1.36; Nyiramasuhuko Appeal Brief, paras. 245, 246; Ntahobali Witnesses QA, QY, and SJ were "on-going", given that the investigations were completed by May 2010. 103 Case No. ICTR-98-42-A 14 December 2015

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20262/H opportunity to raise issues related to the contents of the Amici Curiae Reports which would have had a significant impact on the trial, rendering the trial unfair. 05 291. Specifically, Nyiramasuhuko, Ntahobali, and Kanyabashi submit that the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning Witnesses QY and SJ contain highly relevant information concerning the credibility of Witnesses QY and SJ and other Prosecution witnesses that should reasonably have led to the exclusion of their evidence, establish the existence of collusion between Prosecution witnesses, and confirm that acts of members of the Prosecution seriously interfered with the administration of justice, vitiating the entire proceedings. 06 Ntahobali argues that these reports confirm and establish that, on several occasions, members of the Prosecution instructed witnesses to lie to the Trial Chamber. 707 292. Kanyabashi also submits that the Trial Chamber's failure to disclose the Second Amicus Curiae Report Concerning Witness QA rendered his trial unfair as the report supported his case that the testimonies against him were forged? He contends that this report was crucial to the credibility assessment of Prosecution Witness QI and the allegations of incitement by megaphone?09 as it further shows the involvement of Witness QI's former employer in the fabrication of evidence against

him.''' Kanyabashi submits that, had he been provided with the Second Amicus Curiae Report Concerning Witness QA at trial, he would have relied on it in his closing arguments and requested the exclusion of Witness QI's evidence.']] 293. The Prosecution responds that nothing in the Statute or the Rules obliges chambers to release amicus curiae reports to the parties.'12 It also submits that "the role of the Amicus Curiae was to investigate allegations of contempt and false testimony as an agent of the Tribunal and its judges; he was independent vis-[à]-vis the Parties."713 The Prosecution further responds that: (i) the See Nyiramasuhuko Notice of Appeal, para. 1.32; Nyiramasuhuko Appeal Brief, paras. 243, 244; Ntahobali Appeal Brief, para. 45. 705 Nyiramasuhuko Notice of Appeal, para. 1.37; Nyiramasuhuko Appeal Brief, paras. 246-249; Ntahobali Appeal Brief, paras. 50-54; Kanyabashi Appeal Brief, paras. 358, 360. 06 Nviramasuhuko Notice of Appeal, paras. 1.37, 1.38, 1.42; Nyiramasuhuko Appeal Brief, paras. 246, 247, 252-254 256-265, 272; Ntahobali Notice of Appeal, paras. 21, 23, 24, 289-291; Ntahobali Appeal Brief, paras. 47-63, 821 830-836; Kanyabashi Notice of Appeal, sub-paras. 3.11.1; Kanyabashi Appeal Brief, paras. 325, 358. See also AT. 15 April 2015 pp. 24, 25 (closed session); AT. 16 April 2015 pp. 20, 21 (closed session). 707 Ntahobali Appeal Brief, paras. 50, 51,

57-61. 708 Kanyabashi Notice of Appeal, sub-para. 3.11.2; Kanyabashi Appeal Brief, paras. 359, 360. 7o on an i peal Bet, nara OveRs a Mali a clinic bu fairo develop acy at alimina seeing in. 710 Kanyabashi Appeal Brief, paras. 359, 360. Kanyabashi points out that the Second Amicus Curiae recommended initiating judicial proceedings against Witness QI's former employer and two other individuals for intimidating Witness QA in connection with his testimony against Kanyabashi. See idem. 711 Kanyabashi Appeal Brief, para. 360. 712 Prosecution Response Brief, para. 54. 713 Prosecution Response Brief, para.

55. See also AT. 15 April 2015 pp. 58, 59 (closed session). Case No. ICTR-98-42-A 14 December 2015

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20261/H First Amicus Curiae Report cannot be relied upon given its multiple defects and the fact that it was rejected by the Trial Chamber, (ii) the Second Amicus Curiae Report Concerning Witnesses QY and SJ does not establish that witnesses were given specific instructions to lie and the Trial Chamber was correct in concluding that the false testimony of Witnesses QY and SJ had a minimal effect on the outcome of this case;?'S and (iii) the Second Amicus Curiae Report Concerning Witness QA does not contain any information that was not already available to Kanyabashi through Witness QA's testimony of October 2008.16 It adds that the Amici Curiae Reports do not implicate members of the Prosecution interfering with the administration of justice and that Nyiramasuhuko's and Ntahobali's arguments in this respect misrepresent the evidence and the Trial Chamber's findings. 17 294. Ntahobali replies that, even if there is nothing in the Statute or the Rules that obliged the Trial Chamber to disclose the reports to the parties to the main proceedings, the Trial Chamber had the obligation to ensure that the co-Accused's rights were respected. 18 295. It is not disputed by the parties that nothing in the Statute or the Rules imposes the mandatory communication to the parties to the main proceedings of an amicus curiae report requested pursuant to Rules 77(C)(ii) or 91(B)(ii) of the Rules.

19 The decision to communicate an amicus curiae report filed before the trial chamber pursuant to Rules 77 or 91 of the Rules to the parties of the main proceedings therefore falls within the discretion of the trial chamber. This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious. In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.?21 The Appeals Chamber will only reverse a trial chamber's discretionary decision where it is found to be based on an incorrect interpretation of 714 Prosecution Response Brief, paras. 43, 49, 50, 64. 715 Prosecution Response Brief, paras. 62, 65, 66, 67. See also AT. 15 April 2015 p. 58 (closed session). 716 Prosecution Response Brief, para. 68. 717 Prosecution Response Brief, paras. 43, 56-60, referring to Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 58-60. The Prosecution contends that Ntahobali's allegations "are demonstrably false and a serious breach of professional standards" as "[ilt is unethical for a party to distort evidence". See ibid., para.

59. See also AT. 15 April 2015 p. 58 (closed session). 718 Ntahobali Reply Brief, para. 15. 719 Both Rules 77(C)(ii) and 91(B)(ii) of the Rules state that the appointed amicus curiae is to "report back to the Chamber as to whether there are sufficient grounds for instigating" contempt or false testimony proceedings. 20 See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19. 721 See, e.g., Nizeyimana Appeal Judgement, para. 286; Sainovié et al. Appeal Judgement, para. 29; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19. 105 Case No. ICTR-98-42-A 14 December 2015

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20260/H the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber's discretion. 22 296. The Appeals Chamber understands Nyiramasuhuko, Ntahobali, and Kanyabashi to argue that, because it deprived them of the opportunity to raise arguments at trial in relation to the Amici Curiae Reports on matters that had a significant impact on the case, the Trial Chamber's failure to communicate the reports was so unfair or unreasonable as to constitute an abuse of its discretion. The Appeals Chamber will first discuss the parties' submission concerning the communication of the First Amicus Curiae Report, before addressing those relating to the communication of the Second Amicus Curiae Reports. (i) First Amicus Curiae Report 297. The Appeals Chamber observes that none of the appellants develops arguments challenging the Trial Chamber's finding that the parties had ample opportunity to raise issues of credibility regarding the testimonies of Witnesses QA, QY, and SJ and to cross-examine them at trial. 23 The Trial Chamber relied on this finding to conclude that the non-disclosure of the First Amicus Curiae Report did not affect the fair trial rights of the co-Accused and did not prejudice them. 24 Instead, Nyiramasuhuko and Ntahobali assert that there was information in the report which was

not known to them at the time of the delivery of the Trial Judgement, and which would have impacted the credibility assessment of several witnesses and shows that the fairness of the trial was vitiated. 725 298. Nyiramasuhuko and Ntahobali, however, fail to appreciate that the First Amicus Curiae Report was found to be defective, notably because the First Amicus Curiae "did not conduct and/or did not report" on some of the investigations requested by the Trial Chamber, "conducted insufficient investigations into the false testimony of Witnesses QA, QY, and SJ before the Tribunal", and "submitted a report containing conclusions based on his opinion, rather than the results of an investigation."726 As a result, the Trial Chamber appointed a new amicus curiae to "conduct fresh investigations" 72 In these circumstances, the Appeals Chamber is not convinced that, assuming arguendo that the First Amicus Curiae Report contains information that was not Kalimanzira Appeal Judgement, para. 14. 723 See 4 March 2010 Decision, para.

24. Med and in an Appeal bulgemen, para 85, Renaho Appeal Judgement, para 143: 724 4 March 2010 Decision, para. 25. 725 See Nyiramasuhuko Notice of Appeal, paras. 1.37, 1.42; Nyiramasuhuko Appeal Brief, paras. 246, 247, 252, 254, 272; Ntahobali Notice of Appeal, paras. 21, 23, 289, 292; Ntahobali Appeal Brief, paras. 51, 58-61, 821, 831. 726 30 October 2009 Order, p. 3. 106 Case No. ICTR-98-42-A 14 December 2015

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20259/H known by the parties at trial, it was unfair or unreasonable on the part of the Trial Chamber to decline to communicate a report which was found to suffer from such serious defects, especially where the parties had ample opportunity to raise issues of credibility regarding the testimonies of the witnesses under investigation.28 The Appeals Chamber finds that the Trial Chamber did not abuse its discretion by not communicating the First Amicus Curiae Report before the delivery of the Trial Judgement. (ii) Second Amicus Curiae Reports 299. The Appeals Chamber observes that the Second Amicus Curiae Reports contain information about Prosecution witnesses who testified in this case that may have been relevant to the assessment of their credibility. Unlike the First Amicus Curiae Report, the Second Amicus Curiae Reports were not found by the Trial Chamber to suffer defects that required that new investigations be ordered. Notwithstanding their relevance to the proceedings, the Trial Chamber did not explain the reasons why it elected not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement or, at a minimum, inform the parties that the reports had been filed.?29 In the view of the Appeals Chamber, this not only ran against the interests of transparency,73° but also deprived the parties of the opportunity to: (i) expose the reasons why they should have been communicated the results of the investigations; and (ii) raise at trial issues related to the credibility of some Prosecution witnesses based on the contents of the Second Amicus Curiae Reports.

300. Mindful that the decision to communicate to the parties of the main proceedings an amicus curiae report filed pursuant to Rules 77 or 91 of the Rules falls within the discretion of the relevant chamber and that there may be instances where the communication of such reports is not in the interests of justice, the Appeals Chamber fails to understand why, in this case, the Trial Chamber decided to deprive the parties of information that might have been relevant to their cases in the absence of any circumstances that may have justified its non-communication. The Appeals 727 30 October 2009 Order, p.

3. The Appeals Chamber also notes that the Trial Chamber entirely disregarded the First Amicus Curiae Report in the decisions it issued on 2 September 2011. See 2 September 2011 Decision Concerning Witness QA; 2 September 2011 Decision Concerning Witnesses QY and SJ. 728 The Appeals Chamber also dismisses Nyiramasuhuko's unsubstantiated allegation that the Trial Chamber erred by designating a second amicus curiae proprio motu without notifying the parties, an allegation which she had also failed to raise at trial. See Nyiramasuhuko Appeal Brief, para. 245. 729 The Appeals Chamber recalls that there is no reference to the Second Amicus Curiae Reports in the Trial Judgement and that it is only in September 2011, when the Trial Chamber decided that the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning Witnesses QY and SJ should be released to the parties, that Nyiramasuhuko, Ntahobali, and Kanyabashi became aware of the existence of the Second Amicus Curiae Reports. See 2 September 2011 Decision Concerning Witnesses QY and SJ, para.

40. The Appeals Chamber observes that, after the delivery of the Trial Judgement, on 2 September 2011, the Trial Chamber itself stated that the First Amicus Curiae Report and the Second Amicus Curiae Report Concerning 107 Case No. ICTR-98-42-A 14 December 2015

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20258/H Chamber therefore finds that the Trial Chamber's decision not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement was unreasonable and constituted an abuse of the Trial Chamber's discretion. 31 301. Recalling that in order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice, the Appeals Chamber will now turn to examine whether Nyiramasuhuko, Ntahobali, and Kanyabashi show that they have been prejudiced by the Trial Chamber's failure to communicate the Second Amicus Curiae Report Concerning QA and the Second Amicus Curiae Report Concerning QY and SJ before the delivery of the Trial Judgement. a. Second Amicus Curiae Report Concerning Witness QA 302. The Appeals Chamber observes that the Trial Chamber found that the Second Amicus Curiae Report Concerning Witness QA was wanting in several respects?32 The Trial Chamber noted in particular that the report "applied the incorrect legal standard", "repeatedly examined issues of the credibility and reliability of witness testimony", "confused the alleged contemnors' names", and "may have failed to respect the requirements under Rule 77(E) and 91(D) by interviewing suspects without informing them of their rights."733 303. In addition, the Appeals Chamber notes that

the Trial Chamber rejected the entirety of Witness QA's evidence because he lacked credibility734 and that Witness QA's implication of Witness QI's former employer in the fabrication of evidence was known to Kanyabashi at trial. Indeed, Witness QA testified before the Trial Chamber in 2008 that he was encouraged to lie against Kanyabashi by three men he specifically named,?35 and Witness QI revealed in his 2004 testimony that one of the three men named by Witness QA was Witness's QI's former employer. 736 Kanyabashi's closing brief reflects that he was fully aware at trial of the alleged involvement of Witness QI's former employer in the fabrication of evidence against him.?37 Witnesses QY and SJ should be disclosed to the parties in the "interest of transparency". See 2 September 2011 Decision Concerning Witnesses QY and SJ, para. 40. 731 In light of this outcome, the Appeals Chamber finds it unecessary to considers Nyiramasuhuko's and Ntahobali's contention that the Trial Chamber erred in stating in the Trial Judgement that the investigations against Witnesses QA, QY, and SJ were "on-going" ≥ 2 September 2011 Decision Concerning Witness QA, paras. 40, 41. 733 2 September 2011 Decision Concerning Witness QA, para.

40. See Trial Judgement, paras. 376-378, 382, 951, 1953, 1956, 1999, 2004, 3371, 3376. 735 Witness QA, T. 29 October 2008 pp. 16, 17, 20, 21, 23, 34 (closed session); T. 30 October 2008 p. 24 (closed session). 736 Witness QI, T. 23 March 2004 pp. 42, 82, 83 (closed session). 737 In his closing brief, Kanyabashi asserted that Witness QI was doubtful, expressly relying on the witness's close ties with his former employer and arguing that, "urged" by his former employer, Witness QI had already accused a number of people, that he could have done it again out of loyalty, and that he and his former employer "belonged to a group of 108 Case No. ICTR-98-42-A 14 December 2015

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20257/H 304. The Appeals Chamber considers that the fact that the Second Amicus Curiae concluded that there were sufficient grounds for initiating contempt proceedings against Witness QI's former employer in connection with Witness QA's testimony of March 2004 does not show that Witness QI may also have been incited to fabricate evidence against Kanyabashi. 38 Moreover, the Appeals Chamber notes that the Trial Chamber stated that the only evidence to support the contempt allegations against Witness QI was that of Witness QA, who had admitted lying before the Tribunal and confessed that most of his 2004 testimony was not truthful. 739 305. Against this background, the Appeals Chamber finds that Kanyabashi has not demonstrated that he was prejudiced by the Trial Chamber's failure to communicate the Second Amicus Curiae Report Concerning Witness QA to the parties in a timely manner. b. Second Amicus Curiae Report Concerning Witnesses QY and SJ 306. The Appeals Chamber notes that the Second Amicus Curiae Report Concerning Witnesses QY and SJ confirmed that, when testifying in May 2002, Witness QY falsely denied knowing Prosecution Witnesses TK, SJ, and QBQ and that, when testifying in March 2003, Witness SJ lied about not knowing Prosecution Witnesses TK, QJ, and TA.'40 In this report, the Second Amicus Curiae noted that Witnesses QY and SJ explained that they falsely denied

knowing these other witnesses upon instructions of a Prosecution interpreter after the interpreter spoke with Prosecution lawyers. 41 307. The Second Amicus Curiae concluded that there were sufficient grounds for initiating proceedings against Witnesses QY and SJ for "willingly' giving false testimony having a relevant connection with a material issue in this case before the Tribunal in 2002-2003" 742 He nonetheless wrote that "the Tribunal should seriously consider exercising its discretion to not [initiate] witnesses giving false testimony against him." See The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Joseph Kanyabashi's Closing Brief, 17 February 2009 (originally filed in French, English translation filed on 6 April 2009) (confidential) ("Kanyabashi Closing Brief"), paras. 205, 292, 480. 738 See Second Amicus Curiae Report Concerning Witness QA, p.

30. See also ibid., pp. 26-29. The Second Amicus Curiae also noted that Witness QI's former employer declined his request to be interviewed. See ibid., p. 8. 739 The Trial Chamber, noting that the only evidence supporting the contempt allegations was the testimony of Witness QA who had admitted lying for the most part and the serious shortcomings of the Second Amicus Curiae Report Concerning Witness QA, did not consider that initiating proceedings against the alleged contemnors was the most efficient and effective way of ensuring the proper administration of justice. See 2 September 2011 Decision Concerning Witness QA, paras. 39-41. 740 Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 13-16, 33, 40. 741 Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 14-16. 142 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 57. 109 Case No. ICTR-98-42-A 14 December 2015

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20256/H proceedings or to impose a nominal punishment, if any."?43 With respect to the allegations concerning members of the Prosecution, the Second Amicus Curiae concluded that there were insufficient grounds to initiate contempt proceedings against the Prosecution lawyers who prepared Witnesses SJ and QY for their testimonies - or the interpreters or staff who assisted them - for coercing Witnesses SJ and QY to give false testimony in 2002 and 2003.?44 308. As emphasised in the 2 September 2011 Decision Concerning Witnesses QY and SJ, the issue of Witnesses QY's and SJ's false testimonies was known to the parties and the Trial Chamber prior to the delivery of the Trial Judgement. 45 Nyiramasuhuko, Ntahobali, and Kanyabashi do not point to any information in the Second Amicus Curiae Report Concerning Witnesses QY and SJ regarding the reliability or credibility of the evidence of Witnesses QY and SJ that was not already before the parties and the Trial Chamber at trial. 46 As to the conclusion from the Second Amicus Curiae that there were sufficient grounds for initiating proceedings against them for false testimony before the Tribunal in 2002 and 2003, the Appeals Chamber recalls that proceedings for contempt and false testimony are independent of the proceedings out of which they arise and that an assessment of a witness's credibility is a separate inquiry from that of the

prosecution of a witness for false testimony.?48 309. Nyiramasuhuko, Ntahobali, and Kanyabashi further submit that the Second Amicus Curiae Report Concerning Witnesses QY and SJ supports their claim that Witnesses QJ, QBQ, QBP, SS, TA, and TK were also instructed to lie and may have lied at trial and, as such, contains valuable and directly relevant information affecting the credibility of these witnesses. 749 743 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p.

57. The Second Amicus Curiae relied upon "the level of intimidation and duress experienced by QY and SJ and the limited materiality of their testimony" in support of his recommendation. See idem. See also ibid., pp. 58-60. 741 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 58. 745 2 September 2011 Decision Concerning Witnesses QY and SJ, para.

33. See also supra, para. 278. 746 The Appeals Chamber observes that Nyiramasuhuko and Ntahobali argued at length during their closing arguments that Witnesses QY and SJ were not credible as they both lied in court about not knowing other Prosecution witnesses they in fact knew. See Nyiramasuhuko and Ntahobali Closing Arguments, T. 22 April 2009 pp. 18-24, 67-69; Ntahobali Closing Arguments, T. 23 April 2009 pp. 18, 50, 59, 60. 747 Decision on Pauline Nyiramasuhuko's Motion to Void Trial Chamber Decisions, 30 September 2011, p. 2; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR91.2, Decision on Joseph Nzirorera's and the Prosecutor's Appeals of Decision Not to Prosecute Witness BTH for False Testimony, 16 February 2010 (confidential) ("Nzirorera Appeal Decision of 16 February 2010"), para.

25. Nzirorera Appeal Decision of 16 February 2010, para. 20. 749 Nyiramasuhuko Notice of Appeal, paras. 1.37, 1.38; Nyiramasuhuko Appeal Brief, paras. 246, 247, 252-254, 256- 265; Ntahobali Appeal Brief, paras. 51, 830-836; Kanyabashi Notice of Appeal, sub-para. 3.11.1; Kanyabashi Appeal Brief, paras. 325, 358. See also AT. 15 April 2015 pp. 23, 24 (closed session). Ntahobali further refers to Prosecution Witnesses SD, SW, HF, RO, RJ, ALW, and GIO. See Ntahobali Appeal Brief, paras. 820, 834, 835, 839. The Appeals Chamber will not entertain Ntahobali's contention that Prosecution Witness RJ (a witness in the Rwamakuba case) told the Second Amicus Curiae that Witness SD also received instructions to deny knowing other persons she knew as a careful reading of the Second Amicus Curiae Report Concerning Witnesses QY and SJ reveals that Witness RJ was not referring to Witness SD but to Prosecution Witness GIO, a witness in the Rwamakuba case. See Ntahobali Appeal Brief, para. 834, referring to Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 19-23. The Appeals 110 Case No. ICTR-98-42-A 14 December 2015

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20255/H 310. Having carefully reviewed the Second Amicus Curiae Report Concerning Witnesses QY and SJ, the Appeals Chamber is not persuaded that the information contained therein regarding Witnesses QJ, QBQ, QBP, SS, TA, and TK was such that the Trial Chamber's failure to disclose it to the parties resulted in prejudice.

311. Specifically, the Appeals Chamber notes that the report only mentions that Witness QJ was with Witness SJ while in Arusha. This information was already known to the Trial Chamber and the parties at trial since Witness SJ had testified to this effect and had even suggested at one point during her recall testimony in 2009 that Witness QJ may also have been instructed to deny knowing other witnesses.751 312. The Appeals Chamber also notes that there is no information in the report concerning Witness QBQ that was not before the parties and the Trial Chamber at trial since the report merely confirmed that Witness QY falsely denied knowing Witness QBQ in court in 2003.752 313. With respect to Witnesses QBP and SS, the Appeals Chamber notes that the report reveals that Witness QY identified Witnesses QBP and SS as among the witnesses who also received instructions to lie about knowing other Prosecution witnesses, a fact which was not known by the parties at trial.?53 The report also indicates that: (i) Witness QBP refuted the allegation of having been instructed to lie and stated that she could not remember the names of the people from Butare Chamber will also not entertain Ntahobali's allegations as they relate to Witnesses HF, RO, RJ, ALW, and GIO as none of them testified in the present case but were either prospective witnesses or witnesses in the Rwamakuba case. As

for Witness SW, the Appeals Chamber notes that none of the references Ntahobali points to refers to a "Witness SW" and that no witness with this pseudonym testified in this case. 750 The Appeals Chamber does not interpret the Second Amicus Curiae Report Concerning Witnesses QY and SJ as indicating that Witness QJ received instructions to lie. The Second Amicus Curiae noted that Witness SJ told him that: "The first time she was told [that if she admitted to knowing other people, the judges will think she is manufacturing a conspiracy to tell lies], she was alone with the interpreter and the prosecutor. Other times, there were other witnesses present. Some were from other places. The only ones she knew were [inter alios Witness QJ]." See Second Amicus Curiae Report Concerning Witnesses QY and SJ, p.

16. This is consistent with Witness SJ's 2009 testimony that she was with Witness QJ in Arusha but that, although suggesting earlier that Witness QJ was also instructed to deny knowing witnesses, she could not confirm whether Witness QJ received similar instructions as she was alone when receiving the instruction. See Witness SJ, T. 24 February 2009 p. 19 (closed session). 751 Although Witness SJ insisted in cross-examination that she did not know whether Witness QJ had received the same instruction to lie from the interpreter, she had suggested earlier during her testimony that she discussed with Witness QJ how they were going to deny that they knew their neighbours. See Witness SJ, T. 23 February 2009 pp. 83, 84 (closed session); T. 24 February 2009 pp. 11, 19 (closed session). The Appeals Chamber observes that, during their closing arguments, Nyiramasuhuko and Ntahobali specifically challenged the credibility of Witness QJ's testimony in relation to the allegations of false testimonies of Witnesses QY and SJ. See Nyiramasuhuko and Ntahobali Closing Arguments, T. 22 April 2009 pp. 25, 26, 65; Ntahobali Closing Arguments, T. 23 April 2009 p.

6. Moreover, in the opinion of the Appeals Chamber, the indication in the report that Witness QJ "failed to appear for his interview" with the Second Amicus Curiae relied upon by Ntahobali and Nyiramasuhuko is irrelevant to the question of reliability or credibility of the witness's evidence and, accordingly, did not warrant communication to the parties. See Witness QY, T. 23 February 2009 pp. 37-42 (closed session); Second Amicus Curiae Report Concerning Witnesses QY and SJ, p.

14. The Appeals Chamber observes that counsel for Nyiramasuhuko and Ntahobali specifically challenged the credibility of Witness QBQ's testimony in relation to the allegations of false testimonies of Witnesses QY and SJ. See Nyiramasuhuko and Ntahobali Closing Arguments, T. 22 April 2009 pp. 27-30, 67; Ntahobali Closing Arguments, T. 23 April 2009 p. 6. 111 Case No. ICTR-98-42-A 14 December 2015 ти

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20254/H she met while in Arusha to testify;754 and (ii) Witness SS "declined to be interviewed" 755 The Appeals Chamber does not consider that the information regarding Witness QY's identification of Witnesses QBP and SS as two of the witnesses instructed to lie about knowing other witnesses was material to the present case. The Appeals Chamber notes that Witness QBP expressly denied being instructed to lie about knowing other witnesses when questioned on the matter 56 and is not persuaded that the fact that Witness QY stated that Witness QBP was also instructed to lie demonstrates that Witness QBP actually lied in court when denying knowing a person by the name of Witness QY?5 As to Witness SS, Ntahobali and Nyiramasuhuko do not point to any instance in her testimony at trial where Witness SS denied knowing other Prosecution witnesses that she may have in fact known or how the fact that she declined being interviewed by the Second Amicus Curiae impacted the credibility of her testimony at trial.

314. Turning to Witness TA, the Appeals Chamber observes that the Second Amicus Curiae Report Concerning Witnesses QY and SJ contains elements that suggest that Witness TA may have lied in court as to her knowledge of Witness SJ since it reveals that Witness TA indicated to the Second Amicus Curiae that she was with someone with Witness SJ's first name when in Arusha the second time, although she had testified in court to not knowing Witness SJ.?58 However, the Appeals Chamber notes that the information that Witness TA was with Witness SJ in Arusha and that they knew each other was already known to the parties before the delivery of the Trial Judgement, as Witness SJ had unambiguously testified to that effect at trial.?59 In the view of the Appeals Chamber, this available information was sufficient for the parties to question Witness TA's testimony that she did not know Witness SJ and to address the impact of this on the credibility of Witness TA's evidence. 60 In fact, the Appeals Chamber observes that counsel for Nyiramasuhuko and Ntahobali jointly moved the Trial Chamber to recall Witness TA on the ground that the 753 Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 13, 25. 754 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 25. 735 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 12. 756 Second Amicus Curiae Report Concerning

Witnesses QY and SJ, p. 25. 757 Witness QBP, T. 29 October 2002 p. 53 (closed session) ("Q. Madam Witness, do you know a lady who is also from the same region as your mother called [Witness QY] A. I do not know all these people."). Contrary to Nyiramasuhuko's claim, there is no indication in Witness QY's testimony upon recall that the witness testified that she knew Witness QBP. See Witness QY, T. 23 February 2009 pp. 36-66 (closed session). 2a than a co 714 on O. Madam Wines, do you row a lady do i to from 758 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 24; Witness TA, T. 7 November 2001 pp. 113, 114 (closed session). The Appeals Chamber is further not convinced that the Second Amicus Curiae Report Concerning Witnesses QY and SJ may be interpreted as suggesting that Witness TA received instructions to lie since it merely appears to suggest that, at times, Witness SJ was with other witnesses, including Witnesses QJ and TA. This is not inconsistent with Witness SJ's testimony before the Trial Chamber that she was with Witness TA in Arusha, but that she could not confirm whether Witness TA received instructions about denying knowing witnesses as she was alone when receiving the instruction. See Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 16; Witness SJ, T. 24 February 2009 p. 19 (closed session). 759 Witness SJ, T. 23 February 2009 pp. 56, 60-62 (closed session); T. 24 February 2009 pp. 19, 20 (closed session). 760 As for whether the Trial Chamber erred in failing to consider this aspect in light of the evidence adduced in that case, see infra, para. 338. 112 Case No. ICTR-98-42-A 14 December 2015 тии

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20253/H evidence given by Witnesses QY and SJ suggested that there was a possibility of contamination of other witnesses who came to Arusha at the same time as Witnesses QY and SJ and stayed in the same safe houses. 61 The Appeals Chamber also considers that, contrary to Nyiramasuhuko's and Ntahobali's submission, 762 the fact that Witness TA was not found to be "cooperative" by the Second Amicus Curiae is immaterial to the question of the credibility of Witness TA's evidence. 63 315. As regards Witness TK, the Appeals Chamber notes that there is no information in the Second Amicus Curiae Report Concerning Witnesses QY and SJ that was not before the parties and the Trial Chamber at trial since both Witnesses SJ and TK admitted knowing each other at trial. 64 316. As noted above, Ntahobali further contends that the information contained in the Second Amicus Curiae Report Concerning Witnesses QY and SJ confirms the existence of collusion between some Prosecution witnesses in this case, in particular Witnesses QJ, TA, and TK. 765 Ntahobali, however, fails to identify what information in the report supports his allegation of collusion. In support of his claim, Ntahobali does not rely on any part of the report but on an aspect of Witness SI's 2009 testimony?66 and thus does not point to any information in the report regarding possible collusion that was not already before the parties and the Trial Chamber at trial.

317. Finally, the Appeals Chamber finds no merit in Nyiramasuhuko's and Ntahobali's claim that the Second Amicus Curiae Report Concerning Witnesses QY and SJ should have been communicated to the parties because it "confirmed and established that the acts of members of the 761 Witness SJ, T. 24 February 2009 pp. 55-57 (closed session). See also supra, Section III.G.4. 762 Nyiramasuhuko Appeal Brief, para. 263; Ntahobali Appeal Brief, para.

835. The Appeals Chamber notes that Nyiramasuhuko and Ntahobali misrepresent the Second Amicus Curiae Report Concerning Witnesses QY and SJ when arguing that Witness TA stated that she wanted to refer to IBUKA before answering as they instructed her not to cooperate with the Tribunal. See Nyiramasuhuko Appeal Brief, para. 263; Ntahobali Appeal Brief, para.

835. The report instead reads: "[Witness TA] was reluctant to speak with [the Second Amicus Curiae] at all because IBUKA had told her (and others) not to cooperate with ICTR, because ICTR was not convicting the perpetrators of the genocide." See Second Amicus Curiae Report Concerning Witnesses QY and SI, B624. See Trial Judgement, para. 2685, referring to Witness TK, T. 21 May 2002 pp. 83, 85; Witness SJ, T. 23 February 2009 p. 82 (closed session). As indicated supra in fn. 750, the Appeals Chamber does not understand the phrases in the report "[o]ther times, there were other witnesses present. Some were from other places. The only ones she knew were linter alios Witness TK]" as indicating that Witness SJ stated that she was instructed to lie in the presence of Witness TK. In addition, the Appeals Chamber observes that counsel for Nyiramasuhuko and Ntahobali specifically challenged the credibility of Witness TK's testimony in relation to the allegations of false testimonies of Witnesses QY and SJ. See Nyiramasuhuko and Ntahobali Closing Arguments, T. 22 April 2009 pp. 25, 26; Ntahobali Closing Arguments, T. 23 April 2009 p.

6. In addition, the Appeals Chamber finds that the fact that Witness TK "declined to be interviewed" is information that is of no relevance to the assessment of the credibility and reliability of the witness's evidence. See Second Amicus Curiae Report Concerning Witnesses QY and SJ, p. 12. 765 Ntahobali Appeal Brief, paras. 47, 48. See also ibid., paras. 820, 831, 833, 834; AT. 15 April 2015 pp. 19, 20 and 23-25 (closed session); AT. 16 April 2015 p. 21 (closed session); Nyiramasuhuko Appeal Brief, para. 264 The Prosecution is correct in its contention that Ntahobali had failed to raise the allegation of collusion in his notice of appeal. See Prosecution Response Brief, paras. 61, 62. The Appeals Chamber nevertheless considers that it is in the interests of justice to examine this challenge. As the Prosecution responded to this contention despite its objection to its consideration, the Appeals Chamber considers that there is no unfairness to the Prosecution in this respect. 113 Case No. ICTR-98-42-A 14 December 2015

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20252/H Prosecution staff seriously interfered with the administration of justice" and "vitiated the entire proceedings" and "that the trial was rendered unfair" 767 The allegation reported in the report that Prosecution staff instructed witnesses to lie was already brought to light by both Witnesses QY and SJ when they testified in 2009. More importantly, contrary to what Nyiramasuhuko and Ntahobali contend, the Second Amicus Curiae expressly concluded that there was "insufficient evidence to link the lawyers with [the] instruction [to lie] to find beyond a reasonable doubt that they intended for QY and SJ to testify falsely»768 and "not sufficient evidence for a reasonable trier of fact to find beyond a reasonable doubt that any particular, identifiable language assistant coerced QY or SJ to give false testimony."769 Nyiramasuhuko's and Ntahobali's submissions fail to appreciate that the Second Amicus Curiae expressly concluded that - although the two witnesses "felt compelled", "truly believed, perhaps incorrectly", and "thought that they were being ordered to testify falsely" - evidence was lacking as to "whether that was what the people instructing them actually intented them to understand" and the witnesses "perhaps misunderstood" 770 318. In light of the foregoing, the Appeals Chamber finds that Nyiramasuhuko, Ntahobali, and Kanyabashi have failed to demonstrate that the

Trial Chamber's discernible error in not communicating the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement resulted in prejudice and that it therefore warrants the intervention of the Appeals Chamber. (b) Failure to Consider the Impact of the Amici Curiae Reports 319. In the Trial Judgement, the Trial Chamber noted that Witnesses QA, QY, and SJ had become "the subject of on-going investigations before the Tribunal for false testimony and contempt of court" and stated that, without prejudice to any formal proceedings for false testimony 766 Ntahobali Appeal Brief, para. 48, referring to Witness SJ, T. 23 February 2009 pp. 83, 84 (closed session) ("[ilt used to happen that we discussed this as we chatted and to ask how we were going to deny that we knew our neighbours."). 767 Nyiramasuhuko Notice of Appeal, para. 1.42; Ntahobali Appeal Brief, para.

50. See also Ntahobali Notice of Appeal, paras. 21, 23; Ntahobali Appeal Brief, paras. 51, 58-61; AT. 15 April 2015 p. 25 (closed session) IT. 16 April 2015 pp. 20, 21 (closed session). Nyiramasuhuko and Ntahobali also rely on the First Amicus Curiae Report in support of their claim but the Appeals Chamber will not address this part of their submissions in light of its conclusion above regarding the First Amicus Curiae Report. See supra, para. 298. 768 Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 54, 55. 769 Second Amicus Curiae Report Concerning Witnesses QY and SJ, p.

56. The Appeals Chamber further observes that the Trial Chamber stated that it agreed with the Second Amicus Curiae that there was "no prima facie case against any of the language assistants because none of them was identified with any particularity" and "no direct evidence" that Prosecution's lawyers "told Witnesses QY or SJ to testify that they did not know other prosecution witnesses" and, on the basis of Second Amicus Curiae Report Concerning Witnesses QY and SJ, ruled that there was insufficient information to justify pursuing this matter further under Rule 77 of the Rules. See 2 September 2011 Decision Concerning Witnesses QY and SJ, paras. 36, 38. Ntahobali clarified at the appeals hearing that he was not arguing that the Trial Chamber erred in failing to initiate contempt proceedings. See AT. 16 April 2015 p. 21 (closed session). 770 Second Amicus Curiae Report Concerning Witnesses QY and SJ, pp. 58, 59. 114 Case No. ICTR-98-42-A 14 December 2015

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20251/H and contempt which may come before the Tribunal, it will "treat these witnesses' testimony with added caution."771 320. Nyiramasuhuko, Ntahobali, and Kanyabashi contend that the Trial Chamber erred in failing to consider and discuss in the Trial Judgement the evidence contained in the Amici Curiae Reports and the impact it had on the admissibility and assessment of the testimonies of many Prosecution witnesses. 72 Nyiramasuhuko and Ntahobali add that the Trial Chamber erred in failing to discuss the seriousness of the Prosecution's conduct as confirmed and established by the reports and its impact on the fairness of the proceedings.?73 321. The Prosecution responds that Ntahobali and Nyiramasuhuko do not substantiate their claim that the Trial Chamber did not take into account the Amici Curiae Reports and recalls that there is a presumption that the Trial Chamber has evaluated all the evidence presented to it."?4 According to the Prosecution, Ntahobali and Nyiramasuhuko fail to demonstrate that the Trial Chamber was unreasonable in its assessment of the Amici Curiae Reports.'75 322. With respect to the Trial Chamber's alleged failure to consider the information contained in the Amici Curiae Reports, in particular their impact on the admissibility of the evidence and the assessment of the credibility of Prosecution witnesses, the Appeals Chamber observes that, as

noted by Nyiramasuhuko, Ntahobali, and Kanyabashi, there is no mention of any of the reports in the Trial Judgement. However, as discussed at length above, the Appeals Chamber finds that the information in the Amici Curiae Reports, including regarding the Prosecution's conduct, would have had no impact on this case. Accordingly, assuming arguendo that the Trial Chamber erred in failing to consider the information contained in the Amici Curiae Reports, this error would not have the potential to invalidate the decision of the Trial Chamber concerning the admissibility and the assessment of the impugned evidence. 776 771 Trial Judgement, paras. 200, 203. See also ibid., paras. 201, 202, fn. 374. 772 Nyiramasuhuko Notice of Appeal, para. 1.39; Nyiramasuhuko Appeal Brief, paras. 254, 265, 267, 271, 277; Ntahobali Notice of Appeal, paras. 20, 291; Ntahobali Appeal Brief, paras. 48, 50, 55, 820, 824, 830-838; Kanyabashi Appeal Brief, paras. 358, 360. See also AT. 16 April 2015 pp. 20, 21 (closed session). Ntahobali also submits that the Trial Chamber erred in not recalling proprio motu Witnesses TK, QJ, and TA to be further cross-examined on the evidence of collusion contained in the reports. See Ntahobali Appeal Brief, para. 47; AT. 15 April 2015 pp. 23, 24 (closesobain Notice of Appeal, para. 21; Nyiramasuhuko Appeal Brief, para 281; Ntahobali Appeal Brief, paras. 57-64, 824. See

also AT. 16 April 2015 p. 20 (closed session). 74 Prosecution Response Brief, paras. 43, 53 775 Prosecution Response Brief, paras. 43, 52, 53. Ntahobali replies that nothing supports the Prosecution's assertion that the Trial Chamber took into account the contents of the Amici Curiae Reports. See Ntahobali Reply Brief, para. 13. 176 The Appeals Chamber also dismisses Ntahobali's contention concerning the proprio motu recall of Witnesses TK. QJ, and TA in light of its conclusion on the contents of the Amici Curiae Reports. 115 Case No. ICTR-98-42-A 14 December 2015

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20250/H 323. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's, Ntahobali's, and Kanyabashi's contention that the Trial Chamber erred in failing to consider and discuss in the Trial Judgement the contents of the Amici Curiae Reports.

3. Failure to Exclude Evidence and Apply the Requisite Caution 324. On 23 February 2009, upon recall for further cross-examination regarding possible lies in their prior testimonies of May 2002 and March 2003, Witnesses QY and SJ testified that they had not been truthful in their prior testimonies and that they had lied about not knowing other Prosecution witnesses'' Witness QY revealed that she lied about not knowing Witnesses TK, SJ, and QBQ778 and Witness SJ admitted that she in fact knew Witnesses TK, QJ, and TA, who were with her in Arusha when she came to testify the first or second time."' Both Witnesses QY and SJ explained that they falsely denied knowing these other witnesses upon the instructions of Prosecution staff 780 325. In the Trial Judgement, the Trial Chamber noted that "since their testimony in the present case, Prosecution Witnesses [...] QY and SJ have become the subject of on-going investigations before the Tribunal for false testimony and contempt of court."781 The Trial Chamber stated that: With respect to these allegations, and without prejudice to any such proceedings which may come before the Tribunal, the Chamber will treat these witnesses' testimony with added caution.

326. In addition to their arguments pertaining to the impact of the Amici Curiae Reports on the credibility of Prosecution witnesses, Nyiramasuhuko and Ntahobali submit that the Trial Chamber erred in fact in referring to "allegations" of false testimony in the Trial Judgement, as both Witnesses QY and SJ admitted their false testimony in court?83 They contend that this error resulted in an incorrect assessment of Witnesses QY's and SJ's testimonies and that, in accordance with common law principles, the witnesses' admission that they gave false testimony should have 777 Witness QY, T. 23 February 2009 pp. 40, 41, 50, 51 (closed session); Witness SJ, T. 23 February 2009 pp. 82-85 (re Wetes OX, T. 23 February 2009 pp. 37-40, 42, 45, 49-53, 56, 60-62 (closed session). 779 Witness SJ, T. 23 February 2009 pp. 82-84 (closed session). 780 Witness SJ, T. 23 February 2009 pp. 83, 84 (closed session); Witness QY, T. 23 February 2009 pp. 43-45 (closed 781 Trial Judgement, para. 200. » indemo Notice 20/ 03, eat 32, iran 201. 20 Apeal Brit, paras, 27275, refering, iner dia, lo Trial Judgement, para. 203; Ntahobali Appeal Brief, para. 821, referring to Trial Judgement, para. 203. 116 Case No. ICTR-98-42-A 14 December 2015

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20249/H led to the exclusion of their entire testimonies?®* In their view, the Trial Chamber therefore erred in not excluding their evidence. 785 327. In the event the Appeals Chamber were to find that the Trial Chamber did not err in not excluding Witnesses QY's and SI's evidence, Nyiramasuhuko and Ntahobali submit in the alternative that the Trial Chamber erred in failing to apply added caution in assessing their evidence.?8 They argue that the Trial Judgement shows that the Trial Chamber failed to draw any distinction between "added caution" and mere "caution" and was inconsistent throughout in its assessment of their testimonies?8 In particular, Ntahobali points out that, while on two occasions the Trial Chamber found that the credibility of Witnesses QY and SJ was seriously undermined because they had lied about knowing other Prosecution witnesses,788 the Trial Chamber accepted other portions of their testimonies without applying any caution and without even referring to their false testimonies?89 Nyiramasuhuko and Ntahobali argue that this approach runs contrary to the Trial Chamber's obligation to provide a reasoned opinion justifying why it accepted their testimonies without exercising the added caution that was at the very least required. ?9 According to Ntahobali, the evidence of Witnesses QY and SJ should be excluded from the assessment of the evidence or, in the

alternative, the exercise of proper caution should lead the Appeals Chamber to reject all aspects of their testimonies that were accepted by the Trial Chamber.?91 328. Nyiramasuhuko further argues that no reasonable trier of fact would have failed to address: (i) Witness SJ's testimony that Witnesses QJ, TA, and TK had also been instructed to lie before the Trial Chamber; (ii) Witness TA's testimony that she did not know Witness SJ and was not with other witnesses while in Arusha, although Witness SI's testimony shows that it was not true; and (iii) Witness QBP's testimony that she did not know Witness QY, although Witness QY testified that she knew Witness QBP.792 She contends that, in light of this evidence, the Trial Chamber erred in failing to apply caution when assessing the evidence of Witnesses QBP, QJ, TA, and TK. ?93 784 Nyiramasuhuko Appeal Brief, paras. 265, 266, 272-275, 279, 282; Ntahobali Appeal Brief, paras. 821-823. 785 Nyiramasuhuko Notice of Appeal, para. 1.34; Nyiramasuhuko Appeal Brief, para. 275; Ntahobali Appeal Brief, paras. 822, 823. Nyiramasuhuko Appeal Brief, paras. 268-270; Ntahobali Appeal Brief, para.

825. See also Ntahobali Appeal Brief, paNyiranashuko Appeal Brief, paras, 268-270; Niahobali Appeal Brief, para 825. See also Ntahobali Appeal Brief, para.

828. Ntahobali Appeal Brief, para. 826, referring to Trial Judgement, paras. 2621, 2626, 2723. See also AT. 16 April 2015 p. 21 (closed session). Ntahobali Appeal Brief, para. 826, referring to Trial Judgement, paras. 2634, 2659, 2660, 2663, 2664, 2672. 2675-2779, 2680, 2687, 2698, 2703, 2705, 2713, 2715, 2746-2749, 2775-2779, 3932, 3936, 3943-3949, 3951-3955, 3957-3965. See also Ntahobali Reply Brief, para. 340. 790 Nyiramasuhuko Appeal Brief, para. 271; Ntahobali Appeal Brief, para. 827. 791 Ntahobali Appeal Brief, para. 829. 792 Nyiramasuhuko Appeal Brief, paras. 255-257, 259, 261. See also AT. 15 April 2015 pp. 17, 19 and 22 (closed session). Nyiramasuhuko also challenges an aspect of the Trial Chamber's assessment of Witnesses TK and QJ. 117 Case No. ICTR-98-42-A 14 December 2015 1 1

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20248/H 329. The Prosecution responds that the claims that the Trial Chamber did not exercise caution with respect to Witnesses QY and SJ and that Witnesses QBP, TA, TK, and QJ received instructions to lie are without merit. 794 330. The Appeals Chamber sees no error in the Trial Chamber's reference to "allegations" of false testimonies in the Trial Judgement as none of the relevant witnesses were convicted of false testimony.?9S Moreover, the Trial Judgement clearly reflects that the Trial Chamber did not misinterpret the facts before it as it expressly and repcatedly noted that Witnesses QY and SJ admitted that they had lied in court regarding their knowledge of other Prosecution witnesses. 796 331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko's and Ntahobali's argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence?" However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,?98 and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers' discretion?" In the instant case, the Appeals Chamber observes that the testimonies on recall of Witnesses QY and SJ reveal that the witnesses admitted lying in their testimonies with

respect to one discrete point which, in the Appeals Chamber's opinion, had no bearing on any material aspects of the case. Witnesses QY and SJ both explained that they understood that they were instructed by Prosecution staff to testify that they did not know other Prosecution witnesses and that, although they did know it was not the truth, they did as they were told. 800 Nyiramasuhuko and Ntahobali do not demonstrate that the evidence of Witnesses QY and SJ was so lacking in terms of the indicia of reliability that it was deprived of any probative value Because Nyiramasuhuko's challenge in this respect is unrelated to the issue of Witnesses SJ's and QY's false testimonies, the Appeals Chamber will address it in the section addressing Nyiramasuhuko's submissions relevant to this aspect of Witnesses TK's and QJ's evidence. See Nyiramasuhuko Appeal Brief, paras. 260, 261; infra, Section IV.F.2(e). 793 Nyiramasuhuko Appeal Brief, para.

268. The Appeals Chamber notes that Ntahobali's arguments regarding the assessment of the evidence of witnesses other than Witnesses QY and SJ are premised on the contents of the Amici Curiae Reports and were not developed independently in his appeal brief. As a result, the Appeals Chamber considers that Ntahobali did not intend to argue that the Trial Chamber should have exercised particular caution when assessing the evidence of witnesses other than Witnesses QY and SJ in light of their 2009 testimonies. 794 Prosecution Response Brief, paras. 65, 66. 795 Trial Judgement, para. 203. 796 Trial Judgement, paras. 2625, 2626, 2723, 3876, 3944, 4089, 4116-4118. 797 See Ntahobali Appeal Brief, para. 822 and references cited therein. 798 See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577. 799 See Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga's Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 ("Kanyarukiga Appeal Decision"), para. 7; Prosecutor v. Jadranko Prlié et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlié Consolidated Interlocutory Appeal Against the Trial Chamber's Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 ("Prlié et al. Appeal Decision"), para. 15; The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on "Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi's Oral Motion to Cross-Examine Ntahobali Using Ntahobali's Statements to Prosecution Investigators in July 1997", 27 October 2006 ("27 October 2006 Decision"), para. 10. 118 Case No. ICTR-98-42-A 14 December 2015

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20247/H and consequently should have been excluded by the Trial Chamber. Accordingly, the Appeals Chamber finds that their argument that the Trial Chamber erred by not excluding their evidence is 801 unpersuasive.' 332. Furthermore, the Appeals Chamber does not understand the Trial Chamber's statement that it will treat Witnesses QY's and SJ's testimonies with "added caution" as a reflection of its intention to apply a higher standard than the one it decided to apply to the evidence that it deemed required "caution", "additional caution", or "appropriate caution" 802 The Appcals Chamber considers that, by stating that it would treat the evidence with added caution, the Trial Chamber was merely referring to the fact that it would take into account the fact that Witnesses QY and SJ lied in court about knowing other Prosecution witnesses when assessing the reliability and credibility of their evidence.

333. However, the Appeals Chamber agrees with Nyiramasuhuko and Ntahobali that the Trial Chamber's assessment of the evidence of Witnesses QY and SJ in the Trial Judgement is inconsistent in certain respects. The Appeals Chamber refers to the relevant sections of this Judgement addressing Nyiramasuhuko's and Ntahobali's submissions related to the Butare Prefecture Office, where it finds that the conclusions of the Trial Chamber regarding Witnesses QY's and SJ's evidence pertaining to attacks at the Butare Prefecture Office are irreconcilable and that the Trial Chamber erred in reaching contradictory findings.803 In these sections, the Appeals Chamber consequently concludes that the Trial Chamber erred in relying on Witnesses QY's and SJ's evidence in relation to the attacks at the Butare Prefecture Office. 804 334. That being said, the Appeals Chamber does not consider that it was inconsistent or unreasonable on the part of the Trial Chamber to reject parts of Witnesses QY's and SJ's testimonies relating to the Butare Prefecture Office while accepting other aspects of their testimonies relating to Ntahobali's participation in attacks at the EER.

335. The Trial Chamber explained that it would not rely on the part of Witness QY's testimony relating to specific incidents that allegedly occurred at the end of April or early May 1994 at the 800 See 2 September 2011 Decision Concerning Witnesses QY and SJ, para. 33. 801 Ntahobali also argues that the evidence of Witnesses QY and SJ should have been excluded on the basis of Rule 95 of the Rules because the role of the Prosecution in their false testimonies as revealed by the Amici Curiae Reports seriously undermined the integrity of the proceedings. See Ntahobali Appeal Brief, para.

824. The Appeals Chamber recalls that it has already dismissed Ntahobali's contention that the reports revealed that acts by members of the Prosecution undermined the integrity of these proceedings. See supra, para. 317. 802 See, e.g., Trial Judgement, paras. 171, 182, 183, 363, 2579, 4630, 4909. See infra, Sections IV.F.2(c)(ii)d, IV.F.2(c)(iii)f, IV.F.2(c)(iv), V.I.2(b)(iii)aii, V.I.2(b)(iv), V.I.2(d)(ii)a, Sections IV.F.2(c)(ii)d, IV.F.2(c)(iii)f, IV.F.2(c)(iv), V.I.2(b)(iii)aii, V.I.2(b)(iv), V.I.2(d)(ii)a, V.I.2(d)(vii). 119 Case No. ICTR-98-42-A 14 December 2015

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20246/H Butare Prefecture Office because of the witness's admission that she lied about knowing Witnesses QBQ and SJ, and also because of discrepancies in her testimony concerning these specific events and the unreliable nature of her identification evidence.80S By contrast, the Trial Chamber did not find discrepancies in Witness QY's testimony regarding the events at the EER and found that her identification of Ntahobali was reliable. 806 The Trial Chamber further made it clear that it relied on Witness QY's testimony as also partly corroborated by Witnesses RE, SX, and TB,807 witnesses whom she had not falsely denied knowing. Although the Trial Chamber did not expressly refer to Witness QY's lies when assessing her evidence relating to the EER, the Trial Chamber's repeated references to this matter show that it was not ignored 308 336. With respect to Witness SJ, the Trial Chamber explained that it did not accept the witness's testimony about the abduction of particular individuals during one of the attacks at the Butare Prefecture Office because she admitted that she had falsely denied knowing Witnesses TK, TA, and QJ.809 The Appeals Chamber notes that Witnesses TK and QJ were the two other main witnesses testifying to this particular event for which the Trial Chamber refused to rely on Witness SJ's evidence.810 By contrast, the Trial Chamber found that Witness SI's evidence

relating to the EER was consistent with and corroborative of the testimonies of several other witnesses who were not implicated by her admitted dishonesty.?l' In particular, after stating that it was "cognisant" of Witness SJ's admission upon recall in 2009 that she lied about not knowing Witnesses QBQ and TA, the Trial Chamber concluded that Witness SI's testimony on the killings near the EER was "credible in that it [was] corroborated by other witnesses and [was] consistent with the other evidence before [it]" 812 337. The Appeals Chamber has found in the sections discussing Nyiramasuhuko's and Ntahobali's challenges to the Trial Chamber's findings related to the Butare Prefecture Office that the Trial Chamber erred in assessing the evidence of Witnesses QY and SJ relating to the prefectoral office. However, in light of the above, the Appeals Chamber finds no error in the Trial Chamber's decision to rely on their evidence on events at the EER despite their admission that they lied and the Trial Chamber's rejection of other aspects of their evidence. Contrary to Nyiramasuhuko's and Ntahobali's contention, the Appeals Chamber also notes that the Trial 805 Trial Judgement, para.

2626. See also ibid., paras. 2615, 2616, 2625. 806 Trial Judgement, paras. 3946, 3948, 3951, 3959-3963. 807 Trial Judgement, paras. 3943, 3946, 3952, 3959-3963. 808 Trial Judgement, paras. 203, 2625, 2626, 3876, 4089. 809 Trial Judgement, para. 2723. 810 Trial Judgement, paras. 2717-2727. 811 See Trial Judgement, paras. 3943-3945, 3953-3958, referring to Prosecution Witnesses RE, QBQ, and QY. 812 Trial Judgement, para. 3944, fn. 10756. 120 Case No. ICTR-98-42-A 14 December 2015

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20245/H Chamber did provide reasons for relying on both witnesses' evidence concerning the events at the EER. 813 338. As for Nyiramasuhuko's argument that the Trial Chamber failed to apply caution when assessing the evidence of Witnesses QBP, QJ, TA, and TK, the Appeals Chamber notes the ambiguity in Witness SI's recall testimony about whether or not Witnesses QJ, TA, and TK had also been instructed to lie about knowing other witnesses. As noted by the Trial Chamber, $14 Witness SJ stated that she was with persons bearing the same first names as Witnesses QJ, TK, and TA when she received instructions to lie,81S prior to denying it and testifying that she did not know whether they had received similar instructions?16 Regardless of the lack of clarity of Witness SJ's testimony, the Appeals Chamber considers that a reasonable trier of fact could have decided not to treat the evidence of Witnesses QBP, QJ, TA, and TK with particular caution given the immateriality of the subject-matter of the alleged lie to the facts of the case. Although Nyiramasuhuko is correct that Witness SJ testified to knowing Witness TA despite the fact that the latter said she did not know anyone by the name of the former, 817 the Appeals Chamber does not find that this establishes that a reasonable trier of fact could not have relied on Witness TA's evidence on the material facts of the case.818 Finally, the Appeals Chamber notes that Nyiramasuhuko's assertion that Witness QY testified to knowing Witness QBP when recalled for further cross-examination in 2009819 is unsupported by the record.

4. Conclusion 339. The Appeals Chamber finds that Nyiramasuhuko, Ntahobali, and Kanyabashi have demonstrated that the Trial Chamber abused its discretion thereby committing a discernible error by not communicating the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement. However, the Appeals Chamber finds that Nyiramasuhuko, Ntahobali, and Kanyabashi have failed to show that this error resulted in prejudice. Nyiramasuhuko and Ntahobali have failed 813 The Appeals Chamber recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony. 814 Trial Judgement, paras. 4117, 4118. 815 Witness SJ, T. 23 February 2009 pp. 83, 84 (closed session). 816 Witness SJ, T. 24 February 2009 pp. 19-21 (closed session). 817 Witness SJ, T. 23 February 2009 p. 84 (closed session); Witness TA, T. 7 November 2001 p. 114 (closed session). The Appeals Chamber notes that, contrary to Nyiramasuhuko's claim, Witness TA did acknowledge that she was staying with See Nyiramasuhuko Appeal Brief, para. 257; Witness TA, T. 7 November 2001 p. 116 (closed session). the witnesses named by Witnesses QY and SJ in their 2009 testimonies may also have lied in court about knowing each others, they did not argue that the alleged inconsistency between the testimonies of Witnesses SJ and TA undermined the credibility of Witness TA's testimony. See Nyiramasuhuko and Ntahobali Closing Arguments, T. 22 April 2009 Nyiramasuhuko Appeal Brief, para. 259. 121 Case No. ICTR-98-42-A 14 December 2015 1

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20244/H to demonstrate that the Trial Chamber abused its discretion by not communicating the First Amicus Curiae Report before the delivery of the Trial Judgement, erred in failing to consider and discuss in the Trial Judgement the contents of the Amici Curiae Reports, or erred in deciding not to exclude from its consideration the evidence of Witnesses QY and SJ.

340. Furthermore, although it has found in the sections discussing Nyiramasuhuko's and Ntahobali's challenges to the Trial Chamber's findings related to the Butare Prefecture Office that the Trial Chamber erred in relying on Witnesses QY's and SJ's evidence in relation to the attacks at the Butare Prefecture Office, the Appeals Chamber concludes that the Trial Chamber did not err in relying on Witnesses QY's and SJ's evidence for the events at the EER. The Appeals Chamber also finds no error in the Trial Chamber's assessment of the evidence of Witnesses QBP, QJ, TA, and TK in relation to the allegations of false testimonies.

341. For the foregoing reasons, the Appeals Chamber grants in parts Ground 7 of Nyiramasuhuko's appeal and 3.12 of Ntahobali's appeal to the extent that the Trial Chamber relied on Witnesses QY and SJ for the events at the Butare Prefecture Office and dismisses Ground 1.3 of Ntahobali's appeal, Ground 3.11 of Kanyabashi's appeal, and the remaining parts of Ground 7 of Nyiramasuhuko's appeal and 3.12 of Ntahobali's appeal. 122 Case No. ICTR-98-42-A 14 December 2015

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20243/H K. Right to be Tried Without Undue Delay (Nyiramasuhuko Ground 1 in part; Ntahobali Ground 1.1; Nteziryayo Ground 9; Kanyabashi Ground 6; Ndayambaje Ground 15 in part) 342. Kanyabashi and Ndayambaje were arrested in Belgium on 28 June 1995 and transferred to the custody of the Tribunal on 8 November 1996.820 Nyiramasuhuko and Nsabimana were arrested in Kenya and transferred to the custody of the Tribunal on 18 July 1997821 Ntahobali was arrested in Kenya and transferred to the custody of the Tribunal on 24 July 1997.822 Nteziryayo was arrested in Burkina Faso on 26 March 1998 and transferred to the custody of the Tribunal on 21 May 1998823 On 5 October 1999, the Trial Chamber ordered that the cases of the co-Accused be tried jointly.824 343. As noted above, the Prosecution case started on 12 June 2001 before a bench of Trial Chamber Il composed of Judges Sekule, Ramaroson, and Maqutu. 25 Following the expiration of Judge Maqutu's term of office on 24 May 2003, Judges Sekule and Ramaroson decided to continue the trial with a substitute judge.26 Judge Bossa was appointed to the bench on 20 October 2003 and certified her familiarity with the proceedings on 5 December 2003.827 The Prosecution case resumed on 26 January 2004 and ended on 18 October 2004.828 The co-Accused presented their cases from 31 January 2005 to 2 December 2008.82' A total of 189 witnesses were heard in

726 trial days. 830 Closing arguments were heard from 20 to 30 April 2009.831 The Trial Chamber pronounced the judgement orally on 24 June 2011 and issued its written Trial Judgement on 14 July 2011.832 344. In the course of the proceedings, the Trial Chamber denied several motions filed by Nyiramasuhuko, Ntahobali, Kanyabashi, and Ndayambaje alleging violations of their right to be tried without undue delay. 833 The Trial Chamber also considered the issue in the Trial Judgement 820 See Trial Judgement, paras. 55, 69, 6276, 6277, 6285, 6286. 821 See Trial Judgement, paras. 14, 32, 6295, 6306. 822 See Trial Judgement, paras. 23, 6295. 823 See supra, fn. 18. 824 Trial Judgement, paras. 16, 25, 36, 52, 72, 6320. See also supra, Section III.B. 825 Trial Judgement, paras. 74, 6336, 6341, fn. 159. 826 Decision on Continuation of Trial, para.

34. See also Trial Judgement, paras. 75, 6390-6392; supra, Section M.C. 827 Trial Judgement, paras. 75, 6392; Judge Bossa Certification. 828 Trial Judgement, paras. 75, 76, 6393, 6423. 829 Trial Judgement, paras. 77-84, 6433, 6597. 830 Trial Judgement, para.

139. Four Prosecution witnesses were recalled after the close of the evidentiary phase in February 2009. See ibid., paras. 84, 6604. 831 Trial Judgement, paras. 85, 6610. 832 Trial Judgement, para. 6615. 833 26 November 2008 Decision: 20 February 2004 Decision; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Motion for a Stay of Proceedings and Order for Judges Sekule, Maqutu and Ramaroson and for Termination of Proceedings, 20 February 2004; The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings, 23 May 2000 ("23 May 2000 Decision"). 123 Case No. ICTR-98-42-A 14 December 2015

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20242/H and concluded that, given the complexity of the case, the total duration of the proceedings was reasonable and the co-Accused's right to be tried without undue delay had not been violated.834 It determined that the co-Accused had not demonstrated that they suffered any "legal prejudice" 835 345. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje submit that the Trial Chamber erred in finding that their right to be tried without undue delay was not violated and that they did not suffer prejudice from the delays in the proceedings.36 They request that the Appeals Chamber find that their proceedings were unduly delayed, conclude that they suffered prejudice as a result, and order a stay or termination of the proceedings837 or, in the alternative, a reduction of their sentences.*38 Ntahobali and Ndayambaje further request financial compensation for the violation of their right to be tried without undue delay.839 346. The Appeals Chamber recalls that the right to be tried without undue delay is enshrined in Article 20(4)(c) of the Statute and protects an accused against undue delay, which is determined on a case-by-case basis.40 A number of factors are relevant to this assessment, including: the length of the delay; the complexity of the proceedings; the conduct of the parties; the conduct of the relevant authorities; and the prejudice to the accused, if

any.84l In this context, the Appeals Chamber recalls that when an appellant alleges on appeal that his right to a fair trial has been infringed, he must prove that the trial chamber violated a provision of the Statute or the Rules and that this violation caused prejudice that amounts to an error of law invalidating the trial judgement. 42 The Appeals Chamber also emphasises that trial chambers have a duty to be proactive in ensuring that the accused is tried without undue delay, regardless of whether the accused himself asserts that right.843 834 Trial Judgement, paras. 139, 142, 143. 835 Trial Judgement, paras. 140-143. 836 Nyiramasuhuko Notice of Appeal, paras. 1.1-1.7; Nyiramasuhuko Appeal Brief, paras. 10-71; Ntahobali Notice of Appeal, paras. 9-14; Ntahobali Appeal Brief, paras. 3-31; Nteziryayo Notice of Appeal, paras. 67-69; Nteziryayo Appeal Brief, paras. 262-287; Kanyabashi Notice of Appeal, sub-para. 6.2.4, paras. 31-33; Kanyabashi Appeal Brief, paras. 364-381; Ndayambaje Notice of Appeal, paras. 116-125; Ndayambaje Appeal Brief, paras. 295-317. 837 Nyiramasuhuko Appeal Brief, para. 71; Ntahobali Notice of Appeal, para. 13; Ntahobali Appeal Brief, para. 30; Kanyabashi Notice of Appeal, sub-para. 6.2.5.1; Kanyabashi Appeal Brief, para. 379; Ndayambaje Appeal Brief, para.

317. See also AT. 15 April 2015 p.

17. Kanyabashi specifically requests that the Appeals Chamber reverse all his convictions and acquit him. See Kanyabashi Notice of Appeal, para. 33; Kanyabashi Appeal Brief, para. 379. 838 Ntahobali Notice of Appeal, para. 13; Ntahobali Appeal Brief, para. 31; Nteziryayo Appeal Brief, para. 287; Kanyabashi Notice of Appeal, sub-para. 6.2.5.2, para. 33; Kanyabashi Appeal Brief, para. 381; Ndayambaje Appeal Brief, para.

317. See also AT. 15 April 2015 p. 17. 839 Ntahobali Notice of Appeal, para. 14; Ntahobali Appeal Brief, para. 31; Ndayambaje Appeal Brief, para. 317. 840 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 43; Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 1074., 841 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 43; Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 1074. 842 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 43; Sainovié et al. Appeal Judgement para. 29; Gatete Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para.

1074. Sainovié et al. Appeal Judgement, para. 100 and references cited therein. Case No. ICTR-98-42-A 14 December 2015

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20241/H 347. The Appeals Chamber will first examine the arguments advanced by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje regarding the length of the delay, the complexity of the proceedings, and the conduct of the parties and relevant authorities prior to addressing their submissions on prejudice.

1. Length of the Delay, Complexity of the Proceedings, and Conduct of the Parties and Relevant Authorities 348. In addressing the allegation of undue delay in the Trial Judgement, the Trial Chamber noted that the trial chambers seised of the Nahimana et al., Bagosora et al., and Bizimungu et al. cases had concluded that, given the complexity of these cases, periods between dates of arrest and the issuance of the trial judgement of seven years and eight months, 11 years, and more than ten years, respectively, did not constitute undue delay. 4 The Trial Chamber then reasoned as follows: The Chamber considers the instant case to be at least as complex as Bagosora. The Chamber heard 189 witnesses over the course of 726 trial days. Thus, the case is approximately twice the length of Bagosora and more than three times the length of Nahimana et al. Moreover, while there were fewer witnesses in this case than Bagosora, the increased length was necessitated by the replacement of a Judge, the presentation of six different Defence cases and a plurality of cross-examinations for every witness. In the circumstances, given the complexity of the instant case, the Chamber does not consider the length of this case to violate the Accused's right to be tried without undue delay. 845 349. In addition, the Trial Chamber recalled that, in its 26 November 2008 Decision, it had rejected Ntahobali's

arguments that undue delay had resulted from the arrest of his investigator, the non-reelection of Judge Maqutu, and the lack of cooperation of the Rwandan authorities on the basis that the gravity of the charges and the complexity of the case did not render unreasonable the length of the proceedings.46 It found that there was "no reason to reconsider its assessment of Ntahobali's motion at this time" 847 350. Ultimately, the Trial Chamber found that, considering the complexity of the case along with the expansive trial record, the total duration of the proceedings, including the time needed for the drafting of the Trial Judgement, was reasonable and did not violate the co-Accused's right to be tried without undue delay.?48 It concluded that, "lals the length of delay in this case [was] adequately explained by the complexity of the case, and the Accused ha[d] not demonstrated that - That Judgemen, part. 13g. 816 Trial Judgement, para.

141. See also 26 November 2008 Decision, paras. 56, 60. on THat Judgement, paras: 139, 142. 125 Case No. ICTR-98-42-A 14 December 2015

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20240/H they suffered legal prejudice", it did not need to "consider the conduct of the Prosecution or other legal authorities.'*849 351. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje submit that the Trial Chamber erred in finding that their right to be tried without undue delay had not been violated $50 Pointing out that they spent between 13 to 16 years in detention before the Trial Judgement was delivered, they assert that the proceedings have been excessively lengthy and that this in itself suggests undue delay. 851 352. Nyiramasuhuko, Kanyabashi, and Ndayambaje argue, in particular, that the Trial Chamber erred in its complexity assessment by simply comparing the overall size of the instant case with other cases before the Tribunal without taking into account the particular circumstances of this case and by failing to consider that the individual allegations against them were not complex as such.8$2 Kanyabashi adds that the Trial Chamber inappropriately engaged in circular reasoning since it initially set out to consider whether the length of the proceedings could be explained by the complexity of the case but eventually held that the length of the proceedings in itself suggested that the case must have been complex. 853 353. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje also contend that the Trial Chamber erroneously concluded that

the length of the proceedings could be explained by the complexity of the case alone.?54 They submit that significant and unjustifiable delays were caused by the conduct of the Prosecution, the Tribunal, the United Nations, and the Government of Rwanda. 5 In this regard, they point to: (i) delays resulting from Judge Maqutu's replacement; 849 Trial Judgement, para. 143. 850 Nyiramasuhuko Notice of Appeal, paras. 1.1-1.7; Nyiramasuhuko Appeal Brief, paras. 10-71; Ntahobali Notice of Appeal, paras. 9-14; Ntahobali Appeal Brief, paras. 3-31; Nteziryayo Notice of Appeal, paras. 67-69; Nteziryayo Appeal Brief, paras. 262-287; Kanyabashi Notice of Appeal, paras. 31-33; Kanyabashi Appeal Brief, paras. 364-381; Ndayambaje Notice of Appeal, paras. 116-125; Ndayambaje Appeal Brief, paras. 295-317. 851 See Nyiramasuhuko Notice of Appeal, para. 1.4; Nyiramasuhuko Appeal Brief, paras. 27, 29; Ntahobali Appeal Brief, paras. 7, 29; Nteziryayo Appeal Brief, paras. 262, 264, 282; Kanyabashi Notice of Appeal, sub-para. 6.2.1; Kanyabashi Appeal Brief, para. 365; Ndayambaje Notice of Appeal, paras. 116, 123; Ndayambaje Appeal Brief, paras. 298, 299, 316. See also Ndayambaje Reply Brief, para. 123; AT. 14 April 2015 pp. 7, 8; AT. 21 April 2015 pp. 4 5. 352 See Nyiramasuhuko Appeal Brief, paras. 14, 15, 33; Kanyabashi Notice of Appeal, sub-para. 6.2.2.1; Kanyabashi Appeal Brief, paras. 366, 372-374; Ndayambaje Appeal Brief, paras. 302, 304, 306. See also Kanyabashi Reply Brief sara.

143. See also AT. 21 April 2015 p. 5 53 Kanyabashi Appeal Brief, para. 371 854 Nyiramasuhuko Notice of Appeal, para. 1.1; Nyiramasuhuko Appeal Brief, paras. 11, 12, 25, 70; Ntahobali Notice of Appeal, para. 12; Ntahobali Appeal Brief, para. 10; Nteziryayo Notice of Appeal, para. 67; Nteziryayo Appeal Brief, paras. 282-285; Kanyabashi Notice of Appeal, sub-para. 6.1; Kanyabashi Appeal Brief, paras. 364, 371, 374; Kanyabashi Reply Brief, para. 145; Ndayambaje Notice of Appeal, para. 117; Ndayambaje Appeal Brief, para. 304. 855 Nyiramasuhuko Notice of Appeal, para. 1.6; Nyiramasuhuko Appeal Brief, paras. 18-21, 25, 36, 38-57; Ntahobali Notice of Appeal, para. 11; Ntahobali Appeal Brief, paras. 11-22; Kanyabashi Notice of Appeal, sub-para. 6.2.3; Kanyabashi Appeal Brief, paras. 367-370, 375-378; Ndayambaje Notice of Appeal, paras. 118-121, 127; Ndayambaje Appeal Brief, paras. 298-310. 126 Case No. ICTR-98-42-A 14 December 2015

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20239/H (ii) the lack of cooperation of the Government of Rwanda in providing relevant evidence; (iii) the decision to join their trials; (iv) delays caused by the Prosecution's repeated attempts to modify the indictments, its consistent failure to disclose relevant material to the Defence, and several postponements of the start of the trial because the Prosecution was not ready to present its case; (v) the slow pace of the trial proceedings; and (vi) the simultaneous assignment of the judges of the bench to other cases before the Tribunal which limited their availability to finish the present case in due course. 56 Nyiramasuhuko, Ntahobali, Kanyabashi, and Ndayambaje argue that an assessment of undue delay must always be made on the basis of all relevant factors and that the Trial Chamber erred in concluding that it did not need to consider the above-mentioned issues due to the complexity of the case. 57 354. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje further argue that the drafting phase of the Trial Judgement was excessively long. 58 Niahobali and Nteziryayo add that it took an unreasonable time for the Tribunal to translate the Trial Judgement into French. 859 355. The Prosecution responds that the Appeals Chamber should summarily dismiss Nteziryayo's submissions on undue delay because he failed to raise them at trial and thus waived his right

to challenge this issue on appeal.860 On the merits, the Prosecution contends that, although the proceedings in the present case were long, Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje fail to demonstrate that there was undue delay.86' In its view, the Trial Chamber's conclusion that any delays could be explained by the complexity of the case was supported by 856 Nyiramasuhuko Notice of Appeal, para. 1.6; Nyiramasuhuko Appeal Brief, paras. 13, 18-21, 34-37, 44-57, 59; Ntahobali Appeal Brief, paras. 12, 14-16, 18-21; Nteziryayo Notice of Appeal, para. 67; Nteziryayo Appeal Brief, paras. 282-285; Kanyabashi Notice of Appeal, sub-paras. 6.2.2.2, 6.2.3; Kanyabashi Appeal Brief, paras. 367-370, 376, 377; Ndayambaje Notice of Appeal, paras. 118-121, 127; Ndayambaje Appeal Brief, paras. 301, 305, 306, 310. See also AT. 15 April 2015 pp. 15, 16; AT. 16 April 2015 p. 23; AT. 21 April 2015 pp. 5, 6. Kanyabashi also alleges that the Trial Chamber erred in failing to consider the fact that the Prosecution artificially complicated and lengthened the proceedings by introducing irrelevant evidence and by increasing the number of allegations to which the co-Accused had to respond, although they had no prospect of succeeding, and in rejecting his requests for exclusion of evidence. See Kanyabashi Notice of Appeal, sub-paras. 6.2.2.2, 6.2.3.2, 6.2.3.5; Kanyabashi Appeal Brief, para.

376. Ndayambaje also submits that the start of the trial was delayed by the death of Judge Kama. See Ndayambaje Appeal Brief, BaSe yiramasuhuko Notice of Appeal, para. 1.3; Nyiramasuhuko Appeal Brief, paras: 25, 26; Niahobali Notice of Appeal, para. 12; Ntahobali Appeal Brief, para. S; Kanyabashi Notice of Appeal, sub-para. 6.1.1; Kanyabashi Appeal Brief, para. 364; Ndayambaje Notice of Appeal, para. 122; Ndayambaje Appeal Brief, paras. 297, 315. See also AT. 15 April 2015 p. 15; AT. 16 April 2015 p. 23; AT. 21 April 2015 p. 5. 858 Nyiramasuhuko Appeal Brief, para. 24; Ntahobali Appeal Brief, paras. 20, 22; Nteziryayo Appeal Brief, paras. 278, 281; Kanyabashi Notice of Appeal, sub-para. 6.2.3.4; Ndayambaje Appeal Brief, paras. 310, 316; Ndayambaje Reply Brief, para.

117. In particular, Ntahobali, Kanyabashi, and Ndayambaje submit that the fact that the Judges of the Trial Chamber were also sitting in other cases before the Tribunal during the deliberations phase delayed the process See Ntahobali Appeal Brief, para. 21; Kanyabashi Notice of Appeal, sub-para. 6.2.3.4; Ndayambaje Appeal Brief, B Nahobali Appeal Brief, paras. 17, 20; Niceziryayo Appeal Brief, paras 280, 28 1. 860 Prosecution Response Brief, para.

1567. See also AT. 17 April 2015 pp. 35, 36. 861 Prosecution Response Brief, paras. 2, 4. 127 Case No. ICTR-98-42-A 14 December 2015

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20238/H precedent and was reasonable in light of the particular circumstances in this case.$62 The Prosecution further submits that the joinder of trials with which some of the co-Appellants take issue is provided for in the Statute and was justified in the present case." 863 At the appeals hearing, the Prosecution underlined that the co-Accused did not object to the pace at which the trial was proceeding but, on the contrary, requested additional time to prepare their respective defences. 864 356. Nteziryayo replies that he raised the issue of undue delay in his closing arguments at trial. 865 357. The Appeals Chamber notes that, at the time of the oral pronouncement of the Trial Judgement, Kanyabashi and Ndayambaje had been detained for almost 16 years, Nyiramasuhuko, Nsabimana, and Ntahobali for almost 14 years, and Nteziryayo for over 13 ycars.866 Some of the co- Appellants will have waited more than 20 years for a final determination of their case. It is therefore indisputable that the proceedings in this case have been of an unprecedented and considerable length.

358. Considering the extraordinary length of these proceedings, the Trial Chamber's determination in the Trial Judgement that none of the co-Accused's right to a trial without undue delay had been violated, 867 and the interests of justice, the Appeals Chamber will consider Nteziryayo's arguments on undue delay and, if necessary, will proprio motu consider the impact of its findings on Nsabimana's rights regardless of the fact that he did not raise allegations in this regard on appeal.

359. Turning to the merits of the submissions before it, the Appeals Chamber recalls that, as previously held, the length of an accused's detention does not in itself constitute undue delay, and the fact that the co-Appellants had been detained for many years at the time of the issuance of the Trial Judgement is insufficient, in itself, to show that the Trial Chamber erred in its determination that there was no undue delay in the proceedings.868 Because of the Tribunal's mandate and of the 862 Prosecution Response Brief, paras. 4, 5, referring, inter alia, to Mugenzi and Mugiraneza Appeal Judgement, para.

32. See also AT. 14 April 2015 pp. 54-57; AT. 15 April 2015 pp. 60-62; AT. 20 April 2015 pp. 45, 46; AT. 21 April 2015 pp. 33, 34. 863 Prosecution Response Brief, para.

6. See also AT. 14 April 2015 p. 57; AT. 15 April 2015 p. 62; AT. 17 April 2015 9. 37; AT. 21 April 2015 p. 34 64. See AT. 14 April 2015 pp. 55, 56; AT. 15 April 2015 pp. 61, 62; AT. 17 April 2015 pp. 36, 37; AT. 21 April 201: 866 See supra, paras. 342, 343. • 867 Trial Judgement, para. 139 868 See Ntabakuze Appeal Judgement, para. 20. 128 Case No. ICTR-98-42-A 14 December 2015

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20237/H inherent complexity of the cases before it, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts.869 360. It is well established in the Tribunal's jurisprudence that the complexity of a case is one of the factors to be taken into account when assessing whether undue delay has occurred. 87º A number of factors are relevant to determining the level of complexity of a particular case, including the number of counts, the number of accused, the number of witnesses, the quantity of evidence, and the complexity of the facts and of the law. 871 361. Although the Trial Chamber heavily relied on a comparison with other multi-accused cases at the Tribunal, the Appeals Chamber is not persuaded that the Trial Chamber failed to consider the particular circumstances of the case in determining that it was complex. In its assessment in the Trial Judgement, the Trial Chamber expressly relied on the large number of accused, the number-of witnesses heard, the need to replace a judge, the presentation of six different Defence cases and the plurality of cross-examinations for every witness, and the quantity of evidence tendered in the case.?? In prior interlocutory decisions, the Trial Chamber also considered that the case raised complex issues of law and fact. 73 When arguing that the Trial Chamber failed to consider that

the individual allegations against them were not complex as such, Nyiramasuhuko, Ntahobali, and Ndayambaje fail to appreciate these additional factors that the Trial Chamber took into account. Kanyabashi's claim that the Trial Chamber applied circular reasoning and ultimately relied on the length of the proceedings to determine that the case was complex is also not supported by a reading of the Trial Judgement.

362. The Appeals Chamber is satisfied that the Trial Chamber did not err in considering that the instant proceedings were complex. With six accused, this case is the largest ever heard before the Tribunal. The six accused were prosecuted on the basis of numerous allegations with regard to crimes that occurred in several locations and on different dates. The Trial Chamber also had to rule on a particularly broad scope of counts, from conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, to several crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, as well as to consider a wide range of modes of liability.874 As noted in the Trial Judgement, the Trial Chamber heard a G. Magent and Must Tude Appeal done alre alra Can Aust era me Jud Jui Manina Naninan2 el al. Appeal Judgement, para.

1074. Cf. Renzaho Appeal Judgement, para. 238; Nahimana et al. Appeal Judgement, para.

1074. See also Rwamakuba Appeal Decision, para.

13. Trial Judgement, paras. 139, 142. 873 26 November 2008 Decision, para. 59, referred to in Trial Judgement, para. 141; 7 April 2006 Decision, para. 75; 8 September 2000 Decision, para. 40. 874 See Trial Judgement, para. 1. 129 Case No. ICTR-98-42-A 14 December 2015

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20236/H numerous witnesses and had to consider an exceptionally large amount of tendered evidence and trial transcripts.375 363. However, the crucial question before the Appeals Chamber is whether the Trial Chamber erred in finding that the length of the proceedings could be explained by the complexity of this case alone. In this respect, the Appeals Chamber recalls that, in addition to the length and the complexity of the proceedings, a number of other factors are relevant to the assessment of an allegation of undue delay, including the conduct of the parties and of the relevant authorities.876 The Appeals Chamber will therefore examine these other factors pointed out by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje which, they argue, unjustifiably delayed the proceedings.

364. With respect to the delays resulting from the replacement of Judge Maqutu and the lack of cooperation of the Government of Rwanda, the Appeals Chamber notes that, in the Trial Judgement, the Trial Chamber recalled its 26 November 2008 Decision where it stated that the non-reelection of Judge Maqutu and the lack of cooperation of the Rwandan authorities "may have contributed to the length of the proceedings" but did not find that there was undue delay.877 The Trial Chamber determined that there was no reason to reconsider its 26 November 2008 Decision.878 The Appeals Chamber observes that Judge Maqutu was not reelected as a judge of the Tribunal by the United Nations General Assembly in May 2003 and thus had to be replaced midway through the Prosecution case, leading to a suspension of the trial for over eight months.879 As noted by the Trial Chamber, the proceedings were also stalled at some point due to the inability of witnesses to travel from Rwanda to Arusha as scheduled, resulting in the postponement of several weeks of a planned trial session.80 However, the Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.®8' In the absence of any arguments showing that the Tribunal's or the United Nations' response to the

non-reelection of Judge Maqutu and the inability of witnesses to travel from Rwanda to Arusha was inadequate and 875 Trial Judgement, paras. 139, 142. 876 See supra, para. 346. 877 Trial Judgement, para. 141, referring to 26 November 2008 Decision, para. 60, p. 13. 878 Trial Judgement, para. 141. • See Tres l deme a patay, 75 63906397 frairom Kanda 10 Arusha as scheduled, the Trial Chamber was not able to hear any Prosecution witnesses starting on 10 June 2002. On 27 June 2002, the Trial Chamber decided to Judgement, para.

6374. Nahimana et al. Appeal Judgement, para. 1074. 130 Case No. ICTR-98-42-A 14 December 2015

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20235/H further delayed the proceedings, the Appeals Chamber finds no error in the Trial Chamber's exercise of its discretion.

365. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje also rely on the delays allegedly caused by the decision to join the trials. When examining the co-Accused's challenges to the joinder in the Trial Judgement, the Trial Chamber recalled its finding that any assertion that the length of a particular trial if conducted independently would have concluded more quickly was "hypothetical and speculative" and concluded that "the joinder did not create an injustice."*8 The Appeals Chamber recalls that the joinder of trials is provided for by the Rules and that it had found no error in the Trial Chamber's decisions to join the trials of the co-Accused and to reject their requests for separate trials.83 The argument that the excessive length of the proceedings in this case was an unavoidable and clearly foreseeable consequence of the joinder decision is not substantiated.84 Accordingly, the Appeals Chamber finds that, notwithstanding that the joinder added some degree of complexity to the proceedings, the mere contention that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder.® 885 The Appeals Chamber rejects the arguments made in this respect.

366. As for the remaining arguments relating to the conduct of the Prosecution and of the other relevant authorities, the Appeals Chamber finds merit in the submission that the Trial Chamber erred in concluding that it did not need to "consider the conduct of the Prosecution or other legal authorities. "886 As held repeatedly, the conduct of the parties and of the relevant authorities are relevant factors to take into account in determining whether an accused's fundamental right to a trial without undue delay has been infringed.887 Given the significant length of the instant proceedings at the time it delivered its judgement, it was incumbent upon the Trial Chamber to carefully assess whether, besides the complexity of the case, the conduct of the parties and of other relevant authorities may have contributed to any unjustifiable delays in this case.

367. Concerning the conduct of the Prosecution, the Appeals Chamber observes that, from their arrests to the commencement of the trial on 12 June 2001, Nyiramasuhuko, Ntahobali, and Nsabimana spent almost four years in pre-trial detention, Nteziryayo three years, and Kanyabashi and Ndayambaje six years. The Appeals Chamber accepts that preparing such a case for trial can 882 Trial Judgement, para. 148, referring to 26 November 2008 Decision, para. 59. 883 See supra, Section II.B. 884 See Nteziryayo Appeal Brief, para.

285. See also supra, Section IIL.B.2(b). 885 Cf. Gotovina Appeal Decision on Joinder, para.

44. See also ECHR Neumeister Judgment, para. 21 ("[the course of the investigation would probably have been accelerated had the Applicant's case been severed from those of his co- accused, but nothing suggests that such a severance would here have been compatible with the good administration of iustice") 386 Trial Judgement, para. 143. 887 See supra, para. 346. 131 Case No. ICTR-98-42-A 14 December 2015

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20234/H reasonably require a lengthy period of time but emphasises that every effort should be made to bring cases to trial as expeditiously as possible.888 368. Although the decisions of the Prosecution to request to amend the indictments and to join the trials may have increased the length of the pre-trial proceedings in this case, Nyiramasuhuko, Ntahobali, Kanyabashi, and Ndayambaje do not demonstrate that these decisions, which are expressly allowed by the Rules, improperly prolonged the trial.889 369. The Appeals Chamber notes, however, that the Trial Chamber expressly acknowledged in its 26 November 2008 Decision that the Prosecution repeatedly failed to comply with its disclosure obligations towards the Defence."" The Trial Chamber gencrally concluded in this context that measures had been taken to remedy these failures and that the issue was therefore settled and did not need to be relitigated.'" However, neither in its 26 November 2008 Decision nor in the Trial Judgement did the Trial Chamber specifically address Nyiramasuhuko's and Ntahobali's claim that the Prosecution's disclosure violations unduly delayed the proceedings.892 370. As regards the impact of the Prosecution's failure to comply with its disclosure obligations on the length of the proceedings, the Appeals Chamber observes that when the Prosecution requested in 1998 that the trials of the co-Accused be

joined and the indictments against them be modified, it stated that it would be ready to start the trial "as soon as the Trial Chamber" would render its decisions on these matters. 893 The amendments of the indictments were granted on 10 and 12 August 1999, and the joinder was decided on 5 October 1999.894 The trial, however, did not start 889 The Appeals Chamber also rejects Kanyabashi's contention that by requesting his transfer to the Tribunal, the Prosecution deprived him of the opportunity to have a trial within a reasonable time in Belgium as it fails to see how the fact that his trial could have been conducted faster in Belgium has any impact on whether undue delay occurs in these proceedings. Similarly, the Appeals Chamber rejects Kanyabashi's general and unsubstantiated claims that the Prosecution artificially complicated and lengthened the proceedings and that the Trial Chamber erred in rejecting his requests for exclusion of evidence. See supra, fn. 856. 26 November 2008 Decision, para. 61. 891 26 November 2008 Decision, para. 61. 892 See 26 November 2008 Decision, para. 8; 22 August 2008 Motion, paras. 106-115. The Appeals Chamber observes that the Trial Chamber denied arguments raised by Nyiramasuhuko on this matter in her motion of 24 June 2003 and found, without further explanation, that the gravity of charges and the complexity of the case did not

render unreasonable the length of the proceedings. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Motion by Pauline Nyiramasuhuko for Termination of Proceedings on Grounds of Abuse of Process (Unreasonable Delays and Unfair Trial), 24 June 2003 (originally filed in French, English translation filed on 22 April 2004) ("24 June 2003 Motion"), pp. 32, 33; 20 February 2004 Decision, para.

16. See also Nyiramasuhuko Appeal Brief, para.

64. See Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Prosecutor's Request for Leave to File an Amended Indictment, 18 August 1998, para. 5(g). Trial Judgement, paras. 6284, 6292, 6302, 6313, 6317, 6320. 132 Case No. ICTR-98-42-A 14 December 2015

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20233/H before 12 June 2001,895 primarily as a result of the Prosecution's failure to comply with its disclosure obligations and its lack of readiness, as discussed in detail below.

371. Specifically, in June 2000, the Prosecution stated that it would be ready to start the presentation of its case only in November 2000.8% Because the trial had not yet started by February 2001, the then presiding judge of the case, Judge Kama, convened a status conference on 2 February 2001 during which he asked the Prosecutor whether all the disclosures pursuant to Rule 66 of the Rules were finally completed, emphasising that it was the pre-condition for the trial to begin." The record reflects that the Prosecution had still not complied with its Rule 66 disclosure obligations at the time.98 Judge Kama stressed that the longest periods of detention had occurred in this case and stated that "2001 seemed to be very far away when some commitments were made", expressly referring to the commitment made by the Prosecution in June 2000 to start its case in November of that year.®" The Prosecutor responded that "it is true that we are rather late. We made pledges that we were not able to keep. I believe that at this time [...] we are absolutely ready to begin our trial [...] on 1" of April of this year."900 During this status conference, the trial was set to commence on 14 May 2001.901 Following the death of Judge Kama on 6 May 2001, the trial finally started on 12 June 2001.902 372. It transpires from the procedural history summarised above that the Prosecution's failure

to comply with its disclosure obligations and lack of readiness delayed the start of the trial by several months. Although the Prosecution acknowledged its lack of readiness and belatedness in fulfilling its disclosure obligations, upon which the start of the trial depended, it does not provide any explanation as to why it was not in a position to disclose some of the relevant materials despite 895 Trial Judgement, paras. 74, 6341. The Appeals Chamber also observes that, before the joinder of trials, the dates for the start of the individual trials of Kanayabashi and Ndayambaje had already been set up for 8 April 1997 and 20 May 1997, respectively. See ibid., paras. 6278, 6287, 6290. 896 See Status Conference, T. 2 February 2001 p. 4 ("If you remember, we had held an informal meeting with some of you in June last. I have noted that at that period already — it was in June 2000 - 2001 seemed to be very far away when some commitments were made. The Prosecutor, especially, said that she was ready for November 2000. Now, we are March -- February-March 2001. We wonder whether she is ready now."). 897 Status Conference, T. 2 February 2001 pp. 4, 5. 898 See, e.g., The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Full Disclosure of the Identity and Unredacted Statements of the Protected Witnesses, 8 June 2001 ("8 June 2001

Disclosure Decision"). The Trial Chamber noted that it is only seven months after the start of the trial that full disclosure of the Prosecution's witnesses' identities and statements was carried out. See 26 November 2008 Decision, para. 61. 899 Status Conference, T. 2 February 2001 pp. 4, 5. See also 8 June 2001 Decision, para. 21 ("The Chamber is aware of the length of the detention of [Ntahobali] since his arrest and transfer to the Tribunal in July 1997, that is, more than four years ago, and, indeed expressed its concern in this regard at the last Status Conference, held on 2 February 2001, thus reminding both Parties that the trial could not be further postponed and had to take place soon for the sake of all the Accused's right to be tried without undue delay".). 900 Status Conference, T. 2 February 2001 p. 5. 901 Status Conference, T. 2 February 2001 p. 117. 902 Trial Judgement, paras. 74, 6336, 6341, fn. 159. 133 Case No. ICTR-98-42-A 14 December 2015

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20232/H express orders from the Trial Chamber or why it repeatedly changed the date for its readiness to commence trial. While the trial was postponed by one month as a result of the death of Judge Kama,º03 the record shows that the fact that the trial was delayed to spring 2001 was largely caused by the Prosecution's inability to meet its disclosure obligations and lack of readiness. In light of the foregoing, the Appeals Chamber finds that the Prosecution's failure to fulfill its disclosure obligations created unjustified delays in the start of the trial.

373. With respect to the trial phase, the Appeals Chamber observes that, as highlighted by Ntahobali and Kanyabashi, the trial phase lasted over eight years and was thus proportionally longer than in other multi-accused cases at the Tribunal.º* The Appeals Chamber, however, stresses that a more accelerated pace of other multi-accused cases does not, in and of itself, demonstrate undue delay. '05 374. As noted by the Trial Chamber, the length of the proceedings was increased in this particular case by the replacement of a judge in the course of the trial, the presentation of six Defence cases and the plurality of cross-examinations for every witness. Although not taken into account by the Trial Chamber when examining whether undue delay occurred, the Appeals Chamber further observes that, during the trial phase, the judges sitting in this case were also involved in several other proceedings before the Tribunal. Indeed, the Trial Chamber expressly noted in the "Procedural History" section of the Trial Judgement that it was not able to sit in the Nyiramasuhuko et al. case: (i) from 4 to 25 July 2001, 1 to 5 October 2001, 26 November to 13 December 2001, 16 September to 9 October 2002, 18 November to 12 December 2002, and 31 March to 24 April 2003 because all three judges of the Trial Chamber were seised of the Kajelijeli case; and ii) from 3 to 25 September 2001, 28 January to 19

February 2002, 6 to 14 May 2002, 19 August to 12 September 2002, 13 January to 30 April 2003, and 5 to 15 May 2003 because all three judges of the Trial Chamber were seised of the Kamuhanda case. 907 Moreover, the Appeals Chamber notes that: (i) Judge Bossa, who was assigned to the case on 20 October 2003, was also at the time assigned to the Ndindabahizi case, which was in session notably from 903 In this respect, the Appeals Chamber rejects Ndayambaje's undeveloped claim that the death of Judge Kama unduly delayed the commencement of the trial. See supra, fn. 856. 94 For example: - in the Ndindiliyimana et al. case, a four-accused case, the trial phase extended over four years and nine months; - in the Bizimungu et al. case, a four-accused case, the trial phase lasted over five years; - in the Bagosora et al. case, a four-accused case, the trial phase lasted for five years and two months; and - in the Nahimana et al. case, a three-accused case, the trial phase lasted two years and ten months. See Ndindiliyimana et al. Trial Judgement, Annex A, paras. 34, 134; Bizimungu et al. Trial Judgement, Annex A, Base. use go us al ra game Am, pa 3za, 2314, 2367; Yahimana et al. Trial Judgement, para. 94. 906 Trial Judgement, para. 139. 907 Trial Judgement, paras. 6345, 6349, 6357, 6361, 6367, 6377, 6379, 6384, 6386, 6389, fins. 159, 160. 134 Case No. ICTR-98-42-A 14 December 2015 1

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20231/H 27 October to 28 November 2003 and on 1 and 2 March 2004,908 (ii) all three judges of the Trial Chamber were also seised of the Bisengimana sentencing case, in which they sat on 17 November 2005, 7 December 2005, 19 January 2006, and 20 April 2006;909 and (iti) all three judges of the Trial Chamber were seised of the Nzabirinda sentencing case, in which they sat on 14 December 2006, 17 January 2007, and 23 February 2007.910 375. It is unquestionable that the pace of the trial was affected by the judges' obligations in other cases. Whereas the proceedings in this case needed interruptions so as to allow the parties to prepare,'"' the judges' obligations in other cases prevented them from sitting in this case for approximately 36 weeks. In light of the time required to dispose of the motions filed in these other cases, deliberate on their merits, and write the judgements, these additional obligations also necessarily significantly reduced the time the Trial Chamber judges could devote to the present case.

376. The Appeals Chamber observes that it was practice for judges of the Tribunal to participate simultaneously in multiple proceedings given the workload of the Tribunal during the relevant period.912 It also notes that significant efforts were made by the authorities of the Tribunal to obtain the necessary resources to complete its mandate while ensuring the utmost respect for the rights of all accused.913 However, in the particular circumstances of this case where the co-Accused had already been in detention for nearly 4 to 6 years at the start of the trial and which had already suffered from significant delays,914 the Appeals Chamber concludes that the additional delays resulting from the judges' simultaneous participation to other proceedings caused undue delay. The Appeals Chamber recalls that logistical considerations should not take priority over the trial 908 See Ndindabahizi Trial Judgement, Section I.4, paras. 17, 21. See Bisengimana Sentencing Judgement, Section VI.A, paras. 220, 228, 233. 910 See Nzabirinda Sentencing Judgement, Section II.A, paras. 9, 48. 911 As regards the Prosecution's heavy reliance on the fact that most of the co-Accused repeatedly requested more time to prepare their defence, the Appeals Chamber emphasises that an accused cannot be blamed for trying to take full advantage of the resources afforded by the law in their defence as long as his

conduct is not obstructive. Noting that the right to a fair trial in Article 20 of the Statute is in pari materia with Article 6 of the European Convention on Human Rights, the Appeals Chamber considers that the jurisprudence of the European Court of Human Rights ("ECtHR") may provide useful guidance for the interpretation of the right to trial without undue delay. In this regard, see, e.g., Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995, para.

66. Regarding the reliance on the jurisprudence of the ECtHR, see Prosecutor v. Milan Martic, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber's Decision on the Evidence of Witness Milan Babié, 14 September 2006, paras. 18, 19. • During the Nyiramasuhuko et al. trial, the Tribunal's trial chambers were seised of 38 cases involving 53 accused. 913 The Appeals Chamber notes that, in 2002, in response to the request made by the then President of the Tribunal to complete its tasks within a reasonable amount of time in order to "respect the rights of the accused and to meet the expectations of the victims, Rwandan society and the United Nations", the Security Council established a pool of ad litem judges. See "Identical Letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council", UN Doc. A/56/265-S/2001/764, 19 September 2001, Appendix, p. 7; Security Council Resolution 1431 (2002), UN Doc. S/RES/1431, 6 September 2002, paras. 1, 2. The Appeals Chamber refers to the delays caused by the Prosecution's lack of readiness, the replacement of Judge Maqutu, and the inability of witnesses to travel from Rwanda to Arusha as scheduled. See supra, paras. 364, 370-372. Case No. ICTR-98-42-A 14 December 2015

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20230/H chamber's duty to safeguard the fairness of the proceedings.'lS In the same vein, the Appeals Chamber is of the view that organisational hurdles and lack of resources cannot reasonably justify the prolongation of proceedings that had already been significantly delayed.'I6 377. With respect to the contention that the judgement drafting phase was excessively long, the Appeals Chamber observes that two years and two and a half months elapsed between the end of the closing arguments and the written delivery of the Trial Judgement."l Given the size and complexity of the case, the Appeals Chamber is not persuaded that this period was excessive and amounted to undue delay.918 The Appeals Chamber therefore dismisses Nyiramasuhuko's, 915 See Sainovié et al. Appeal Judgement, para. 101; Haradinaj et al. Appeal Judgement, para. 46. 916 The Appeals Chamber notes that the United Nations Human Rights Committee, the African Commission on Human and People's Rights, and the ECtHR have held that it is for the contracting States to organise their legal systems in such a way that their courts can meet the requirement of a trial within a reasonable time. See, e.g., B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995, para. 7.3 ("The Committee has noted the State party's

explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c)."); Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 10 (Views adopted on 12 May 2003), UN Doc. HRI/GEN/1/REV.6, p. 137 ("Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place "without undue delay". To make this right effective, a procedure must be available in order to ensure that the trial will proceed "without undue delay", both in first instance and on

appeal."); Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People's Rights, Communication No. 301/05, 12 October 2013, para. 235 ("The African Commission also agrees with the Complainants that the complexity of a case should not debar domestic courts from acting with due diligence in dealing with a case on the Merits. At any rate, it is the responsibilities of States Parties to the African Charter to organize their judiciary in such a way that the right guaranteed in Article 7 (1) (d) of the Charter can be effectively enjoyed") (internal references omitted); EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005, para. 33 ("The Court recalls that the Convention places a duty on the Contracting States to organize their legal system so as to allow the courts to comply with the requirements of Article 6 $ 1 of the Convention, including that of trial within a reasonable time. Nonetheless, a temporary backlog of business might not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind."); Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993, para. 44; Vocaturo v.

Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991, para. 17 ("As regards the excessive workload, the Court points out that under Article 6 para. 1 (art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of his civil rights and obligations. It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement."); Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992, para. 24 ("Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements".). See also Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997, paras. 39, 80 ("There is excessive delay regarding the application for judicial review filed on 29/8/94 which still has not been disposed of. Even considering complexity of case, and excuses, impediments and substitution of judges of the Supreme Court of Justice, the 2 years that have elapsed since the application was admitted is not reasonable and a breach of 917 See Trial Judgement, paras. 85, 6610, 6615. 918 The Appeals Chamber notes that in the Mugenzi and Mugiraneza case, it did not consider that a three-year period between closing submissions and the issuance of the Trial Judgement constituted undue delay. See Mugenzi and Mugiraneza Appeal Judgement, para.

35. The Appeals Chamber also found that an 18-month Judgement drafting phase in a complex single accused case, while concerning, did not amount to undue delay. See Renzaho Appeal Judgement, para. 241. 136 Case No. ICTR-98-42-A 14 December 2015

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20229/H Ntahobali's, Nteziryayo's, Kanyabashi's, and Ndayambaje's contention that the Trial Chamber erred when it found that in light of the complexity of this case the duration of the judgement drafting phase was reasonable.

378. Based on the foregoing, the Appeals Chamber finds that delays in the start of the trial due to the Prosecution's conduct and delays resulting from the Trial Chamber judges' simultaneous assignment to multiple cases cannot be reasonably explained or justified. As a result, the Appeals Chamber finds that the Trial Chamber erred when it found that the length of the proceedings was reasonable and adequately explained by the complexity of the case.

379. The Appeals Chamber now turns to Ntahobali's and Nteziryayo's argument that the appellate stage of the proceedings was also unduly delayed as a result of the unreasonable time taken to translate the Trial Judgement into French.'' On this matter, the Appeals Chamber observes that the official French translation of the Trial Judgement was served on the parties on 5 February 2013,920 over one year and a half after the issuance of the written Trial Judgement in English??! Given the co-Appellants' inability to understand English, extensions of time for the filing of their appeal briefs were granted from the date of service of the French translation of the Trial Judgement to allow them to make full answer and defence. 22 The initial scheduling of this case was based on a formal revised translation available at the end of August 2012.923 However, only a non-revised informal working copy of the French translation of the Trial Judgement was made available to the parties in July 2012. As a result of the belated filing of the finalised formal French translation of the Trial Judgement, the co-Appellants' appeal briefs were delayed to April 2013, which impaired the Appeals Chamber's ability to examine their appeals within the expected schedule.

380. The Appeals Chamber underlines the difficulty of translating a 1,468 single-spaced pages document which contains thousands of references and addresses complex legal concepts. The French translation of the Trial Judgement also reflects that the highest quality standards were applied in the present case. Neither Ntahobali nor Nteziryayo effectively demonstrates that the 919 Ntahobali Appeal Brief, paras. 17, 20; Nteziryayo Appeal Brief, paras. 280, 281. 920 Decision on Nteziryayo's Motion to Amend His Notice of Appeal and on Prosecution's Motion to Strike Nteziryayo's New Grounds of Appeal, 8 May 2013 ("8 May 2003 Appeal Decision"), para. 5. 921 See Trial Judgement, para. 6615. 922 See Decision on Motions for Extension of Time for the Filing of the Appeal Submissions, 25 July 2011, paras. 11, 13, 16. 923 Letter dated 13 November 2013 from the President of the International Criminal Tribunal for Rwanda addressed to the President of the Security Council, S/2013/663, 13 November 2013, para. 20 ("The initial completion projections in this case were based on the original notices of appeal and the expedited projection for availability of the French translation of the trial judgement at the end of August 2012. However, the French translation of the trial judgement was only completed and served on the parties at the beginning of February 2013, occasioning a five-month delay in the filing of the appeal briefs of the six convicted persons and of the response brief to the prosecution's appeal."). 137 Case No. ICTR-98-42-A 14 December 2015

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20228/H overall time taken to translate and revise a trial judgement of this complexity and magnitude from English to French was unreasonably long and created undue delay. Their contention is therefore rejected.

381. The Appeals Chamber will now examine the allegations of prejudice.

2. Prejudice 382. In the context of its discussion on undue delay, the Trial Chamber noted that the Defence had offered "no specific assertion of legal prejudice beyond the general complaint that the trial was unfair and that Ndayambaje could not properly answer the charges against him".?24 It concluded that the co-Accused had "not demonstrated that they suffered any legal prejudice", 92s 383. Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje submit that the Trial Chamber erred in its assessment of their prejudice resulting from the delays in the proceedings. 26 In this respect, Nyiramasuhuko, Ntahobali, and Ndayambaje contend that the Trial Chamber erred in requiring them to demonstrate a "legal prejudice" and in failing to provide a reasoned opinion in this respect. Ntahobali, Kanyabashi, and Ndayambaje allege that they suffered prejudice because of: (i) the prolonged detention on remand; (ii) the death or disappearance of witnesses and the alteration of the witnesses' memory due to the passage of time; (iji) limitations in the number of witnesses and the time allowed for examination during trial; (iv) the Trial Chamber's refusal to conduct a site visit because of the considerable time that had elapsed since 1994 and the additional delays it would create; (v) the physical, psychological, and emotional distress caused by the lengthy detention on remand and

separation from their families; (vi) pecuniary losses incurred as a result of their detention; and (vii) their inability to complete educational studies.28 Nyiramasuhuko adds that the Trial Chamber failed to address her argument that, as the only woman in the Tribunal's custody, the conditions of her detention were particularly harsh because she was almost completely isolated. 929 924 Trial Judgement, para. 140. 925 Trial Judgement, para. 143. 926 See Nyiramasuhuko Notice of Appeal, paras. 1.4, 1.5; Nyiramasuhuko Appeal Brief, paras. 22, 28, 58, 60-63; tahobali Notice of Appeal, paras. 11, 12; Ntahobali Appeal Brief, paras. 23-26; Nteziryayo Appeal Brief, para. 28, anyabashi Notice of Appeal, sub-para. 6.2.4; Kanyabashi Appeal Brief, paras. 380, 381; Ndayambaje Notice c Appeal, para. 117; Ndayambaje Appeal Brief, paras. 312-314. See Nyiramasuhuko Appeal Brief, para. 22; Ntahobali Appeal Brief, paras. 4, 23; Ndayambaje Notice of Appeal, vara. 117; Ndayambaje Appeal Brief, para. 312 3. 16; AT. 21 April 2015 p. 6 * Nyiramasuhuko Appeal Brief, paras. 60, 61, referring to 20 February 2004 Decision 138 Case No. ICTR-98-42-A 14 December 2015

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20227/H 384. The Prosecution generally responds that the co-Appellants "vigorously litigated their cases", that the record reflects that they had recourse to all available remedies, and that the Trial Chamber was "generous" in allotting them the time to ensure that their fair trial rights were respected. 930 385. The meaning of "legal prejudice" in the Trial Judgement is not clear. In any event, the Appeals Chamber clarifies that any form of prejudice that a party allegedly suffered as a result of undue delay ought to be considered. The Appeals Chamber finds that the Trial Chamber's failure to expressly address the entirety of the co-Accused's argumentsº31 and conduct a comprehensive assessment of their alleged prejudice in the Trial Judgement infringed the co-Accused's rights to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules.

386. Turning to the specific allegations of prejudice, the Appeals Chamber rejects as unsubstantiated or insufficiently supported the arguments related to the death or disappearance of witnesses, 32 the alteration of the witnesses' memory,93 the limitations in the number of witnesses and time allowed for cross-examination, the pecuniary losses incurred as a result of detention, and the inability to complete educational studies.

387. Although the Trial Chamber specifically relied on the fact that it was unlikely that the sites remained in the same condition so many years after the events in question and that the visits may not have been "completed in a short period of time" in support of its decision to refuse site visits, 934 its decision reflects that it relied on a number of other reasons unrelated to the length of the proceedings to reach its conclusion. 35 The Appeals Chamber therefore finds no merit in the submission that the length of the proceedings deprived the parties of site visits. 930 Prosecution Response Brief, para.

7. See also AT. 21 April 2015 pp. 35, 36. 931 The Appeals Chamber observes that Nyiramasuhuko and Ntahobali raised lengthy arguments regarding their prejudice that the Trial Chamber did not address in the 20 February 2004 Decision and 26 November 2008 Decision. See Nyiramasuhuko Appeal Brief, paras. 59-64, referring to 24 June. 2003 Motion, paras. 164-190, 20 February 2004 Decision, para. 16; Ntahobali Appeal Brief, para. 4, referring to 22 August 2008 Motion, paras. 53, 120, 134-136, 145-152, 182, 183, 26 November 2008 Decision, paras. 54, 55, 59-61. 932 Ntahobali does not point to any specific incident where he was unable to locate and present potential Defence witnesses nor does he explain how the testimony of such witnesses would have supported his case. See Ntahobali Appeal Brief, para, 24, fn.

41. Ntahobali does not demonstrate that the Trial Chamber's reliance on the passage of time between the events and the witnesses' testimonies to explain inconsistencies or errors of some Prosecution witnesses caused him prejudice. See Ntahobali Appeal Brief, para. 24, fn. 40, referring to Trial Judgement, paras. 171, 1436, 2090, 2725, 2770, 3801, 3948, 4174, 4598, 4631, 4711. The Appeals Chamber observes that: (i) paragraphs 171, 1436, 2090, 3801, 4174, 4598, 4631, 4711 of the Trial Judgement referred to by Ntahobali relate to allegations on the basis of which he was not charged; (ii) Ntahobali was not convicted in relation to the allegation discussed in paragraph 2725 of the Trial Judgement; and (iii) although the Trial Chamber relied on the passage of time in paragraphs 2770 and 3948 of the Trial Judgement, there is no indication that such a conclusion would have been different if the witness had testified earlier. 934 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Prosecutor's Motion for Site Visits in the Republic of Rwanda, 26 February 2009 ("Site Visits Decision"), para.

21. See also Trial Judgement, pa The Trial Chamber further conchuded that the visits were not necessary since: (i) a considerable number of exhibits. including photographs and maps, had already been tendered to assist the Trial Chamber's familiarisation with the 139 Case No. ICTR-98-42-A 14 December 2015

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20226/H 388. However, the Appeals Chamber recalls its finding that the present proceedings were unduly delayed as a result of the Prosecution's conduct and the Trial Chamber judges' simultaneous assignment to multiple proceedings, delays which are not attributable to the co-Accused 936 These delays prolonged the detention of the co-Accused. The Appeals Chamber finds that these delays and the resulting prolonged detention constitute prejudice per se and that the Trial Chamber erred in concluding that the co-Accused did not suffer prejudice. 37 389. With respect to Nyiramasuhuko's specific argument regarding her conditions of detention, the Appeals Chamber is mindful that, as the only woman in the Tribunal's custody, Nyiramasuhuko's conditions of detention differed from those of the other detainees. However, the Appeals Chamber considers that Nyiramasuhuko fails to substantiate her claim on appeal that the prejudice resulting from the prolongation of her detention on remand was greater than that suffered by her co-Accused. The Appeals Chamber therefore rejects Nyiramasuhuko's contention that she was adversely affected by the undue delay in the present proceedings due to her status as the only female detainee in the Tribunal's custody.

390. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in finding that the period of almost 16 years of pre-trial and trial proceedings was adequately explained by the complexity of the case and that the right of Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje to be tried without undue delay provided for in Article 20(4)(c) of the Statute had not been violated. The Appeals Chamber further finds that this violation caused them prejudice. The Appeals Chamber will now turn to the issue of remedy.

3. Remedy 391. The Appeals Chamber reiterates that "any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy" 938 The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered. 939 392. Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje request that the Appeals Chamber order a stay of termination of the proceedings 40 or, in the alternative, a reduction relevant locations; and (ii) the sites proposed were too numerous and may have had "extraordinary logistical and cos implications for the Tribunal". See Site Visits Decision, para.

21. See also Trial Judgement, para. 1262 infra, Section IX.D. • See supra, para. 378. 937 Cf. Gatete Appeal Judgement, paras. 44, 45. 939 Rwamakuba Appeal Decision, para.

27. Case No. ICTR-98-42-A 140 14 December 2015

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20225/H of their sentences. 41 Ntahobali and Ndayambaje further request financial compensation for the violation of their right to be tried without undue delay. 942 393. As held above, the Appeals Chamber considers that the undue delay in this case has prejudiced Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje.

394. However, the Appeals Chamber does not find that the violation of the co-Appellants' right to be tried without undue delay and the prejudice they suffered were so serious or egregious as to justify a stay or the termination of the proceedings requested by Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje 43 Nevertheless, in light of the length of the undue delay, the Appeals Chamber is also not convinced that a formal recognition of the violation would constitute an effective remedy in the present case.

395. The Appeals Chamber observes that a reduction of sentence has been considered an effective remedy in cases where the breach of the fair trial rights resulted in the accused being detained impermissibly or for a longer period than necessary.'4 Financial compensation has also been envisioned in limited situations where the accused was ultimately not found guilty.?45 In the Rwamakuba case, where the accused was acquitted of all charges, a financial compensation was 940 Nyiramasuhuko Appeal Brief, para. 71; Ntahobali Notice of Appeal, para. 13; Ntahobali Appeal Brief, para. 30; Kanyabashi Notice of Appeal, sub-para. 6.2.5.1; Kanyabashi Appeal Brief, para. 379; Ndayambaje Notice of Appeal, para. 125; Ndayambaje Appeal Brief, para.

317. See also AT. 15 April 2015 p.

17. Kanyabashi specifically requests tha Kanyabashi Appeal Brief, para.

379. Ntahobali Notice of Appeal, para. 13; Ntahobali Appeal Brief, para. 31; Nteziryayo Appeal Brief, para. 287; Kanyabashi Notice of Appeal, para. 33; Kanyabashi Appeal Brief, para. 381; Ndayambaje Appeal Brief, para.

317. See also AT. 15 April 2015 p. 17. 942 Ntahobali Notice of Appeal, para. 14; Ntahobali Appeal Brief, para. 31; Ndayambaje Appeal Brief, para. 317. 943 Cf. Kajelijeli Appeal Judgement, para. 206 (internal references omitted): I...] However, even if it were to reconsider the issue of its personal jurisdiction, the Appeals Chamber does not find that these newly and more detailed submitted breaches rise to the requisite level of egregiousness amounting to the Tribunal's loss of personal jurisdiction. The Appeals Chamber is mindful that it must maintain the correct balance between "the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law." While a Chamber may use its discretion under the circumstances of a case to decline to exercise jurisdiction, it should only do so "where to exercise that jurisdiction in light of serious and egregious violations of the accused's rights would prove detrimental to the court's integrity." For example, circumstances where an accused is very seriously mistreated, maybe even subject to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment." However, those cases are exceptional and, in most circumstances, the "remedy of setting

aside jurisdiction, will ... be disproportionate." The Appeals Chamber gives due weight to the violations alleged by the Appellant; however, it does not consider that this case falls within the exceptional category of cases See Gatete Appeal Judgement, paras. 45, 286, 287; Kajelijeli Appeal Judgement, paras. 323, 324; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor's Request for Review or Reconsideration), 31 March 2000 ("Barayagwiza Review Decision"), para. 75; Semanza Appeal Decision, p.

34. See Barayagwiza Review Decision, para. 75; Semanza Appeal Decision, p.

34. See also Rwamakuba Appeal 141 Case No. ICTR-98-42-A 14 December 2015

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20224/H awarded to André Rwamakuba as part of an effective remedy for the violations of his rights to legal assistance and to initial appearance without delay ?46 396. The Appeals Chamber considers that any determination as to whether a reduction of sentence or granting of financial compensation may be appropriate and effective remedies in the present case can only be made in light of the gravity of the offences the co-Appellants are convicted of and their individual circumstances. The Appeals Chamber will therefore rule on the matter only after examining the merits of the remaining challenges raised by the co-Appellants and the Prosecution and after reaching its final conclusions on the co-Appellants' guilt and individual circumstances in Section XII below.

4. Conclusion 397. In light of the foregoing, the Appeals Chamber finds that Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi, and Ndayambaje have demonstrated that the Trial Chamber erred in finding that their right to be tried without undue delay had not been violated, and that this violation caused them prejudice. The Appeals Chamber nonetheless finds that Ntahobali and Nteziryayo have failed to demonstrate that undue delay occurred on appeal.

398. In the interests of justice, the Appeals Chamber finds proprio motu that the Trial Chamber also erred in finding that Nsabimana's right to be tried without undue delay had not been violated, and that this violation caused him prejudice.

399. The Appeals Chamber will rule on the appropriate remedy in Section XII below. 946 Rwamakuba Appeal Decision, paras. 31, 32. Case No. ICTR-98-42-A 142 14 December 2015

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20223/H IV. APPEAL OF PAULINE NYIRAMASUHUKO 400. The Trial Chamber found Nyiramasuhuko guilty of conspiracy to commit genocide.*47 It also found her guilty of genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis who had sought refuge at the Butare Prefecture Office. 48 The Trial Chamber further found Nyiramasuhuko guilty of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(3) of the Statute for rapes committed at the Butare Prefecture Officc.º49 401. Nyiramasuhuko raises challenges related to the fairness of the proceedings, her indictment, and the assessment of her allegations of fabrication of evidence. She also submits that the Trial Chamber erred in convicting her of conspiracy to commit genocide, in its assessment of her alibis, in finding her responsible in relation to crimes at the Butare Prefecture Office, and in relation to her responsibility for distributing condoms at the beginning of June 1994. The Appeals Chamber will address these contentions in turn. 947 Trial

Judgement, paras. 5676-5678, 5727, 6186. 948 Trial Judgement, paras. 5876, 5969, 5970, 6049-6051, 6098, 6099, 6120, 6166, 6167, 6186. The Trial Chamber also determined that Nyiramasuhuko bore superior responsibility under Article 6(3) of the Statute for the killings committe v Interahamwe following her orders during attacks at the Butare Prefecture Office and took this into account as at aggravating factor in sentencing. See ibid., paras. 5886, 5970, 6052, 6207. Trial Judgement, paras. 6087, 6088, 6093, 6182, 6183, 6186. 143 Case No. ICTR-98-42-A 14 December 2015

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20222/H A. Fairness of the Proceedings (Grounds 8, 9, 11, and 12 in part) 402. Nyiramasuhuko submits that the Trial Chamber demonstrated an appearance of bias through applying different standards when assessing Prosecution and Defence evidence and raises challenges related to Expert Witness Guichaoua's report and testimony, the cross-examination of Prosecution witnesses, and the disclosure of potentially exculpatory material and information that could have assisted her in the preparation of her defence. S0 The Appeals Chamber will examine these contentions in turn.

1. Appearance of Bias (Ground 8) 403. Nyiramasuhuko argues that the Trial Chamber demonstrated an appearance of bias through applying different standards when assessing Prosecution and Defence evidence. 51 She contends that this bias is demonstrated through the Trial Chamber's: (i) failure to scrutinise the credibility of several Prosecution witnesses in light of their ties and the evolving nature of their evidence which suggested collusion, when considered together with its rejection of her Defence witnesses simply because of the witnesses' relationships with her;952 (ii) quasi-systematic acceptance of "harebrained" explanations from Prosecution witnesses concerning inconsistencies within their evidence, 53 viewed alongside its rejection of Defence evidence based on insignificant contradictions without considering the relevant circumstances;954 and (iji) reasoning when rejecting certain Defence evidence.55 Nyiramasuhuko requests that she be acquitted as a result of the appearance of bias demonstrated by the Trial Chamber. 956 404. The Prosecution responds that the Trial Chamber correctly articulated and applied the law as it relates to the burden of proof, presumption of innocence, and the assessment of evidence and contends that Nyiramasuhuko merely disagrees with the Trial Chamber's assessment of the evidence without identifying any specific error.»57 950 Nyiramasuhuko Notice of Appeal, paras. 1.48-1.67, 1.74-1.76, 1.78; Nyiramasuhuko Appeal Brief, paras. 284-377, 386-392. 951 Nyiramasuhuko Notice of Appeal, para. 1.48; Nyiramasuhuko Appeal Brief, paras. 284-316. See also Nyiramasuhuko Appeal Brief, para.

711. Nyiramasuhuko develops further allegations of bias on the part of the Trial Chamber under other grounds of appeal, which she had failed to raise in her notice of appeal, despite amending it twice. The Appeals Chamber has addressed these allegations where directly relevant above and below when it deemed it in the interests of justice. 952 Nyiramasuhuko Notice of Appeal, paras. 1.48-1.50; Nyiramasuhuko Appeal Brief, paras. 285-302, 305-308, 312, 313. 953 Nyiramasuhuko Appeal Brief, paras. 303, 311. See also Nyiramasuhuko Notice of Appeal, para. 1.52. 954 Nyiramasuhuko Notice of Appeal, para. 1.52; Nyiramasuhuko Appeal Brief, paras. 304, 309, 310. 95S Nyiramasuhuko Appeal Brief, paras. 314, 315. 956 Nyiramasuhuko Appeal Brief, para. 316. 957 Prosecution Response Brief, paras. 99-101. 144 Case No. ICTR-98-42-A 14 December 2015

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20221/H 405. The Appeals Chamber reiterates that a presumption of impartiality attaches to the judges of the Tribunal and that this presumption cannot be easily rebutted.'58 An appearance of bias exists if "the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias. "'" It is for the appealing party alleging bias to rebut the presumption of impartiality enjoyed by the judges of this Tribunal.6 The Appeals Chamber also recalls that the appealing party must set forth the arguments in support of an allegation of bias in a precise manner and that the Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality. 61 406. While the possibility is not ruled out that decisions rendered by a judge or a chamber could suffice to establish bias, it was held that this would be "truly extraordinary" 962 In this regard, the Appeals Chamber notes that the European Court of Human Rights has affirmed on several occasions that complaints concerning judges' lack of independence and impartiality grounded on the content of judicial decisions cannot be considered objectively justified. 963 407. In the present instance, the Appeals Chamber observes that Nyiramasuhuko seeks to demonstrate an appearance of bias through a fragmented view and incomplete reading of the Trial Judgement, challenging only the Trial Chamber's exercise of its discretion in assessing specific parts of the record and particular aspects of the evidence which led to adverse findings.º64 958 Karemera and Ngirumpatse Appeal Judgement, para. 24; Hategekimana Appeal Judgement, para. 16; Nahimana et al. Appeal Judgement, para. 48; Akayesu Appeal Judgement, para.

91. See also Renzaho Appeal Judgement, para. 43; Furundzija Appeal Judgement, para.

197. See also supra, paras. 95, 273. 95ª Sainovié et al. Appeal Judgement, para. 1055; Nahimana et al. Appeal Judgement, para. 49, quoting Akayesu Appeal Judgement, para.

203. See also Furundäija Appeal Judgement, para.

189. See also Rutaganda Appeal Judgement, paras. 39-125. 961 See, e.g., Hategekimama Appeal Judgement, para. 16; Renzaho Appeal Judgement, para. 23; Furundzija Appeal 962 Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Request for Disqualification of Judge Pocar, 6 June 2012, para. 17, referring to Prosecutor v. Vidoje Blagojevié et al., Case No. IT-02-60-PT, Decision on Blagojevié's Application Pursuant to Rule 15(B), 19 March 2003, para. 14. 963 See, e.g., Dimitrov and others v. Bulgaria, ECtHR, No. 77938/11, Judgement, 1 July 2014, para. 159 ("Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary [...). The facts that some of the judges hearing the case ruled against them on some points or decided to proceed in a certain manner do not constitute such proof'); Previti v. Italy, ECtHR, No. 45291/06, Décision sur la recevabilité, 8 December 2009, para. 258 ("La Cour a cependant eu l'occasion de souligner que des craintes quant à un manque d'indépendance et l'impartialité des juges nationaux se fondant uniquement sur le contenu des décisions judiciaires prononcées contre un requérant (Bracci précité, § 52) ou sur les simples circonstances qu'une juridiction interne a commis des erreurs de fait ou de droit et que sa décision a été annulée par une instance supérieure (Sofri et autres,

décision précitée) ne sauraient passer pour objectivement justifiées."); Bracci v. Italy, ECtHR, No. 36822/02, Arrêt, 15 February 2006, para. 52 ("La Cour observe également que les craintes du requérant d'un manque d'indépendance et d'impartialité des juges nationaux se fondent uniquement sur le contenu des décisions judiciaires prononcées à son encontre. Elles ne sauraient dès lors passer pour objectivement justifiées."); Sofri and others v. Italy, ECtHR, No. 37234/97, Decision, 4 March 2003, Section B.2.a ("Moreover, the fact that a domestic court has erred in fact or law or that its decision has been set aside by a higher court is not capable by itself of raising objectively justified doubts about its impartiality."). 964 Nyiramasuhuko's challenges to the assessment of the evidence raised under Ground 8 of her appeal, where developed, have been addressed by the Appeals Chamber in the context of the challenges to each of her convictions. See, e.g., infra, Sections IV.E.2, IV.F.2(b). Case No. ICTR-98-42-A 14 December 2015

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20220/H Nyiramasuhuko overlooks, for instance, the Trial Chamber's express consideration of ties between Prosecution witnesses, 65 the reasons the Trial Chamber provided for accepting some Prosecution evidence despite her allegation of fabrication, the fact that her alibi evidence was not rejected simply because her alibi witnesses were related to her," and entire portions of the Trial Chamber's explanations for rejecting the Defence evidence she deems should have been accepted.968 Nyiramasuhuko also fails to take into account the Trial Chamber's analysis that led to the rejection of Prosecution evidence implicating her in crimes,% the Trial Chamber's refusal to enter certain convictions on the basis that it would be prejudicial to her,970 as well as the fact that she was acquitted of the majority of the charges brought against her by the Prosecution."" The Appeals Chamber finds that a reasonable observer, properly informed, would not be led to reasonably apprehend bias in these circumstances. As such, the Appeals Chamber is of the view that Nyiramasuhuko's submissions, even if they revealed errors in the Trial Chamber's assessment of the evidence, would not establish a reasonable apprehension of bias.

408. Based on the foregoing, the Appeals Chamber finds that Nyiramasuhuko has failed to rebut the presumption of impartiality attached to the judges of the Trial Chamber and, accordingly, dismisses Ground 8 of Nyiramasuhuko's appeal.

2. Expert Witness Guichaoua's Report and Testimony (Ground 9) 409. On 27 April 2004, the Trial Chamber denied Nyiramasuhuko's motion to prevent the Prosecution from filing a portion of a report by André Guichaoua ("Guichaoua") based on Nyiramasuhuko's 1994 diary, seized during her arrest on 18 July 1997 and put under seal pursuant 28 See, 8, Til demen, a 37532345, 281, 2861, 27 2 257, 26.3761.3832732, 2703, 2707, 2729, 2738, 2747, 4161, 4980-4983. 967 See Trial Judgement, paras. 2547, 2548, 2550. See also infra, Section IV.E. Compare, e.g., Nyiramasuhuko Appeal Brief, paras. 304, 305 with Trial Judgement, paras. 2684-2686, 2698. The Appeals Chamber also notes that none of the paragraphs of the Trial Judgement cited by Nyiramasuhuko supports her contention that the Trial Chamber excessively scrutinised minor inconsistencies concerning dates or "minor facts" for the purposes of discrediting Defence evidence. See Nyiramasuhuko Appeal Brief, para. 310, referring to Trial Judgement, paras. 2352, 2503, 2590, 3110. The Appeals Chamber further observes that, contrary to Nyiramasuhuko's claim, the Trial Chamber did not disregard Defence Witness Babin's evidence, but took it into account in order to assess the evidence relevant to her alibi. Similarly, the Trial Judgement reflects that the Trial Chamber did not dismiss Defence Witness WTRT's evidence on the basis of his status as a Hutu

soldier. See Nyiramasuhuko Appeal Brief, paras. 314, 315; Trial Judgement, paras. 2541. 2776, 2778; infra, Section IV.E.2(b)(iii)c. 969 See, e.g., Trial Judgement, paras. 1880-1882, 1889-1891, 2612-2626, 3100-3105, 3145-3149. 970 Trial Judgement, paras. 5857-5864. 971 See, e.g., Trial Judgement, paras. 1883 (Mutanda stadium), 2782 (killings at Butare Prefecture Office in late April or early May 1994), 3106 (meetings at Hotel Ihuliro), 3972, 5743-5747 (Nsabimana's swearing-in ceremony), 5850 (Hotel Thuliro roadblock), 5883 (superior responsibility over Ntahobali), 5925 (EER), 5938-5940 (distribution of condoms), 5989 (direct and public incitement to commit genocide through Cabinet meetings). 146 Case No. ICTR-98-42-A 14 December 2015

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20219/H to a decision of 12 October 2000.92 The Trial Chamber concluded that the fact that the diary was put under seal did not preclude the Prosecution from using the material for the purposes of prosecution and that any contention about the admissibility of the report or the diary was premature.?73 On 28 April 2004, the Prosecution disclosed Guichaoua's report ("Guichaoua Report"), which contained materials from and an analysis of Nyiramasuhuko's diary for the purposes of disclosure pursuant to Rule 94bis(A) of the Rules.974 410. On 23 June 2004, the Trial Chamber certified Guichaoua as an expert witness in political science.7 On 24 June 2004, the Trial Chamber admitted the two volumes of the Guichaoua Report as Exhibits P136 and P137, respectively.?76 In admitting Exhibit P137, the Trial Chamber rejected Nyiramasuhuko's objection that the diary discussed in the Guichaoua Report was not admissible.º7) Nyiramasuhuko filed an appeal against the 24 June 2004 Oral Decision, which the Appeals Chamber dismissed on 4 October 2004.978 411. Expert Witness Guichaoua testified in June, September, and October 2004.979 412. In the Trial Judgement, the Trial Chamber rejected the contention that Expert Witness Guichaoua lacked impartiality and that his evidence was beyond his area of expertise. 80 The Trial Chamber also dismissed a request to exclude the Guichaoua Report and the expert's testimony on the basis of the lack of notice of his evidence.'81 The Trial Chamber partly relied on 972 12 October 2000 Decision, p. 9; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Oral Motion Regarding Prosecution's Use of Material Under Seal, 27 April 2004 ("27 April 2004 Decision"), p.

6. See also Status Conference, T. 31 January 2001 pp. 3, 4. 973 27 April 2004 Decision, paras. 27-29. The Trial Chamber also rejected Nyiramasuhuko's request for certification to appeal the 27 April 2004 Decision. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Motion for Certification to Appeal the "Decision on Nyiramasuhuko's Oral Motion Prosecutor's Use of Material Under Seal" and "Decision on Nyiramasuhuko's Urgent Motion to Forbid the Parties in the 'Government I' Trial and any Other Trial from Using the Alleged Diary of Pauline Nyiramasuhuko", 20 May 2004, para. 22, p. 5. 974 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Full Statement of Expert Witness André Guichaoua, Filed under Rule 94bis (A) for Disclosure to the Defence and to Be Filed with the Trial Chamber, 28 April 2004, p.

1. The Guichaoua Report contains two volumes. The first volume consists of the substantive report, the second volume includes the analysis of Nyiramasuhuko's 1994 diary. 975 T. 23 June 2004 p. 23 ("23 June 2004 Oral Decision"): 976 T. 24 June 2004 pp. 12-16 ("24 June 2004 Oral Decision"). See Exhibit P136 (Expert Report by André Guichaoua - Substantive Report (Volume 1)); Exhibit P137 (Expert Report by André Guichaoua - Analysis of Pauline Nyiramasuhuko's Diary (Volume 2)). 24 June 2004 Oral Decision. In admitting the Guichaoua Report, the Trial Chamber noted that: (i) the provenance of the diary was never challenged; (ii) the alleged Prosecution's failure to preserve the diary did not undermine its admissibility; and iii) the admission of the diary was not inconsistent with Nyiramasuhuko's right to remain silent. The Trial Chamber admitted Nyiramasuhuko's diary into the record as Exhibit P144 on 25 June 2004. See T. 25 June 2004 p. 55. 978 4 October 2004 Appeal Decision, para. 8. 979 Expert Witness Guichaoua testified from 23 to 25 and from 28 to 30 June 2004, from 27 to 30 September 2004 as well as on 1 October 2004 and from 4 to 8 and from 11 to 15 October 2004. 980 Trial Judgement, paras. 192-195. 981 Trial Judgement, paras. 459, 463, referring to Ntahobali Closing Brief, paras. 80, 81. Case No. ICTR-98-42-A 14 December 2015

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20218/H the Guichaoua Report and his testimony in finding Nyiramasuhuko responsible for conspiracy to commit genocide. 982 413. Nyiramasuhuko raises challenges relating to the admission into evidence of the Guichaoua Report containing her diary, and submits that the Trial Chamber erred in allowing Expert Witness Guichaoua to testify beyond his area of expertise and in violation of his obligation of neutrality.983 The Appeals Chamber will address these contentions in turn. (a) Admission of the Guichaoua Report 414. Nyiramasuhuko argues that the Prosecution disclosed the Guichaoua Report only at the end of its case in April 2004 despite its earlier commitment in 2001 to disclose the report as soon as it was received.'84 She contends that by failing to notify her of its intention to use the diary and to disclose the report prior to April 2004, the Prosecution violated its due diligence and disclosure obligations.985 In her view, the Trial Chamber erred in failing to consider that these violations of the Prosecution's obligations and the addition of this voluminous piece of evidence into the record at the end of the Prosecution case violated her fair trial rights and caused her serious prejudice in the preparation of her defence.?8 She also contends that, by authorising the admission of the Guichaoua Report in such circumstances, the Trial Chamber endorsed and encouraged the

Prosecution's grossly negligent conduct and demonstrated its partiality in violation of Article 12 of the Statute.?87 Nyiramasuhuko specifies that she "is not requesting the Appeals Chamber to reconsider" the 24 June 2004 Oral Decision but "seeks to present the outcome of the Prosecutor's reprehensible 982 Trial Judgement, paras. 564-583, 931-933, 5666-5678. In particular, the Trial Chamber found that the Guichaoua Report corroborated other evidence that: (i) the Interim Goverment was functioning during the three months of war in Rwanda; ii) Nyiramasuhuko participated in several Cabinet meetings where she was briefed on the massacres of the civilian population; and (iti) the Interim Government made the final decision to remove Prefect Habyalimana and esplace him with Nsabimana. See ibid., paras. 566, 569, 861, Nyiramasuhuko Notice AT. 14 April 2015 pp. 30, 31 (French). 984 Nyiramasuhuko Appeal Brief, paras. 323-327, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Defense Motions for an Extension of the Time Limit for Filing the Notice in Respect of Expert Witness Statements, 25 May 2001 ("25 May 2001 Decision"), The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Prosecutor's Report filed in compliance with the Trial Chamber's Decision of 25 May 2001, 1 June 2001, para.

17. See also ibid., paras. 318-322. Nyiramasuhuko's written submissions are also particularly unclear as to whether or not she argues that the Trial Chamber erred in admitting into evidence the Guichaoua Report, which led to the indirect admission of her diary, or in admitting the diary itself. See Nyiramasuhuko Notice of Appeal, paras. 1.57-1.63, 1.65-1.67, heading Ground 9 at p.13; Nyiramasuhuko Appeal Brief, heading Ground 9 at p. 59, paras. 353, 637 (French). 985 Nyiramasuhuko Notice of Appeal, paras. 1.57, 1.58, 1.63; Nyiramasuhuko Appeal Brief, paras. 331-341, 347, 348. In particular, Nyiramasuhuko argues that the Prosecution violated Articles 15(1) and 20(4) of the Statute. Rules 66(A)(ii) and 94bis of the Rules as well as Trial Chamber's decisions. See Nyiramasuhuko Appeal Brief, para. 331. referring to 1 November 2000 Decision, 25 May 2001 Decision. 986 Nyiramasuhuko Notice of Appeal, paras. 1.60-1.66; Nyiramasuhuko Appeal Brief, paras. 342, 343, 354, 369-371, 374-376. See also AT. 14 April 2015 pp. 31, 32 (French), AT. 15 April 2015 p. 6 (French). 987 Nyiramasuhuko Appeal Brief, paras. 344, 345, 351, 357. See also ibid., heading c) at p. 65 (French). Case No. ICTR-98-42-A 14 December 2015

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20217/H conduct and the Chamber's complaisant attitude towards [her] during the trial, thus undermining the fairness of the trial."988 415. In addition, Nyiramasuhuko submits that the Trial Chamber erred in failing to rule on the arguments pertaining to the violation of fair trial rights that she and Ntahobali submitted at the close of the trial and in limiting itself to the sole question of the admissibility of the Guichaoua Report. 89 Nyiramasuhuko requests that the Appeals Chamber recognise the irreparable harm she suffered and order a permanent stay of proceedings.º90 416. The Prosecution responds that Nyiramasuhuko attempts to relitigate the admissibility of the diary which was already adjudicated by the Appeals Chamber."1 417. At the appeals hearing, in response to the Appeals Chamber's invitation, Nyiramasuhuko clarified that she was not challenging the 24 June 2004 Oral Decision by which the Trial Chamber admitted the Guichaoua Report into evidence but was instead taking issue with the conduct of the Prosecution with respect to the Guichaoua Report. 92 She also explained that she did not raise the Prosecution's alleged violation of its disclosure obligations at the time the Trial Chamber decided to admit the report because she believed, at the time, that she could not raise an objection on the matter.º93 She argued that her allegation on the matter should nonetheless be

examined considering that the Trial Chamber itself did not find her allegation untimely and the significance of the prejudice she suffered. *94 418. The Appeals Chamber observes that, despite her explanation during the appeals hearing, Nyiramasuhuko's submissions remain particularly unclear, if not contradictory. While expressly stating that she does not request the Appeals Chamber to reconsider the 24 June 2004 Oral Decision by which the Trial Chamber admitted the Guichaoua Report, she also unambiguously requests it to 988 Nyiramasuhuko Appeal Brief, para.

358. Under Ground 9 of her appeal, Nyiramasuhuko also argues that the Trial Chamber erred in allowing Witness Guichaoua to tender her diary into evidence, thus permitting him to add material evidence to the trial, instead of limiting his function to assist the Trial Chamber in understanding the evidence already admitted. See ibid., para.

637. Nyiramasuhuko, however, fails to substantiate her claim and fails to appreciate that the diary was tendered by the Prosecution and admitted into the record as a separate piece of evidence as Exhibit P144 on 25 June 2004. 989 Nyiramasuhuko Appeal Brief, para. 346, referring to Trial Judgement, paras. 459, 463, Ntahobali Closing Brief, paras. 80, 81. See also Nyiramasuhuko Notice of Appeal, para. 1.64; Nyiramasuhuko Appeal Brief, paras. 332, 351. 90 Nviramasuhuko Appeal Brief, para. 377 991 Prosecution Response Brief, para. 102, referring to 4 October 2004 Appeal Decision, para.

6. During the appeals hearing, the Prosecution submitted that there was "no showing of prejudice", arguing that: (i) Nyiramasuhuko had the appropriate time to prepare her defence; (ii) she never raised the issue of insufficient time and resources for making a defence to the Guichaoua Report; and (ili) the Trial Chamber "went to great lengths to avoid any prejudice to her in the use of those exhibits because it only relied on diary entries that she herself had admitted were her own." See AT. 14 April 2015 pp. 53, 54. 992 See Order for the Preparation of the Appeals Hearing, 25 March 2015 ("25 March 2015 Order"), pp. 1, 2; AT. 14 April 2015 pp. 30, 31 (French). 993 AT. 14 April 2015 p. 31 (French). 149 Case No. ICTR-98-42-A 14 December 2015

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20216/H find that the Trial Chamber erred in admitting the report into the record and grant her remedy for the prejudice allegedly suffered from the violation of her rights in this regard.

419. As conceded by Nyiramasuhuko, the Appeals Chamber notes that Nyiramasuhuko did not raise to the attention of the Trial Chamber in the context of the admission of the Guichaoua Report the matter of the Prosecution's alleged failure to give notice of its intention to use the diary prior to April 2004 and to timely disclose the report, as well as the alleged resulting violation of her right to have adequate time and facilities for the preparation of her defence. At the time, Nyiramasuhuko limited her objections to the reliability of her diary, its unlawful seizure and improper custody, and the violation of her right to remain silent."95 The Trial Chamber cannot therefore be faulted for not considering the alleged violation of the Prosecution's obligations and Nyiramasuhuko's resulting prejudice when authorising the admission of the Guichaoua Report on 24 June 2004. Nyiramasuhuko's argument alleging a lack of impartiality on the part of the Trial Chamber in authorising the admission of the Guichaoua Report despite the Prosecution's alleged "grossly negligent conduct" is therefore also dismissed.

420. Nyiramasuhuko raised the matter of the Prosecution's alleged failure to give timely notice of its intention to use the diary and the resulting prejudice in her closing submissions. Specifically, Nyiramasuhuko and Ntahobali requested the exclusion of Expert Witness Guichaoua's evidence, including the Guichaoua Report - which relied heavily upon Nyiramasuhuko's diary - based on the prejudice that they allegedly suffered from the Prosecution's failure to notify them of its intention to use Nyiramasuhuko's diary prior to 16 April 2004. In the Trial Judgement, the Trial Chamber determined that there was no reason to reconsider its 24 June 2004 Oral Decision but did not expressly address the new contention raised by Nyiramasuhuko and Ntahobali about the prejudice resulting from the late notice of the Prosecution's intention to rely on this evidence.7 Regardless of whether the Trial Chamber erred in failing to expressly assess this new contention in the Trial Judgement, the Appeals Chamber observes that Nyiramasuhuko's and Ntahobali's submissions at trial regarding the belated notice are without merit. Indeed, the record reveals that the Prosecution 995 See Witness QAH, T. 8 April 2004 pp. 47-60, 68-71; André Guichaoua, T. 23 June 2004 pp. 42-51, T. 24 June 2004 pp. 6-9. See also The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Mémoire

d'appel interlocutoire de la Décision orale du 25 juin 2004 déclarant recevables en preuve un agenda allégué appartenir à Pauline Nyiramasuhuko et les parties du Rapport de l'expert Guichaoua qui reprennent, analysent et réfèrent à cet agenda, 26 July 2004, paras. 20-101. 996 Ntahobali Closing Brief, paras. 80 ("Further, [Nyiramasuhuko]'s alleged diary was also in the Prosecution's possession since 18/07/97 and the Prosecution had never notified [Nyiramasuhuko] that it intended to rely on the said diary for its case. [Nyiramasuhuko] was simply put before the fait accompli on 16/04/04.") (emphasis omitted), 81 ("[Nyiramasuhuko] and [Ntahobali] request this Chamber to find that their right to prepare their defence in response to the allegations of these witnesses has been violated and to exclude from the proceedings the evidence adduced against them by the said witnesses."). 997 See Trial Judgement, para. 463. 150 Case No. ICTR-98-42-A 14 December 2015

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20215/H gave notice of its intention to retain Nyiramasuhuko's diary "for purpose of the trial" prior to its commencement on 31 January 2001,998 and included it on its exhibit list submitted on 30 April 2001.'* Against this background, the Appeals Chamber dismisses Nyiramasuhuko's allegation of prejudice resulting from the admission of the Guichaoua Report, which relied upon Nyiramasuhuko's diary. (b) Expert Witness Guichaoua's Testimony 421. Nyiramasuhuko submits that the Trial Chamber erred in allowing Expert Witness Guichaoua to testify beyond the scope of his expertise by giving his opinion and speculating on allegations levelled against her. 1000 She contends that the Trial Chamber failed to consider Witness Guichaoua's lack of impartiality and his failure to comply with his obligation as an expert to testify with the utmost neutrality and scientific objectivity. 00* In support of her argument, Nyiramasuhuko points out Witness Guichaoua's long-standing and active involvement in the Prosecution's investigations 1002 as well as his close friendship with a person killed in April 1994 in Butare and his distress during his cross-examination when the death of his friend was discussed. 1003 Nyiramasuhuko argues that the Trial Chamber's failure to properly evaluate Witness Guichaoua's objectivity was so unjust and unreasonable as to constitute an abuse of discretion. 1004 422. The

Prosecution did not respond to these submissions. 1005 423. The Appeals Chamber finds that Nyiramasuhuko fails to substantiate her submission that the Trial Chamber erred by allowing Expert Witness Guichaoua to testify beyond his area of expertise. Nyiramasuhuko does not provide any argument in support of her submission beyond the generic 998 Status Conference, T. 31 January 2001 pp. 3, 4 ("This is document KOO4-3686, which is a diary for the year 1994, having several entries on different days of the days in that year and the Prosecution would wish to retain this for purpose of the trial."). 999 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-I, Prosecutor's Exh[i]bit List, 30 April 2001, p. 11, entry no.

158. The Appeals Chamber also notes that, on 17 October 2002, the Trial Chamber granted the Prosecution's request to lift the seal on Nyiramasuhuko's diary for the purpose of translation and that the Prosecution agreed to provide a copy of the translation to the Defence. See T. 17 October 2002 pp. 57, 58 Nyiramasuhuko Notice of Appeal, para. 1.56, referring to Trial Judgement, paras. 194, 195, 473-475, 486, 538, 539, 566-569, 580, 582, 583, 589, 906, 910; Nyiramasuhuko Appeal Brief, heading d) at p. 66, para. 359 (French). See also Nyiramasuhuko Appeal Brief, para. 637. 1001 Nyiramasuhuko Appeal Brief, paras. 360, 363, 364. 1002 Nyiramasuhuko Appeal Brief, paras. 361, 362. Nyiramasuhuko argues that Witness Guichaoua introduced himself as having assisted the Prosecution for eight years as a Prosecution expert witness and that he participated in several meetings where the Prosecution's strategy was discussed. She also points out that his implication in the Prosecution's policy was acknowledged in the Karemera et al. trial case. See ibid., para. 361. 1003 Nviramasuhuko Appeal Brief. paras. 360-364. 1004 Nyiramasuhuko Appeal Brief, para. 364. of appeal in support of her contentions concerning Witness Guichaoua's qualification as an expert, Nyiramasuhuko has abandoned these contentions. See Prosecution Response Brief, para.

103. The Appeals Chamber observes that, contrary to the Prosecution's submission, Nyiramasuhuko did set forth arguments in her appeal brief in addition to referring to her notice of appeal. See Nyiramasuhuko Appeal Brief, paras. 359-364. 151 Case No. ICTR-98-42-A 14 December 2015

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20214/H assertion that, as an expert in political sociology, the expert could not give opinions and make speculations on the notes contained in her diary1006 and appears to ignore that expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise. 1007 Nyiramasuhuko's undeveloped references to paragraphs of the Trial Judgement also fail to substantiate her claim that Witness Guichaoua testified beyond his expertise. 1008 Nyiramasuhuko's submission in this regard is therefore dismissed.

424. The Appeals Chamber also rejects Nyiramasuhuko's contentions regarding the Trial Chamber's alleged failure to properly assess Expert Witness Guichaoua's alleged lack of objectivity and neutrality. It is well settled that an expert before the Tribunal "is obliged to testify with the utmost neutrality and with scientific objectivity."109 However, the Appeals Chamber has also held that the mere fact that an expert witness is employed by or paid by a party does not disqualify him from testifying as an expert witness.1010 Nyiramasuhuko argues that Witness Guichaoua had a long-standing relationship with the Prosecution but fails to show how this relationship deprived Witness Guichaoua's evidence of reliability and probative value. Similarly, the Appeals Chamber fails to see how the witness's emotion when remembering the death of a close friend in Butare during the genocide1011 evinces the witness's inability to provide his opinion with the utmost objectivity and impartiality or any possible bias against Niyramasuhuko.

425. The Appeals Chamber concludes that Nyiramasuhuko has not demonstrated that the Trial Chamber erred by allowing Witness Guichaoua to testify beyond his area of expertise or in the assessment of his testimony. (c) Conclusion 426. For the foregoing reasons, the Appeals Chamber dismisses Ground 9 of Nyiramasuhuko's appeal in its entirety. 1006 See Nyiramasuhuko Notice of Appeal, para. 1.56; Nyiramasuhuko Appeal Brief, para. 359. 1007 Bagosora and Nsengiyumva Appeal Judgement, para. 225; Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para.

303. See Nyiramasuhuko Notice of Appeal, para. 1.56. 100 Nahimana et al. Appeal Judgement, para.

199. See also Prosecutor v. Vujadin Popovié et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Conceming the Status of Richard Butler as an Expert Witness, 30 January 2008 ("Popovic et al. Appeal Decision*), para.

27. Popovié et al. Appeal Decision, para. 20; Nahimana et al. Appeal Judgement, para. 282, quoting Prosecutor v. Radoslav Branin, Case No. IT-99-36-T, Decision on Prosecution's Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 2. 1011 See André Guichaoua, T. 12 October 2004 pp. 9, 10, 13. 152 Case No. ICTR-98-42-A 14 December 2015

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20213/H 3. Undue Limitation of Prosecution Witnesses Cross-Examinations (Ground 11) 427. Nyiramasuhuko submits that the Trial Chamber erred in law and in fact in unduly limiting the cross-examination of Prosecution witnesses by the co-Accused by imposing the limits set out in former Rule 90(G) of the Rules.!012 She argues that the Trial Chamber should have used its discretionary power to "permit enquiry into additional matters, as if on direct examination."1013 Nyiramasuhuko contends that, in the circumstances, the Trial Chamber erred in law and in fact in allowing the amended Rule 90(G) of the Rules to apply as soon as it came into effect, thus violating the principle of equality of arms. 1014 428. The Prosecution did not respond to these submissions.

429. In the absence of identification of the specific findings challenged and considering that Nyiramasuhuko's submissions are not substantiated, the Appeals Chamber dismisses Ground 11 of Nyiramasuhuko's appeal without further consideration.

4. Disclosure of Evidence (Ground 12 in part) 430. Nyiramasuhuko submits that the Trial Chamber erred in failing to order the Prosecution to disclose potentially exculpatory material and information that could have assisted her in the preparation of her defence 015 Specifically, she alleges that the Trial Chamber erred in: (i) failing to direct the Prosecution to provide her with the surnames and first names of the parents of its anticipated witnesses; and (ii) dismissing her motion seeking disclosure of the statements of the witnesses who were former members of the Rwandan Patriotic Army ("RPA"). 1016 431. Before examining Nyiramasuhuko's submissions, the Appeals Chamber recalls that decisions concerning the disclosure of evidence relate to the general conduct of trial proceedings and therefore fall within the discretion of the trial chamber. 1017 It also reiterates that in order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party. 1018 1012 Nyiramasuhuko Notice of Appeal, para. 1.74. 1013 Nyiramasuhuko Notice of Appeal, para. 1.74. 1014 Nyiramasuhuko Notice of Appeal, para. 1.75. Nyiramasuhuko did not develop this ground of appeal in her appeal brief, referring to the arguments set out in her notice of appeal. See Nyiramasuhuko Appeal Brief, para.

7. 1015 Nyiramasuhuko Notice of Appeal, heading "Ground 12" at p. 17, para. 1.76; Nyiramasuhuko Appeal Brief, heading "Ground 12" at p. 87, paras. 386-392. En. 174 and references cited therein. 018 See, e.g., Nizevimana Appeal Judgement, para. 286; Sainovié et al. Appeal Judgement, para. 29: Ndahimana Appea Judgement, para. 14; Setako Appeal Judgement, para. 19. 153 Case No. ICTR-98-42-A 14 December 2015

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20212/H (a) Disclosure of Names of the Prosecution Witnesses' Parents 432. On 8 June 2001, the Trial Chamber ordered the Prosecution to provide specific items of information regarding its anticipated protected witnesses when disclosing their written statements, such as the witnesses' names, places of birth, and ethnic origins, 1019 On 26 March 2002, the Trial Chamber dismissed a request by Nyiramasuhuko and Ntahobali to order the Prosecution to disclose additional information on the identifying coversheets of the witnesses' statements, including the names of the witnesses' parents. 1020 433. Nyiramasuhuko submits that the Trial Chamber erred in failing to direct the Prosecution to provide the surnames and names of the witnesses' parents.l02! She contends that the Trial Chamber erred in rejecting her argument that this information was essential to enable her to investigate and prepare her defence regarding the Prosecution witnesses because, in the Rwandan context, surnames are as common as first names.1022 Nyiramasuhuko argues that the Trial Chamber's decision prevented her from conducting the necessary investigations in the preparation of her defence. 1023 434. The Prosecution responds that Nyiramasuhuko fails to demonstrate any error in the 26 March 2002 Decision and does not substantiate how she was prejudiced in the preparation of her defence. 1024 435. The Appeals Chamber

observes that the Rules, which specifically impose the disclosure of all witnesses' statements and their identity, do not provide for the disclosure of the identity of the witnesses' parents. 125 Nyiramasuhuko's submissions, in fact, merely reflect her disagreement with the Trial Chamber's exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses' parents. She does not demonstate that the Trial Chamber abused its discretion in rejecting her argument that the surnames and names of the witnesses' parents were 1019 8 June 2001 Disclosure Decision, p.

10. The bench of Trial Chamber II was then composed of Judges Sekule, Güney, and Mose. As noted earlier, the Appeals Chamber has elected, for the sake of legibility, to refer to this bench of Trial Chamber II, to the benches that ruled on all pre-trial motions in the separate cases before their joinder, and to the bench that ultimately ruled on the joint case as the "Trial Chamber". 1020 The Trial Chamber observed that the issue had already been adjudicated in a prior decision ruling on motions by Nteziryayo and Kanyabashi in which it had concluded that it was not convinced that the disclosure of additional information on the coversheets of the Prosecution witnesses' statements was required. See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions for Disclosure of Information on the Coversheets of Prosecution Witness Statements, 26 March 2002 ("26 March 2002 Decision"), paras. 24, 34, p. 4, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions for Inter Alia Disclosure of Information on the Coversheets of Prosecution Witness Statements, 8 March 2002. 1021 Nyiramasuhuko Notice of Appeal, para. 1.76; Nyiramasuhuko Appeal Brief, paras. 386, 387. 1022 Nyiramasuhuko Notice of Appeal, para. 1.76; Nyiramasuhuko Appeal Brief, para. 386. 1023 Nyiramasuhuko Notice of Appeal, para. 1.76; Nyiramasuhuko Appeal Brief, para. 387. 1024 Prosecution Response Brief, paras. 73-75. 1025 See Rules 66(A) and 69(C) of the Rules. 154 Case No. ICTR-98-42-A 14 December 2015

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20211/H essential to prepare her defence and does not substantiate her claim that she was prejudiced in the preparation of her defence. Her contention is therefore dismissed. (b) Disclosure of Statements of Former RPA Members 436. On 29 April 2008, the Trial Chamber denied Nyiramasuhuko's motion seeking disclosure under Rule 68 of the Rules of witness statements of former RPA members, which were partially disclosed in another case before the Tribunal. 1026 The Trial Chamber found that Nyiramasuhuko had failed to show how such material might have been exculpatory or have a mitigating effect on her defence or how it might have affected the Prosecution witnesses' credibility. l027 The Trial Chamber was accordingly not satisfied that the statements in question were within the scope of Rule 68(A) of the Rules. 1028 437. Nyiramasuhuko submits that the Trial Chamber erred in dismissing her request to order the Prosecution to disclose the statements of the witnesses who were former RPA members whereas this evidence was material to her defence and she had demonstrated that the Prosecution had the material in its possession and that some of the statements directly related to Butare. 1029 438. The Prosecution responds that Nyiramasuhuko's arguments are unsubstantiated and should be dismissed. 1030 439. The Appeals Chamber finds that Nyiramasuhuko fails to demonstrate any discernible

error in the 29 April 2008 Decision. She provides no arguments in support of her contention, beyond the general assertion that such evidence was material to her defence and was in the Prosecution's possession. Nyiramasuhuko's submissions in this respect are accordingly dismissed. (c) Conclusion 440. In light of the above, the Appeals Chamber dismisses this remaining part of Ground 12 of Nyiramasuhuko's appeal. 1026 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on 155 Case No. ICTR-98-42-A 14 December 2015

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20210/H B. Indictment (Grounds 3, 14-18, and 26 in part) 441. Nyiramasuhuko submits that the Trial Chamber erred in authorising the Prosecution to amend her indictment to add new charges against her and contends that she was not charged with the criminal conduct on the basis of which she was convicted or lacked notice thereof, and that she was materially prejudiced in the preparation of her defence 031 Nyiramasuhuko requests that the Appeals Chamber order a stay of the proceedings or overturn all her convictions. 1032 442. The Appeals Chamber will first examine Nyiramasuhuko's contentions related to the amendment of the indictment, before turning to her submissions related to notice of the allegations concerning conspiracy to commit genocide, the Butare Prefecture Office, and the distribution of condoms. The Appeals Chamber will finally discuss Nyiramasuhuko's allegation of prejudice resulting from the cumulative effect of the defects in the Indictment.

1. Amendment of the Indictment (Ground 3) 443. The Prosecution submitted an initial indictment against Nyiramasuhuko and Ntahobali on 26 May 1997, which was confirmed on 29 May 1997.1033 On 10 August 1999 the Prosecution was granted leave to amend the indictment, which included adding six new counts, consolidating two existing ones in a single count, and adding in relevant counts the allegation that Nyiramasuhuko and Ntahobali were responsible pursuant to Article 6(3) of the Statute. 1034 444. In deciding to grant the Prosecution leave to amend the indictment as requested, the Trial Chamber held that there was no need to inquire whether or not a prima facie case had been established in support of the new counts since it had only been seised of a motion to amend the 1031 Nyiramasuhuko Notice of Appeal, paras. 1.9-1.13, 2.1-2.37, 3.1, 3.2, 3.4-3.10, 3.13, 3.24, 3.26, 3.27, 3.31-3.33, 3.46, 3.71-3.74, 5.1-56, 5.8, 7.21, 7.25; Nyiramasuhuko Appeal Brief, paras. 72-142, 398-543, 544-547, 552-559, 561, 563-580, 587, 589, 590, 594, 599-603, 606-621, 663, 664, 671, 672, 745, 746, 756, 761, 831-847, 883, 860, 886. To facilitate readibility, the Appeals Chamber will use the term "Indictment" in the body text of the present section when referring to the Nyiramasuhuko and Ntahobali Indictment. The Appeals Chamber has also considered Nyiramasuhuko's arguments related to notice developed

throughout her appeal submissions under other grounds of appeal, in particular under Grounds 19, 23, and 25. Nyiramasuhuko Notice of Appeal, "Relief Sought" at pp. 20, 21, 23; Nyiramasuhuko Appeal Brief, paras. 142, 408, 464, 509, 543, 584, 585. Under Ground 18 of her appeal, Nyiramasuhuko requests a stay of the proceedings against her or, in the alternative, to be acquitted of the count of conspiracy to commit genocide "for flagrant errors of law, abuse of process, ultra vires, and irremediable prejudice to the fairness of her trial." See Nyiramasuhuko Appeal Brief, posras. 584, 585. See Trial Judgement, paras. 13. 6294 1034 See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, T. 10 August 1999 pp. 2-6 (pronouncing the decision orally pending the finalisation of the written decision) ("10 August 1999 Oral Decision"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Decision on the Prosecutor's Request for Leave to Amend the Indictment, dated 10 August 1999, signed 3 September 1999, filed 6 September 1999 ("10 August 1999 Decision"), p.

6. See also Trial Judgement, para. 6302; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Amended Indictment, signed 27 November 1997, filed 8 December 1997 ("Nyiramasuhuko and Ntahobali Second Amended Indictment"'). 156 Case No. ICTR-98-42-A 14 December 2015

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20209/H indictment pursuant to Rule 50 of the Rules.1035 The Trial Chamber only satisfied itself that the Prosecution "provided sufficient grounds both in fact and in law" 1036 The Trial Chamber determined that Nyiramasuhuko "will suffer no substantial prejudice if the amendment is granted" and that "whatever prejudice might occur can be cured by the relief provided in the Rules, in particular by Rule 72". 1037 445. On 5 October 1999, the trial of Nyiramasuhuko and Ntahobali was joined to the trials of Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje. 1038 In discussing in the Trial Judgement the claim that it permitted the amendment of the indictment to add the count of rape against Nyiramasuhuko without performing the requisite evaluation of the existence of prima facie evidence to support such a charge, the Trial Chamber reiterated its position that it was not required to do so, reasoning that the relevant provision in Rule 50 of the Rules requiring such determination was only introduced into the Rules in 2004 and, therefore, that it was not bound by this provision. 1039 446. Nyiramasuhuko submits that the Trial Chamber erred in law in finding that it did not have to ascertain the existence of prima facie evidence in support of the six new counts before authorising their inclusion in the indictment and in stating that any prejudice could be cured by Rule 72 of the Rules whereas it dismissed the bulk of the Defence's requests for additional information. 1040 1035 10 August 1999 Decision, para. 17. 1036 See 10 August 1999 Oral Decision, p.

4. See also ibid., p. 3; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Decision on the Status of the Hearings for the Amendment of the Indictments and for Disclosure of Supporting Material, 30 September 1998, para. 13; 10 August 1999 Decision, paras. 16-18; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Preliminary Motion Based on Defects in the Form and the Substance of the Indictment, signed 1 November 2000, filed 2 November 2000 ("1 November 2000 Nyiramasuhuko Decision), para. 61. 10 August 1999 Decision, para. 20. 1 March 2001. See Trial Judgement, para. 17. 1039 See Trial Judgement, para. 2157, fn.

5735. Relying further on the fact that Nyiramashuko did not appeal the 10 August 1999 Decision or seek reconsideration by the Trial Chamber and that, after the completion of the Prosecution case, sufficient evidence that could sustain a conviction for the crime of rape under Article 6(3) of the Statute had been presented by the Prosecution, the Trial Chamber found that "Ntahobali's assertion on behalf of Nyiramasuhuko is unfounded, untimely and moot." See ibid., para.

2157. Nyiramasuhuko Notice of Appeal, paras. 1.9-1.13; Nyiramasuhuko Appeal Brief, paras. 72, 73, 77, 78, 81-83, 86-98, 100, 101, 104, 111, 112, 114, 117, 122-125, 127-129, 132-134, 136-141. See also, AT. 14 April 2015 p. 7 The Appeals Chamber observes that, in paragraphs 130 and 132 of her appeal brief, Nyiramasuhuko argues that the Trial Chamber erred in ruling that the Prosecution did not have to specify the dates of the alleged attacks in the Indictment. This argument is addressed in Section IV.B.3(a) infra, para.

493. Nyiramasuhuko further submits in her appeal brief that the Trial Chamber erred in: (i) deciding that the supporting material presented by the Prosecution in Annexure B of its motion to amend the indictment would not be disclosed to her since Rule 66(A)(i) of the Rules applied; (ii) failing to recall that she requested already on 30 July 1998 that a date be set for her trial and that, during the two preceding years, she had prepared her defence on the basis of the information in the original indictment; (iii) "allowing the Prosecution] to add the count of responsibility under Article 6(3) of the Statute [...] whereas [the Prosecution] did not include any factual allegation of [her] status as a superior or, still less, any essential elements of the said status"; and (iv) permitting the addition of the count of rape as a crime against humanity when the count did not Case No. ICTR-98-42-A 14 December 2015

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20208/H She requests that the Appeals Chamber "note the illegality" of the indictment, quash it, and order her acquittal or a stay of proceedings.'* The Appeals Chamber will address Nyiramasuhuko's contentions in turn. (a) Leave to Amend the Indictment 447. Nyiramasuhuko submits that the Trial Chamber erred in law in finding that it did not have to ascertain the existence of prima facie evidence before granting leave to include the six new counts in the indictment. °42 In particular, she argues that, according to the Statute and the Rules, the Trial Chamber was bound to evaluate the materials presented by the Prosecution in support of the additions sought before granting. leave to amend the indictment. 043 Nyiramasuhuko claims that even before the 2004 amendment of Rule 50 of the Rules, some trial chambers assessed whether prima facie evidence justified the requested amendment of the indictment. 104 In her view, as a result of its failure to observe the required standard and by stating that the confirmation of the initial indictment was applicable to all amendments that followed, the Trial Chamber reversed the principle of presumption of innocence 1045 Similarly, Nyiramasuhuko argues that the Trial Chamber acted unreasonably in holding, on one hand, that the guarantee set forth in Article 18 of the Statute and the procedure provided for in Rule 47 of the Rules did not apply in

deciding to grant leave to amend the indictment and, on the other hand, that the deadline provided for in Rule 66(A)(i) of the Rules did apply. 1046 448. In addition, Nyiramasuhuko contends that the Trial Chamber exceeded its jurisdiction by justifying post facto, in its Joinder Decision, its previous decision to "intentionally" allow the count of conspiracy to commit genocide to be added "solely to enable the Prosecutor to proceed by joinder" 1047 According to her, this demonstrates that the Trial Chamber had not satisfied itself that there was an appropriate basis for adding this count. 048 Nyiramasuhuko further claims that the Trial contain the factual basis. See Nyiramasuhuko Appeal Brief, paras. 79, 80, 84, 85, 99, 110, 117-120. However, since Nyiramasuhuko failed to raise these specific allegations of error in her notice of appeal, even though she amended it twice, and since the Prosecution did not respond to her allegations, the Appeals Chamber declines to consider these arguments as they exceed the scope of Nyiramasuhuko's appeal. 1042 Nyiramasuhuko Notice of Appeal, paras. 1.9-1.11; Nyiramasuhuko Appeal Brief, paras. 72, 83, 86-88, 91, 92, 95- 208, 100, 101, 104, 111, 112, 114, 117, 122-125, 127, 129. Nyiramasuhuko Appeal Brief, para. 73 (French). 1044 Nyiramasuhuko Appeal Brief, para. 74 (French). See also ibid., para. 75. 1045 Nyiramasuhuko Appeal Brief, paras. 77, 78, 81, 82. 1046 Nyiramasuhuko Appeal Brief, paras. 89-91. 1047 Nyiramasuhuko Appeal Brief, paras. 101, 104. See also ibid., paras. 102, 103, 105. 1048 Nyiramasuhuko Appeal Brief, para. 102. 158 Case No. ICTR-98-42-A 14 December 2015

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20207/H Chamber failed to consider the Prosecution's justification for the delay in obtaining the new evidence that allegedly supported the amendments. 1049 449. The Prosecution responds that the Trial Chamber correctly found that there was sufficient factual and legal basis in its oral and written arguments for the amendment of the indictment and that Nyiramasuhuko's allegations are mere assertions of disagreement with the Trial Chamber's ruling without demonstrating any error. 1050 450. The Appeals Chamber notes that the requirement in Rule 50(A)(ii) of the Rules for granting leave to amend an indictment was only introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004. 1051 According to this amendment, trial chambers shall examine each of the counts and any supporting materials the Prosecution may provide to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the accused. The Appeals Chamber also observes that, prior to the enactment of Rule 50(A)(ii) of the Rules, the practice of the trial chambers of the Tribunal regarding the need to establish a prima facie case before granting leave to amend an indictment was not uniform. In several cases, trial chambers found that granting leave to amend an indictment was a matter for their discretion and only required the Prosecution to

establish the factual and legal basis in support of its motion to amend. 052 In other cases, trial chambers examined whether prima facie evidence supported the motion to amend. 1053 When seised with appeals against decisions related to the amendment of the indictment prior to the modification of Rule 50 of the Rules, the Appeals Chamber did not provide guidance on this issue. 054 Against this background, the Appeals Chamber, Judge Pocar and 1049 Nyiramasuhuko Appeal Brief, paras. 93, 94. See also ibid., paras. 123, 124. 1050 Prosecution Response Brief, para.

97. See also ibid., paras. 842, 843. 1051 See Amendments - 14th Plenary Session (23-24 April 2004), pp. 6, 7. 1052 See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Decision on Prosecutor's Motion to Correct the Indictment Dated 22 December 2000 and Motion for Leave to File an Amended Indictment, 25 January 2001, paras. 26, 40; The Prosecutor v. Éliezer Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor's Request for Leave to File an Amended Indictment, 21 June 2000, paras. 43-45; The Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR-97-19-I, Decision on the Prosecutor's Request for Leave to File an Amended Indictment, 11 April 2000, pp. 3, 4; The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Decision on the Prosecutor's Request for Leave to File an Amended Indictment, signed 5 November 1999, filed 10 November 1999, paras. 7, 14, 15; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor's Motion to Amend the Indictment, 8 October 1999 ("Kabiligi 8 October 1999 Decision"), paras. 42, 43. 1053 See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on the Prosecutor's Motion for Leave to Amend the Indictment, 13 February 2004, para. 35 (originally filed in French, English version filed on 14 May 2004); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor's Request for Leave to Amend the Indictment, dated 6 May 1999, signed 24 May 1999, filed 25 May 1999, para.

19. See also Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-PT, Decision on Prosecution's Motion to Amend the Amended Indictment, signed 12 February 2004, filed 13 February 2004, para. 8; Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Case No. IT-01-47-PT, Decision on Form of Indictment, 17 September 2003, paras. 35, 36. 1054 See The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor's Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor's Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 ("Bizimungu et al. 12 February 2004 Appeal Decision"). See also Nahimana et 159 Case No. ICTR-98-42-A 14 December 2015

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20206/H Judge Liu dissenting, finds Nyiramasuhuko's allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the new counts to be without merit and deems it unnecessary to discuss Nyiramasuhuko's remaining arguments premised on this alleged error of law.

451. The Appeals Chamber also finds no merit in Nyiramasuhuko's unsubstantiated argument that the Trial Chamber exceeded its jurisdiction by justifying the addition of the count of conspiracy to commit genocide in order to enable the joinder. The 10 August 1999 Decision reflects that the Trial Chamber was satisfied that the Prosecution sufficiently supported the factual and the legal basis for the amendment of the indictment, regardless of any possible joinder of the trials. 1055 Similarly, when reading the Joinder Decision as a whole, it is clear that the Trial Chamber did not allow the inclusion of the additional count of conspiracy to commit genocide so as to support the joinder of the trials, as suggested by Nyiramasuhuko. The Trial Chamber merely concluded that the additional count of conspiracy to commit genocide provided the basis for the joinder. 1056 452. The Appeals Chamber further rejects Nyiramasuhuko's contention that, in this case, the Trial Chamber failed to consider the belated nature of the Prosecution's request for the amendment. The 10 August 1999 Decision shows that the Trial Chamber took note of the Prosecution's explanation that "the amendments will bring to light evidence gathered in recent months" and that the "newly acquired evidence was obtained after confirmation of the initial indictment and after much investigation at the Butare prefecture",.

1057 453. Accordingly, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, rejects Nyiramasuhuko's challenges to the leave to amend the Indictment. (b) Dismissal of Requests for Additional Information 454. Nyiramasuhuko submits that the Trial Chamber erred in stating that any prejudice could be cured by Rule 72 of the Rules while dismissing her requests for additional information made al. Appeal Judgement, paras. 390-393. This issue was subject to disagreement among the judges of the Tribunal. See Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar. 1055 10 August 1999 Decision, paras. 18, 21, 23. See also 10 August 1999 Oral Decision, pp. 2-4. 1056 See Joinder Decision, para.

13. The Appeals Chamber notes that Nyiramasuhuko further submits that the Trial Chamber demonstrated an appearance of bias in favour of the Prosecution by allowing the addition of the charge of conspiracy to commit genocide "so as to enable [the Prosecution] to carry out [its] strategy to charge [Nyiramasuhuko] with conspiracy to commit genocide, as part of a joinder of the Accused". See Nyiramasuhuko Appeal Brief, paras. 106-108. Recalling that the appealing party must set forth the arguments in support of an allegation of bias in a precise manner and that the Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality, the Appeals Chamber dismisses these additional unsubstantiated allegations of bias on the part of the Trial Chamber judges. See supra, para. 35. 1057 10 August 1999 Decision, paras. 1, 3. 160 Case No. ICTR-98-42-A 14 December 2015

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20205/H through her preliminary motion alleging defects in the form of the indictment. 1058 Specifically, she argues that the Trial Chamber erred in holding that her amended preliminary motion of 17 April 2000 was filed out of time since, according to her, the deadline only ran from the time her statement was disclosed on 25 May 2000.1059 She asserts that, as a result, it was erroneous for the Trial Chamber not to consider the said request for additional information. 1060 455. The Prosecution responds that Nyiramasuhuko's allegations of procedural irregularities are mere assertions of disagreement with the Trial Chamber's ruling without demonstrating any error or showing resulting prejudice, 1061 456. The Appeals Chamber notes that the Trial Chamber found that, according to the time limit that was set in Rule 72 of the Rules at the relevant time, the deadline for bringing preliminary motions was 27 October 1999. 1062 With regard to Nyiramasuhuko's first preliminary motion, filed on 29 October 1999, the Trial Chamber decided proprio mot to waive the time limit and admitted the motion even though it was filed two days after the time limit elapsed 063 However, the Trial Chamber found that Nyiramasuhuko's 17 April 2000 Amended Motion was time barred and, as a 1064 result, inadmissible.

457. The Appeals Chamber finds no merit in Nyiramasuhuko's argument that the Trial Chamber erred in holding that her 17 April 2000 Amended Motion was filed past the time limit. Nyiramasuhuko fails to provide any reference to the trial record in support of her argument that the deadline of 27 October 1999 was incorrect or that she was granted an extension of time. Nyiramasuhuko's only argument is that she received her additional statements on 25 May 2000 and that, therefore, her 17 April 2000 Amended Motion was submitted within the time limits of Rule 72(A) of the Rules. 065 However, Nyiramasuhuko does not provide any support for this 1058 Nyiramasuhuko Notice of Appeal, para. 1.13; Nyiramasuhuko Appeal Brief, paras. 132-134, 136-141. 1059 Nyiramasuhuko Appeal Brief, para. 133 (French), referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Amended Preliminary Motion Based on Defects in the Form and Substance of the Indictment, 17 April 2000 (originally filed in French, English translation filed on 12 October 2000) "17 April 2000 Amended Motion"). 060 Nviramasuhuko Appeal Brief, para. 134 (French) 1061 Prosecution Response Brief, para. 97. 1062 1 November 2000 Nyiramasuhuko Decision, para.

46. At the time Nyiramasuhuko filed her first preliminary motion, Rule 72(A) of the Rules provided that "[p)reliminary motions by either party shall be brought within sixty days following disclosure by the Prosecutor to the Defence of all the material envisaged by Rule 66 (A) (i), and in any case before the hearing on the merits." Rule 66(A)(i) of the Rules concerned "copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused". 1063 1 November 2000 Nyiramasuhuko Decision, para. 51. 1065 Nyiramasuhuko Appeal Brief, para. 133 (French). 161 Case No. ICTR-98-42-A 14 December 2015

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20204/H argument. 1066 Moreover, even according to her argument regarding the chain of events, Nyiramasuhuko fails to explain how the receipt of her own statement in May 2000 affects the decision of the Trial Chamber that the deadline for bringing preliminary motions was 27 October 1999, as Nyiramasuhuko confirmed that she received the Prosecution's supporting materials on 28 August 1999. 1067 458. Accordingly, the Appeals Chamber rejects Nyiramasuhuko's challenges to the dismissal of her requests for additional information.

2. Conspiracy to Commit Genocide (Ground 18) 459. The Trial Chamber found that from 9 April until 14 July 1994, and in particular between 9 April and 19 April 1994, Nyiramasuhuko agreed with other members of the Interim Government to issue directives to encourage the population to hunt down and kill Tutsis in Butare Prefecture. 1068 The Trial Chamber determined that: (i) during a Cabinet meeting of the Interim Government held on 16 or 17 April 1994, Nyiramasuhuko agreed with other members of the Interim Government to remove Prefect Habyalimana and to replace him with Nsabimana;1069 (ii) on 19 April 1994, Nyiramasuhuko attended Nsabimana's Swearing-In Ceremony and failed to dissociate herself from the content of the speeches of Prime Minister Kambanda and President Sindikubwabo during the ceremony ("Kambanda's and Sindikubwabo's Speeches"), effectively endorsing their inflammatory statements; 1070 and (ili) Nyiramasuhuko, as a member of the Interim Government, adopted and issued a directive on 27 April 1994 encouraging the population to mount and man roadblocks, the purpose of which was to encourage the killing of Tutsis. 1071 460. On this basis, and considering Nyiramasuhuko's participation with the Interim Government in many of the Cabinet meetings at which the massacre of Tutsis was discussed and in decisions which triggered the onslaught of massacres in Butare Prefecture,

the Trial Chamber concluded that the only reasonable conclusion was that Nyiramasuhuko entered into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture with the intent to destroy, in whole or in part, the Tutsi ethnic group. 1072 Based on these findings, the Trial 1066 Nyiramasuhuko Appeal Brief, para. 133 (French), referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, T. 7 June 2000, pp. 32, 33 (French), in which counsel for Nyiramasuhuko only stated that he received the statement of Nyiramasuhuko on 25 May 2000. 1067 See 17 April 2000 Amended Motion, para.

14. See also 1 November 2000 Nyiramasuhuko Decision, para. 46. 1068 Trial Judgement, para.

5676. See also ibid., paras. 583, 1939, 5669, 5733. 1069 Trial Judgement, paras. 862, 864, 5670, 5676. See also ibid., para. 5736. ion Trial ludgemen, ars 921, 5672, 465 See, Pao it 1939, 5: 60,626, 5739 578 10 Exhibi P118 Prime Minister Kambanda's instructions to restore security in the country issued on 27 April 1994) ("27 April Directive"). 1072 Trial Judgement, paras. 5678, 5727. 162 Case No. ICTR-98-42-A 14 December 2015

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20203/H Chamber convicted Nyiramasuhuko of conspiracy to commit genocide (Count 1) pursuant to Article 6(1) of the Statute. 1073 461. In summarising the Prosecution case against Nyiramasuhuko with respect to the charge of conspiracy to commit genocide, the Trial Chamber referred to paragraphs 5.1, 6.52, and 6.56 of the Indictment. 1074 The Indictment indicates that these allegations were being pursued under Count 1 pursuant to Article 6(1) of the Statute. 1075 While the Trial Chamber considered that common paragraph 5.1 of the indictments of the co-Accused ("Indictments") set forth the basic elements of the alleged conspiracy, it found that the Indictments were defective in that they did not identify the specific individuals alleged to have entered into the agreement or "when and where the agreement was executed and when the conspiracy ended.»1076 However, the Trial Chamber found that these defects were cured through the Prosecution's opening statement. 1077 462. Nyiramasuhuko submits that her Indictment was defective in relation to the charge of conspiracy to commit genocide and that the defect was neither curable nor cured. 078 Specifically, she argues that the Indictment did not inform her of the period when she was alleged to have joined the alleged conspiracy. 1079 She also contends that the allegation that she conspired to commit 1073 Trial Judgement, paras. 5727, 6186.

See also ibid., paras. 6200, 6205. 1074 Trial Judgement, paras. 5653, 5654, fns. 14605-14607. Paragraphs 5.1, 6.52, and 6.56 of the Nyiramasuhuko and Ntahobali Indictment read as follows: From late 1990 until July 1994, military personnel, members of the government, political leaders, civil servants and other personalities conspired among themselves and with others to work out a plan with the intent to exterminate the civilian Tutsi population and eliminate members of the opposition, so that they could remain in power. The components of this plan consisted of, among other things, recourse to hatred and ethnic violence, the training of and distribution of weapons to militiamen as well as the preparation of lists of people to be eliminated. In executing the plan, they organized, ordered and participated in the massacres perpetrated against the Tutsi population and of moderate Hutu. Pauline Nyiramasuhuko, André Rwamakuba, Sylvain Nsabimana, Arsène Ntahobali elaborated, adhered to and executed this plan. The massacres and the assaults thus perpetrated were the result of a strategy adopted and elaborated by political, civil and military authorities in the country, at the national as well as the local level, such as Pauline Nyiramasuhuko, Shalom Arsène Ntahobali, Joseph Kanyabashi, Elie Ndayambaje, André Sylvain Nsabimana, Alphonse Nteziryayo and Ladislas Ntaganzwa, who conspired

to exterminate the Tutsi population. Pauline Nyiramasuhuko, Shalom Arsène Ntahobali, in their positions of authority, acting in concert with, notably, André Rwamakuba, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi, Ladislas Ntaganzwa and Elie Ndayambajc, participated in the planning, preparation or execution of a common scheme, strategy or plan, to commit the atrocities set forth above. The crimes were committed by them personally, by persons they assisted or by their subordinates, and with their knowledge or consent. 1075 See Nyiramasuhuko and Ntahobali Indictment, p.

38. Paragraph 6.56 of the Nyiramasuhuko and Ntahobali Indictment was also pursued pursuant to Article 6(3) of the Statute. See idem. 1076 Trial Judgement, paras. 5660, 5661. 1077 Trial Judgement, paras. 5662-5664. 1078 Nyiramasuhuko Notice of Appeal, paras. 3.1, 3.2, 3.4-3.10, 3.13, 3.24, 3.26, 3.27, 3.31-3.33, 3.46, 3.71-3.74; Nyiramasuhuko Appeal Brief, paras. 544-547, 552-559, 561, 563-580, 587, 589, 590, 594, 599-603, 606-621, 663, 664, 671, 672;, Nyiramasuhuko Reply Brief, paras. 81-83, 86-109, 111-113, 117, 119-132, 136-144. See also AT. 14 April 2015 pp. 11-16 (French), AT. 15 April 2015 pp. 5, 6 (French). 1079 Nyiramasuhuko Appeal Brief, para.

572. See also ibid., para.

594. The Appeals Chamber also understands Nyiramasuhuko to argue that the Trial Chamber failed to determine whether the Prosecution demonstrated that the 163 Case No. ICTR-98-42-A 14 December 2015

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20202/H genocide with the Interim Government was not pleaded in the Indictment and that this defect could not be cured as this allegation constituted a new charge distinct from the one alleged in her Indictment l080 or constituted a radical transformation of the case against her. 1081 She argues that, because the Indictment specifically identified the co-conspirators with whom she was alleged to have conspired as her co-accused and "others" but failed to mention the Interim Government or its specific members, the Prosecution could not substitute these alleged co-conspirators with unidentified members of the Interim Government. 1082 Nyiramasuhuko contends that the members of the Interim Government with whom she was found to have conspired should have been identified in the Indictment. 1083 463. Nyiramasuhuko's additional submissions under Ground 18 of her appeal are unclear but the Appeals Chamber understands her to argue that, although paragraphs of the Indictment refer to the implication of the Interim Goverment in a plan to commit genocide, they did not provide her with notice that the facts that they mentioned were pleaded in support of the count of conspiracy to commit genocide. 1084 In particular, she argues that paragraphs 6.10 through 6.12 of the Indictment did not mention her and were not cited in support of Count 1, which demonstrates that she was not charged with

conspiracy with the Interim Government. 1085 She also contends that the Trial Chamber erred in relying on her responsibility for adopting governmental directives and instructions to kill Tutsis and removing Prefect Habyalimana from office since, read together with the Prosecution's submissions filed on 31 May 2000 in response to her motion on lack of jurisdiction: (i) paragraph 6.14 of the Indictment could only be understood as alleging that she was responsible for her mission of pacification in Butare and not for the adoption of directives, notably because paragraphs 6.15 and 6.16 of the Indictment, which mention specific directives, were not cited in conspiracy between her and the Interim Government of which she was convicted supported the plan agreed upon in 1990 as alleged in the Nyiramasuhuko and Ntahobali Indictment. See ibid., para. 601. 1080 Nyiramasuhuko Notice of Appeal, paras. 3.8, 3.10, 3.26, 3.27; Nyiramasuhuko Appeal Brief, paras. 545, 553-557 See also Nyiramasuhuko Appeal Brief, paras. 561, 572, 589, 590; Nyiramasuhuko Reply Brief, paras. 82, 87, 109, 123, 1081 Nyiramasuhuko Appeal Brief, paras. 553, 556, 561. 1082 Nyiramasuhuko Notice of Appeal, paras. 3.6, 3.8, 3.13, 3.24-3.26; Nyiramasuhuko Appeal Brief, paras. 545, 552, 589, 599, 603, 612, 619-621; Nyiramasuhuko Reply Brief, paras. 89, 91, 92, 124, 128, 129, 138. See also Nyiramasuhuko Reply Brief, paras. 97,

98. Nyiramasuhuko also argues that the mere mention of André Rwamakuba in the Nyiramasuhuko and Ntahobali Indictment did not allow the Trial Chamber to substitute members of the Interim Government as alleged co-conspirators. See ibid., paras. 113, 125. Under Ground 19 of her appeal, Nyiramasuhuko also develops contentions pertaining to "guilt by association", which the Appeals Chamber has addressed in Section IV.D.6, infra. See Nyiramasuhuko Appeal Brief, paras. 548-552. 1083 Nyiramasuhuko Appeal Brief, para. 563, referring to Nzabonimana Trial Judgement, para, 1743, Zigiranyirazo Trial Judgement, para.

25. See also ibid., para. 612; Nyiramasuhuko Reply Brief, para.

97. Nyiramasuhuko also argues that, given that several members of the Interim Government have been acquitted of the charge of conspiracy, she could not be convicted for having conspired with them. See Nyiramasuhuko Appeal Brief, para. 563. 1084 Nyiramasuhuko Notice of Appeal, paras. 3.25, 3.31-3.33; Nyiramasuhuko Appeal Brief, paras. 599, 607-614. Nyiramasuhuko Appeal Brief, paras. 600, 602, 603, 606. See also ibid., paras. 612, 614; Nyiramasuhuko Reply Brief, paras. 131, 132, 139. Case No. ICTR-98-42-A 14 December 2015

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20201/H support of Count 1,1086 and (ii) paragraph 6.20 of the Indictment could only be understood as alleging that she incited the population to commit massacres and not that she was responsible for the removal of Prefect Habyalimana, especially since paragraph 6.12 of the Indictment relating to the removal of the prefect does not mention her and was not cited in support of Count 1, 1087 464. Nyiramasuhuko contends that the Trial Chamber also erred in finding that: (i) ministers were briefed on the situation of the killings without specifying, as the Indictment did, that this was done on a regular basis;1088 (ii) the massacres began closer to 17 April 1994 rather than after 19 April 1994 as pleaded in the Indictment, leading to a transformation of a material element of paragraph 6.22 of the Indictment; 1089 and (iii) Sindikubwabo's speech contained "coded language" while the Indictment alleged that it openly and explicitly called on the people of Butare to follow the example of the other prefectures. 1090 465. Finally, Nyiramasuhuko submits that the Trial Chamber erred in concluding that the Prosecution's opening statement clarified the charge of conspiracy to commit genocide and in failing to consider the irreparable prejudice she suffered as a result of the Prosecution's failure to give her notice that she was accused of having conspired with the Interim Government.

1091 1086 Nyiramasuhuko Notice of Appeal, paras. 3.6, 3.7; Nyiramasuhuko Appeal Brief, paras. 607-610, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Prosecutor's Response to Accused's Amended Preliminary Motion on Jurisdiction, 31 May 2000 ("31 May 2000 Prosecution Response"), para. 19; Nyiramasuhuko Reply Brief, paras. 99-103, 144. See also Nyiramasuhuko Reply Brief, para.

143. Nyiramasuhuko adds that, given that paragraphs 6.15 and 6.16 of the Nyiramasuhuko and Ntahobali Indictment contained material facts that were cited in support of the count of conspiracy to commit genocide in the Bizimungu et al. case, the fact that these material facts were not pleaded against her informed her that she was not charged with them. See idem. She also contends that the Trial Chamber erred in relying on the double meaning of words such as "enemy", "accomplice", "infiltration", or "infiltrator" in the 27 April Directive whereas paragraph 6.15 did not concern her. See Nyiramasuhuko Appeal Brief, para. 611. 1087 Nyiramasuhuko Appeal Brief, paras. 612-614, referring to 31 May 2000 Prosecution Response, para. 19; Nyiramasuhuko Reply Brief, paras. 104-107. See also Nyiramasuhuko Notice of Appeal, para. 3.46. 1088 Nyiramasuhuko Appeal Brief, para. 604, referring to Trial Judgement, para. 5669, Nyiramasuhuko and Ntahobali Indictment, para. 6.13. See also Nyiramasuhuko Reply Brief, para. 102 1089 Nyiramasuhuko Notice of Appeal, paras. 3.71-3.74; Nyiramasuhuko Appeal Brief, paras. 671, 672. Nyiramasuhuko argues that the Trial Chamber erred in relying on Kambanda's speech in its findings against her as the Nyiramasuhuko and Ntahobali Indictment only alleged her responsibility with respect to Sindikubwabo's speech. See Nyiramasuhuko Appeal Brief, paras. 616, 617, 663, 664. The Appeals Chamber notes that Nyiramasuhuko failed to raise this allegation of error in her notice of appeal, despite amending it twice, and notes that the Prosecution objects to this impermissible expansion of her appeal and did not respond to this argument. See Prosecution Response Brief, para.

271. The Appeals Chamber therefore declines to consider this argument as it exceeds the scope of Nyiramasuhuko's appeal. 1090 Nyiramasuhuko Appeal Brief, para. 615, referring to Nyiramasuhuko and Ntahobali Indictment, para. 6.21, Trial 1091 Nviramasuhuko Notice of Appeal, paras. 3.1, 3.2, 3.4, 3.5, 3.9, 3.27; Nyiramasuhuko Appeal Brief, paras. 545-547, 554, 558, 559, 564-568, 570-583, 587. See also Nyiramasuhuko Reply Brief, paras. 90, 108, 119; AT. 14 April 2015 pp. 12-14 (French). Nyiramasuhuko argues that, in its opening statement, the Prosecutor did not refer to her specifically but to the co-Accused in general and confirmed that she was charged with having conspired with her co-accused. She also contends that the Trial Chamber failed to consider that the Prosecution Pre-Trial Brief informed the co- Accused that they conspired "jointly and severally with one another and others known and unknown" and that the Prosecution's closing brief was the only document reflecting an allegation of conspiracy with the Interim Government in its entirety. See Nyiramasuhuko Notice of Appeal, paras. 3.9, 3.27; Nyiramasuhuko Appeal Brief, paras. 564 165 Case No. ICTR-98-42-A 14 December 2015

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20200/H 466. The Prosecution responds that, contrary to the Trial Chamber's finding, the Indictment was not defective regarding the count of conspiracy to commit genocide as it put Nyiramasuhuko on adequate notice that she was charged with having conspired with the Interim Government from 9 April until 14 July 1994.1092 It argues that a number of paragraphs clearly pleaded that Nyiramasuhuko conspired with members of the Interim Government as well as the conduct that manifested their agreement. 1093 It further argues that a number of paragraphs provided the timeframe for the conspiracy as "between 9 April and 14 July 1994" 1094 In the Prosecution's view, co-conspirators can be adequately pleaded by reference to a category and paragraphs 6.11, 6.15, and 6.16 of the Indictment did not need to be expressly pleaded in support of Count 1 as they referred to evidence. 1095 The Prosecution also contends that Nyiramasuhuko wrongly relies on the 31 May 2000 Prosecution Response as it does not support her claims and paragraphs of this filing "in no way superseded the Indictment which is the primary accusatory instrument" 10%6 It adds that its opening statement and closing brief provided further consistent information that Nyiramasubuko was charged with conspiracy with members of the Interim Government. 1097 467. Nyiramasuhuko replies that the Prosecution "presents its arguments as though

it were appealing the finding that the Indictment was defective because it failed to identify the co-conspirators" although it did not seek leave to do so. 1098 She also argues that the persons alleged to have entered into a conspiracy together must be identified specifically. 1099 468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a (emphasis omitted), 567, 568, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Prosecutor's Closing Brief, 17 February 2009 (confidential) ("Prosecution Closing Brief"). 1092 Prosecution Response Brief, paras. 206-225, 227, 229, 231-251, 253, 255-271. See also AT. 14 April 2015 p. 35. 1093 The Prosecution argues that Nyiramasuhuko was given notice that she was alleged to have conspired with members of the Interim government through: (i) paragraph 5.1 which states that "members of the government" among others "conspired among themselves" and explicitly lists Minister André Rwamakuba; (ii) paragraphs 6.13, 6.52, and 6.56, which allege that Minister Rwamakuba was one of the co-conspirators; (iji) several paragraphs pleaded in support of Count 1 which "notified Nyiramasuhuko of the

conduct between herself and other goverment members manifesting their agreement"; and (iv) paragraph 6.10, which, although not specifically pleaded in support of Count 1, allege that numerous government members supported the plan to exterminate the Tutsis (all references are to the Nyiramasuhuko and Ntahobali Indictment). See Prosecution Response Brief, paras. 212, 232-256. See also AT. 14 April 2015 Poi Proscution Response Brief, paras, 261-265, referring to Niramasuhuko and Neahobali Indictment, paras, 2.1, 6.13, 6.14, 6.21. See also AT. 14 April 2015 p.

36. Prosecution Response Brief, paras. 231, 255, 257, 266-270. The Prosecution contends that Nyiramasuhuko's assertion that she should be acquitted because other ministers of the Interim Government have been acquitted of conspiracy to commit genocide is unsupported. See ibid., paras. 227, 258. See also AT. 14 April 2015 p. 37. 1096 Prosecution Response Brief, paras. 238, 240, 253. See also ibid., paras. 237, 239, 241, 242. 1097 Prosecution Response Brief, paras. 206-219. See also AT. 14 April 2015 pp. 37, 38. 1098 Nyiramasuhuko Reply Brief, para.

122. See also ibid., para. 88; AT. 14 April 2015 pp. 16, 17 (French). 1099 Nyiramasuhuko Reply Brief, paras. 94-97, referring, inter alia, to Ntagerura et al. Appeal Judgement, para. 92. 166 Case No. ICTR-98-42-A 14 December 2015

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20199/H full answer to the issues raised in the relevant appeal brief 100 and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko's argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide.

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such 101 The Appeals Chamber further recalls that, with respect to the mens rea, an indictment may plead either: i) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred. 102 470. The Trial Chamber did not find, nor does Nyiramasuhuko argue, that the Indictments were defective regarding the pleading of the co-Accused's mens rea. It is indeed specifically pleaded under the count of conspiracy to commit genocide and common paragraph 5.1 of the Indictments that the co-Accused acted with the intent to destroy, in whole or in part, a racial or ethnic group, the Tutsis. 1103 The Trial Chamber, however, found that the Indictments were defective in that they did not "identify the specific individuals who entered into [the] agreement" nor "when and where the agreement was executed

and when the conspiracy ended.»1 104 471. The Appeals Chamber observes that, read in isolation, paragraph 5.1 of the Indictment, which alleges that "[from late 1990 until July 1994, military personnel, members of the government, political leaders, civil servants and other personalities conspired among themselves and with others to work out a plan with the intent to exterminate the civilian Tutsi population", is overly broad with regard to the timeframe of Nyiramasuhuko's alleged participation in the conspiracy to commit genocide. The Appeals Chamber, however, recalls that in determining 1100 Cf. 21 August 2007 Appeal Decision, para.

11. See also Practice Direction on Formal Requirements on Appeal, Pio Nabanimama Arpeal Judgemem, para, 255: Nahimana er al, Appeal Judgerent, para, 344. 1102 See, e.g., Nchamihigo Appeal Judgement, para, 136; Nahimana et al. Appeal Judgement, para.

347. See also Blaskié Appeal Judgement, para.

219. See Nyiramasuhuko and Ntahobali Indictment, p. 38. 1104 Trial Judgement. para. 5661 167 Case No. ICTR-98-42-A 14 December 2015

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20198/H whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole. 1105 472. The Appeals Chamber notes that paragraphs 6.13 and 6.14 of the Indictment, which were expressly pleaded in support of Count 1, allege that Nyiramasuhuko participated in Cabinet meetings "[between 9 April and 14 July 1994", during which ministers were briefed in regard to the massacres of the civilian population, ministers demanded that weapons be distributed to be used in the massacres, and decisions were made to incite, and aid and abet the perpetration of the massacres. Other paragraphs of the Indictment pleaded in support of Count 1 specifically pointed to the participation of members of the Interim Government, including Nyiramasuhuko, in decisions and events of April 1994 aimed at inciting and encouraging the killing of Tutsis. 106 The Appeals Chamber considers that paragraph 5.1 of the Indictment read in conjunction with these paragraphs put Nyiramasuhuko on clear notice that she was alleged to have entered into an agreement aimed at the commission of genocide on or after 9 April 1994. 1107 473. The Appeals Chamber is of the view that, contrary to the Trial Chamber's determination, 108 there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended The crime of conspiracy to

commit genocide is an inchoate offence, the actus reus of which is "a concerted agreement to act for the purpose of committing genocide", 1109 and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify "when the conspiracy ended".

474. Turning to Nyiramasuhuko's contention regarding the identification of the co-conspirators in the Indictment, the Appeals Chamber is not persuaded that the charge of conspiracy to commit genocide as pleaded in the Indictment did not involve the Interim Government or that her alleged co-conspirators were limited to her co-accused as argued by Nyiramasuhuko. The Appeals Chamber sees merit in the Prosecution's argument that the Indictment sufficiently identified the individuals with whom Nyiramasuhuko was alleged to have agreed to commit genocide. The Trial Chamber 1105 See, e.g., Ntabakuze Appeal Judgement, para. 65; Bagosora and Nsengiyumva Appeal Judgement, para. 182; Gacumbitsi Appeal Judgement, para. 123. 1106 See Nyiramasuhuko and Ntahobali Indictment, paras. 6.20, 6.22. 1107 The Appeals Chamber notes in this regard that paragraph 6.10 of the Nyiramasuhuko and Ntahobali Indictment, although not specifically invoked in relation to Count 1, states that "[a]s soon as the Interim Government was formed, numerous Cabinet members supported the plan of extermination in place", thus providing further notice that the agreement took place immediately or shortly after the swearing-in of the Interim Government on 9 April 1994. See Trial Judgement, para. 5661. 168 Case No. ICTR-98-42-A 14 December 2015

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20197/H appears to have overlooked that paragraph 5.1 of the Indictment specifically alleged that Nyiramasuhuko and her co-accused conspired with, inter alios, "members of the government", including "André Rwamakuba", 11lo "to work out a plan with the intent to exterminate the civilian Tutsi population" '''' Moreover, contrary to Nyiramasuhuko's assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused. 1112 475. Consistent with paragraph 5.1 of the Indictment, paragraphs 6.13, 6.14, 6.20, and 6.22 of the Indictment, all pursued in support of Count 1,113 expressly referred to Nyiramasuhuko's contribution to the extermination of the Tutsis as a member of the Interim Government, together with other members of the Interim Government identified by name or with the Interim Government in general. These paragraphs also set forth the material facts upon which the Trial Chamber relied to convict Nyiramasuhuko of conspiracy to commit genocide, namely the decision to dismiss Prefect Habyalimana from office, the adoption of directives during Cabinet meetings inciting the population to kill Tutsis, and the

endorsement of Kambanda's and Sindikubwabo's Speeches at Nsabimana's Swearing-In Ceremony. l114 476. In the view of the Appeals Chamber, the fact that Nyiramasuhuko was not expressly named in paragraphs 6.10 through 6.12, 6.15 and 6.16 of the Indictment, which further describe the contribution of the Interim Government to the massacres, or that these paragraphs were not relied upon in support of Count 1 could not reasonably be understood by Nyiramasuhuko as indicating that she was not prosecuted for having conspired to commit genocide as unambiguously pleaded in paragraphs 5.1, 6.13, 6.14, 6.20, and 6.22 and the charging section of the Indictment. l1S Having 110 See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para.

896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para.

894. André Rwamakuba held the position of Minister of Primary and Secondary Education in the Interim Goverment. • 11'' See also Trial Judgement, para. 5660, where there is no mention of the "members of the government" specifically listed as co-conspirators in paragraph 5.1 of the Nyiramasuhuko and Ntahobali Indictment ("The Chamber notes that Paragraph 5.1 of each Indictment alleges that from late 1990 until July 1994 military personnel, political leaders, and civil servants conspired among themselves to work out a plan with the intent to exterminate the civilian Tutsi population. Each Indictment alleges the conspiracy was on the national as well as the local level, and that all of the Accused were part of this conspiracy.") (emphasis added, internal references omitted). 1112 Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para.

370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121. 1113 Nyiramasuhuko and Ntahobali Indictment, p. 38. 1114 Trial Judgement, paras. 5669-5673, 5676. i person 1 e to the em letion a die one piet in 169 Case No. ICTR-98-42-A 14 December 2015 ти

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20196/H reviewed the 31 May 2000 Prosecution Response relied upon by Nyiramasuhuko, the Appeals Chamber fails to see how it could have been interpreted by Nyiramasuhuko as limiting the scope of the charge of conspiracy to commit genocide as alleged in the Indictment, which is the primary accusatory instrument. 1116 477. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in holding that the Indictment was defective in relation to the charge of conspiracy to commit genocide because it failed to "identify the specific individuals who entered into [the] agreement" and that Nyiramasuhuko has failed to demonstrate that she was not charged with conspiring to commit genocide with the Interim Government in the Indictment.

478. As to the alleged discrepancies pointed out by Nyiramasuhuko between some of the material facts alleged in the Indictment and the Trial Chamber's ultimate conclusions, the Appeals Chamber recalls that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the trial chamber from considering the indictment in light of the evidence presented at trial. '117 In the present case, the Appeals Chamber considers that the fact that the Trial Chamber found that Nyiramasuhuko was briefed during numerous Cabinet meetings while the Indictment indicated that she was "regularly" briefed constitutes an insignificant variation. 118 Similarly, the Appeals Chamber considers the difference as to the precise date of the beginning of the massacres to be minor. Also, the Appeals Chamber observes that paragraph 6.21 of the Indictment makes reference to Sindikubwabo's coded language in his speech at Nsabimana's Swearing-In Ceremony. Nyiramasuhuko's arguments in these respects are therefore rejected.

479. Accordingly, the Appeals Chamber concludes that the Indictment was not defective regarding the pleading of Nyiramasuhuko's responsibility for conspiracy to commit genocide and that Nyiramasuhuko was put on adequate notice that she was alleged to have entered into an agreement to exterminate the Tutsi population with, inter alios, members of the Interim Government on or after 9 April 1994. The nature of the charge in this regard was further confirmed by the Prosecution in its opening statement and pre-trial brief, in which it specifically referred to a information concerning the decision to dismiss Prefect Habyalimana similar to the one contained in paragraph 6.12; (iv) the specific allegation regarding the 27 April Directive contained in paragraph 6.15 is encompassed in the broader allegation set forth in paragraph 6.14; and (v) the Trial Chamber did not rely on the allegation pleaded in paragraph 6.16 in support of the conspiracy count (all references are to the Nyiramasuhuko and Ntahobali Indictment). 1116 See, e.g., Ntagerura et al. Appeal Judgement, para. 114; Kupreskié et al. Appeal Judgement, para.

114. The Appeals Chamber finds that Nyiramasuhuko's reliance on the indictment in the Bizimungu et al. case is similarly misplaced as she fails to demonstrate how the situation in that case is relevant to the present case. 1117 See Nzabonimana Appeal Judgement, para. 164; Muvunyi Appeal Judgement of 1 April 2011, para. 29; Semanza Appeal Judgement, fn.

492. Compare Trial Judgement, para. 5669 with Nyiramasuhuko and Ntahobali Indictment, para. 6.13. 170 Case No. ICTR-98-42-A 14 December 2015 1

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20195/H plan to commit genocide masterminded by the Interim Government and implemented by the co-Accused, including Nyiramasuhuko. 1119 480. For the foregoing reasons, the Appeals Chamber dismisses Nyiramasuhuko's submissions pertaining to notice of the charge of conspiracy to commit genocide.

3. Butare Prefecture Office (Grounds 14 to 17) 481. The Trial Chamber convicted Nyiramasuhuko of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 10) pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis who were abducted from the Butare Prefecture Office where they had sought refuge. 120 The Trial Chamber also determined that Nyiramasuhuko bore superior responsibility in connection with the killings committed by Interahamwe upon her orders pursuant to Article 6(3) of the Statute and considered this as an aggravating factor when determining her sentence. 1121 482. The Trial Chamber further convicted Nyiramasuhuko of rape as a crime against humanity (Count 7) and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 11) as a superior under Article 6(3) of the Statute for rapes committed by Interahamwe at the Butare Prefecture Office. 1122 483. In summarising the Prosecution case against Nyiramasuhuko with respect to these allegations, the Trial Chamber referred to paragraphs 6.30, 6.31, 6.37, and 6.53 of the Indictment. 123 The

Indictment indicates that the allegations in paragraph 6.30 were being pursued 1119 See Prosecution Opening Statement, T. 12 June 2001 pp. 30, 31; Prosecution Pre-Trial Brief, paras. 6-8. Since Nyiramasuhuko was charged with a conspiracy with the Interim Government together with her co-accused, the Appeals Chamber fails to see the relevance of Nyiramasuhuko's assertion that the Prosecution did not refer to her separately in its opening statement. Similarly, the fact that the Prosecution specifically referred to the co-Accused as members of the conspiracy in its opening statement does not indicate that the Interim Government was not part of the conspiracy. See Prosecution Opening Statement, T. 12 June 2001 pp. 30, 31, 59, 60. In addition, the Appeals Chamber is of the view that the information contained in the Prosecution Pre-Trial Brief as to the charge of conspiracy is not inconsistent with the Prosecution's opening statement. See Prosecution Pre-Trial Brief, paras. 6-8. 1120 Trial Judgement, paras. 5876, 5969, 5970, 6049-6051, 6098, 6099, 6120, 6166, 6167, 6186. The Appeals Chamber discusses Nyiramasuhuko's challenges to the imprecision of the Trial Judgement regarding her convictions for crimes committed at the Butare Prefecture Office in detail below in Section IV.F.1. 1121 Trial Judgement, paras. 5886, 5970, 6052, 6207. See also ibid., paras. 5652, 5884, 5885; infra,

Section IV.F.1. 1122 Trial Judgement, paras. 6085, 6087, 6088, 6093, 6182, 6183, 6186. 1123 Trial Judgement, paras. 2149, 2150, 2162, 2163, fns. 5720-5722, 5751. See also ibid., paras. 5857-5859. Paragraphs 6.30, 6.31, 6.37, and 6.53 of the Nyiramasuhuko and Ntahobali Indictment read as follows: Between 19 April and late June 1994, Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, accompanied by Interahamwe militiamen such as one JUMAPILI and another NSENGIYUMVA among others and soldiers, identities of whom are unknown on several occasions went to the préfecture offices to abduct Tutsi refugees. Those who attempted to resist were assaulted and sometimes killed outright. The 171 Case No. ICTR-98-42-A 14 December 2015

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20194/H against Nyiramasuhuko under Counts 2, 3, 5, 6, and 8 through 10, and those in paragraph 6.31 under Counts 2, 3, 5, 6, 8 through 11 pursuant to Articles 6(1) and 6(3) of the Statute. 1124 The allegations in paragraph 6.37 were being pursued against Nyiramasuhuko under Counts 7 and 11 pursuant to Article 6(3) of the Statute only. l125 The allegations in paragraph 6.53 were being pursued against Nyiramasuhuko under Counts 2, 3, 5, 6, and 8 through 11 pursuant to Articles 6(1) and 6(3) of the Statute and under Count 7 pursuant to Article 6(3) of the Statute only. 1126 484. Prior to discussing Nyiramasuhuko's responsibility for crimes committed at the Butare Prefecture Office, the Trial Chamber considered her assertion that she was not reasonably informed of the charges concerning these crimes."? It determined that "the crimes of abduction and killing at the [Butare Prefecture Office] were clearly pleaded in the Indictment."l128 It further found that, although the Indictment was defective with respect to the charges of rape, the defects were cured and Nyiramasuhuko did not suffer prejudice in the preparation of her defence. 1129 As regards the pleading of victims in particular, the Trial Chamber held that, "in view of the sheer scale of the attacks, rapes and killings alleged to have taken place at the [Butare Prefecture Office], it [was] impractical to require the

Prosecution to name each of the alleged victims of this course of conduct" and that the Indictment was therefore not defective for failing to name each of the alleged victims at the prefectoral office. 130 The Trial Chamber also determined that the Indictment put Nyiramasuhuko on notice that she was charged with superior responsibility for the alleged acts of the Interahamwe at the prefectoral office. 1131 survivors were taken to various locations in the préfecture to be executed, notably in the woods next to the Ecole Evangéliste du Rwanda (E.E.R.) [Evangelical School of Rwanda]. 6.31 When abducting their victims, Pauline Nyiramasuhuko and Arsène Shalom Ntahobali often forced them to undress completely before forcing them into vehicles and taking them to their deaths. 6.37 Furthermore, aside from his attacks on members of the Tutsi population during this period, Arsène Shalom Ntahobali, assisted by unknown "accomplices", participated in the kidnapping and raping of Tutsi women. 6.53 During the events referred to in this indictment, rapes, sexual assaults and other crimes of a sexual nature were widely and notoriously committed throughout Rwanda. These crimes were perpetrated by, among others, soldiers, militiamen and gendarmes against the Tutsi population, in particular Tutsi women and girls. 1124 Nyiramasuhuko and Ntahobali Indictment, pp. 38-45. 1125 Nyiramasuhuko and Ntahobali Indictment, pp. 42, 45. 1126 Nyiramasuhuko and Ntahobali Indictment, pp. 38-45. that Ntahobali's arguments in his closing brief were also made on behalf of Nyiramasuhuko. See ibid., para. 2160. 1128 Trial Judgement, para. 2162. 1129 Trial Judgement, paras. 2163-2166. See also ibid., paras. 5859, 5863. 1130 Trial Judgement, para.

2169. The Trial Chamber, however, found that the late disclosure of the names of specific victims "accorded bias to the Defence in preparing its case" and decided that it will not convict Nyiramasuhuko, if established by the evidence, for the alleged crimes against "Trifina, Mrs. Mbasha, Annonciata, Semanyenzi, Caritas or Immaculée". See ibid., para. 2172. 1131 Trial Judgement, paras. 2159, 5613, 5878. 172 Case No. ICTR-98-42-A 14 December 2015

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20193/H 485. Nyiramasuhuko submits that the Trial Chamber erred in: i) concluding that her responsibility in the killing of Tutsis abducted from the prefectoral office was adequately pleaded in the Indictment and that she was not prejudiced by the omission of material facts in the Indictment; (ii) convicting her in relation to rapes committed at the prefectoral office, as she was not charged on this basis and that the defect was neither curable nor cured; and (iii) finding her responsible as a superior pursuant to Article 6(3) of the Statute. The Appeals Chamber will address these contentions in turn. (a) Killings 486. As discussed in detail in Section IV.F below addressing Nyiramasuhuko's challenges to the assessment of the evidence and her responsibility in relation to the prefectoral office, the Appeals Chamber understands that the Trial Chamber found that Nyiramasuhuko ordered Interahamwe to kill numerous Tutsis who were abducted from the Butare Prefecture Office where they had sought refuge during attacks conducted in mid-May 1994 and around the end of May or the beginning of June 1994. As noted above, the Trial Chamber convicted Nyiramasuhuko under Counts 2, 6, 8, and 10 pursuant to Article 6(1) of the Statute for ordering killings on this basis and took her superior responsibility into account in sentencing. 1132 487. In the Trial Judgement, the Trial Chamber determined

that "the crimes of abduction and killing at the [Butare Prefecture Office] were clearly pleaded in the Indictment."l133 488. Nyiramasuhuko submits that the Trial Chamber erred in finding that the Indictment was not defective concerning the crimes of abduction and killing at the prefectoral office. 134 In particular, she argues that paragraph 6.30 of the Indictment failed to plead: (i) the location of the killings, mentioning only the woods next to the EER while no witness testified to this location;1135 (i) the dates of the attacks;1136 and (iti) the identity of the perpetrators of the killings, including "Kazungu", whose identity was known to the Prosecution prior to the filing of the Indictment, despite the Trial Chamber's order that the Prosecution name the unknown persons referred to in paragraph 6.30.1137 Nyiramasuhuko also argues that the Trial Chamber's conclusion that the sheer scale of the attacks made it impractical to require the Prosecution to name each of the alleged 1132 See supra, para. 481. 1133 Trial Judgement, para. 2162. 1134 Nyiramasuhuko Appeal Brief, paras. 465, 482, 483. 1135 Nyiramasuhuko Appeal Brief, paras. 465, 469, 483, 487, referring to the arguments developed under Ground 30 of 1d Nyiramasuh P Appeal Brief, paras. 465, 469, 483. See also Nyiramasuhuko Notice of Appeal, paras. 2. 12, 2.14 1137 Nyiramasuhuko Appeal Brief, paras. 465-470, 483; Nyiramasuhuko Reply Brief, paras. 79, 80. Nyiramasuhuko submits that paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment rather refers to the nicknames of two other Interahamwe who were not mentioned at trial by any Prosecution witness. See Nyiramasuhuko Appeal Brief, para. 468. 173 Case No. ICTR-98-42-A 14 December 2015

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20192/H victims is unreasonable given that the Prosecution had knowledge of the identity of some specific victims but did not mention them. 138 Nyiramasuhuko contends that she was prejudiced as a result of the omission of these material facts in the Indictment. 1139 489. The Prosecution responds that Nyiramasuhuko does not demonstrate that the Trial Chamber erred in finding that the Indictment was not defective with respect to the allegation of abductions and killings at the prefectoral office. 140 In particular, it contends that, given that Nyiramasuhuko was charged with and convicted for ordering the killings, and not for physically committing them, the information concerning the dates, locations, perpetrators, and victims of the killings did not constitute material facts that needed to be pleaded in the Indictment and that the sheer scale of the crimes made it impracticable to require a high degree of specificity. 1141 The Prosecution adds that, in any case, paragraph 6.30 of the Indictment sufficiently identified the location of the killings, the dates of the attacks, and the perpetrators' and victims' identities and that Nyiramasuhuko fails to show that she suffered any prejudice. 142 490. Nyiramasuhuko replies that the material facts must be clearly specified when the accused is charged, as in her case, with direct participation in a crime such as ordering the crime. 1143

She reiterates that the Prosecution was required to specify the information regarding the locations of the killings, the dates, and the identity of the victims and perpetrators, which was in its possession. 144 She submits that, through its conclusions, the Trial Chamber allowed the Prosecution to mould its case to the evidence heard at trial, rendering her trial unfair. 1145 491. Nyiramasuhuko was convicted for ordering "Interahamwe" at the prefectoral office to abduct and kill Tutsis who had sought refuge there during attacks perpetrated around mid-May and 1138 Nyiramasuhuko Appeal Brief, paras. 465, 469, 480. See also Nyiramasuhuko Reply Brief, para. 78; AT. 14 April 2015 pp. 20, 21 (French). Nyiramasuhuko points out that the Trial Chamber erred in finding that those who resisted were killed outright at locations such as the EER woods unlike what is alleged in paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment that they were killed at the prefectoral office, thereby failing to differentiate the victims killed outright at the prefectoral office from the victims brought to various locations, including the woods next to the EER, to be killed. See Nyiramasuhuko Appeal Brief, paras. 482, 484-486, 488, referring to Trial Judgement, Pa Niramasuhuko Appeal Brief, paras, 468, 472, 473, 475, 487, 490. Nyiramasuhuko also argues that the Trial Chamber erred in stating that it

could use the evidence of the abductions and/or killings of Trifina, Mbasha's wife, Annonciata, and Semanvenzi as circumstantial evidence, although it had recognised that she would be prejudiced by the use of this evidence. See ibid., paras. 474-478. These arguments have been addressed and dismissed below in Section IV.F.2(a). 1140 Prosecution Response Brief, paras. 191-204. 1141 Prosecution Response Brief, paras. 191, 192, 196, 201. See also AT. 14 April 2015 p. 38. 1142 Prosecution Response Brief, paras. 193-203. See also AT. 14 April 2015 pp. 38, 39. The Prosecution also responds, inter alia, that because Kazungu was not found to have committed crimes at the prefectoral office and that Nyiramasuhuko was not convicted for Kazungu's specific criminal conduct, Nyiramasuhuko does not show that she was prejudiced by the fact that his name was not mentioned in the Nyiramasuhuko and Ntahobali Indictment. See Prosecution Response Brief, para. 200. 1143 Nyiramasuhuko Reply Brief, paras. 72-74. 114 Nyiramasuhuko Reply Brief, para. 79. 174 Case No. ICTR-98-42-A 14 December 2015 1

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20191/H the end of May or the beginning of June 1994.'4 The Trial Chamber found that some refugees were killed at the prefectoral office during these attacks and that, regardless of whether the other refugees were taken to Rwabanyanga, Kabutare, Mukoni, or the IRST, the only reasonable inference is that they were abducted from the prefectoral office in order to be killed. 1147 492. In paragraph 6.30 of the Indictment, the Prosecution clearly pleaded that Nyiramasuhuko went to the prefectoral office on several occasions to abduct Tutsi refugees and that refugees who attempted to resist were "sometimes killed outright" and that the "survivors were taken to various locations in the prefecture to be executed, notably in the woods next to the [EER]." Given the nature of the Prosecution case against Nyiramasuhuko regarding the prefectoral office, the Appeals Chamber does not find that the specific locations where the refugees were killed in Butare Prefecture after being abducted from the prefectoral office were material facts that needed to be pleaded in the Indictment. Whether or not the testimonial evidence adduced at trial supported the allegation that refugees were killed in the woods next to the EER is a matter of evidence irrelevant to the issue of notice. 1148 493. The Prosecution alleged in paragraph 6.30 of the Indictment that Nyiramasuhuko committed these crimes "[between

19 April and late June 1994". In the specific circumstances of the allegation pertaining to the crimes at the prefectoral office, the Appeals Chamber is unconvinced by Nyiramasuhuko's argument that the Trial Chamber erred in finding that this broad date range was insufficient to provide her notice. Although Nyiramasuhuko was ultimately only convicted in relation to specific attacks conducted around mid-May and the end of May or the beginning of June 1994, the Trial Judgement reflects that the evidence adduced by the Prosecution covered a longer period of time and additional attacks. 149 Given the sheer scale of the alleged crimes spanning over a period of nearly three months, Nyiramasuhuko does not demonstrate that the Prosecution was in a position to provide further specificity concerning the dates of the commission of the crimes.

494. As regards the pleading of the identity of the perpetrators, the Appeals Chamber notes that, in November 2000, the Trial Chamber ordered the Prosecution "to identify the persons alleged in 1145 Nyiramasuhuko Reply Brief, paras. 76-80. 1146 See infra, para. 749. 1147 Trial Judgement, para. 2749. 1148 Cf. Ntagerura et al. Appeal Judgement, para. 21; Niyitegeka Appeal Judgement, para, 193; Kupreskid et al. Appeal 1149 Trial Judgement, paras. 2149-2782. Case No. ICTR-98-42-A 175 14 December 2015

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20190/H paragraph[...] 6.30 [of the Indictment ...], if known" 1150 The Prosecution subsequently provided the names of Jumapili and Nsengiyumva as some of the Interahamwe who accompanied Nyiramasuhuko and Ntahobali to the prefectoral office in the Indictment. 1151 The Prosecution does not dispute that it was in possession of information regarding the involvement of one "Kazungu" when the operative indictment was issued but does not explain why it failed to specify the name of this alleged perpetrator in the Indictment, in particular after it was instructed to do so by the Trial Chamber. In light of the sheer scale of the crimes allegedly committed at the prefectoral office and the fact that paragraph 6.30 identified "Interahamwe militiamen" among the perpetrators of the crimes, and recalling that physical perpetrators of the crimes can be identified by category in relation to a particular crime site, 152 the Appeals Chamber nevertheless finds that the identity of the perpetrators who abducted and killed Tutsi refugees at the prefectoral office was sufficiently pleaded in paragraph 6.30 and that the Indictment was not defective in that regard.

495. The Appeals Chamber also rejects Nyiramasuhuko's contention regarding the identification of the victims. Nyiramasuhuko's argument that the Trial Chamber erred in concluding that the sheer scale of the attacks made it impractical to require the Prosecution to name each of the alleged victims given that the Prosecution had knowledge of the identity of some specific victims fails to appreciate that, where the Trial Chamber considered that the identity of the victims was known to the Prosecution but not pleaded in the indictment, it decided that it would not convict Nyiramasuhuko for any crimes against these specific victims.l15 Nyiramasuhuko does not demonstrate that the Prosecution was in possession of additional information regarding the names of victims which it failed to disclose.

496. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in finding that her responsibility for the killing of Tutsis who had sought refuge at the Butare Prefecture Office was clearly pleaded in the Indictment. (b) Rapes 497. As discussed in detail in Section IV.F.1(b) below, the Appeals Chamber understands that the Trial Chamber found Nyiramasuhuko responsible as a superior under Counts 7 and 11 pursuant to Article 6(3) of the Statute in connection with rapes perpetrated by Interahamwe at the Butare 1150 1 November 2000 Nyiramasuhuko Decision, paras. 60, 64(a)(i). 1151 In the view of the Appeals Chamber, the fact that the Prosecution and its witnesses did not eventually refer to "Jumapili" and "Nsengiyumva" at trial is not relevant to whether Nyiramasuhuko was provided with sufficient notice of the identity of the perpetrators of the crimes 1152 Bagosora and Nsengiyumva Appeal Judgement, para. 196 1153 Trial Judgement, para. 2172. 176 Case No. ICTR-98-42-A 14 December 2015

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20189/H Prefecture Office around the end of May or the beginning of June 1994 as well as in the first half of June 1994. 1154 498. The Trial Chamber made the following determinations regarding the pleading of Nyiramasuhuko's and Ntahobali's responsibility related to rapes at the prefectoral office in the Indictment: As to the crime of rape, Paragraph 6.37 of the Nyiramasuhuko and Ntahobali indictment states that aside from the attacks on Tutsis, Ntahobali was assisted by accomplices in kidnapping and raping Tutsi women. The Chamber recalls that an indictment paragraph should be read in conjunction with the entire indictment as a whole. Read in this way, the crimes of kidnapping and rape were separately pled to the attacks occurring throughout the rest of the préfecture, including the attacks and abductions at the [Butare Prefecture Office]. Nonetheless, the information in Paragraph 6.37 lacked necessary details, including specific dates, locations and the names of victims, to put Ntahobali and Nyiramasuhuko on notice that they were being charged with raping women or were responsible as a superior for rapes occurring at the [Butare Prefecture Office]. The Indictment was herefore defective in this regard 1155 499. The Trial Chamber further determined that the defect in the Indictment was cured through the Prosecution Pre-Trial Brief, the summaries of the anticipated evidence of

Witnesses TA, FAP, QBP, QBQ, QZ, RE, RF, RG, RJ, and SW appended to the Prosecution Pre-Trial Brief, and the Prosecution's opening statement, which clearly indicated that Ntahobali and Nyiramasuhuko participated in rapes at the prefectoral office. 1156 500. However, the Trial Chamber concluded that Nyiramasuhuko was not given sufficient notice that rapes at the prefectoral office would be used in support of the count of genocide and decided that it will not enter a conviction for genocide against Nyiramsuhuko on the basis of any rapes that occurred there. 1157 501. The Appeals Chamber understands Nyiramasuhuko to first submit that the Trial Chamber erred in convicting her of genocide on the basis of allegations of rape at the prefectoral office, in contradiction with its own determination. 1158 1154 The Trial Chamber noted that Nyiramasuhuko was only charged with Count 7 pursuant to Article 6(3) of the Su can in an i a cos mion on the pest of the Prosecution: Se Tral Jugumen, 1156 Trial Judgement, paras. 2164-2166, fn. 5753, referring to Prosecution Pre-Trial Brief, para. 29 and Witness Summaries Grid, item 3, Witness TA ("Witness TA's Summary"), item 27, Witness FAP ("Witness FAP's Summary"), item 44, Witness QBP ("Witness QBP's Summary"), item 45, Witness QBQ ("Witness QBQ's Summary"), item 62, Witness QZ ("Witness QZ's Summary"), item 65, Witness RE ("Witness RE's Summary"),

item 66, Witness RF ("Witness RF's Summary"), item 67, Witness RG ("Witness RG's Summary"), item 68, Witness RJ ("Witness RJ's Summary"), item 87, Witness SW ("Witness SW's Summary"), Prosecution Opening Statement, T. 21 June 2001 p. 92. 1157 Trial judgement, paras. 5857-5865, 5877. 1158 Nyiramasuhuko Notice of Appeal, paras. 7.1-7.6; Nyiramasuhuko Appeal Brief, paras. 840-842, 875. See also Nyiramasuhuko Notice of Appeal, para. 7.9; Nyiramasuhuko Appeal Brief, paras. 831, 837, 851, 852, 860, 871-874, 877, 878. 177 Case No. ICTR-98-42-A 14 December 2015

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20188/H 502. Nyiramasuhuko further submits that her responsibility for the rapes of Tutsis women at the prefectoral office was not pleaded in the Indictment, and that such defect was neither curable nor cured. I59 In support of her claim that the defect in the Indictment was not curable, she argues that the allegation on the basis of which she was convicted constituted a separate charge which should have been pleaded in the Indictment. 160 Specifically, she contends that: (i) paragraph 6.30 of the Indictment which concerns the prefectoral office does not mention any rapes and was not listed under Count 7; (ii) paragraph 6.37 of the Indictment does not mention her; (iii) paragraph 6.37 does not relate to crimes perpetrated at the prefectoral office but to the Butare University Hospital as it is clear from the relevant heading in the Indictment; and (iv) paragraphs 6.37, 6.53, and 6.56 of the Indictment - the only paragraphs pleading rapes and cited in support of Count 7 - do not refer to the prefectoral office. 161 In her view, the Prosecution also demonstrated that it did not intend to charge her in connection with rapes at the prefectoral office by not adding the allegation when amending the indictment. 1162 503. With respect to her alternative contention that the defect in the Indictment concerning her responsibility for rapes at the prefectoral office was not cured,

Nyiramasuhuko argues that the Prosecution Pre-Trial Brief read as a whole only informed her that she was accused of participating in rapes outside the prefectoral office. 163 She also submits that the Trial Chamber erred in concluding that the summaries of the Prosecution witnesses' anticipated evidence cured the defect in the Indictment since: (i) the Trial Chamber did not differentiate between witnesses testifying to rapes being committed by Ntahobali or to rapes being ordered by Nyiramasuhuko, whereas 16 witnesses did not allege her participation in rapes; and (ii) some witnesses alleged that rapes 1159 Nyiramasuhuko Notice of Appeal, paras. 2.26-2.37, ,5.1-5.6, 5.8, 7.11; Nyiramasuhuko Appeal Brief, paras. 510-543, 746, 756, 761, 831-847, 860, 870-872, 875, 881. See also AT. 14 April 2015 pp. 17-24 (French); AT. 15 April 2015 pp. 8, 9 (French). 1160 Nyiramasuhuko Notice of Appeal, paras. 2.29, 2.32, 2.35-2.37, 5.3, 5.5; Nyiramasuhuko Appeal Brief, paras. 511, 519, 881. See also Nyiramasuhuko Appeal Brief, paras. 832, 838; Nyiramasuhuko Reply Brief, paras. 38, 53, 209, 210. Nyiramasuhuko also raises an obscure and unreferenced argument in paragraph 761 of her appeal brief regarding the paragraphs cited under Counts 7 and 11, which the Appeals Chamber dismisses for lack of clarity. Nyiramasuhuko Notice of Appeal, paras. 2.27-2.30, 2.35, 5.1, 5.2, 5.8, 7.11; Nyiramasuhuko

Appeal Brief, paras. 427, 511, 521-523, 745, 746, 833, 836, 838, 881; Nyiramasuhuko Reply Brief, paras. 37, 39, 40, 44. See also Nyiramasuhuko Appeal Brief, paras. 541, 845; Nyiramasuhuko Reply Brief, para. 210; AT. 14 April 2015 pp. 18, 19 (French). Nyiramasuhuko argues that paragraph 6.53 of the Nyiramasuhuko and Ntahobali Indictment did not mention any location where rapes were committed and contained only background information. See Nyiramasuhuko Appeal Brief, para.

834. In paragraph 521 of her appeal brief, Nyiramasuhuko also raises an additional obscure argument regarding the Trial Chamber's interpretation of the words "aside from his attacks" in paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment, which the Appeals Chamber dismisses for lack of clarity. Nyiramasuhuko Notice of Appeal, para. 5.6; Nyiramasuhuko Appeal Brief, para.

526. See also Nyiramasuhuko Appeal Brief, para.

524. Nyiramasuhuko Appeal Brief, paras. 528-533. See also Nyiramasuhuko Reply Brief, para. 47; AT. 14 April 2015 pp. 21, 23 (French). To the extent that Nyiramasuhuko's arguments relate to the fact that post-indictment communications did not provide clear and consistent notice of her alleged superior responsibility pursuant to Article 6(3) of the Statute for rapes at the prefectoral office, these arguments are addressed below in Section IV.B.3(c). Case No. ICTR-98-42-A 14 December 2015

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20187/H were committed by Ntahobali outside the prefectoral office. 164 She adds that the fact that the post-indictment information required "interpretation" to be understood demonstrates that it was not information capable of curing the defect in the Indictment. 165 Nyiramasuhuko further contends that the Trial Chamber erred in relying on the Prosecution's opening statement as curing the defect since it did not mention any location. 1166 504. The Prosecution responds that the Trial Chamber did not convict Nyiramasuhuko of genocide for rapes at the prefectoral office but only considered the evidence that she ordered rapes there as one of several factors from which to infer her genocidal intent 1167 It further submits that, although paragraphs 6.37, 6.53, and 6.56 of the Indictment are admittedly vague, they nonetheless plead Nyiramasuhuko's responsibility for rapes. 1168 505. The Prosecution also contends that the Trial Chamber did not err in finding that the vagueness of the Indictment regarding Nyiramasuhuko's alleged responsibility for rapes committed by Interahamwe at the prefectoral office was cured by the information provided through its pre-trial brief, the summaries of its witnesses' anticipated evidence along with their prior statements to Tribunal investigators, and its opening statement. "69 It submits that, in any event, Nyiramasuhuko failed to object in a timely

manner to the alleged defect in the Indictment and her defence strategy shows that she was not prejudiced. 1170 506. Nyiramasuhuko reiterates in reply that the defect in her Indictment concerning her responsibility related to rapes at the prefectoral office was not curable. 17! She also explains that she 1164 Nyiramasuhuko Notice of Appeal, paras. 2.26, 2.34, 2.35; Nyiramasuhuko Appeal Brief, paras. 536, 537, referring to Prosecution Witnesses RO, SX, SY, TB, and TN. Nyiramasuhuko points out that the only witnesses' statements alleging her involvement in rapes, namely the statements of Witnesses FAP, QBP, and QBQ, were not in the possession of the Prosecution when it added the count of rape. See Nyiramasuhuko Appeal Brief, para. 538, referring, inter alia, to Ground 3 of her appeal. Arguments pertaining to the amendment of the indictment have been addressed under 1165 Nyiramasuhuko Appeal Brief, para. 534. 1166 Nyiramasuhuko Notice of Appeal, para. 2.26; Nyiramasuhuko Appeal Brief, para. 539. 1167 Prosecution Response Brief, paras. 188, 462, 579, 584, referring to Trial Judgement, para. 5870. 1168 Prosecution Response Brief, paras. 132, 135, 137. In particular, the Prosecution argues that paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment is not limited to the Butare University Hospital and that there is nothing to suggest that the allegations in paragraphs 6.53 and

6.56 of the Nyiramasuhuko and Ntahobali Indictment could not apply to the prefectoral office. See ibid., paras. 134, 136. See also AT. 14 April 2015 pp. 39, 40. Prosecution Response Brief, paras. 132-175, 185, 189, 190. 1170 Prosecution Response Brief, paras. 161-166, 169-176, 189, 190. See also AT. 14 April 2015 pp. 41, 42. The Prosecution points out that Nyiramasuhuko did not object when it led evidence on the fact that she had ordered Interahamwe to rape at the prefectoral office. See Prosecution Response Brief, paras. 167, 168. 1171 Nyiramasuhuko Reply Brief, paras. 36, 44, 210-213. Nyiramasuhuko also claims that the Prosecution violated the formal requirements applicable on appeal by responding to Grounds 15 and 17 of her appeal together instead of responding to them separately. See ibid., paras. 17-24. Given the nature of Nyiramasuhuko's submissions under Grounds 15 and 17 of her appeal, in particular how closely intertwined and repetitive her arguments are under these grounds, the Appeals Chamber does not find fault in the Prosecution's decision to address Nyiramasuhuko's arguments under the same section. 179 Case No. ICTR-98-42-A 14 December 2015

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20186/H "surmised" the "possibility" that the Prosecution intended to incriminate her as a superior for the rapes committed by Ntahobali and that she prepared her defence accordingly. 1172 507. As discussed in further detail in the section addressing Nyiramasuhuko's challenges to the assessment of the evidence and her responsibility in relation to the prefectoral office, the Appeals Chamber notes that the Trial Chamber's conclusions on Nyiramasuhuko's responsibility for genocide unequivocally reflect that she was found guilty of this crime on the sole basis of the killings that she ordered during attacks at the prefectoral office. 1173 Nyiramasuhuko's contention that she was erroneously convicted for genocide on the basis of rapes is therefore without merit.

508. To the extent that the Trial Chamber relied on Nyiramasuhuko's orders to rape women as circumstantial evidence of her genocidal intent in relation to the crime of genocide committed at the prefectoral office, the Appeals Chamber observes that the Prosecution expressly pleaded under the count of genocide that Nyiramasuhuko acted with "the intent to destroy, in whole or in part, a racial or ethnic group" in relation to the crimes committed at the Butare Prefecture Office, 1174 thus providing clear notice to Nyiramasuhuko that she was alleged to have acted with genocidal intent. Given that the Indictment pleaded Nyiramasuhuko's specific state of mind in relation to the count of genocide, the evidentiary facts by which her mens rea was to be established did not need to be pleaded. 1175 The Appeals Chamber therefore finds no error in the Trial Chamber's reliance on Nyiramasuhuko's orders to commit rape as evidence of her genocidal intent.

509. There is nonetheless no dispute that paragraph 6.30 of the Indictment, which set forth allegations specifically related to the prefectoral office, could not constitute the basis for Nyiramasuhuko's convictions related to rapes insofar as it does not refer to any rapes and was not relied upon in support of Count 7.

510. The Appeals Chamber recalls that in reaching its judgement, a trial chamber can only convict the accused of crimes that are charged in the indictment, 1176 and that the omission of a charge from the indictment cannot be "cured" by the provision of timely, clear, and consistent information.l17? However, the Appeals Chamber also recalls that in determining whether the 1172 Nyiramasuhuko Reply Brief, para. 69 (emphasis omitted). Nyiramasuhuko further argues that she challenged the credibility of the witnesses in her cross-examinations and closing brief regardless of the crimes they alleged against her. See ibid., para. 70. 1173 See infra, Section IV.F.1(b). 1174 Nyiramasuhuko and Ntahobali Indictment, pp. 38, 39, referring to, inter alia, ibid., paras. 6.30, 6.31. 1175 Cf. supra, para.

469. Cf. also infra, para. 548. 1176 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 187; Muvunyi Appeal Judgement of 1 April 2011, para. 19; Ntagerura et al. Appeal Judgement, para. 28 See, e.g., The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on 180 Case No. ICTR-98-42-A 14 December 2015

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20185/H accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole. 178 In proceeding with this holistic consideration, the Trial Chamber found that paragraph 6.37 of the Indictment alleged Nyiramasuhuko's responsibility related to rapes in Butare Prefecture. 179 511. Nyiramasuhuko correctly points out that paragraph 6.37 of the Indictment, which alleges the perpetration of rapes of Tutsi women by Ntahobali and unknown "accomplices", does not mention her and is excessively broad as regards the dates, locations, and the identity of Ntahobali's co-perpetrators. While this paragraph prima facie did not concern her but Ntahobali, it was nonetheless expressly relied upon in support of Counts 7 and 11 against her pursuant to Article 6(3) of the Statute, together with paragraphs 6.53 and 6.56 of the Indictment. Paragraphs 6.53 and 6.56 also do not refer to Nyiramasuhuko's responsibility related to rapes at the prefectoral office in particular, but allege the commission of rapes against the Tutsi population perpetrated by, among others, militiamen l180 'as well as Nyiramasuhuko's participation in the atrocities set forth in the Indictment committed, notably, by her subordinates. 1181 The Appeals Chamber considers that, by reading paragraph 6.37 in light of paragraphs 6.53 and 6.56 and the charging section of

the Indictment, Nyiramasuhuko was put on notice that she incurred criminal responsibility as a superior under Counts 7 and 11 on the basis of the rapes alleged in paragraph 6.37, a fact that she acknowledges in her reply brief. 182 512. Contrary to Nyiramasuhuko's contention, the Appeals Chamber does not consider that paragraph 6.37 of the Indictment could only be understood as referring to the Butare University Hospital because it is set forth in a section of the Indictment headed "Butare University Hospital". While the heading "Butare University Hospital" on page 32 of the Indictment preceding paragraphs 6.34 to 6.39 of the Indictment is misleading as to the location of the crimes mentioned in the paragraphs following this headline, a plain and contextual reading of paragraph 6.37 nonetheless clearly reveals that the allegation set out therein was not limited to this specific location but applies to the Butare Prefecture as a whole. Considering the very contents of paragraph 6.37, it would be unreasonable to conclude that the paragraph was limited to events at the Butare University Hospital. When reading the Indictment as a whole, it is clear that the headline "Butare University Hospital" on page 32 was only relevant to paragraph 6.34. Motion for Exclusion of Evidence, 18 September 2006 ("Bagosora et al. Appeal Decision on Exclusion of Evidence"), ara. 29: Ntagerura et al.

Appeal Judgement, para. 32 178 See, e.8., Ntabakuze Appeal Judgement, para. 65; Bagosora and Nsengivumva Appeal Judgement, para. 182 Gacumbitsi Appeal Judgement, para. 123. 179 Trial Judgement, para. 2163 1180 See Nyiramasuhuko and Ntahobali Indictment, para. 6.53. 1181 See Nyiramasuhuko and Ntahobali Indictment, para. 6.56. 1182 See Nyiramasuhuko Reply Brief, para. 69. 181 Case No. ICTR-98-42-A 14 December 2015

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20184/H 513, In the opinion of the Appeals Chamber, the Trial Chamber did not ert in finding that the allegation of Nyiramasuhuko's superior responsibility for rapes of Tutsi women at the prefectoral office did not constitute a new charge but fell within the broader allegation pleaded, albeit vaguely, in paragraph 6.37 of the Indictment, when read together with paragraphs 6.53 and 6.56 and the charging section of the Indictment.

514. As the Prosecution obtained information about Nyiramasuhuko's involvement in rapes at the prefectoral office from several witnesses between 1997 and 1999, it is incontestable that it should have pleaded this allegation with greater specificity in the Indictment. However, the Appeals Chamber is not persuaded that the Prosecution's failure to fulfil its obligation to provide clear notice to Nyiramasuhuko of the charges against her demonstrates that it did not intend to pursue her in connection with these rapes. The fact that the prior written statements of four witnesses concerning Nyiramasuhuko's involvement in rapes at the prefectoral office were disclosed to her on several occasions prior to the filing of the operative indictment 183 as well as the addition of the count of rape against her in August 1999|184 show that this allegation formed part of the Prosecution case at the time the Indictment was filed. Nyiramasuhuko's contention that the Prosecution did not intend to charge her in connection with rape at the prefectoral office when amending the indictment is further refuted by the fact that the Prosecution supported paragraph 6.37 of the Nyiramasuhuko and Ntahobali Third Amended Indictment with an excerpt of Witness QZ's statement recounting Nyiramasuhuko's presence when Ntahobali and Interahamwe raped the witness and other women at the prefectoral office. 185 The

summaries of the anticipated evidence of Witnesses FAP, QBQ, RJ, Statement of Witness FAP of 6 May 1999, signed on 10 June 1999, redacted version disclosed on 15 November 2000 ("Witness FAP's Statement"); Statement of Witness QBQ of 6 May 1999, redacted versions disclosed on 10 December 1999 and 15 November 2000 ("Witness QBQ's Statement"); Statement of Witness RJ of 11 September 1997, signed on 17 September 1997, redacted versions disclosed on 30 March 1999, 10 December 1999, and 15 November 2000; Statement of Witness TA of 19 November 1997, redacted versions disclosed on 25 May 1998, 4 November 1998, 15 November 2000, and 1 October 2001 ("Witness TA's Statement"). See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Interoffice Memorandum "Discovery in The Prosecutor vs. P. Nyiramasuhuko & A.S. Ntahobali", 25 May 1998 ("25 May 1998 Disclosure"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Interoffice Memorandum "The Prosecutor vs. Ntahobali, Nsabimana, Kanyabashi, Nteziryayo, Ndayambaje and Nyiramasuhuko", 4 November 1998 (confidential) ("4 November 1998 Disclosure"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, "Redacted Witness Statements", 30 March 1999; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No.

ICTR-97-21-I, Interoffice Memorandum "Re: Transmission of Redacted Witness Statements", 10 December 1999 ("10 December 1999 Disclosure"); The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Interoffice Memorandum "Butare Group of Cases - Rule 66(A)(ii) Partial Disclosure", 15 November 2000 ("15 November 2000 Disclosure"); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Interoffice Memorandum "Butare Group of Cases ICTR-98-42-T - Disclosure", 1 October 2001. 1184 See 10 August 1999 Decision, p. 6 1185 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-1, Amended Indictment As Per the Decision of Trial Chamber II of August 10th 1999, 11 August 1999 ("Nyiramasuhuko and Ntahobali Third Amended Indictment"), para. 6.37; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Supporting Material, 18 August 1999 (confidential) ("Supporting Material to Nyiramasuhuko and Ntahobali Third Amended Indictment"), p.

118. Case No. ICTR-98-42-A 14 December 2015

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20183/H TA, and QZ appended to the Prosecution Pre-Trial Brief further reflect that it continued to be part of the Prosecution case after the operative indictment was issued.

515. In light of the above, the Appeals Chamber rejects Nyiramasuhuko's contention that the vagueness of the Indictment concerning her responsibility for rapes at the prefectoral office was not curable.

516. Turning to Nyiramasuhuko's challenges to the Trial Chamber's finding that the defect in the Indictment regarding this allegation was cured, the Appeals Chamber is not persuaded that the formulations "[alpart from the préfecture office" and "[a]side from his attacks" in paragraphs 24 and 25 of the Prosecution Pre-Trial Brief reflect that the Prosecution only accused Nyiramasuhuko of being responsible for rapes committed outside the prefectoral office. The Appeals Chamber observes that the phrase "[a]part from the préfecture office" relates to a separate allegation of killings and that, read in context, the import of the phrase "[a]side from his attacks" is unclear. 186 Conversely, the Appeals Chamber notes that, in paragraph 29 of its pre-trial brief, the Prosecution made it clear that Nyiramasuhuko was alleged to have ordered and aided and abetted her subordinates and others in carrying out rapes of Tutsi women throughout Rwanda. 1187 517. The Appeals Chamber also finds no merit in Nyiramasuhuko's contention that the Trial Chamber erred in finding that the summaries of the anticipated evidence of Prosecution witnesses appended to the Prosecution Pre-Trial Brief cured the defect in the Indictment. Indeed, some of the summaries referred to by the Trial Chamber were not directly relevant to her insofar as they did not allege her participation in rapes committed at the

prefectoral office. 188 The Appeals Chamber sees 1186 Paragraphs 24 and 25 of the Prosecution Pre-Trial Brief read as follows: Apart from the préfecture office, the search and the elimination of Tutsis also took place throughout the entire préfecture between April and July 1994. During this period, Pauline Ny[i]ramasuhuko and Ars[e]ne Shalom Ntahobali used a roadblock located in front of their house to identify and kill Tutsis. Arsène Shalom Ntahobali also travelled throughout the préfecture to locate and kill Tutsis. Aside from his attacks on the Tutsi population during this period, Arsène Shalom Ntahobali, assisted by unknown "accomplices," participated in the kidnapping and raping of Tutsi women. 1187 Paragraph 29 of the Prosecution Pre-Trial Brief reads as follows: During the events referred to in their indictments, rapes, sexual assaults and other crimes of a sexual nature were widely and notoriously committed throughout Rwanda. These crimes were perpetrated on the Tutsi population particularly Tutsi women and girls by among others, soldiers, militiamen and gendarmes. Military officers, members of the Interim Government and local figures of authority (such as Elie Ndayambaje, Pauline Nyiramasuhuko, André Rwamakuba, Sylvain Nsabimana, Alphonse Nteziryayo, Ladislas Ntaganzwa, Joseph Kanyabashi) and Shalom Arsène Ntahobali committed, ordered, aided and abetted their

subordinates and others in the carrying out of rapes, sexual assaults and massacres of the Tutsi population. The Appeals Chamber notes that Nyiramasuhuko fails to demonstrate that paragraph 29 of the Prosecution Pre-Trial Brief could not be relied on. 1188 See Trial Judgement, para. 2164, fn. 5753, referring, inter alia, to Witness QBP's Summary, Witness RE's Summary, Witness RG's Summary, Witness SW's Summary. It bears noting, however, that some of these summaries refer to Nyiramasuhuko being present at the prefectoral office and/or ordering killings and, more generally, to the fact that rapes were committed there. See Witness RE's Summary; Witness SW's Summary. 183 Case No. ICTR-98-42-A 14 December 2015

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20182/H no error in this as it is not clear that the Trial Chamber intended to rely on all summaries it cited as relevant to remedy Nyiramasuhuko's lack of notice specifically since its analysis and conclusions concerned the notice provided to both Nyiramasuhüko and Ntahobali.

518. Nyiramasuhuko also does not show error in the Trial Chamber's reliance on the summaries of the anticipated evidence of Witnesses FAP, QBQ, RJ, TA, and QZ as providing her timely, clear, and consistent notice of her alleged responsibility for rapes at the prefectoral office. The Appeals Chamber observes that Witnesses FAP's, QBQ's, and RJ's summaries referred to Nyiramasuhuko giving orders to Interahamwe or militiamen to rape at the prefectoral office, 189 whereas Witnesses TA's and QZ's summaries mentioned Nyiramasuhuko witnessing the commission of rapes there and issuing orders to Interahamwe. 190 Witness RF's Summary also reflects that Nyiramasuhuko was alleged to have given orders to Interahamwe at the prefectoral office and told them "to do as they pleased." All six summaries were marked relevant to Nyiramasuhuko and were linked to Counts 7 and 11 of her Indictment. The fact that other summaries related to the events at the prefectoral office did not mention Nyiramasuhuko's involvement in rapes at this location was not inconsistent with the clear and coherent information provided through the summaries of Witnesses FAP, QBQ, RJ, TA QZ, and, to some extent, Witness RF's Summary.

519. As for Nyiramasuhuko's argument regarding the Prosecution's opening statement, the Appeals Chamber notes that, while Nyiramasuhuko is correct in her assertion that the Prosecution failed to specify any particular incident of rape or the location where the rapes were alleged to have been committed, its emphasis on Nyiramasuhuko's responsibility for rapes in its opening statement 1189 In relevant part, Witness FAP's Summary reads as follows: At the Prefecture office, Nyiramasuhuko used to come driven by her son, Ntahobali, in their mud-smeared pick-up with armed militiamen. [...] She ordered militiamen to kill and rape. Women who resisted rape were immediately killed. Others were rapes in front of her before being killed. In relevant part, Witness QBQ's Summary reads as follows: Three days later Nyiramasuhuko came to the Prefecture office with Interahamwe and communal police. Nyiramasuhuko ordered them to kill men and rape women before killing them. Inte[rahlamwe thus killed and raped women. In relevant part, Witness RJ's Summary reads as follows: RJ went to Prefecture office. [...] Later, RJ heard Nyiramasuhuko order soldiers, Inte[rahJamve, and Ntahobali to select girls and young women and rape them, and kill the older women. 1190 In relevant part, Witness TA's Summary reads as follows: Nyiramasuhuko and Ntahobali came to the Prefecture office often. They stated: "Let's

get rid of this dirt." [...] TA saw Nyiramasuhuko present during Ntahobali's and his men's rapes[.] Nyiramasuhuko was superior to Ntahobali. Nyiramasuhuko chose people to be killed, and issued orders. In relevant part, Witness QZ's Summary reads as follows: QZ saw Ntahobali and four Interahamwe rape a girl. [...] QZ was raped by Ntahobali and the Interahamwe, and Nyiramasuhuko witnessed the rape. OZ states Nyiramasuhuko ordered the Interahamwe to "kill all the Tutsi and to let those with ID cards, show that they are Hutu." 184 Case No. ICTR-98-42-A 14 December 2015

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20181/H confirmed that it intended to prove that she was responsible on this basis and was consistent with the information provided through the Witness Summaries Grid. 1191 520. Based on the foregoing, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that she was not put on sufficient notice that she was charged under Counts 7 and 11 on the basis of rapes perpetrated at the Butare Prefecture Office. (c) Superior Responsibility 521. As noted above, the Trial Chamber convicted Nyiramasuhuko as a superior pursuant to Article 6(3) of the Statute under Counts 7 and 11 in connection with the rapes committed by Interahamwe at the Butare Prefecture Office that she ordered 192 The Trial Chamber also found that Nyiramasuhuko bore superior responsibility for the killings of Tutsis abducted from the prefectoral office committed by Interahamwe upon her orders but, having found her guilty under Article 6(1) of the Statute, did not convict her of these crimes as a superior. 19 The Trial Chamber did, however, consider her role as a superior in these killings as an aggravating factor in sentencing. 1194 522. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead, inter alia, that the accused is the superior of sufficiently identified subordinates over whom he had effective

control - in the sense of a material ability to prevent or punish criminal conduct - and for whose acts he is alleged to be responsible. 1195 523. The Trial Chamber discussed whether Nyiramasuhuko was put on sufficient notice that the Interahamwe who perpetrated killings and rapes at the prefectoral office were alleged to be her subordinates both in the "Factual Findings" and "Legal Findings" sections of the Trial Judgement. 1196 It found that, "[a]lthough the Indictment lacks any paragraph specifically detailing Nyiramasuhuko's alleged subordinates", 1197 "a holistic reading of the Indictment demonstrates that numerous paragraphs pled in support of Article 6(3) responsibility [...] provide that Nyiramasuhuko is alleged to be superior to Interahamwe". 1198 The Trial Chamber further 1191 See Prosecution Opening Statement, T. 12 June 2001 p. 92. 1192 See supra, para. 482. 1193 See supra, para. 481. 1194 See supra, para. 481. 1195 See, e.g., Ntabakuze Appeal Judgement, para. 100; Nahimana et al. Appeal Judgement, para. 323; Blaskié Appeal Judgement, para.

218. The Appeals Chamber notes that Nyiramasuhuko did not challenge the Trial Chamber's findings regarding the other elements of superior responsibility that must pleaded in the indictment See Trial Judgement. Sections 3.6.19.2, 4.1.2.1.1. 1197 Trial Judgement, para.

5608. See also ibid., para. 2158. 1198 Trial Judgement, paras. 2159, 5611, referring to Nyiramasuhuko and Ntahobali Indictment, paras. 5.1, 6.20, 6.27, 6.30, 6.37-6.39, 6.47, 6.49-6.56. See also ibid., paras. 5608-5610. Incidentally, the Appeals Chamber observes that the 185 Case No. ICTR-98-42-A 14 December 2015

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20180/H determined that, in any case, the Prosecution Pre-Trial Brief and the summaries of anticipated evidence appended to it as well as prior witness statements confirmed that Nyiramasuhuko was alleged to be the superior of, among others, Interahamwe. 19 The Trial Chamber concluded that Nyiramasuhuko received sufficient notice that she was charged with superior responsibility for the alleged acts of Interahamwe at the prefectoral office. 1200 524. Nyiramasuhuko submits that the Trial Chamber erred in finding that she was put on notice that she was alleged to be the superior of the Interahamwe who committed crimes at the prefectoral office. 1201 Specifically, she argues that the Trial Chamber erred in examining whether she was put on sufficient notice of the identity of her alleged subordinates for the charge of rape before assessing separately the sufficiency of the information relating to the allegation of superior responsibility under Article 6(3) of the Statute in itself. 202 In her view, had the Trial Chamber proceeded "logically, legally and fairly", it would have concluded that she was not alleged to be a superior and would not have deprived her of a reasoned opinion. 203 525. Nyiramasuhuko also argues that the Trial Chamber erred in concluding that a holistic reading of the Indictment provided her notice of her alleged superior authority over the Trial Chamber reached

contradictory findings regarding notice that Nyiramasuhuko was being charged as a superior to the communal policemen. Compare ibid., para. 2159 with ibid., para. 5616. 1199 Trial Judgement, paras. 2159, 5612, fns. 5743-5747, 14557, 14558, referring to Prosecution Pre-Trial Brief, paras. 21, 29-31, Witness Summaries Grid, Witness TA's Summary, item 9, Witness SJ, item 17, Witness FAE ("Witness FAE's Summary"), Witness FAP's Summary, Witness QBP's Summary, Witness QBQ's Summary, item 63, Witness RB, item 64, Witness RD, Witness QZ's Summary, Witness RF's Summary, Witness RJ's Summary, item 72, Witness RN ("Witness RN's Summary"), item 83, Witness SR, item 84, Witness SS ("Witness SS's Summary"); item 86, Witness SU ("Witness SU's Summary"), prior statements to Tribunal investigators of Witnesses SS, SU, TA, TK, QBP, and QBQ disclosed to Nyiramasuhuko before the beginning of the trial. 1200 Trial Judgement, paras. 2159, 5613, 5878. Notice of Appeal, paras. 2.18-2.25; Nyiramasuhuko Appeal Brief, paras. 409-464. See also Nyiramasuhuko Reply Brief, paras. 25-55; AT. 15 April 2015 pp. 6-9 (French). Nyiramasuhuko also appears to contend that the Trial Chamber erred in finding that she received adequate notice of her alleged superior responsibility in relation to Ntahobali, soldiers, gendarmes, and the population. See Nyiramasuhuko Notice of Appeal, paras. 2.19- 2.24; Nyiramasuhuko

Appeal Brief, paras. 435, 437, 439, 452, 453. Because Nyiramasuhuko was only found responsible as a superior in connection with the criminal conduct of the Interahamwe, the Appeals Chamber will not entertain Nyiramasuhuko's arguments in this respect. Nyiramasuhuko further submits that the Trial Chamber erred in failing to consider the requests for specificity regarding her alleged superior-subordinate relationships and the identity of her subordinates that she made at trial and her request for reconsideration, causing her prejudice. See Nyiramasuhuko Appeal Brief, paras. 409-415, 465, referring to T. 7 June 2000 pp. 63-66, 98, 99, 108, 109 (French), 1 November 2000 Nyiramasuhuko Decision. The Appeals Chamber notes that, in Section IV.B.1 above, it has concluded that Nyiramasuhuko failed to demonstrate through Ground 3 of her appeal that the Trial Chamber erred in rejecting her motion for specificity. Nyiramasuhuko does not develop any argument under this ground of appeal that would show error in the Trial Chamber's 1 November 2000 Nyiramasuhuko Decision or its decision to deny reconsideration. Nyiramasuhuko's claims in these respects are therefore rejected. 1202 Nyiramasuhuko Appeal Brief, paras. 419, 420, 426, 429, referring to Trial Judgement, para.

2158. See also ibid.. para.

441. Nyiramasuhuko also argues that the Trial Chamber erred in relying on paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment in concluding that she had notice that Interahamwe who committed rapes were alleged to be her subordinates since this paragraph did not refer to any rapes at the prefectoral office. See Nyiramasuhuko Notice of Appeal, para. 2.20; Nyiramasuhuko Appeal Brief, paras. 425-428, 449. See also AT. 15 April 2015 pp. 17-19 (French). Nyiramasuhuko Appeal Brief, paras. 421-423, 430. See also AT. 14 April 2015 pp. 17, 19 (French). 186 Case No. ICTR-98-42-A 14 December 2015

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20179/H Interahamwe. 1204 In particular, she contends that the Trial Chamber erred in finding that the paragraphs that were relied upon in support of superior responsibility in the charging section of the Indictment informed her of the identity of her alleged subordinates. 205 Highlighting that these paragraphs were relied upon against her under both Articles 6(1) and 6(3) of the Statute, she argues that the lack of distinction amounted to an additional defect in the Indictment. 1206 She adds that it was erroneous for the Trial Chamber to find that paragraph 6.37 of the Indictment gave her notice of the identity of her alleged subordinates in relation to the allegation of rapes given that there is no mention of her superior responsibility or of the involvement of Interahamwe in this paragraph. 1207 In the same vein, Nyiramasuhuko argues that the Trial Chamber erred in relying on paragraph 6.53 of the Indictment as it referred to militiamen, not Interahamwe, and in considering that the term "militiamen" was to be understood as "Interahamwe" in the Indictment. 1208 526. According to Nyiramasuhuko, the fact that paragraphs 4.4 and 4.5 of the Indictment specifically pleaded Ntahobali's authority over the Interahamwe evinced the Prosecution's intention not to charge her as their superior, which the Trial Chamber failed to take into account. 1209 She points out that this is the

reasoning that the Trial Chamber followed when examining whether Nsabimana received notice of his alleged superior responsibility over the Interahamwe. 210 527. Moreover, Nyiramasuhuko submits that the Trial Chamber erred in finding that the Prosecution Pre-Trial Brief, summaries of anticipated evidence, and prior witness statements provided her notice of her alleged superior responsibility over the Interahamwe who committed crimes at the prefectoral office. 1211 Specifically, she argues that: (i) the Trial Chamber erred in concluding that paragraph 21 of the Prosecution Pre-Trial Brief specified that she was the superior of the Interahamwe; (ii) paragraphs 29 and 30 of the Prosecution Pre-Trial Brief added allegations of rapes and responsibility pursuant to Article 6(1) of the Statute not pleaded in the Indictment and, like paragraph 31 of the same brief, did not contain information concerning rapes or superior responsibility; (iti) none of the summaries gave her notice of her alleged superior status over Interahamwe and the allegations that she ordered Interahamwe to commit crimes contained therein 1204 Nyiramasuhuko Appeal Brief, paras. 431-433. See also ibid., paras. 440-442. 1205 Nyiramasuhuko Notice of Appeal, paras. 2.18, 2.19, 2.22; Nyiramasuhuko Appeal Brief, paras. 443-455. See also Nyiramasuhuko Reply Brief, paras. 25-27. 1206 Nyiramasuhuko Appeal Brief, paras. 443,

450; Nyiramasuhuko Reply Brief, para. 29. 1207 Nyiramasuhuko Appeal Brief, paras. 445, 446, 519. See also AT. 15 April 2015 pp. 8, 9 (French). Nyiramasuhuko also avers that the fact that paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment makes reference to "unknown accomplices", instead of Interahamwe, militiamen, or subordinates, implied a "joint participation" rather than the participation of subordinates. See Nyiramasuhuko Appeal Brief, para. 527 (emphasis omitted). 208 Nyiramasuhuko Appeal Brief, paras. 447, 448. See also ibid., para. 461. 1209 Nyiramasuhuko Appeal Brief, paras. 456-460. 1210 Nyiramasuhuko Appeal Brief, para. 458, referring to Trial Judgement, paras. 2785, 2788. See also ibid., paras. 459, 462. 187 Case No. ICTR-98-42-A 14 December 2015

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20178/H were insufficient to inform her that she was alleged to be their superior. 212 Nyiramasuhuko adds that the Prosecution's opening statement alleged her presence and encouragement to commit rape, whereas superior responsibility concerns a failure to act. 1213 528. The Prosecution responds that the Indictment sufficiently pleaded Nyiramasuhuko's superior responsibility and that Nyiramasuhuko's authority over the Interahamwe could be inferred from the fact that the relevant allegations of the Indictment were charged pursuant to Article 6(3) of the Statute. 214 It adds that the post-indictment communications provided further notice to Nyiramasuhuko in this regard. 215 529. The Appeals Chamber observes that the Trial Chamber started its analysis on notice of the identity of Nyiramasuhuko's alleged subordinates by noting her claim that she was not put on notice of her alleged superior responsibility in relation to the charge of rape. However, contrary to Nyiramasuhuko's contention, the Trial Chamber's analysis clearly reflects that it examined whether the Indictment provided her with notice that she was alleged to be the superior of, among others, Interahamwe and militiamen within the meaning of Article 6(3) of the Statute generally, rather than in relation to any specific charge. 1216 As demonstrated by its findings summarised above, the Trial Chamber also provided reasons for its conclusion that Nyiramasuhuko received sufficient notice that she was charged with superior responsibility for the alleged acts of, inter alios, Interahamwe and militiamen. Nyiramasuhuko's contentions that the Trial Chamber did not proceed "logically, legally and fairly" and failed to provide a reasoned opinion are therefore without merit.

530. With respect to Nyiramasuhuko's challenge to the Trial Chamber's finding that the Indictment sufficiently identified her alleged subordinates, the Appeals Chamber is not persuaded by her argument that the fact that the paragraphs of the Indictment were being pursued under the relevant counts pursuant to both Articlé 6(1) and Article 6(3) of the Statute was a source of confusion. In this respect, the Appeals Chamber recalls that cumulative charging is permitted. 1217 Nyiramasuhuko also fails to demonstrate any error in the Trial Chamber's determination that, given 1211 Nyiramasuhuko Notice of Appeal, paras. 2.23, 2.24; Nyiramasuhuko Appeal Brief, paras. 434-439. See also Nyiramasuhuko Reply Brief, paras. 45-51; AT. 15 April 2015 pp. 8, 9 (French). 1212 Nyiramasuhuko Appeal Brief, paras. 434-438, 529. 1213 Nyiramasuhuko Appeal Brief, para. 539. 1214 Prosecution Response Brief, paras. 132-134. See also AT. 14 April 2015 pp. 39, 40. 1215 Prosecution Response Brief, paras. 138-145, 147-152, 157, 160, 182, 183. See also AT. 14 April 2015 pp. 40, 41. 1216 See Trial Judgement, paras. 2158, 2159. 1217 See Simba Appeal Judgement, para. 276; Semanza Appeal Judgement, paras. 308, 309; Musema Appeal Judgement paras. 369, 370, referring to Celebidi Appeal Judgement, para.

400. Cf. also Nahimana et al. Appeal Judgement para. 487; Blaskié Appeal Judgement, para. 91. 188 Case No. ICTR-98-42-A 14 December 2015

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20177/H the context, it was "clear that the 'militiamen' referenced in this Indictment would have been understood as Interahamwe", 1218 531. However, the Appeals Chamber finds merit in Nyiramasuhuko's contention that the Indictment did not put her on adequate notice that she was alleged to be the superior of the Interahamwe. As noted by the Trial Chamber, the Prosecution failed to expressly plead in the Indictment who Nyiramasuhuko's subordinates were alleged to be. 219 A holistic reading of the paragraphs cited in support of the relevant counts against Nyiramasuhuko pursuant to Article 6(3) of the Statute, together with the very fact that they were expressly relied upon in support of superior responsibility, 22 indeed suggests that the perpetrators of crimes identified in these paragraphs were alleged to be Nyiramasuhuko's subordinates. The Appeals Chamber also notes that the Indictment makes references to Nyiramasuhuko's responsibility for aiding and abetting her "subordinates" in carrying out the massacres and not taking any measures to stop them. 221 The Appeals Chamber nonetheless stresses that the charges against the accused and the material facts underpinning them should not be suggested in the Indictment, but clearly and unambiguously set forth. In the present case, although the Indictment put Nyiramasuhuko on notice through the charging section that she was charged as

a superior for a number of incidents - including the killing of refugees abducted from the prefectoral office pleaded in paragraph 6.30 of the Indictment and the rapes committed at the time in Butare Prefecture alleged in paragraph 6.37 of the Indictment 22 - it failed to properly identify the subordinates for whose acts she was alleged to be responsible as a superior. 1223 532. In these circumstances, the Appeals Chamber finds that the Trial Chamber erred in finding that the Indictment provided adequate notice to Nyiramasuhuko that her alleged subordinates included Interahamwe.

533. The Appeals Chamber is nonetheless not convinced by Nyiramasuhuko's argument that the fact that the Prosecution specifically pleaded Ntahobali's superior authority over the Interahamwe in the Indictment, and not hers, reflected that the Prosecution did not intend to charge her as their superior. The Appeals Chamber observes that, despite its failure to clearly identify any of her 1218 Trial Judgement, fn. 14554, referring to Nyiramasuhuko and Ntahobali Indictment, paras. 1.17, 3.10, 4.4, 4.5, 6.20 (conflating the militia and the Interahamwe). Trial Judgement, para.

5608. See also ibid., para. 2158. 1220 See Nyiramasuhuko and Ntahobali Indictment, paras. 5.1, 6.20, 6.27, 6.30, 6.31, 6.33, 6.37-6.39, 6.47, 6.49-6.51, 6.53-6.56. 1221 See Nyiramasuhuko and Ntahobali Indictment, paras. 6.54-6.56. See supra, paras. 492, 513. The Appeals Chamber finds Nyiramasuhuko's argument that the phrasing of paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment implied a "joint participation" rather than the Participation of subordinates unpersuasive. The Appeals Chamber notes that, in addition to failing to identify the Interahamwe as Nyiramasuhuko's subordinates in the Nyiramasuhuko and Ntahobali Indictment, the Prosecution also failed to identify that Interahamwe 189 Case No. ICTR-98-42-A 14 December 2015

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20176/H alleged subordinates in the Indictment, the Prosecution expressly charged Nyiramasuhuko under Article 6(3) of the Statute in relation to crimes involving Interahamwe and militiamen. On this issue, the Appeals Chamber notes that, prima facie, the Trial Chamber appears to have adopted a different approach with respect to Nsabimana's notice of his authority over the Interahamwe at the prefectoral office. 224 However, read in the context of its overall reasoning, the Trial Chamber's approach concerning Nsabimana in fact responds to the different circumstances posed in the Nsabimana and Nteziryayo Indictment. 225 Nyiramasuhuko's reliance on the Trial Chamber's conclusion with respect to Nsabimana's notice of the identity of his alleged subordinates fails to appreciate that, in her case, the disclosure the Prosecution made prior to the filing of the operative indictment and the information contained in its post-indictment communications all evinced that her superior responsibility over the Interahamwe formed part of the Prosecution case. 1226 534. Turning to Nyiramasuhuko's challenge to the Trial Chamber's finding that, in any case, she was put on adequate notice through post-indictment communications, the Appeals Chamber notes that, contrary to Nyiramasuhuko's argument, paragraph 21 of the Prosecution Pre-Trial Brief on which the Trial Chamber relied is indeed indicative of

her superior-subordinate relationship with the Interahamwe involved in crimes at the prefectoral office. While paragraph 31 of the Prosecution Pre-Trial Brief does not reflect Nyiramasuhuko's authority over the Interahamwe, paragraph 29, and to a certain extent paragraph 30, provided further notice that she was charged as the superior of the Interahamwe/militiamen perpetrating killings and rapes. The Appeals Chamber recalls that it has rejected in the prior section Nyiramasuhuko's submission that the allegation of her responsibility for rapes was not pleaded in the Indictment. 1227 535. The Appeals Chamber has also concluded above that the summaries of the anticipated evidence of a number of Prosecution witnesses gave her clear and consistent notice that she was alleged to have ordered Interahamwe to commit killings and rapes at the prefectoral office. 228 Considering that these summaries were linked to the relevant counts of the Indictment which were were alleged to be involved in the rapes with which Nyiramasuhuko was being charged through paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment. 1224 Trial Judgement, para. 2787. 1225 Trial Judgement, paras. 2785-2787. 1226 See Trial Judgement, fn. 5746; supra, paras. 514-519; infra, paras. 534, 535. 1227 See supra, paras. 511-520. 1228 See supra, para.

518. See also Witness SS's Summary which, in relevant part, reads as follows: ater on that day, Nyiramasuhuko and the Interahamwe arrived in a van to take people away to be killed. [.. iS saw Nyiramasuhuko arrive three times at the Prefecture Office and heard her say: "take the young bo children away too. Don't leave anybody behind." See also Witness SU's Summary which, in relevant part, reads as follows: so farty chiaren. To gie as art through and the chi soli ver ile at the Prefecture to go and 190 Case No. ICTR-98-42-A 14 December 2015

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20175/H pursued against her under Article 6(3) of the Statute, the Appeals Chamber finds no merit in Nyiramasuhuko's contention that the allegations that she gave orders to Interahamwe contained therein could not inform her that she was also alleged to be their superior. The Appeals Chamber recalls that the same set of facts can support responsibility pursuant to both Articles 6(1) and 6(3) of the Statute. 229 These summaries also clearly reflect Nyiramasuhuko's general authority and control over the Interahamwe involved in attacks at the prefectoral office. 1230 536. Because allegations of presence at the crime scene and of encouragement to commit the crimes can also support superior responsibility pursuant to Article 6(3) of the Statute, the Appeals Chamber rejects Nyiramasuhuko's contention that the Prosecution's reference to her presence and encouragement to commit rapes in its opening statement implied that she was not charged as a superior.

537. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in considering that the Prosecution Pre-Trial Brief and its summaries of anticipated evidence provided her with the requisite notice of her alleged superior responsibility over the Interahamwe who committed crimes against the Tutsis who had sought refuge at the prefectoral office.

538. Based on these considerations, the Appeals Chamber concludes that, although the Trial Chamber erred in finding that the Indictment adequately identified Nyiramasuhuko's alleged subordinates, its error did not invalidate its decision to find Nyiramasuhuko responsible as a superior in connection with the killings and rapes perpetrated by Interahamwe that she ordered at the prefectoral office since the defect in the Indictment as regards the identification of these Interahamwe as her subordinates was subsequently cured by timely, clear, and consistent information. (d) Conclusion 539. For the foregoing reasons, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that she lacked sufficient notice that she was alleged to be responsible pursuant to Articles 6(1) and 6(3) of the Statute for ordering Interahamwe to kill Tutsis who had sought refuge at the Butare Prefecture Office and pursuant to Article 6(3) of the Statute for the rapes committed by Interahamwe at the Butare Prefecture Office following her orders. Witness QBQ's Summary, Witness SU's Summary. 191 Case No. ICTR-98-42-A 14 December 2015

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20174/H 4. Distribution of Condoms (Ground 26 in part) 540. The Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector. 231 The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: "[glo and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands. »1232 541. However, the Trial Chamber held that there was not "sufficient reliable evidence to show a link between Nyiramasuhuko's actions in distributing the condoms on this occasion, in addition to her utterances evincing her clear intent to target Tutsi women, and actual rapes committed against said Tutsi women."1233 Moreover, although the Trial Chamber determined that Nyiramasuhuko's order to the woman to whom she distributed the condoms was direct and could not be considered ambiguous in the context of the rapes and large scale massacres committed throughout Butare Prefecture at that time, it found that her statements were more akin to a "conversation" and did not satisfy the "public" element of the crime

of direct and public incitement to commit genocide. 234 Accordingly, the Trial Chamber found Nyiramasuhuko not guilty of genocide, rape as a crime against humanity, and direct and public incitement to commit genocide in relation to this incident. 1235 Nonetheless, the Trial Chamber found that "this circumstantial evidence shows Nyiramasuhuko's intent to destroy, in whole or in substantial part, the Tutsi group"1236 and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events. 1237 542. The Trial Chamber found that the allegation concerning Nyiramasuhuko's distribution of condoms was not specifically pleaded in the Indictment and that the Indictment was therefore defective in this regard. 238 However, the Trial Chamber found that this defect was cured through the disclosure of the summary of Witness FAE's anticipated testimony appended to the Prosecution 1231 Trial Judgement, paras. 4985, 5938, 6014. 1232 Trial Judgement, paras. 4985, 5938, 6014. 1231 Trial Judgement, paras. 6015, 6016. The Trial Chamber found that "Nyiramasuhuko directed her speech to one voman. in the presence of four other men" wo public tine fresent, if audithe men" ae that Gro deteran tiste to the requiet men eir for starin of dire. ara. 6016 235 Trial Judgement, paras. 5940, 6018, 6091, 6092. 1236 Trial Judgement, paras. 5940, 6018. See Trial Judgement, para. 4923. 192 Case No. ICTR-98-42-A 14 December 2015

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20173/H Pre-Trial Brief and Witness FAE's prior statement to Tribunal investigators. 239 The Trial Chamber concluded that Nyiramasuhuko "was reasonably able to understand the nature of the charges against her" and that she suffered no prejudice in the preparation of her defence. 1240 543. Nyiramasuhuko submits that the Trial Chamber erred in convicting her on the basis of the allegation concerning the distribution of condoms, whereas it found that the allegation was not pleaded in the Indictment. 24 She argues that it was erroneous for the Trial Chamber to find that the defect in the Indictment was cured. 242 In support of this contention, Nyiramasuhuko submits that Witness FAE's prior statement did not provide her notice that she was charged with physically distributing condoms to the Interahamwe in early June 1994 and with encouraging them to commit rapes. 1243 544. The Prosecution responds that since the Trial Chamber only relied on Nyiramasuhuko's distribution of condoms as evidence of her genocidal intent, this allegation was merely evidence that did not need to be pleaded in the Indictment. 244 It adds that, in any event, the Trial Chamber correctly found that Nyiramasuhuko had notice of the distribution of condoms and that she suffered no prejudice in the preparation of her defence. 245 545. Nyiramasuhuko replies that her conduct with regard to the distribution of

condoms had to be specifically pleaded in the Indictment since the Trial Chamber relied upon it to convict her. 246 546. The Appeals Chamber observes that, contrary to what Nyiramasuhuko appears to suggest in her submissions, she was not found guilty in relation to the distribution of condoms in June 1994, the Trial Chamber having found that there was insufficient evidence demonstrating that actual rapes were committed as a result of this distribution. 1247 As noted above, the Trial Chamber merely relied on its finding on the distribution of condoms as circumstantial evidence of Nyiramasuhuko's genocidal intent in relation to the crimes committed at the Butare Prefecture Office. 1248 In these 1239 See Trial Judgement, paras. 4925, 4927, 4929, referring to Witness FAE's Summary, Witness FAE's Statement, dated 7 May 1999, signed 10 June 1999, disclosed on 15 November 2000 ("Witness FAE's Statement"). ee 15 November 2000 Disclosure Trial Judgement, para. 4929 1241 Nyiramasuhuko Notice of Appeal, paras. 7.21, 7.25; Nyiramasuhuko Appeal Brief, para, 883. 128 Ninashuk Apel Biter, pat , , Perine To Tid See, at a 1: 2, 45. Niramashuko specifically points out that, in her prior statement, Witness FAE did not indicate that Nyiramasuhuko was the person distributing condoms and only stated that Nyiramasuhuko said: "Tutsi woman are to be killed because they are taking away our husbands."

See ibid., para. 885. 1214 Prosecution Response Brief, para. 587. 1245 Prosecution Response Brief, para. 588. 1246 Nyiramasuhuko Reply Brief, para. 281, referring to Prosecutor v. Nebojsa Pavkovié et al., Case No. IT-03-70-PT, Decision on Vladimir Lazarevic's Preliminary Motion on Form of Indictment, 8 July 2005, para. 9. 247 Trial Judgement, paras. 5939, 5940, 6091, 6092. 1248 See Trial Judgement, paras. 5870, 5871, 5940, 6018. 193 Case No. ICTR-98-42-A 14 December 2015

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20172/H circumstances, the Appeals Chamber considers that any error committed by the Trial Chamber as regards the pleading of Nyiramasuhuko's responsibility in the distribution of condoms as a separate allegation underpinning criminal charges would not have any impact on Nyiramasuhuko's conviction or sentence.

547. To the extent that the Trial Chamber relied on this event as circumstantial evidence of Nyiramasuhuko's genocidal intent for different incidents, the Appeals Chamber reiterates that, with respect to the mens rea, an indictment may plead either: (i) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred. l249 548. In the present case, the Indictment pleaded under the count of genocide that Nyiramasuhuko acted "with the intent to destroy, in whole or in part, a racial or ethnic group" in relation to the crimes committed at the Butare Prefecture Office, 250 thus providing clear notice to Nyiramasuhuko that she was alleged to have acted with genocidal intent. Given that the Indictment pleaded Nyiramasuhuko's specific state of mind alleged in relation to the count of genocide, the evidentiary facts by which her mens rea was to be established did not need to be pleaded. Accordingly, the Appeals Chamber considers it unnecessary to examine whether the defect in the Indictment concerning the allegation of distribution of condoms was curable or cured since the allegation did not need to be pleaded in the Indictment for the Trial Chamber to rely on it as it ultimately did 549. In light of the foregoing, the Appeals Chamber dismisses the relevant part of Ground 26 of Nyiramasuhuko's appeal.

5. Cumulative Effect of the Defects (Ground 14) 550. In its preliminary considerations of notice issues in the Trial Judgement, the Trial Chamber recalled the Appeals Chamber's holding that, even if the Prosecution succeeded in arguing that the defects in the indictments were remedied in each individual instance, the Trial Chamber still had to consider whether the overall effect of the numerous defects rendered the trial unfair in itself. l251 After engaging in analysis to that effect, the Trial Chamber determined that "the Accused were in a reasonable position to understand the charges against them and had the time and resources available 1249 See, e.g., Nchamihigo Appeal Judgement, para. 136; Nahimana et al. Appeal Judgement, para.

347. See also Blaskic Appeal Judgement, para.

219. Nyiramasuhuko and Ntahobali Indictment, pp. 38, 39, referring, inter alia, to ibid., paras. 6.30, 6.31. See also ibid., para. 5.1. 251 Trial Judgement, para.

127. See also ibid., paras. 128, 130. 194 Case No. ICTR-98-42-A 14 December 2015

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20171/H to investigate these charges."l252 It concluded that "the trial was not rendered unfair and the Accused did not suffer any prejudice in the preparation of their respective defences."253 551. Nyiramasuhuko submits that the Indictment was "inherently defective" and vitiated the entire proceedings, rendering her trial unfair!254 She contends that the Trial Chamber's failure to address and remedy the addition of numerous irrelevant allegations and the multiple defects in the Indictment was a serious error of law which "inexorably" prejudiced the proceedings and violated her fair trial rights. 25 She points in particular to the Trial Chamber's findings that paragraphs 5.1, 6.30, and 6.37 of the Indictment were defective. 256 Nyiramasuhuko submits that "the glaring determination of the Trial Chamber to find ways of curing what was basically defective bore testimony of its intention to convict [her]" 1257 In her view, the "countless fair trial violations resulting from the Chamber's successive attempts to cure all the defects in the facts supporting the charges sealed and rendered irreversible this prejudice against [her]" and "such conduct by the Chamber could not demonstrate anything other than a clear appearance of bias in favour of the Prosecutor's case and/or, consequently against [her]. 1258 552. The Prosecution responds that Nyiramasuhuko's general submissions under

Ground 14 of her appeal should be summarily dismissed since they fail to identify any specific error or provide supporting references to the Trial Judgement, the trial record, or her other ground of appeals. 1259 553. In the prior sections addressing Nyiramasuhuko's specific challenges related to the Indictment, the Appeals Chamber reached conclusions reflecting that the Indictment was not 1252 Trial Judgement, para. 130. 1253 Trial Judgement, para. 131. 1254 Nyiramasuhuko Appeal Brief, para.

398. See also Nyiramasuhuko Notice of Appeal, paras. 2.1, 2.11. Vyiramasuhuko also alleges that the joinder of trials, "which was based on the defective Indictment, aggravated anc loubled each of the violations". See Nyiramasuhuko Appeal Brief, para. 399 1255 Nyiramasuhuko Notice of Appeal, para. 2.2; Nyiramasuhuko Appeal Brief, paras. 400, 401. The Appeals Chamber notes that, in her notice of appeal, Nyiramasuhuko also argued that the Trial Chamber erred in: (i) failing to make a finding on the Prosecution's failure to inform her of her mode of participation in the crimes alleged under Article 6(1) of the Statute and in recognising the prejudice she suffered in this respect; (ii) failing to determine her mode of participation in conspiracy to commit genocide; (iii) failing to find that the Prosecution's omission to inform her of its intention to call Prosecution witnesses to support some allegations prejudiced her ability to prepare her defence; (iv) shifting the burden of proof with respect to the allegation of prejudice resulting from the vagueness of the Nyiramasuhuko and Ntahobali Indictment; (v) failing to stress that the Prosecution bore the burden to demonstrate that she did not suffer prejudice from the numerous defects in the Nyiramasuhuko and Ntahobali Indictment; and (vi) concluding that it provided additional time to the Defence to prepare its case to investigate

the new allegations brought by the Prosecution. See Nyiramasuhuko Notice of Appeal, paras. 2.3-2.10, 2.17. The Appeals Chamber notes, however, that Nyiramasuhuko failed to reiterate and develop with argument these allegations in her appeal brief. Accordingly, the Appeals Chamber dismisses these unsubstantiated allegations without further consideration. 1256 Nyiramasuhuko Appeal Brief, paras. 403, 404. 1257 Nyiramasuhuko Appeal Brief, para. 405. 1258 Nyiramasuhuko Appeal Brief, paras. 406, 407. The Appeals Chamber observes that some of the contentions set forth in Ground 14 of Nyiramasuhuko's appeal may appear to be introductory of her specific contentions related to notice developed in Grounds 15 through 18. However, Nyiramasuhuko fails to develop any substantive argument in support of these contentions. 195 Case No. ICTR-98-42-A 14 December 2015

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20170/H "inherently defective" and found that the Trial Chamber did not err in concluding that Nyiramasuhuko was put on notice of the charges on which she was convicted. Nyiramasuhuko's obscure contention that the Trial Chamber failed to address and remedy the addition of numerous irrelevant allegations and the multiple defects of the Indictment is not only unsupported by any reference, but also ignores the Trial Chamber's findings throughout the Trial Judgement.

554. As regards the overall effect of the defects in the Indictment on the preparation of her defence, Nyiramasuhuko advances allegations of "irreversible" or "irreparable" prejudice which she at no point substantiates. The Appeals Chamber does not minimise the extent of the Prosecution's failure to provide adequate notice in the Indictment with respect to the charges related to the prefectoral office. However, the Appeals Chamber finds that Nyiramasuhuko does not show any error in the Trial Chamber's conclusion that she did not suffer prejudice in the preparation of her defence.

555. Apart from the fact that Nyiramasuhuko's new allegation of bias against the judges of the Trial Chamber is also wholly unsubstantiated, the Appeals Chamber fails to see how the Trial Chamber's detailed consideration of whether Nyiramasuhuko was put on sufficient notice of the charges against her and its findings that the Indictment was largely defective but, at times, cured, could lead a reasonable observer, properly informed, to apprehend bias on the part of the Trial Chamber's judges. 1260 556. Accordingly, the Appeals Chamber dimisses Nyiramasuhuko's challenges pertaining to the cumulative effect of the defects in the Indictment.

6. Conclusion 557. Based on the above, the Appeals Chamber dismisses Nyiramasuhuko's contentions that the Trial Chamber erred in authorising the Prosecution to amend her indictment to add new counts and the charge of superior responsibility. Likewise, the Appeals Chamber dismisses her contentions that she was not charged with, lacked sufficient notice of, or was materially prejudiced in the preparation of her defence from the lack of notice of her alleged responsibility for conspiracy to commit genocide, the killings and rapes of Tutsis who had sought refuge at the Butare Prefecture Office committed following her orders, and in relation to the distribution of condoms in June 1994. 1259 Prosecution Response Brief, para. 121. 1260 The Appeals Chamber reiterates that a presumption of impartiality attaches to the judges of the Tribunal and that this presumption cannot be easily rebutted and that an appearance of bias exists if, notably, "the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias." See supra, paras. 95, 273, 405. 196 Case No. ICTR-98-42-A 14 December 2015

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20169/H The Appeals Chamber also dismisses Nyiramasuhuko's claim of prejudice resulting from the accumulation of defects in the Indictment.

558. Accordingly, the Appeals Chamber dismisses Grounds 3, 14 through 18, and the relevant part of Ground 26 of Nyiramasuhuko's appeal. 197 Case No. ICTR-98-42-A 14 December 2015

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20168/H C. Fabrication of Evidence and Genocide Survivor Groups (Ground 13) 559. Nyiramasuhuko submits that the Trial Chamber erred in fact and in law in failing to assess the testimonies of Prosecution Witnesses FAE, QBP, and SU with great caution given their membership in associations of genocide survivors.126' In support of her contention, Nyiramasuhuko emphasises that Witness FAE admitted to being a member of "ARG", an association of genocide survivors, which, according to Kanyabashi Defence Expert Witness Filip Reyntjens, organised denunciations and false testimonies, and sometimes even prepared witnesses and paid them to testify for the Prosecution 262 She argues that the Trial Chamber erroneously excluded the testimony of Nyiramasuhuko Defence Witness WNMN, who stated that "Witness FAE was a member of Ibuka who had denounced her sister unjustly [in a separate proceeding] and collaborated with some Ibuka members in securing her arrest" 263 Nyiramasuhuko also claims that the Trial Chamber erred in refusing to accept the testimony of Kanyabashi Defence Witness D-13-D, who testified to having learned during Gacaca proceedings that Witnesses FAE and SU were influential members of Ibuka who falsely accused many people. 264 Nyiramasuhuko further submits that the Trial Chamber failed to consider Nyiramasuhuko Defence Witness WMCZ's evidence that Witness QBP belonged to an association of genocide survivors and accused people in order to acquire 1265 property.

560. The Prosecution responds that Nyiramasuhuko's arguments should be summarily dismissed as they fail to identify the challenged factual findings and merely assert that the Trial Chamber failed to interpret the evidence in a particular manner or give it sufficient weight. 1266 It submits that the Trial Chamber duly assessed the evidence upon which Nyiramasuhuko relies and that Nyiramasuhuko does not demonstrate any error in the Trial Chamber's assessment. 267 561. The Appeals Chamber considers that a witness's membership in an association of survivors alone does not imply a desire or motive to implicate the accused, nor does it render the witness's evidence tainted or his accounts unreliable or partial. The Appeals Chamber therefore sees no 1261 Nyiramasuhuko Notice of Appeal, paras. 1.79-1.82; Nyiramasuhuko Appeal Brief, paras. 393-396. 1262 Nyiramasuhuko Notice of Appeal, para. 1,79, referring to Trial Judgement, paras. 316-320, 343-345, 4985; Nyiramasuhuko Appeal Brief, para.

393. The Appeals Chamber notes that "ARG" appears to be the acronym for the "Association of Genocide Survivors" ("Association des rescapés du génocide"), which is run by Ibuka. See, e.g., Trial Judgement, paras. 248, 4921, 4980. Nyiramasuhuko Reply Brief, para.

284. Brief, para. 396, referring to Witness D-13-D, T. 19 February 2008 pp. 19-21 (closed session). Brief, para. 394, referring to Witness WMCZ, T. 2 February 2005 pp. 50, 51. 1266 Prosecution Response Brief, paras. 110, 120. 1267 Prosecution Response Brief, paras. 111-119. 198 Case No. ICTR-98-42-A 14 December 2015

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20167/H reason to require, as a matter of principle, a trial chamber to apply particular caution in treating the evidence of witnesses who are members of such associations. The Appeals Chamber also recalls its position that a "statement by Professor Reyntfilens that the Ibuka Organization paid people to give false evidence cannot, per se, constitute a sufficient ground for excluding, in a general manner, the testimony of Prosecution witnesses". 1268 562. The Appeals Chamber notes that the Trial Chamber explicitly addressed the Defence's allegations of evidence fabrication in the Trial Judgement. 269 In this context, the Trial Chamber considered arguments that the testimonies of Witnesses FAE, QBP, and SU were improperly influenced by genocide survivor associations. 270 Having "carefully considered the totality of evidence adduced", 2 including the evidence of Witnesses Reyntjens, WNMN, WMCZ, and D-13-D relied upon by Nyiramasuhuko, 272 the Trial Chamber concluded that the Defence evidence on allegations of fabrication of testimony did not undermine the testimonies of Witnesses FAE, QBP, and SU. 1273 563. The Appeals Chamber recalls that the purpose of appellate proceedings is not for the Appeals Chamber to reconsider the evidence and arguments submitted before the Trial Chamber. 274 The Trial Judgement reflects that the Trial Chamber duly considered the allegations

of fabrication of evidence made by Expert Witness Reyntjens against Ibuka and the allegations of Witnesses WNMN, WMCZ, and D-13-D against Witnesses FAE, QBP, and SU. On appeal, Nyiramasuhuko does not demonstrate that the Trial Judgement's rejection thereof constituted an error. Accordingly, the Appeals Chamber dismisses Ground 13 of Nyiramasuhuko's appeal in its entirety. 1268 Rutaganda Appeal Judgement, para. 205. 1269 See Trial Judgement, paras. 246-383. See also ibid., paras. 4980-4982. 1270 Trial Judgement, paras. 246-249, 343-383. 1271 Trial Judgement, para. 343. 1272 Trial Judgement, paras. 247-250, 291-294, 310-320, 343, 364-366, 379-383, 3788, 4921, 4980-4982. 1273 Trial Judgement, para.

383. See also ibid., para. 4982. 1274 See, e.g., Ntawukulilyayo Appeal Judgement, para. 32; Celebici Appeal Judgement, para. 837. 199 Case No. ICTR-98-42-A 14 December 2015

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20166/H D. Conspiracy to Commit Genocide (Ground 19) 564. The Trial Chamber found that, from 9 April until 14 July 1994, and in particular between 9 April and 19 April 1994, Nyiramasuhuko agreed with other members of the Interim Government to issue directives to encourage the population to hunt down and kill Tutsis in Butare Prefecture. 1275 Specifically, it found that during a Cabinet meeting of the Interim Government held on 16 or 17 April 1994, Nyiramasuhuko agreed with other members of the Interim Government to remove Jean-Baptiste Habyalimana as prefect of Butare, who had posed an obstacle to the killing of Tutsis, and replace him with Nsabimana 276 The Trial Chamber further determined that, on 19 April 1994, Nyiramasuhuko attended Nsabimana's Swearing-In Ceremony as prefect of Butare, lending further support to the Interim Government's decision to replace Habyalimana. 127 It considered that, by her presence and failure to dissociate herself from the content of Prime Minister Kambanda's and President Sindikubwabo's speeches during the ceremony ("Kambanda's Speech" and "Sindikubwabo's Speech", respectively), Nyiramasuhuko effectively endorsed their inflammatory statements. 278 The Trial Chamber also held that the removal of Habyalimana, the appointment of Nsabimana as the new prefect, and Kambanda's and Sindikubwabo's Speeches were "factors that coincided with the

commencement of widespread killings" in Butare Prefecture. 1279 Furthermore, the Trial Chamber found that Nyiramasuhuko, as a member of the Interim Government, adopted and issued the 27 April Directive encouraging the population to mount and man roadblocks, the purpose of which was to encourage the killing of Tutsis. 1280 565. On this basis, and considering Nyiramasuhuko's participation with the Interim Government in many of the Cabinet meetings at which the massacre of Tutsis was discussed and in decisions which triggered the onslaught of massacres in Butare Prefecture, the Trial Chamber concluded that the only reasonable conclusion was that Nyiramasuhuko entered into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture with the intent to destroy, in whole or in part, the Tutsi ethnic group, 281 Consequently, the Trial Chamber convicted Nyiramasuhuko of conspiracy to commit genocide. 282 566. Nyiramasuhuko submits that the Trial Chamber erred in convicting her of conspiracy to commit genocide. 1283 In particular, she argues that the Trial Chamber erred in: (i) exhibiting bias by 1275 Trial Judgement, para.

5676. See also ibid., paras. 583, 1939, 5669, 5733. 1276 Trial Judgement, paras. 862, 864, 5670, 5676. See also ibid., para. 5736. 1277 Trial Judgement, para.

5676. See also ibid., para. 919. 1278 Trial Judgement, paras. 921, 5672, 5676. See also ibid., paras. 920, 926, 5739, 5746. 1219 Trial Judgement, paras. 5673, 5676. See also ibid., paras. 933, 5741. 1280 Trial Judgement, para.

5677. See also ibid., paras. 1939, 5669, 5674, referring to 27 April Directive. 1281 Trial Judgement, paras. 5678, 5727. 1282 Trial Judgement, paras. 5727, 6186. See also ibid., paras. 6200, 6205. 1283 Nyiramasuhuko Notice of Appeal, paras. 3.28-3.77; Nyiramasuhuko Appeal Brief, paras. 586-685. 200 Case No. ICTR-98-42-A 14 December 2015

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20165/H adopting a differential treatment of the evidence between her and her co-accused; (ii) relying on her testimony to convict her; (iii) relying on expert evidence; (iv) its assessment of the 27 April Directive; (v) its assessment of Kambanda's and Sindikubwabo's Speeches; and (vi) making contradictory and inconsistent findings. 284 The Appeals Chamber will examine these contentions in turn.

1. Appearance of Bias 567. The Trial Chamber found with regard to Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje that there were reasonable inferences from the evidence other than the inference that they had conspired with the Interim Government to commit genocide against the Tutsi population in Butare Prefecture 285 Accordingly, the Trial Chamber acquitted them of the count of conspiracy to commit genocide. 1286 568. Nyiramasuhuko submits that the differences of treatment between the manner the Trial Chamber applied the principles of law regarding the charge of conspiracy in her regard and the manner it applied it in the case of her co-accused raise an appearance of bias against her. 1287 Specifically, she alleges that the Trial Chamber: (i) applied different standards regarding notice of the charge of conspiracy to her and to Ntahobali and Ndayambaje; (ii) relied solely on expert evidence in her case while considering that expert evidence was insufficient in relation to Nsabimana; (iti) treated her presence at Nsabimana's Swearing-In Ceremony differently from that of Nsabimana and Kanyabashi; and (iv) justified its differential treatment of her on the basis that 1284 The Appeals Chamber notes that Nyiramasuhuko failed to repeat in her appeal brief and develop with precise arguments and supporting references a number of allegations that she had raised in her

notice of appeal. Specifically, the Appeals Chamber refers to Nyiramasuhuko's allegations that the Trial Chamber erred in: (i) finding the existence of a conspiracy between Nyiramasuhuko and members of the Interim Government when the Prosecution did not adduce evidence of any agreement with André Rwamakuba, Kambanda, or Sindikubwabo; (ii) relying on the interpretation of Prosecution witnesses, predominantly detainees or former detainees, of the words "enemy" and "work" and in failing to provide reasons for accepting their evidence on the meaning of certain words; (iii) failing to consider the 27 April Directive in light of Nyiramasuhuko's Defence evidence regarding the directives and statements of the Interim Government when making finding on the Interim Government's intent; (iv) failing to consider that Nyiramasuhuko's account on Prefect Habyalimana's removal was corroborated by the testimony of Expert Witness Reyntjens and Witness Karemano; and (v) refusing to recall Witness AND-44, thereby impairing her ability to prepare her defence. See Nyiramasuhuko Notice of Appeal, paras. 3.20, 3.42, 3.44, 3.48, 3.77. In the absence of the necessary substantiation, these allegations of errors are dismissed without further consideration. 1285 Trial Judgement, paras. 5685, 5697, 5708, 5718, 5726, 5728. 1286 Trial Judgement, paras. 5728, 6186. 1287 Nyiramasuhuko Appeal Brief, paras. 588, 598, 685. Nyiramasuhuko's submissions under this ground of appeal pertaining to notice of the charge of conspiracy have been addressed in Section IV.B.2 above. See Nyiramasuhuko Notice of Appeal, paras. 3.31-3.33, 3.41, 3.46, 3.71-3.74; Nyiramasuhuko Appeal Brief, paras. 587, 589, 599-606, 608-621, 663, 664, 671, 672. 201 Case No. ICTR-98-42-A 14 December 2015

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20164/H she was a member of the Interim Government, thereby finding her guilty "by association" as a member of the Interim Government and not as an individual. 1288 569. The Prosecution did not specifically respond to the allegation of bias as it pertains to Nyiramasuhuko's conviction for conspiracy to commit genocide. It nonetheless submits that Nyiramasuhuko's contention that she was convicted by association should be dismissed given that the Trial Chamber convicted her of conspiring with members of the Interim Government and not with the Interim Government as an "institution" 1289 570. The Appeals Chamber recalls the standards applicable to the review of allegations of bias against judges of the Tribunal discussed in Section IV.A. 1 above. In the present case, the Appeals Chamber observes that Nyiramasuhuko seeks to demonstrate an appearance of bias of the Trial Chamber against her, alleging a differential treatment with her co-accused, through a fragmented view and incomplete reading of the Trial Judgement, and based on the erroneous premise that her co-accused's cases were identical to hers.

571. With regard to the Trial Chamber's alleged differential treatment of Ntahobali and Ndayambaje concerning notice of the charge of conspiracy to commit genocide specifically, the Appeals Chamber considers that Nyiramasuhuko overlooks that the Prosecution case of conspiracy against her differed from that against Ntahobali and Ndayambaje. 1290 Likewise, her contention that the Trial Chamber found that expert evidence was insufficient in relation to Nsabimana fails to appreciate that, in her case, the Trial Chamber also relied on the evidence of factual witnesses and Nyiramasuhuko's own testimony and that, unlike Nsabimana, she was found to have attended Cabinet meetings where directives were discussed and issued. 1291 The Appeals Chamber also sees no merit in Nyiramasuhuko's unsubstantiated and unreferenced assertion that the Trial Chamber treated her presence at Nsabimana's Swearing-In Ceremony differently from the presence of Nsabimana and Kanyabashi: 572. The Appeals Chamber also does not accept Nyiramasuhuko's assertion that she was convicted "by association". A review of the Trial Judgement clearly reflects that she was convicted 1288 Nyiramasuhuko Appeal Brief, paras. 588-596, 598, 623, 632, 638, 639. See also ibid., paras. 548-551, 560, 583; Nyiramasuhuko Reply Brief, para.

149. The Appeals Chamber notes that, in her notice of appeal, Nyiramasuhuko failed to raise the allegation of appearance of bias in relation to her conviction for conspiracy to commit genocide. The Prosecution did not object to this allegation in its response brief on this basis, but only generally responded to Nyiramasuhuko's allegations of bias. Given the importance of the issue raised and in light of the substantiation provided by Nyiramasuhuko, the Appeals Chamber has nonetheless decided to exercise its discretion to examine Nyiramasuhuko's submissions. 289 Prosecution Response Brief, paras. 228-230. 1290 See Trial Judgement, paras. 5663-5665. See also ibid., paras. 5682, 5685, 5724-5726, 5728. 1291 See Trial Judgement, paras. 570, 571, 574-577, 1946. 202 Case No. ICTR-98-42-A 14 December 2015

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20163/H of having conspired with members of the Interim Government on the basis of her own acts and omissions. 1292 Nyiramasuhuko's contentions are therefore dismissed.

573. Accordingly, the Appeals Chamber concludes that Nyiramasuhuko has failed to demonstrate that the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias and dismisses her arguments in this respect.

2. Reliance on Nyiramasuhuko's Testimony 574. Nyiramasuhuko submits that the Trial Chamber violated her right to be presumed innocent and not to be compelled to testify against herself by reaching conclusions relating to the Interim Government's directives and instructions as well as the removal of Prefect Habyalimana solely on the basis of her testimony, in the absence of any incriminatory evidence from the Prosecution 1293 She contends that she raised the problem of self-incrimination at trial when the Trial Chamber admitted her 1994 personal diary into evidence, arguing that its admission compelled her to testify since she was the only person capable of contradicting Expert Witness Guichaoua's interpretation of her diary. 1294 575. The Prosecution responds that Nyiramasuhuko's arguments should be rejected as the Trial Chamber is entitled to consider any evidence on the record and as Nyiramasuhuko's choice to waive her right to remain silent and to testify in order to rebut Prosecution evidence was her own decision. 295 It emphasises that the Trial Chamber did not rely exclusively on her evidence in reaching its findings on the Interim Government's directives and instructions and the prefect's removal. 1296 576. The Appeals Chamber underlines that trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record and that neither the Statute nor the Rules prevent a trial chamber from relying on the 1292 See Trial Judgement, paras. 5676-5678. See also infra, para. 644. 1293 Nyiramasuhuko Appeal Brief, paras. 681-683. See also ibid., para. 642. 1294 Nyiramasuhuko Appeal Brief, para.

684. See also ibid., para.

578. The Appeals Chamber notes that, as with her claim of appearance of bias discussed above, Nyiramasuhuko failed to raise the allegation of violation of her right to be presumed innocent and not to be compelled to testify against herself in her notice of appeal. Furthermore, the Appeals Chamber notes that Nyiramasuhuko's argument developed elsewhere in her appeal brief that the Trial Chamber erred in "relying exclusively on the opinion evidence" of expert witnesses regarding certain aspects of her conviction for conspiracy directly contradicts her contention that she was found responsible in relation to the same aspects on the sole basis of her testimony. See ibid., para.

634. See also Nyiramasuhuko Notice of Appeal, paras. 3.34, 3.35, 3.45; Nyiramasuhuko Appeal Brief, paras. 635, 642. While endowed with discretion not to consider allegations of error that were not raised in the notice of appeal and contradictory submissions, the Appeals Chamber, noting that the Prosecution responded to them and considering the importance of the issue raised, has decided to consider the merits of Nviramasuhuko's submissions. 295 Prosecution Response Brief, paras. 376, 379. See also ibid., para. 223. 1296 Prosecution Response Brief, para. 377. 203 Case No. ICTR-98-42-A 14 December 2015

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20162/H testimony of the accused to convict that accused, unless the accused's self-incriminating evidence was compelled in violation of Article 20(4)(g) of the Statute.!29 In this instance, the Appeals Chamber considers that Nyiramasuhuko's contention of having been compelled to testify against herself is without merit. The mere fact that Nyiramasuhuko decided to testify because of the admission into evidence of her 1994 personal diary does not show any form of improper compulsion by the Prosecution which was aimed at - and able to - coercing her to testify against her free will in violation of her right not to be compelled to testify against herself. 29 It is also noteworthy that Nyiramasuhuko testified in the presence of her counsel and was not compelled to make any incriminating statements.1299 As such, the Appeals Chamber sees no error in the Trial Chamber's reliance on Nyiramasuhuko's testimony. Additionally, the Appeals Chamber observes that, contrary to Nyiramasuhuko's ambiguous contention, her conviction is not based solely on her testimony since the Trial Chamber relied on documentary evidence, expert evidence as well as the testimonies of several other witnesses.1300 Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contentions in this respect.

3. Expert Evidence 577. Nyiramasuhuko submits that the Trial Chamber erred in relying solely on the opinion evidence of Prosecution Expert Witnesses Des Forges, Guichaoua, Ntakirutimana, and Kanyabashi Defence Expert Witness Reyntjens in support of some of the findings underpinning her conviction for conspiracy to commit genocide. 1301 In her view, "[t]he opinion of an expert that is not confirmed 1297 See Karera Appeal Judgement, para. 19, quoting, in part, Galié Appeal Judgement, para. 17 ("While '[t]here is a fundamental difference between being an accused, who might testify if he so chooses, and a witness', this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an 'ordinary witness'."). See also Prosecutor v. Radovan Karadzic, Case No. IT-95-5/18-AR73.11, Decision on Appeal Against the Decision on the Accused's Motion to Subpoena Zdravko Tolimir, 13 November 2013, para. 50 ("The Appeals Chamber emphasises that an accused or appellant may be compelled to testify in other cases before the Tribunal due to the fact that any self-incriminating information elicited in those proceedings cannot be directly or derivatively used against him in his own case. By contrast, an accused or appellant is not compellable in his own case [...] as this may violate his right under Article 21(4)(g) of the

[ICTY] Statute."). 1298 See, e.g., Halilovic Appeal Judgement, para. 36, fn. 104; Prosecutor v. Sefer Halilovié, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, paras. admissibility of her diary which, according to Nyiramasuhuko, would compel her to testify against herself. The Appeals Chamber found that the "Trial Chamber did not abuse its discretion at this stage of the proceedings, and there is thus no need for appellate intervention." See 4 October 2004 Appeal Decision, paras. 3, 6. See also supra, Section IV.A.2(a). 1299 The Appeals Chamber further notes that the presiding judge warned Niramasuhuko before the start of her testimony that she "will have all the rights like any other witness who appears and testifies before the Tribunal". See Nyiramasuhuko, T. 31 August 2005 p. 3. 1300 See Trial Judgement, paras. 574-577, 857, 860-862. 1301 Nyiramasuhuko Notice of Appeal, para. 3.45; Nyiramasuhuko Appeal Brief, paras. 634, 635, referring to Trial Judgement, para.

197. Nyiramasuhuko concedes that the Trial Chamber correctly outlined the principles concerning opinion evidence. See Nyiramasuhuko Appeal Brief, para. 635, referring to Trial Judgement, paras. 192, 196, 199. See also Nyiramasuhuko Notice of Appeal, para. 3.11; Nyiramasuhuko Appeal Brief, para.

642. Nyiramasuhuko argues that opinion evidence cannot be relied upon to determine a fact in dispute. See Nyiramasuhuko Reply Brief, para.

164. See also AT. 14 April 2015 pp. 15, 16 (French). 204 Case No. ICTR-98-42-A 14 December 2015

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20161/H by concrete evidence cannot be the basis of a finding of one of the material elements of a charge against an accused."1302 In particular, Nyiramasuhuko argues that, besides their opinion evidence, the Prosecution did not present any "concrete evidence" establishing: (i) her "awareness and intent" regarding "the implied objective to be regularly informed of the situation of the killings [...], to issue directives/instructions in order to encourage the killings, to dismiss Préfet Habyalimana [...], or to endorse President Sindikubwabo's speech", 1303 and (ii) what happened in the Cabinet meetings to show that she participated in these meetings in order to implement a genocidal policy. 1304 She also contends that the Trial Chamber failed to make a finding on the reliability, credibility, and probative value of the expert evidence it relied upon, despite the fact that it was not confirmed by evidence and was based on unidentified sources. 1305 578. The Prosecution responds that, contrary to Nyiramasuhuko's contention, the Trial Chamber did not solely rely on expert evidence when making findings on: i) the fact that massacres of civilians were discussed during Cabinet meetings; (ii) the fact that the Cabinet met on at least 15 occasions between 6 April and 17 July 1994; (iii) the issuance of directives to encourage killings and Prefect Habyalimana's removal; and (iv) the

fact that Sindikubwabo's Speech was inflammatory. 1306 The Prosecution contends that Nyiramasuhuko's arguments related to the Trial Chamber's assessment of the expert witnesses' evidence should be rejected as unsubstantiated. 1307 579. The Appeals Chamber observes that, contrary to Nyiramasuhuko's assertion, the Trial Chamber also relied on factual witnesses and concrete evidence for its findings concerning the discussion of massacres during Cabinet meetings, the issuance of directives inciting the population to kill Tutsis, the decision to replace Prefect Habyalimana, and the inflammatory nature of Sindikubwabo's Speech. More specifically, the Appeals Chamber notes that, with regard to Cabinet meetings where information on massacres was provided and the issuance of directives inciting killings, the Trial Chamber also relied on Nyiramasuhuko's testimony and her personal notes and 1994 diary. 1308 As to the decision to remove Habyalimana from office, the Trial Chamber did not refer solely to the evidence of Expert Witness Guichaoua in its deliberations but also to the 1302 Nyiramasuhuko Appeal Brief, para.

655. See also AT. 14 April 2015 p. 11. 1303 Nyiramasuhuko Appeal Brief, para. 640 (emphasis omitted). 1304 Nyiramasuhuko Appeal Brief, para. 641. 1305 Nyiramasuhuko Appeal Brief, para.

636. See also AT. 14 April 2015 pp. 11, 12. Nyiramasuhuko also refers to the experts' "unorthodox translation methods". In the absence of any explanation or substantiation as to what Nyiramasuhuko refers to in this regard, the Appeals Chamber has disregarded this aspect of her submissions. See Nyiramasuhuko Appeal Brief, para.

636. Under this ground of appeal, Nyiramasuhuko contends that the Trial Chamber erred in allowing Expert Witness Guichaoua to tender her 1994 personal diary into evidence. See ibid., para.

637. This contention has been addressed and rejected in Section IV.A.2(a) above. 130% Prosecution Response Brief, paras. 288, 289, 300, 316, 322. See also AT. 14 April 2015 p. 48. 1307 Prosecution Response Brief, para. 373. 1308 See Trial Judgement, paras. 565, 570, 571. 205 Case No. ICTR-98-42-A 14 December 2015

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20160/H testimony of Nyiramasuhuko. 1309 While not expressly referred to in the deliberations section, the Trial Chamber also summarised the evidence of several witnesses who provided evidence in this respect. 31° Concerning the inflammatory nature of Sindikubwabo's Speech, the Trial Chamber relied, inter alia, on the evidence of Witnesses RV, TQ, and Charles Karemano as well as the testimony of Nsabimana. 1311 580. In addition, the Appeals Chamber recalls that it has repeatedly held that the role of expert witnesses is to assist the trial chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. 312 The Appeals Chamber is not persuaded that the Trial Chamber's consideration of Expert Witnesses Des Forges's, Guichaoua's, Ntakirutimana's, and Reyntjens's general evidence about the removal of Prefect Habyalimana and Nsabimana's Swearing-In Ceremony ignored the limitations imposed on expert evidence. The Trial Chamber relied on the expert witnesses' opinion on this matter in light of the evidence of factual witnesses that large scale killings did not occur in Butare Prefecture until after Prefect Habyalimana's removal. 1313 581. The Appeals Chamber further observes that Nyiramasuhuko does not substantiate her assertion that the expert evidence was based on unidentified sources. On the contrary, the Appeals Chamber finds

that a reasonable trier of fact could have relied on Expert Witnesses Des Forges's, Guichaoua's, Ntakirutimana's, and Reyntjens's reports, which were thoroughly substantiated and referenced. 1314 Likewise, the Appeals Chamber is satisfied that the Trial Chamber properly assessed the credibility and probative value of the expert evidence it relied upon and that it acted reasonably when finding these expert witnesses credible. The Appeals Chamber notes that the Trial Chamber indicated that it had "closely considered the qualifications" of the expert witnesses, including their 1309 Trial Judgement, paras. 857-864. 1310 The Trial Chamber noted that Witness RV testified that Prefect Habyalimana was replaced because he was suspected of being an Inkotanyi accomplice. T. 16 February 2004 p. 32 (closed session). The Trial Chamber also noted that Witness Charles Karemano confirmed that his book stated in relevant part that Prefect Habyalimana did not favour killings and that such killings coincided with his dismissal. See Trial Judgement, para. 744, referring to Charles Karemano, T. 5 September 2006 p. 22. 1311 See Trial Judgement, paras. 879, 884, 886, 887, 896. See also ibid., paras. 609, 614, 745, 746, 820, 1312 Bagosora and Nsengiyumva Appeal Judgement, fn. 503; Nahimana et al. Appeal Judgement, para.

509. See also ibid., para. 212. 1313 See Trial Judgement, paras. 927-931. 1314 See Exhibits P110A (Expert Report by Alison Des Forges Prepared for the Butare Case ICTR-98-42-T) (Des rosis or l i nie Re Produce A tri che War Periob (no. 4) in valua by Evarise Ntakirutimana) ("Ntakirutimana Sociolinguistic Analysis"), P159 (Tolerance or Intransigence in Sindikubwabo's Speech in Butare?, by Évariste Ntakirutimana) ("Ntakirutimana Report on Sindikubwabo's Speech"), D571 (Expert Report by Filip Reyntjens) ("Reyntjens Report"). 206 Case No. ICTR-98-42-A 14 December 2015

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20159/H relevant experience and methods of inquiry, and that the Defence had "adequate opportunity to voir dire" these witnesses. 1315 582. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's submissions concerning the Trial Chamber's assessment of and reliance on the expert evidence. 4. 27 April Directive 583. The Trial Chamber found that, throughout 1994 in Rwanda, words such as "enemy", "Inyenzi", "Inkotanyi", "accomplice", and "infiltrator" were used to refer to Tutsis and that such "double-speak" was used by the Interim Government in its directives and instructions. 1316 In particular, the Trial Chamber found that Nyiramasuhuko, as a member of the Interim Government, adopted and issued a directive on 27 April 1994 encouraging the population into mounting and manning roadblocks, the purpose of which was to encourage the killing of Tutsis. 1317 The Trial Chamber concluded that the 27 April Directive had a double meaning and that, while its surface message was apparently to restore calm, the reference to "the restoration of security hid an underlying message", namely the elimination of Tutsis who represented a threat to security. 318 584. Nyiramasuhuko submits that the Trial Chamber erred in its interpretation of the 27 April Directive, particularly in concluding that in Rwanda in 1994, the words "enemy, Inyenzi, Inkotanyi, accomplice and infiltrator" were used to

refer to Tutsis.!319 In support of her contention, she highlights that it was well known at the relevant time that these "words also referred to the real enemy, the RPF, the Inkotanyi". 1320 In her view, the Trial Chamber erred in relying on the expert witnesses' theory that the 27 April Directive contained a "double language" in the absence of any "concrete evidence" to sustain this opinion. 321 She contends that it was erroncous for the Trial Chamber to assert that the "experts, through their opinions on the use of a double language in a document to which the witnesses of fact did not refer and in the absence of any evidence that the Préfet Habyalimana's historical and political role falls squarely within the experts' area of expertise and the experts also gree on this point". See ibid., para. 857, 'Trial Judgement, paras. 575, 578 1317 Trial Judgement, para.

5677. See also ibid., paras. 1939, 5669, 5674. 1318 Trial Judgement, para. 576. 1319 Nyiramasuhuko Notice of Appeal, paras. 3.30, 3.34-3.37, 3.44; Nyiramasuhuko Appeal Brief, paras. 643-654. See also Nyiramasuhuko Notice of Appeal, para. 3.18; Nyiramasuhuko Appeal Brief, para.

607. Under this ground of appeal, Nyiramasuhuko further contends that the Trial Chamber erred in admitting the testimony of Kanyabashi Defence Expert Witness Reyntjens and in relying in part on the testimony of Nsabimana Defence Witness Fergal Keane on the ground that, had she been tried alone, these witnesses would not have appeared in her trial. See Nyiramasuhuko Notice of Appeal, paras. 3.38, 3.40. This contention has been addressed in Section III.B.4 above. Nyiramasuhuko Notice of Appeal, para. 3.37; Nyiramasuhuko Appeal Brief, paras. 643, 644. See also Nyiramasuhuko Reply Brief, para. 161. 1321 Nyiramasuhuko Appeal Brief, para. 645 (emphasis omitted). 207 Case No. ICTR-98-42-A 14 December 2015

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20158/H said witnesses were even aware of the instructions, 'corroborated' the factual evidence that in Rwanda, in 1994, the words 'enemy/accomplices' were used to refer to Tutsis."1322 She also alleges that the Trial Chamber erred in failing to note that the 27 April Directive was addressed to prefects and, through them and the local authorities, to the population. 1323 585. Nyiramasuhuko submits that another reasonable inference available from the evidence was that the Interim Government, being aware that some members of the population referred to the Tutsis in general as the enemy and accomplice, had specifically requested the prefects to inform the population that the enemy was the "RPF-Inkotanyi" in the 27 April Directive. 324 This specific identification of the enemy as the Rwandan Patriotic Front ("RPF") in the directive, she argues, demonstrates the "incongruity" of the experts' interpretation of the word "enemy" as referring to Tutsis in the 27 April Directive. 325 Nyiramasuhuko further contends that the Trial Chamber failed to determine "her own intent regarding the adoption and issuance" of the 27 April Directive. 325 586. The Prosecution responds that the expert evidence on the meaning of the 27 April Directive was supported by "overwhelming direct evidence from native Kinyarwanda speakers" 1327 It adds that Nyiramasuhuko's argument that another reasonable inference

from the evidence was that the prefects informed the population that the enemy in the 27 April Directive was the RPF-Inkotanyi should be rejected as mere speculation. 1328 587. The Appeals Chamber recalls that the Trial Chamber reached its findings relating to the 27 April Directive primarily based on the evidence of Expert Witnesses Guichaoua, Des Forges, and Reyntjens as well as on the evidence of Nyiramasuhuko Defence Expert Witness Eugène Shimamungu and Nyiramasuhuko's 1994 diary and personal notes. 329 The Trial Chamber also explicitly relied on a number of factual witnesses and documentary evidence on the use of 1322 Nyiramasuhuko Appeal Brief, para. 646 (emphasis omitted). Nyiramasuhuko argues that the Trial Chamber erred in "mixing up evidence concerning the understanding by the Rwandan population [...] with the unconfirmed opinion of experts" on the 27 April Directive to reach its conclusion. See ibid., para.

647. See also Nyiramasuhuko Notice of Nyiramasuhuko Appeal Brief, para. 648, referring to Nyiramasuhuko, T. 29 September 2005 pp. 38, 39. 1324 Nyiramasuhuko Appeal Brief, para. 649 (emphasis omitted), referring to Exhibit P118 (27 April Directive), p. 2: The enemy who attacked Rwanda is known: It is the RPF Inkotanyi. You are therefore requested to explain to members of the population that they must refrain from doing anything which would cause disturbances amongst themselves under the pretext of ethnic groups, regions, religions, political parties, hatred, etc., because such disturbances in the population constitute entry points for the enemy. 1326 Nyiramasuhuko Appeal Brief, para.

653. Nyiramasuhuko contends that the Trial Chamber erred in finding that the Interim Government and herself intended, through the 27 April Directive, to encourage the population to mount roadblocks with the purpose of killing the Tutsis in Butare Prefecture. See Nyiramasuhuko Notice of Appeal, para. 3.18. 1327 Prosecution Response Brief, paras. 299, 300, 305, 306, referring, inter alia, to Expert Witnesses Des Forges and Reyntjens, Witnesses FA, FAG, FAI, FAK, FAL, QI, QJ, QAH, QCB, RV, SX, TA, TK, TQ, Charles Karemano, Fergal Keane, Trial Judgement, paras. 477, 574-576, 5417-5424, 5674, 5675, 5677. See also ibid., para. 295. 1328 Prosecution Response Brief, para.

302. See also ibid., para. 304. 1329 Trial Judgement, paras. 570, 571, 575, 576. 208 Case No. ICTR-98-42-A 14 December 2015

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20157/H "double-speak" in Rwanda in 1994.1330 Therefore, the Appeals Chamber rejects Nyiramasuhuko's assertion that there was no "concrete" evidence to sustain the expert opinion on this issue.

588. The Appeals Chamber fails to see the pertinence of Nyiramasuhuko's assertion that the Trial Chamber erred in failing to note that the 27 April Directive was addressed to prefects and, through them, to the population. Moreover, the Appeals Chamber finds that Nyiramasuhuko does not show that the Trial Chamber erred in assessing how the 27 April Directive was disseminated to the population. 1331 589. Turning to Nyiramasuhuko's contention that another reasonable inference from the evidence was that the prefects informed the population that the enemy in the 27 April Directive was the RPF-Inkotanyi rather than the Tutsis in general, the Appeals Chamber is of the view that Nyiramasuhuko does not demonstrate that the Trial Chamber erred in concluding that words such as "accomplice", "enemy", "Inkotanyi", or "Inyenzi" were used to refer to Tutsis at the time. She only suggests that another reasonable inference was available without demonstrating error in the Trial Chamber's ultimate conclusion, and does not point to any evidence supporting an alternative inference. It also bears noting that the 27 April Directive, in addition to expressly identifying the enemy as the "RPF-INKOTANYI", also refers to the "enemy and his accomplices" 1332 In light of the overwhelming consistent and reliable evidence in the record that the words "accomplice", "enemy", "Inyenzi", and "Inkotanyi" were

used to refer to Tutsis throughout Rwanda in 1994, the Appeals Chamber finds that a reasonable trier of fact could have reached this finding. 1333 1330 Trial Judgement, paras. 574, 575, referring, inter alia, to Witnesses FAG, FAH, FAI, Exhibits P118 (27 April Directive), D360 (Transcript of Minister Niyitegeka's Speech of 30 April 1994). 1331 See Trial Judgement, paras. 570, 571, 583. 1332 See Exhibit P118 (27 April Directive), pp. 1, 2. See, e.g., Witness FAG, T. 3 March 2004 p. 49 ("When the term Inyenzi was used it referred to all the Tutsi."); Witness FAH, T. 21 April 2004 p. 15 ("[Nteziryayo] said the enemy was Inyenzi, and he said that Inyenzi would arrive in our secteur and find people who would be accomplices. He then said that once the enemy arrived, he shouldn't find any accomplices, and he was referring to the Tutsis and to no one else."); Witness FAI, T. 31 October 2002 p. 12 (closed session) ("The enemy meant the RPF and the accomplices were the Tutsis."); Witness FAL, T. 9 February 2004 p. 59 ("No distinction was made between the Tutsi inside the country and the Tutsi who had attacked the country. They were all considered to be the enemy."); Witness TQ, T. 6 September 2004 p. 48 (closed session) ("There were soldiers who were intimidating them, beating them, and there were Interahamwe who were addressing them calling them Inkotanyi. They were characterising them

as RPF accomplices and they were calling them Tutsi, Inyenzi."); Witness RV, T. 16 February 2004 p. 37 (closed session) ("Q. Now, following a measure of clarification, can I ask you to once again tell the Trial Chamber what you understood the accomplices of the Inkotanyi to mean? A. Essentially the Tutsi, and even some [Hutu] who upheld the ideals of the RPF."); Witness TK, T. 20 May 2002 pp. 41, 42 ("Q. When you say we were called Inyenzis, can you explain to this court who the 'We' you are referring to are? A. I mean the Tutsis, Madam."); Witness QJ, T. 12 November 2001 p. 33 ("Q. What did the word 'enemy' mean? A. When they said Umwanzi or enemy [...]. When this word was used, it is also intended to mean Tutsi."); Witness FAK, T. 14 April 2004 p. 16 ("Q. Who did you understand the term Inkotanyi to refer to? A. We did not quite understand what that word meant at the time. But, subsequently, we were told, or it was explained to us that Inkotanyi were Tutsis."); Fergal Keane, T. 27 September 2006 p. 78 ("At the time, I understood the term Inyenzi to mean cockroach and that could be applied to RPF soldiers or to Tutsi civilians, that was my understanding."). Expert Witness Shimamungu also explained that the term "Inkotanyi" was used to refer to the Tutsis. See Eugène Shimamungu, T. 16 March 2005 p. 38. 209 Case No. ICTR-98-42-A 14 December 2015

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20156/H 590. Similarly, the Appeals Chamber is not persuaded that the fact that some of the factual witnesses relied upon by the Trial Chamber were not aware of the specific content of the instructions means that their evidence as to the use of double language does not corroborate the expert opinion on this issue.334 The Trial Chamber did not find that the factual witnesses corroborated the expert evidence on the content and meaning of the 27 April Directive but rather on the general use of double speak in Rwanda at the time of the events. 1335 The Appeals Chamber is thus satisfied that the Trial Chamber did not err in concluding that these witnesses corroborated each other. 1336 591. Furthermore, the Appeals Chamber finds no error in the Trial Chamber not expressly considering Nyiramasuhuko's own intent with regard to the 27 April Directive, 1337 Indeed, the Appeals Chamber notes that, while the Trial Chamber made no express finding that Nyiramasuhuko endorsed the content of the 27 April Directive, a review of Nyiramasuhuko's testimony reflects that she did not dissociate herself from it and was actively involved in its drafting and dissemination. 338 Consequently, the Appeals Chamber finds that a reasonable trier of fact could have concluded that Nyiramasuhuko, as a member of the Interim Government, could be held responsible for adopting directives and issuing instructions encouraging the population to kill Tutsis.

592. In light of the above, the Appeals Chamber concludes that Nyiramasuhuko has failed to • demonstrate that the Trial Chamber erred in its interpretation of the 27 April Directive.

5. Nsabimana's Swearing-In Ceremony 593. The Trial Chamber found that, on 19 April 1994, Nyiramasuhuko attended Nsabimana's Swearing-In Ceremony and that, by her presence and failure to dissociate herself from the content of Kambanda's and Sindikubwabo's Speeches delivered that day, she effectively endorsed their inflammatory statements. 1339 The Trial Chamber also held that the removal of Prefect Habyalimana, the appointment of Nsabimana as the new prefect, and Kambanda's and Sindikubwabo's Speeches 1334 In this respect, the Appeals Chamber notes that some witnesses testified as to the use of double language in Rwanda in general in 1994 and their findings were not exclusively focused on the 27 April Directive. See, e.g., Eugène Shimamungu, T. 16 March 2005 p. 38; Fergal Keane, T. 27 September 2006 p.

78. See Trial Judgement, paras. 574, 575. See also ibid., para. 578. 1336 The Appeals Chamber recalls that two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. See Nizeyimana Appeal Judgement, para. 96; Gatete Appeal Judgement, para. 125; Kanyarukiga Appeal Judgement, paras. 177, 220; Ntawukulilyayo Appeal Judgement, para. 121; Nahimana et al. Appeal Judgement, para.

428. See Trial Judgement, paras. 583, 5669. 1338 Nyiramasuhuko, T. 29 September 2005 p. 30 ("We, therefore, drew up this document entitled 'pacification,' which vas published and disseminated on the 27th of April 1994"). See also ibid., pp. 36-38 339 Trial Judgement, paras. 921, 5672, 5676. See also ibid., paras. 919, 920, 926, 5739, 5746. 210 Case No. ICTR-98-42-A 14 December 2015

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20155/H were factors that "coincided with the commencement of widespread killings" in Butare Prefecture. 1340 594. Nyiramasuhuko contends that the Trial Chamber erred regarding the inflammatory nature of Kambanda's and Sindikubwabo's Speeches and the commencement of the widespread killings in Butare Prefecture. 1341 (a) Kambanda's and Sindikubwabo's Speeches 595. The Trial Chamber concluded that Kambanda's and Sindikubwabo's Speeches contained inflammatory and coded language that was understood by the attendees and the public to identify and kill Tutsis and their accomplices 342 The Trial Chamber relied on its finding that Kambanda's and Sindikubwabo's Speeches shared a number of common themes which illustrated that the speeches were complementary and had a common purpose at the swearing-in ceremony, that of inciting the population to take action against Tutsis. 343 It went on to find that the "enemy" they both described was the Tutsis and that the word "work" contained in the two speeches meant to kill Tutsis. 1344 596. Nyiramasuhuko submits that the Trial Chamber erred in finding that Kambanda's and Sindikubwabo's Speeches contained coded language and encouraged the population to kill the Tutsis. 1345 In particular, she argues that the Trial Chamber erred in: (i) relying on the report of Expert Witness Ntakirutimana; (ii) relying on Expert Witnesses Des Forges's and

Reyntjens's testimonies; (iii) rejecting the evidence of Expert Witness Shimamungu; (iv) its assessment of Witness RV's testimony; and (v) its interpretation of the speeches 1346 The Appeals Chamber will address these contentions in turn. (i) Ntakirutimana Reports 597. On 12 January 2004, the Prosecution disclosed two reports by Expert Witness Ntakirutimana, one on the use of proverbs and phrases in Rwanda during the events of 1994 and one on the interpretation of Sindikubwabo's Speech, which were admitted into evidence 1340 Trial Judgement, paras. 5673, 5676. See also ibid., paras. 933, 5741. 1341 Nyiramasuhuko Appeal Brief, paras. 655-662, 665-670, 673-676. 1342 Trial Judgement, paras. 890, 898, 925. See also ibid., paras. 5671, 5676, 5738, 5990. 1343 See Trial Judgement, para. 892 ("Both speeches underline the existence of war, urge the people of Butare to take action and warn of traitors who underwent weapons training. These common themes illustrate that the speeches were complementary and had a common purpose at the swearing-in ceremony: that of inciting the population to take action against Tutsis.") Trial Judgement, paras. 894, 897, 5671 1345 Nyiramasuhuko Notice of Appeal, paras. 3.15, 3.64; Nyiramasuhuko Appeal Brief, paras. 615, 655, 662, 670. 1346 Nyiramasuhuko Appeal Brief, paras. 655-662, 665-670. 211 Case No. ICTR-98-42-A 14 December 2015 aun

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20154/H as exhibits P158 and P159 during the expert's testimony on 13 September 2004 ("Ntakirutimana Reports"). 1347 598. Nyiramasuhuko submits that the Trial Chamber erred in relying solely on the "report" of Expert Witness Ntakirutimana in support of its finding that Sindikubwabo's Speech was inflammatory as this evidence was merely an opinion "not confirmed by concrete evidence", 1348 She also appears to purport that the expert "report" should not have been relied upon because it was "not confirmed by its author" 1349 Nyiramasuhuko adds that the Trial Chamber erred in relying on the "report" as Expert Witness Nakirutimana was also a "witness of fact, especially as he lived in Nyanza, [....J and gave factual evidence on the beginning of the killings" 1350 She also argues that the Trial Chamber erred in comparing unconfirmed extracts of the Ntakirutimana Reports with Expert Witness Shimamungu's testimony on Kambanda's Speech whereas Expert Witness Ntakirutimana had never analysed this particular speech. 1351 599. The Prosecution responds that the Trial Chamber did not solely rely on the Ntakirutimana Report on Sindikubwabo's Speech as it also considered the evidence of Nsabimana, Witnesses Charles Karemano and Tiziano Pegoraro, and Expert Witnesses Des Forges and Reyntjens. 352 It adds that Nyiramasuhuko fails to identify which part of the Ntakirutimana Report on

Sindikubwabo's Speech was not confirmed in his in-court testimony. 1353 The Prosecution also submits that the fact that Expert Witness Ntakirutimana's presence in Nyanza during the impugned period does not affect his status as an expert witness and that Nyiramasuhuko fails to show what impact, if any, this would have on the Trial Chamber's reliance on his report. 1354 1347 See Trial Judgement, para. 461; Exhibit P158 (Ntakirutimana Sociolinguistic Analysis); Exhibit P159 (Ntakirutimana Report on Sindikubwabo's Speech); Évariste Ntakirutimana, T. 13 September 2004 pp. 12, 13, 42, 44, 81, 82. A third report by Expert Witness Ntakirutimana on Joseph Kanyabashi's speech was admitted into evidence on 14 September 2004 as exhibit P161. See Exhibit P161 (Joseph Kanyabashi's Unswerving Support for the Jean Kambanda Government, by Évariste Ntakirutimana); Évariste Ntakirutimana, T. 14 September 2004 p. 21. 1348 Nyiramasuhuko Appeal Brief, paras. 655, 656, referring to Trial Judgement, paras. 697-729. Nyiramasuhuko generally refers to the "report of Expert Witness Ntakirutimana" without specifying to which report she refers. The Appeals Chamber understands from the references to the Trial Judgement that she provides that she is referring to both the Ntakirutimana Sociolinguistic Analysis and the Ntakirutimana Report on Sindikubwabo's Speech. 1349 Nyiramasuhuko Appeal Brief, paras. 656,

665 (French). 1350 Nyiramasuhuko Appeal Brief, para. 657, referring to Évariste Ntakirutimana, T. 14 September 2004 pp. 13, 14, 39, 40, 1351 Nyiramasuhuko Appeal Brief, para. 665, referring to Trial Judgement, paras. 892, 895, Évariste Ntakirutimana, T. 14 September 2004 pp. 27, 28. See also Nyiramasuhuko Notice of Appeal, para. 3.56. Under this ground of appeal, Nyiramasuhuko further that the Trial Chamber erred in finding that the addition of Expert Witness Ntakirutimana at the end of the Prosecution case did not prejudice her ability to prepare her defence. See Nyiramasuhuko Notice of Appeal, para. 3.60; Nyiramasuhuko Reply Brief, para.

170. This contention has been addressed and rejected in Section III.D above 352 Prosecution Response Brief, paras. 323, 324, 327. 1353 Prosecution Response Brief, para. 325. 1354 Prosecution Response Brief, para. 326. 212 Case No. ICTR-98-42-A 14 December 2015

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20153/H 600. The Appeals Chamber observes that, contrary to Nyiramasuhuko's claim, Expert Witness Ntakirutimana authenticated his reports in court. 355 It also notes that the Trial Chamber did not rely solely on the Ntakirutimana Reports to find that Sindikubwabo's Speech was inflammatory, but also on the transcript of the speech itself and the evidence of Nsabimana, Witness Karemano, and Expert Witnesses Des Forges and Reyntjens. 1356 The Appeals Chamber thus rejects Nyiramasuhuko's assertion that Expert Witness Ntakirutimana's evidence was not confirmed by "concrete evidence". The Appeals Chamber is also not persuaded that the fact that Expert Witness Ntakirutimana indicated that he was living in Butare Prefecture in April 1994 and that he testified as to the timing of the beginning of the killings in Butare Prefecture has any impact on his qualification as an expert witness or on the content of his report. 1357 601. Moreover, Nyiramasuhuko's argument regarding the erroneous reliance on the Ntakirutimana Reports when assessing Expert Witness Shimamungu's testimony on Kambanda's Speech is without merit as the part of the Trial Judgement with which she takes issue does not relate to Expert Witness Shimamungu's testimony on Kambanda's Speech but to his general interpretation of the word "gukora", 1358 602. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contentions

regarding the Ntakirutimana Reports. (ii) Expert Witnesses Des Forges and Reyntjens 603. Nyiramasuhuko submits that the Trial Chamber erred in relying on Expert Witness Des Forges's evidence concerning the content of Sindikubwabo's Speech because the analysis of a speech in Kinyarwanda was beyond her expertise. 135º In the same vein, she argues that the Trial Chamber erred in relying on Expert Witness Reyntjens's evidence regarding Sindikubwabo's Speech as this subject was not within his area of expertise as recognised by the Trial Chamber. 1360 1355 See Évariste Ntakirutimana, T. 13 September 2004 pp. 37, 38, 80, 82. See Trial Judgement, paras. 867, 874, 878, 879, 881, 882, 884, 888, referring, inter alia, to Nsabimana, T. 20 November 2006 p. 36, Charles Karemano, T. 5 September 2006 pp. 23-25, 27, Alison Des Forges, T. 9 July 2004 P.,24, Filip Reyntjens, T. 21 November 2007 p.

45. See also ibid., para.

890. See Trial Judgement, para. 695; Évariste Ntakirutimana, T. 14 September 2004 p. 14. 1358 Nyiramasuhuko Appeal Brief, para. 665, referring to Trial Judgement, paras. 892, 895. See also Eugène Shimamungu, T. 16 March 2005 pp. 56, 57; T. 24 March 2005 p. 59; T. 30 March 2005 p. 23. 1359 Nviramasuhuko Appeal Brief, para.

659. Nyiramasuhuko also argues that the Trial Chamber erred in accepting Witness Des Forges's testimony on the speech "since the first opinion lies within the exclusive purview of the Chamber:" See idem. The Appeals Chamber will not entertain this obscure argument. The Appeals Chamber further notes that it has found no merit in Nyiramasuhuko's contention regarding Expert Witness Des Forges's testimony on Nsabimana's statements in Section III.H above. See Nyiramasuhuko Appeal Brief, para. 658; Nyiramasuhuko Reply 1360 Nyiramasuhuko Appeal Brief, para. 660. 213 Case No. ICTR-98-42-A 14 December 2015

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20152/H 604. The Prosecution responds that Nyiramasuhuko only objected to Expert Witnesses Des Forges's and Reyntjens's testimonies about the meaning of Sindikubwabo's Speech in her closing brief and thus waived her right to object on the present basis on appeal. 136l In any event, the Prosecution maintains that the evidence they provided was within their areas of expertise in Rwandan history and that both expert witnesses had the ability to interpret speeches in Kinyarwanda. 1362 605. Nyiramasuhuko replies that she objected to the testimonies of the two expert witnesses at the time of their will-say on their qualification as experts. 1363 606. The Appeals Chamber observes that the Prosecution is mistaken when arguing that Nyiramasuhuko only objected to Expert Witnesses Des Forges's and Reyntjens's testimonies about the meaning of Sindikubwabo's Speech in her closing brief. Nyiramasuhuko expressly objected to Witness Reyntjens's testimony on Sindikubwabo's Speech and questioned Witness Des Forges's expertise to provide evidence on texts written in Kinyarwanda during the witnesses' testimonies. 1364 607. The Appeals Chamber notes that Nyiramasuhuko fails to substantiate her generic and unreferenced contention that the Trial Chamber erred by allowing these expert witnesses to testify beyond their area of expertise. 365 The Appeals Chamber recalls that the Trial Chamber

certified Expert Witness Des Forges as an expert in history and the human rights situation in Rwanda up to and including the events of 1994, and Expert Witness Reyntjens as an expert in history, law, and governance in Rwanda. 1366 Nyiramasuhuko also appears to ignore that expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise. 1367 608. The Appeals Chamber further observes that, while Expert Witnesses Des Forges and Reyntjens provided their opinion on the political meaning of Sindikubwabo's Speech, they were never asked to provide a linguistic analysis of the speech in Kinyarwanda, 1368 The Appeals Chamber is satisfied that the evidence of these witnesses fell within their respective areas of 1361 Prosecution Response Brief, para. 335. 1362 Prosecution Response Brief, paras. 336, 337. See also ibid., para. 299. 1363 Nyiramasuhuko Reply Brief, para. 169 (French), referring to Filip Reyntjens, T. 20 September 2007 p. 62 (French), Ali Fili Forge, T. 255e 004 pr. 20 (rech) See diso Abion De: 160, , T. 7 June 2004 p. 20-22 (French). 1365 See Nyiramasuhuko Appeal Brief, paras. 659, 660. 1366 Trial Judgement, para.

194. See also ibid., paras. 635, 783. 1367 Bagosora and Nsengiyumva Appeal Judgement, para. 225; Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para.

303. See Alison Des Forges, T. 9 July 2004 pp. 22-24; Filip Reyntjens, T. 21 November 2007 pp. 45-47. See also Trial Judgement, paras. 644, 791-794. 214 Case No. ICTR-98-42-A 14 December 2015

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20151/H expertise. 1369 The Appeals Chamber concludes that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in relying on the evidence of Expert Witnesses Des Forges and Reyntjens regarding Sindikubwabo's Speech. (iii) Expert Witness Shimamungu 609. The Trial Chamber found that Expert Witness Shimamungu's testimony was "tainted by bias" because of his political and civic activism illustrating his opposition to the RPF, and had to be viewed with appropriate caution. 1370 The Trial Chamber did not find Expert Witness Shimamungu's opinion that it was unclear whether the refugees referred to in Sindikubwabo's Speech were Hutus or Tutsis and that the word "gukora" or "work" did not have a coded meaning to be plausible. 1371 610. Nyiramasuhuko submits that the Trial Chamber erred in rejecting the testimony of Expert Witness Shimamungu on Sindikubwabo's Speech.1372 She claims that the Trial Chamber erred in: (i) considering that this witness's testimony was tainted by bias because of his political and civic activism and his views against the RPF shared also by Nyiramasuhuko,1373 (ii) making an adverse finding against the witness on the ground that he testified that he had been called to "criticize" Expert Witness Ntakirutimana's report "whereas the role of an expert entails, among others, criticizing the publications of fellow experts", 1374 and (iii) ascribing "a

derogatory meaning to the French word 'critiquer' (to criticize)", 1375 611. The Prosecution responds that Nyiramasuhuko fails to demonstrate that the Trial Chamber was unreasonable in finding that Expert Witness Shimamungu lacked the neutrality, objectivity, and impartiality required for an expert witness because of his political activism, his opposition to the RPF, and his close association with the Habyarimana family. 1376 612. Nyiramasuhuko replies that the activism of Expert Witnesses Des Forges, Guichaoua, and Reyntjens did not lead the Trial Chamber to exclude their testimonies. 1377 In her view, the fact that the Prosecution expert witnesses shared Expert Witness Shimamungu's stance on the involvement 1369 The Appeals Chamber notes that the Trial Chamber overruled Nyiramasuhuko's objection to the testimony of Expert Witness Reyntjens on the ground that he could give "his opinion within the political context". See Filip Reyntjens, T. 20 September 2007 p.

48. Trial Judgement, paras. 870-872. 1371 Trial Judgement, paras. 869, 873, 895, 897. 1372 Nyiramasuhuko Appeal Brief, para.

661. See also Nyiramasuhuko Notice of Appeal, paras. 3.50-3.55. 1373 Nyiramasuhuko Notice of Appeal, paras, 3.50-3.52, referring to Trial Judgement, paras. 870-873. 1374 Nyiramasuhuko Notice of Appeal, para. 3.53, referring to Trial Judgement, paras. 870-873. 1375 Nyiramasuhuko Notice of Appeal, para. 3.54. 1376 Prosecution Response Brief, paras. 352-354. 1377 Nyiramasuhuko Reply Brief, para. 173, 215 Case No. ICTR-98-42-A 14 December 2015

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20150/H of the RPF in the events without this prompting the Trial Chamber to question their impartiality demonstrates bias on behalf of the Trial Chamber. 1378 613. While the Appeals Chamber is not convinced that the fact that Expert Witness Shimamungu confirmed that he was asked by the Defence to "criticize" the Ntakirutimana's report evidences bias on his part, 379 it is nevertheless satisfied that a reasonable trier of fact could have decided to treat his testimony with appropriate caution given his opposition to the RPF, his views on the 1994 genocide, and his links with the Habyarimana family, and given the fact that these positions were shared by Nyiramasuhuko. 380 The Trial Chamber considered that, while Expert Witness Shimamungu's activism did not adversely affect his credibility "when viewed independently", this was not the case when "viewed against the background of the 1994 events". 1381 The Appeals Chamber sees no error in such reasoning. In light of the above, the Appeals Chamber finds that a reasonable trier of fact could have accepted Expert Witness Ntakirutimana's interpretation of Sindikubwabo's Speech over Expert Witness Shimamungu's interpretation. Furthermore, the Appeals Chamber observes that Nyiramasuhuko fails to point to any evidence indicating activism on the part of Expert Witnesses Des Forges, Guichaoua, or Reyntjens that could have impacted their

objectivity. 1382 614. For these reasons, the Appeals Chamber finds that Nyiramasuhuko has not shown any error in the assessment of Expert Witness Shimamungu's evidence. (iv) Witness RV 615. Nyiramasuhuko submits that the Trial Chamber erred in relying on Witness RV to find that Sindikubwabo's Speech was inflammatory. 1383 'In particular, she argues that Witness RV's position as a detainee who could potentially benefit from accusing her and the fact that he stated that "perhaps he did not hear" Kanyabashi's speech should have led the Trial Chamber to require 1378 Nyiramasuhuko Reply Brief, para. 174. 1379 See Eugène Shimamungu, T. 30 March 2005 p.

7. See also Exhibit D278 (Butare 1994: Political Communication of the "Abatabazi" Interim Government and its Impact on the Population, by Eugène Shimamungu) (confidential) (38 himamungu Report*), p.

9. See Trial Judgement, paras. 870-873, 897. See also Eugène Shimamungu, T. 29 March 2005 pp. 16-19, 38-40; Exhibit P167A (Correspondence from Shimamungu, dated 27 April 2001). 1381 See Trial Judgement, para. 872. 1382 The Appeals Chamber notes that Nyiramasuhuko did not make any such submissions in her closing brief when addressing the evidence of these witnesses. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Closing Brief of Pauline Nyiramasuhuko with Annex, 17 February 2009 (originally filed in French, English translation filed on 1 April 2009) (confidential) ("Nyiramasuhuko Closing Brief"), paras. 367-507. Moreover, the Appeals Chamber rejects Nyiramasuhuko's unreferenced contention that Expert Witness Des Forges's criticism of President Habyarimana's Government's actions in 1993 displayed "potential bias". See Nyiramasuhuko Reply Brief, para. 173. 383 Nyiramasuhuko Notice of Appeal, paras. 3.61, 3.62, 3.64; Nyiramasuhuko Appeal Brief, paras. 667, 668. 216 Case No. ICTR-98-42-A 14 December 2015

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20149/H corroboration. 1384 Nyiramasuhuko also contends that the Trial Chamber erred in: (i) its interpretation of Witness RV's testimony regarding the meaning of the words "enemy" and "work"; (ii) stating that this witness was corroborated by Expert Witness Reyntjens as this expert was not qualified to speak on this matter and was not a factual witness; and (iii) stating that Witness RV was also corroborated by Witness Karemano as this witness testified that the speech was ambiguous. 1385 616. The Prosecution responds that Nyiramasuhuko fails to demonstrate any error in the Trial Chamber's assessment of Witness RV's evidence. 1386 617. The Appeals Chamber observes that Witness RV unambiguously testified that he attended Nsabimana's Swearing-In Ceremony and that he listened to Kambanda's and Sindikubwabo's Speeches. 1387 Therefore, the Appeals Chamber fails to see the relevance of Nyiramasuhuko's reference to the fact that Witness RV "did not hear" Kanyabashi's speech. 1388 618. In addition, the Appeals Chamber observes that, in evaluating the witness's evidence in relation to Kambanda's and Sindikubwabo's Speeches, the Trial Chamber noted that, at the time of his testimony, Witness RV was detained in Rwanda and was serving a sentence for his involvement in the 1994 genocide. 1389 The Trial Chamber concluded that it would treat Witness RV's evidence with appropriate caution

given his status as an accomplice witness. 1390 A comprehensive reading of • the Trial Judgement evinces that the Trial Chamber considered in detail Witness RV's status as a detained witness and as an accomplice witness in relation to other events upon which he testified. 1391 In this context, the Appeals Chamber is satisfied that the Trial Chamber properly considered Witness RV's possible motivation to implicate Nyiramasuhuko as well as other accused.

619. The Appeals Chamber further notes that, contrary to what Nyiramasuhuko seems to allege, the Trial Chamber did not base its finding as to the meaning of the words "enemy" and "work" in Kambanda's and Sindikubwabo's Speeches solely on Witness RV's testimony but also considered the transcripts of the speeches themselves, the evidence of Expert Witnesses Des Forges, 138 Nyiramasuhuko Notice of Appeal, paras. 3.61, 3.63; Nyiramasuhuko Appeal Brief, para.

667. Nyiramasuhuko further argues that Witness RV's evidence regarding the meaning of the word "work" was hearsay and contradictory, without providing any substantiation or supporting references. See Nyiramasuhuko Appeal Brief, para. 668, referring to Trial Judgement, para.

896. The Appeals Chamber dismisses this unsubstantiated argument. 1385 Nyiramasuhuko Notice of Appeal, paras. 3.61, 3.62, referring to Witness RV, T. 16 February 2004 pp. 41, 43, 44 (French), Trial Judgement, paras. 894, 896, 897; Nyiramasuhuko Appeal Brief, para. 669, referring, inter alia, to. Charles Karemano, T. 5 September 2006 pp. 30, 31. 1386 Prosecution Response Brief, paras. 339-344, 349. 1387 See Witness RV, T. 16 February 2004 pp. 34, 35 (closed session). 1388 See Witness RV, T. 19 February 2004 p. 58 (closed session). See also Trial Judgement, para. 908. 1389 Trial Judgement, para. 894. 1390 Trial Judgement, para. 894. 139l See, e,g., Trial Judgement, paras. 907, 982, 3666, 4630. 217 Case No. ICTR-98-42-A 14 December 2015

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20148/H Ntakirutimana, and Reyntjens, and the evidence of Witnesses Karemano and TQ 1392 Consequently, the Appeals Chamber finds no merit in Nyiramasuhuko's contention that the Trial Chamber failed to exercise sufficient caution with respect to Witness RV's evidence and to require corroboration. 1393 620. As regards the Trial Chamber's interpretation of Witness RV's testimony, the Appeals Chamber finds that the evidence of Witness RV concerning the meaning of the words "enemy" and "work", as correctly summarised by the Trial Chamber, does not differ from the Trial Chamber's findings in its deliberations. 1394 621. The Appeals Chamber also sees no error in the Trial Chamber's reliance on Expert Witness Reyntjens to corroborate the evidence of Witness RV. As noted above, Nyiramasuhuko fails to demonstrate that Expert Witness Reyntjens was not qualified to testify on the issue. 1395 As to Witness Karemano, while it is true that the witness testified that the word "gukora" in Sindikubwabo's Speech was ambiguous, the Appeals Chamber observes that he also agreed that the speech "chang[ed] things" and that people used it to legitimise killings that were subsequently committed. 1396 In the view of the Appeals Chamber, a reasonable trier of fact could have considered that Witness Karemano's account was consistent with the evidence of Expert Witnesses Ntakirutimana, Des Forges, and

Reyntjens, and of Witnesses RV and TQ. 1397 622. The Appeals Chamber accordingly dismisses Nyiramasuhuko's challenges to the assessment of Witness RV's evidence. (v) Interpretation of the Speeches 623. The Trial Chamber found that when Sindikubwabo took the floor and made his speech, he clearly called on the audience to take action against Tutsis, which meant to participate in the 1392 Trial Judgement, paras. 892-897. 1393 In any event, the Appeals Chamber recalls that nothing in the Statute or the Rules prevents a trial chamber from relying on uncorroborated evidence. A trial chamber has the discretion to decide in the circumstances of each case whether corroboration is necessary and whether to rely on uncorroborated, but otherwise credible, witness testimony. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 251; Nchamihigo Appeal Judgement, para. 42; Milosevié Appeal Judgement, para.

215. This discretion applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 251; Muvunyi Appeal Judgement of 1 April 2011, paras. 37, 38; Renzaho Appeal Judgement, para.

263. Compare Trial Judgement, paras. 609, 894, 896 with Witness RV, T. 16 February 2004 p. 35 (closed session). The Trial Chamber noted that "Witness RV testified that 'work' referred to the struggle against the enemy, i.e. the Tutsis." See Trial Judgement, para. 896. 139S See supra, para. 581. 1396 See Charles Karemano, T. 5 September 2006 p.

27. See also Trial Judgement, paras. 745, 896, 932. 1397 See Trial Judgement, para. 897. 218 Case No. ICTR-98-42-A 14 December 2015

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20147/H killings.1398 It concluded that Kambanda's and Sindikubwabo's Speeches shared a number of common themes, in that they underlined the existence of war, urged the people of Butare to take action, and warned of traitors who underwent weapons training. 1399 The Trial Chamber further found that these common themes illustrated that the speeches were complementary and had the common purpose of inciting the population to take action against the Tutsis. 1400 It also considered that "when Kambanda talked about not tolerating those who support the enemy and the bourgmestres who he had been told went to train with the Inkotanyi, he was in effect inciting his listeners to commit killings and violence against these people.»l401 624. Nyiramasuhuko contends that the Trial Chamber erred in finding that Sindikubwabo's Speech "clearly" called on the audience to "take measures against the Tutsis" when there is no sentence in the speech that stated such a thing or could be interpreted as such. 402 Additionally, she submits that the Trial Chamber's inference that Kambanda's and Sindikubwabo's Speeches were complementary and both aimed at inciting the population to kill Tutsis based on the fact that the two speeches spoke about war was unreasonable, especially as the country was at war. 1403 625. The Prosecution responds that Nyiramasuhuko fails to show that the Trial Chamber's finding that

Sindikubwabo's Speech was inflammatory, used coded language, and called on the audience to kill Tutsis and their accomplices was unreasonable. 1404 626. Although Sindikubwabo's Speech did not expressly call on the audience to "take measures against the Tutsis", the Appeals Chamber finds no error in the Trial Chamber's conclusion that it contained such a message. Indeed, a review of Sindikubwabo's Speech reflects that Sindikubwabo specifically asked his audience to analyse his message to understand the terms he used. 1405 The Appeals Chamber is not persuaded that the Trial Chamber's findings that Sindikubwabo's 1398 Trial Judgement, para. 890. 1399 Trial Judgement, para, 892. 1400 Trial Judgement, para. 892. 1401 Trial Judgement, para. 892. 1402 Nyiramasuhuko Appeal Brief, para. 662. 1403 Nyiramasuhuko Appeal Brief, para.

666. See also Nyiramasuhuko Reply Brief, para. 176. 1404 Prosecution Response Brief, paras. 321, 322, 339, 345, 355-357. 1405 See Exhibit P151B (Speeches Delivered by Théodore Sindikubwabo and Other Personalities on 19 April 1994 in Butare préfecture), p. 5 ("I would like you to analy[sle our message, understand it and analy[sJe the terms we are using; you should understand why we choose to use one term and not another. It is because we are in an unusual period."). See also ibid., p. 4 ("You should not imagine that these are empty words. When I addressed Rwandan citizens recently on the 17", I asked them to understand, to understand the full weight of the messages in question, because these were not ordinary words ... we are in a period of war. [..] The truth is that the words we address to you, the messages we transmit to you... the instructions we send you are taken as if these were empty words, but these are things that are quite serious, considering that we are at war."). 219 Case No. ICTR-98-42-A 14 December 2015

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20146/H Speech contained coded language and that it clearly incited the population to kill Tutsis are irreconcilable or inconsistent. 1406 627. The Appeals Chamber further observes that the fact that both Kambanda's and Sindikubwabo's Speeches mentioned that the country was at war was not the only feature relied on by the Trial Chamber to reach its finding that they were complementary. 407 Having reviewed the relevant findings of the Trial Chamber as to the common themes of the speeches, as well as its previous findings on the content, nature, and character of Sindikubwabo's Speech, 408 the Appeals Chamber finds that, on the basis of the evidence before the Trial Chamber, a reasonable trier of fact could have concluded that it was clear that "when Kambanda talked about not tolerating those who supported the enemy and the bourgmestres who he had been told went to train with the Inkotanyi, he was in effect inciting his listeners to commit killings and violence against these people." 40g The Appeals Chamber discerns no error in the Trial Chamber's holistic review of the two speeches in reaching its finding. The Appeals Chamber dismisses Nyiramasuhuko's contentions in that regard. (b) Commencement of the Widespread Killings in Butare Prefecture 628. The Trial Chamber noted that Nyiramasuhuko's theory at trial "that massacres already occurred in Nyakizu and Maraba before 19 April

1994 [... did] not contradict the Prosecution theory that the genocide in Butare did not commence immediately after the death of the President on 6 April 1994 and that the large-scale massacres of Tutsis began two weeks later."1410 The Trial Chamber observed that, although there was some evidence that a few massacres and ethnic violence occurred prior to 19 April 1994 within Butare's western communes, there was "overwhelming evidence that massacres in most of the Butare communes started in the wake of the events of 19 April 1994.»1411 It concluded that widespread killings of Tutsis did not commence in Butare Prefecture prior to 18 or 19 April 1994.1412 In reaching these findings, the Trial Chamber took into consideration the removal of Prefect Habyalimana on 16 or 17 April 1994, the appointment of Nsabimana as the new prefect of Butare as well as Kambanda's and Sindikubwabo's Speeches at Nsabimana's Swearing-In Ceremony on 19 April 1994.1413 1406 Compare Trial Judgement, para. 883 with ibid., para. 890. 1407 See Trial Judgement, para.

892. This conclusion is also confirmed by Witness RV. See Witness RV, T. 19 February 2004 p. 26 (closed session). See also Trial Judgement, para. 609 108 See Trial Judgement, paras. 867-890. 1409 See Trial Judgement, para. 892; Exhibit DS73B (Extracts of Speeches by Kambanda and Kanyabashi). 1410 Trial Judgement, para. 853. 1411 Trial Judgement, paras. 854, 856, 927. 1412 Trial Judgement, paras. 930, 933. 1413 Trial Judgement, paras, 933, 5673. See also ibid., paras. 931, 932, 5676. 220 Case No. ICTR-98-42-A 14 December 2015

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20145/H 629. Nyiramasuhuko submits that the Trial Chamber erred in finding that widespread killings did not commence prior to 19 April 19941414 She contends that the Trial Chamber contradicted itself as it found that killings had already started in some communes in Butare Prefecture prior to that date. 1415 She avers that it is clear from the evidence adduced at trial, notably the evidence of Expert Witness Des Forges and Witness TA, that widespread killings had already started before 19 April 1994. 1416 Nyiramasuhuko further contends that the Trial Chamber erred in finding on the sole basis of the evidence of expert witnesses that the removal of Prefect Habyalimana and Kambanda's and Sindikubwabo's Speeches coincided with and contributed to trigger the commencement of widespread killings in Butare Prefecture. l417 630. The Prosecution responds that Nyiramasuhuko's arguments should be rejected as: (i) the Trial Chamber clearly distinguished between widespread killings of Tutsis in Butare Prefecture after 19 April 1994 and the occurrence of a few isolated killings in its western communes between 15 and 18 April 1994; (ii) Witness TA's evidence does not undermine the Trial Chamber's finding; and (iii) Expert Witness Des Forges's reference to acts of violence in four out of 20 communes prior to 19 April 1994 does not equate to widespread attacks across Butare Prefecture. 418 The

Prosecution adds that the Trial Chamber's impugned finding was not solely based on expert evidence. 1419 631. The Appeals Chamber finds no error in the Trial Chamber's conclusion that widespread killings of Tutsis did not occur in Butare Prefecture prior to 19 April 1994. While the Trial Chamber found that a few large scale massacres occurred prior to 19 April 1994 within the prefecture's western communes, it also found that there was overwhelming evidence that massacres 1414 Nyiramasuhuko Notice of Appeal, paras. 3.49, 3.66-3.69, 3.75, 3.76; Nyiramasuhuko Appeal Brief, paras. 673-676. See also Nyiramasuhuko Notice of Appeal, para. 3.17. 1415 Nyiramasuhuko Notice of Appeal, paras. 3.49, 3.66-3.68, referring to Trial Judgement, paras. 649-632, 835, 856; Nyiramasuhuko Appeal Brief, para.

673. Nyiramasuhuko points out that the Trial Chamber noted the occurrence of killings in Cyahinda parish around 15 April 1994. See Nyiramasuhuko Appeal Brief, para. 673, referring to Trial Judgement, para.

856. Nyiramasuhuko Appeal Brief, paras. 675, 676. Nyiramasuhuko points out that Witness TA testified that Nyaruhengeri, Shyanda Communes had been attacked well before 20 April 1994. See ibid., para. 675, referring to Witness TA, T. 7 November 2001 pp. 48-50. She further contends that there is concrete evidence that the wave of violence was noticed in four communes on 16 April 1994. See ibid., para. 676, referring to Trial Judgement, para.

880. See also Nyiramasuhuko Reply Brief, para. 165, referring to Exhibit P110A (Des Forges Report), pp. 17-20, Alison Des Forges, 1. 9 July 2004 pp. 5-10. Nyiramasuhuko Notice of Appeal, paras. 3.17, 3.49, 3.69-3.71, 3.75; Nyiramasuhuko Appeal Brief, para. 674. 1418 Prosecution Response Brief, paras. 362, 364-367, 369. See also ibid., para.

370. The Prosecution points out that, while the Trial Chamber took note of the joint communiqué of 16 April 1994 confirming that ethnic violence had reached Butare's western communes, it did not find that there were widespread killings throughout Butare Prefecture prior to 19 April 1994. See ibid., para. 369, referring to Exhibit D240 (Communiqué sanctioning the security of the authorities of Butare and Gikongoro. 16 April 1994) ("16 April Communiqué"). 1419 Prosecution Response Brief, paras. 363, 371, 374. The Prosecution refers to the Trial Chamber's reliance on the Ndayambaje, Nyiramasuhuko, and Witnesses QBU, QCB, FAB, FAE, WMCZ, and QA. See ibid., para.

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20144/H in most communes of Butare Prefecture started after 19 April 1994.1420 As such, the Appeals Chamber considers that the Trial Chamber's distinction between a few large scale massacres prior to 19 April 1994 that took place in specific communes of Butare Prefecture and generalised widespread killings occurring throughout Butate Prefecture after 19 April 1994 was reasonable. 1421 632. Moreover, the Appeals Chamber is not persuaded by Nyiramasuhuko's argument that the evidence of Expert Witness Des Forges and Witness TA contradicts the Trial Chamber's finding on that issue. Expert Witness Des Forges mentioned that killings occurred around 14 to 18 April 1994 in four western communes of Butare Prefecture. 1422 Witness TA testified that, prior to 20 April 1994, some communes had already been attacked, notably Nyaruhengeri, Ngoma, and Shyanda Communes. 1423 The Trial Chamber's finding is consistent with this evidence.

633. The Appeals Chamber further rejects Nyiramasuhuko's contention that the Trial Chamber made its finding on the commencement of the widespread killings in Butare Prefecture solely on expert witness evidence as the Trial Judgement shows that the Trial Chamber also relied on the evidence of numerous factual witnesses. 1424 634. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contentions pertaining to the Trial Chamber's findings on the commencement of the widespread killings in Butare Prefecture.

6. Incoherent and Contradictory Findings 635. Nyiramasuhuko submits that the Trial Chamber's conclusion that the only reasonable inference from the evidence was that she entered into an agreement with members of the Interim Government to kill Tutsis in Butare Prefecture is based on "[e]rroneous, incoherent, inconsistent and/or irreconcilable findings" 142S With respect to the Trial Chamber's findings on the Cabinet meetings of the Interim Government and its decisions and directives in particular, Nyiramasuhuko contends that the Trial Chamber erred in: (i) substituting the intent of the Interim Government for her own specific intent since it did not know what role, if any, she played during the Cabinet 1420 See Trial Judgement, para.

927. See also 16 April Communiqué. 1421 Compare Trial Judgement, paras. 854-856, 927 with ibid., paras. 927-933. The Appeals Chamber stresses that any error in this regard would in any event not affect the Trial Chamber's finding on the existence of a conspiracy to commit genocide since the crime of conspiracy to commit genocide is an inchoate offence, which does not require evidence of implementation. See Nzabonimana Appeal Judgement, para. 417; Gatete Appeal Judgement, paras. 260, 262. See also Seromba Appeal Judgement, para. 218; Nahimana et al. Appeal Judgement, para. 894. 1422 See Alison Des Forges, T. 8 July 2004 pp. 73-75. See also T. 9 July 2004 p. 5, Exhibit P110A (Des Forges Report) See Witness TA, T. 7 November 2001 p. 49 (closed session). 1424 See Trial Judgement, paras. 928, 930, referring, inter alia, to Witnesses FAM, QBU, FAI, QI, FAB, FAE, WMCZ, RV, and QJ, and Ndayambaje. 1425 Nyiramasuhuko Appeal Brief, heading "d)" at p. 137, paras. 622-633. See also Nyiramasuhuko Reply Brief, para. 146; AT. 14 April 2015 p. 10. 222 Case No. ICTR-98-42-A 14 December 2015

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20143/H meetings; 1426 (ii) relying on her mere participation at the meeting where the decision was made to replace Prefect Habyalimana;1427 (ji) rejecting as not credible her testimony explaining that Prefect Habyalimana's removal resulted from an agreement between the PSD and the Parti libéral ("PL"), while Expert Witness Des Forges accepted this explanation; 1428 and (iv) finding that she and members of the Interim Government conspired to issue directives to the population between 9 and 19 April 1994 without mentioning which directives and referring only to the 27 April Directive which was issued after the period in question 1429 636. With respect to Nsabimana's Swearing-In Ceremony, Nyiramasuhuko argues that the Trial Chamber erred in relying on the fact that she tacitly approved Kambanda's and Sindikubwabo's Speeches, whereas it found that her presence had not significantly contributed to any crime and could not have contributed to the crime of conspiracy. 430 According to her, the Trial Chamber further erred in finding the existence of a conspiracy which occurred in particular between 9 April and 19 April 1994 on the basis of the dismissal of Prefect Habyalimana and Nsabimana's Swearing-In Ceremony whereas the only finding it made was that these events coincided with the start of the killings. '431 637. The Appeals Chamber understands Nyiramasuhuko to further argue that

the Trial Judgement therefore reflects that the Trial Chamber's ultimate conclusion was solely based on the 27 April Directive considered together with the "coincidence" of the dismissal of Prefect Habyalimana and Nsabimana's Swearing-In Ceremony with the start of the killings. 1432 She contends that the finding of conspiracy between her and the Interim Government between 9 and 19 April 1994 "is irreconcilable with 'the only reasonable inference' proved mainly through the post facto directives of 27 April 1994, and is incompatible with the factual findings of the Chamber that most of the killings were committed between 17 and 19 April 1994 and the end of April 1994 in Butare 1426 Nyiramasuhuko Appeal Brief, paras. 623, 641, referring to Trial Judgement, paras. 5732, 5733. See also ibid., paras. 597, 632; Nyiramasuhuko Reply Brief, paras. 149, 167. See also AT. 14 April 2015 pp. 11, 12; AT. 15 April 2015 p. 4. 1427 Nyiramasuhuko Appeal Brief, para.

626. Nyiramasuhuko highlights that, in the Mugenzi and Mugiraneza case, the Appeals Chamber considered that mere consent to the decision to dismiss Prefect Habyalimana was insufficient to prove the necessary mens rea for the crime of conspiracy to commit genocide. See idem, referring to Mugenzi and Mugiraneza Appeal Judgement, para.

91. See also Nyiramasuhuko Notice of Appeal, para. 3.14. 1428 Nviramasuhuko Appeal Brief, paras. 597, 627. See also Nyiramasuhuko Reply Brief, paras. 149, 165. 1429 Nyiramasuhuko Appeal Brief, para.

624.

SERGEA 1430 Nyiramasuhuko Notice of Appeal, para. 3.65; Nyiramasuhuko Appeal Brief, paras. 633, 678, referring to Trial Judgement, paras. 5745, 5746. See also Nyiramasuhuko Notice of Appeal, para. 3.16; Nyiramasuhuko Reply Brief, para viramasuhuko Appeal Briet, para. 625, referring to Trial Judgement, para, 5676. Nyiramasuhuko submits that the mere coincidence in time of these two events does not allow a finding that the only possible reasonable inference was the existence of a conspiracy. See ibid., para.

626. See also Nyiramasuhuko Notice of Appeal, para. 3.76. 1432 Nyiramasuhuko Appeal Brief, para.

628. See also ibid., para. 652. 223 Case No. ICTR-98-42-A 14 December 2015

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20142/H préfecture."1433 In Nyiramasuhuko's view, it was equally reasonable to infer from the evidence that the Interim Government was not able to put an end to the killings because the population no longer listened to it. 434 638. The Prosecution responds that Nyiramasuhuko's arguments fail to demonstrate that the Trial Chamber erred in concluding that the only reasonable inference was that she agreed with members of the Interim Government to commit genocide. 435 It submits that Nyiramasuhuko's arguments related to the Cabinet meetings and the Interim Government's decisions and directives should be rejected as the Trial Chamber relied on numerous factors to infer her intent as the only reasonable inference. 436 The Prosecution also argues that: (i) the Trial Chamber's finding that Nyiramasuhuko's role in the Cabinet meetings was not established related to another allegation for which she was not convicted and, in any event, the Trial Chamber's findings "depict Nyiramasuhuko as an active, renowned and key member of the government",1437 (ii) Nyiramasuhuko's testimony on Prefect Habyalimana's removal was internally inconsistent and contradicted; 1438 and (iii) the Trial Chamber did not only refer to the 27 April Directive but also considered other directives. 1439 639. Concerning Nyiramasuhuko's argument on Nsabimana's Swearing-In Ceremony, the Prosecution submits that

Nyiramasuhuko fails to show that the Trial Chamber could only consider her tacit approval as further confirming the conspiracy unless it substantially contributed to the killings. l440 It also argues that the "narrower time frame, 9-19 April, was not exhaustive as demonstrated by the Chamber's use of 'in particular' and its multiple references to the broader time 1433 Nyiramasuhuko Appeal Brief, para. 630 (emphasis omitted). See also ibid., paras. 628, 629. Nyiramasuhuko also points out the incoherence of a directive that would have aimed at setting up roadblocks to identify and kill Tutsis at a time when the killings had almost ceased. See Nyiramasuhuko Reply Brief, para. 162. 1434 Nyiramasuhuko Appeal Brief, para.

631. See also Nyiramasuhuko Notice of Appeal, para. 3.21; Nyiramasuhuko Appeal Brief, para. 622; Nyiramasuhuko Reply Brief, para.

147. Prosecution Response Brief, para.

276. See also AT. 14 April 2015 pp. 46, 47. 1436 Prosecution Response Brief, paras. 277-282. The Prosecution refers to Nyiramasuhuko's attendance at Cabinet meetings, her participation in the adoption of directives designed to encourage the killing of Tutsis through the use of roadblocks, her participation in the decision to remove Prefect Habyalimana, and her approval of Kambanda's and Sindikubwabo's Speeches. See ibid., para.

278. At the appeals hearing, the Prosecution also relied on her role in the crimes committed at the Butare Prefecture Office. See AT. 14 April 2015 p. 47. 1437 Prosecution Response Brief, paras. 284, 285 referring to Trial Judgement, paras. 8, 498, 581, 583, 5676, 5677. The Prosecution points out that she participated in issuing genocidal directives and drafted part of the directive issued on 25 May 1994. See ibid., para. 285. 1438 Prosecution Response Brief, paras. 308-313. The Prosecution points out that contrary to Nyiramasuhuko's assertion, Expert Witness Des Forges did not accept her explanation that Prefect Habyalimana's removal was a result of an agreement between the PSD and the PL. It adds that, while Expert Witness Des Forges noted that the political parties "could have made the initial proposal to remove [Prefect] Habyalimana", she did not contradict the Trial Chamber's finding that the decision to remove the prefect was ultimately made by the Interim Government. See ibid., paras. 312, 319 Prosecution Response Brief, paras. 272, 293, 294, 296, referring to Trial Judgement, Paras, 498, 570, 571, 581, 5669, 5676, Exhibits D349 (Government-Préfet Joint Meeting, 11 April 1994), D350C (English translation of Kambanda's speech of 11 April 1994), P121B (Prime Minister's Directive to Préfets on the organization of civil defence, 25 May 1994). 224 Case No. ICTR-98-42-A 14 December 2015

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20141/H frame, 9 April-14 July" 1441 The Prosecution contends that, contrary to Nyiramasuhuko's suggestion, there is no other reasonable alternative interpretation of the evidence than that of the Trial Chamber. 1442 640. Nyiramasuhuko replies, inter alia, that the Trial Chamber did not rely on Kambanda's instructions to prefects of 11 April 1994, the directives issued on 25 May 1994, her presence in Butare on several occasions between mid-April and late June 1994, or the alleged orders to Interahamwe at the Butare Prefecture Office referred to by the Prosecution and that the directives issued on 25 May 1994 did not support the Trial Chamber's finding, 1443 She also argues that there was a protocol requiring ministers to be present at ceremonies attended by the President of Rwanda and that there was no evidence that Sindikubwabo's Speech was previously agreed upon or that she was privy to its content before it was delivered. '444 641. Contrary to Nyiramasuhuko's assertion, the Appeals Chamber observes that the Trial Chamber did not exclusively rely on the 27 April Directive to convict her of conspiracy to commit genocide but also relied on a number of other elements, such as the decision to dismiss Prefect Habyalimana from office and her endorsement of Kambanda's and Sindikubwabo's Speeches at Nsabimana's Swearing-In Ceremony. 1445 642. As noted above, the Trial Chamber also

relied on Nyiramasuhuko's participation with the Interim Government in many of the Cabinet meetings at which the massacres of Tutsis was discussed and in decisions taken during these meetings. I446 In this respect, the Appeals Chamber observes that, when discussing Nyiramasuhuko's responsibility for the crime of genocide later in the Trial Judgement, the Trial Chamber emphasised that it had not found what role, if any, Nyiramasuhuko played at the numerous Cabinet meetings held by the Interim Government between 9 April and 14 July 1994, and that it did not establish, for instance, that Nyiramasuhuko was "assigned responsibility for 'pacification' in Butare" 1447 The Trial Chamber concluded that the 1440 Prosecution Response Brief, paras. 358, 360. 1441 Prosecution Response Brief, para. 297. 1442 Prosecution Response Brief, paras. 273, 278, 286, 360. The Prosecution argues that Nyiramasuhuko's alternative 1444 Nyiramasuhuko Reply Brief, paras. 175, 178, referring to Nyiramasuhuko, T. 26 October 2005 pp. 64, 65. 1445 See Trial Judgement, paras. 5670-5673, S676, 5678. 1446 See Trial Judgement, paras. 5669, 5678, 5727. 1447 Trial Judgement, para. 5734. 225 Case No. ICTR-98-42-A 14 December 2015

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20140/H Prosecution had not established that Nyiramasuhuko bore criminal responsibility pursuant to Article 6(1) of the Statute in relation to these Cabinet meetings.1448 643. The Trial Chamber's findings as to Nyiramasuhuko's absence of role in Cabinet meetings and lack of criminal responsibility in this respect might appear contradictory with its previous finding that Nyiramasuhuko conspired to commit genocide with the Interim Government notably through her participation in Cabinet meetings and the adoption of directives and instructions during Cabinet meetings. 449 However, reading the Trial Judgement as a whole, the Appeals Chamber understands the Trial Chamber's findings to simply reflect that, whereas Nyiramasuhuko's participation in Cabinet meetings throughout the relevant period evidenced that she had entered into an agreement with members of the Interim Government to kill Tutsis within Butare Prefecture, it was nonetheless not constitutive of the crime of genocide.

644. As regards the Trial Chamber's reliance on Nyiramasuhuko's participation in Cabinet meetings as evidence of an agreement between her and members of the Interim Government to commit genocide, the Appeals Chamber notes that the Trial Chamber specifically pointed to Nyiramasuhuko's presence at meetings when the ministers were briefed on the massacres of the Tutsi population, and the fact that the Interim Government, including her, did nothing to stop the massacres but, rather, adopted directives and issued instructions which were designed to encourage the killing of Tutsis. 1450 Nyiramasuhuko does not challenge that she did attend a number of these meetings and acknowledged to having been involved in the elaboration of directives and instructions. 1451 Under these circumstances, the Appeals Chamber finds that a reasonable trier of fact could have relied, among other things, on Nyiramasuhuko's participation in Cabinet meetings to find that she conspired to commit genocide. Although the Trial Chamber at times used imprecise language, the Appeals Chamber is nonetheless satisfied from a holistic review of the Trial Chamber's relevant findings that it did not impose strict liability on Nyiramasuhuko but reached its finding of guilt on the basis of Nyiramasuhuko's own acts and omissions and did not substitute the intent of the Interim Government for her intent.

645. Turning to Nyiramasuhuko's submissions that the Trial Chamber erred when assessing her involvement in Prefect Habyalimana's removal, the Appeals Chamber considers that Nyiramasuhuko fails to demonstrate that it was unreasonable for the Trial Chamber to find her 1448 Trial Judgement, para. 5735. 1449 Compare Trial Judgement, paras. 583, 5676, 5678 with Trial Judgement, para. 5734. 1450 Trial Judgement, para. 5669. 1. 28 Secer anu ko, T. T. Scepen Spen 020255 p. 51. 5,T -14 Toven er 20m p. 12,T. 16 NOvember 2005 p. 16-20, T. 21 November 2005 p. 8, T. 22 November 2005 p. 9; Trial Judgement, paras. 489-498, 505-514, 521-52- 31-536, 542-545, 548-550, 556-560, 563. See also Trial Judgement, paras. 570, 571, 581 226 Case No. ICTR-98-42-A 14 December 2015

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20139/H explanation as to Prefect Habyalimana's removal not credible. The Appeals Chamber sees no error in the Trial Chamber's finding that, even if the political parties made the initial proposal to remove Prefect Habyalimana from office, the final decision fell to the Interim Government and was taken during a Cabinet meeting attended by Nyiramasuhuko. 1452 The Appeals Chamber recalls that when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible. 453 Against this background, the Appeals Chamber finds that it was within the Trial Chamber's discretion to find the explanation provided by Expert Witness Guichaoua more convincing. 1454 The Appeals Chamber also agrees with the Prosecution that Expert Witness Des Forges did not accept Nyiramasuhuko's explanation that the decision to remove Habyalimana was made as a result of an agreement between the PSD and the PL. While Expert Witness Des Forges acknowledged that the political parties could have made the initial proposal for the removal, her testimony does not contradict the Trial Chamber's finding that the Interim Government took the ultimate decision. l455 646. Regarding the Trial Chamber's alleged failure to mention which directives of the Interim Government it referred to aside from the 27 April Directive, the Appeals Chamber notes

that; although the Trial Chamber referred at length to a number of Cabinet meetings and directives when summarising the relevant evidence, the Trial Chamber only specifically referred in its deliberations in the "Factual Findings" section of the Trial Judgement to the instructions to prefects of 11 April 1994 and to the 27 April Directive. 456 In its legal finding on conspiracy to commit genocide, the Trial Chamber did not expressly identify a specific directive besides the 27 April Directive. 457 Nevertheless, a plain reading of the Trial Judgement and the wording used by the Trial Chamber evince that the reference to the 27 April Directive was not exhaustive and that the Trial Chamber intended to rely on the directives it mentioned when summarising the evidence. 458 647. As to the timeframe of the conspiracy among the Interim Government members, the Appeals Chamber is of the view that, while the Trial Chamber referred to a period of 9 to 19 April 1994, this narrow timeframe was not meant as exhaustive, as demonstrated by the term "in particular" and its multiple references to the broader timeframe of 9 April to 14 July 1994 in the 1452 See Trial Judgement, paras. 857-864, 5670. The Appeals Chamber notes that the Trial Chamber considered the evidence provided by Nyiramasuhuko in that respect. See Trial Judgement, paras, 832-838, 859. See, e.g., Ndahimana Appeal Judgement,

para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29. 1454 See Trial Judgement, paras. 860, 861. The Appeals Chamber finds also no merit in Nyiramasuhuko's reliance on the Mugenzi and Mugiraneza Appeal Judgement, which resulted from a separate proceeding against different accused and was based on a different trial record. 145S See Alison Des Forges, T. 15 June 2004 pp. 63, 64. 1456 See Trial Judgement, paras. 464-563, 570. 1457 Trial Judgement, paras. 5669, 5677. 1458 See Trial Judgement, paras. 570 ("[i]n particular"), 5669 ("[t]hese included"). 227 Case No. ICTR-98-42-A 14 December 2015

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20138/H Trial Judgement. 459 Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko's assertion that the finding of conspiracy was irreconcilable with the Trial Chamber's reliance on the "post facto" 27 April Directive and the findings that most of the killings were committed between 17 and 19 April and the end of April 1994 in the prefecture.

648. With respect to Nyiramasuhuko's contentions concerning Nsabimana's Swearing-In Ceremony, the Appeals Chamber recalls that the Trial Chamber found that the presence of Nyiramasuhuko, Nsabimana, and Kanyabashi at Nsabimana's Swearing-In Ceremony and their failure to dissociate themselves from the statements made by Kambanda and Sindikubwabo constituted tacit approval of their inflammatory statements. 460 However, the Trial Chamber found that there was not sufficient evidence to prove beyond reasonable doubt that Nyiramasuhuko's and Nsabimana's conduct substantially contributed to the killings that followed. '461 649. The Appeals Chamber finds that Nyiramasuhuko does not demonstrate any contradiction between the Trial Chamber's finding that she tacitly approved Kambanda's and Sindikubwabo's Speeches and its finding that her conduct did not substantially contribute to the subsequent killings. She also fails to demonstrate that these findings are irreconciliable with the Trial Chamber's finding that she was responsible for having conspired to commit genocide with members of the Interim Government. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is "a concerted agreement to act for the purpose of committing genocide"1462 and does not require evidence of implementation. 463 The Appeals Chamber also finds that, regardless of whether or not Nyiramasuhuko had prior knowledge of the content of Sindikubwabo's Speech, a reasonable trier of fact could have concluded on the basis of the totality of the evidence that, by her presence and failure to dissociate herself from the content of Kambanda's and Sindikubwabo's Speeches, the only reasonable inference was that Nyiramasuhuko endorsed their inflammatory statements.

650. The Appeals Chamber recalls that a trial chamber may infer the existence of a particular fact upon which the guilt of the accused depends from circumstantial evidence only if it is the only 1459 See Trial Judgement, paras. 583, 5669, 5676, 5727. 1460 Trial Judgement, para.

5739. See also ibid., paras. 5672, 5676, 5746. 1461 Trial Judgement, paras. 5746, 5747. The Trial Chamber however indicated that it would consider Nyiramasuhuko's and Nsabimana's conduct elsewhere in determining whether they possessed the requisite intent for genocide. Appeal Judgement, para.

894. Gatete Appeal Judgement, paras. 260, 262. See also Seromba Appeal Judgement, para. 218; Nahimana et al. Appeal Judgement, para. 894 228 Case No. ICTR-98-42-A 14 December 2015

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20137/H reasonable conclusion that could be drawn from the evidence presented. 1464 This also holds true for a conviction for conspiracy to commit genocide based on circumstantial evidence. 1465 651. In the present case, the Appeals Chamber finds that Nyiramasuhuko's argument that it was equally reasonable to infer that the Interim Government was unable to put an end to the killings as its authority was undermined is unsubstantiated. The Appeals Chamber is satisfied that a reasonable trier of fact could have determined that - on the basis of its findings that Nyiramasuhuko participated in Cabinet meetings where directives encouraging killings were issued, agreed to remove Prefect Habyalimana, attended Nsabimana's Swearing-In Ceremony, and endorsed Kambanda's and Sindikubwabo's Speeches - the only reasonable inference was that Nyiramasuhuko conspired with members of the Interim Government to commit genocide against the Tutsis in Butare Prefecture. 1466 652. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's allegations of incoherent and contradictory findings.

7. Conclusion 653. In light of the foregoing, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in convicting her of conspiracy to commit genocide with members of the Interim Government and, accordingly, dismisses Ground 19 of her appeal. 1461 See, e.g., Karemera and Ngirumpatse Appeal Judgement, paras. 535, 553, 629; Bagosora and Nsengiyumva Appeal Judgement, para. 515; Ntagerura et al. Appeal Judgement, para. 306; Celebici Appeal Judgement, para.

458. Mugenzi and Mugiraneza Appeal Judgement, paras. 88, 136; Nahimana et al. Appeal Judgement, para. 896; Ntagerura et al. Appeal Judgement, para.

306. See Trial Judgement, para. 5678. 229 Case No. ICTR-98-42-A 14 December 2015

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20136/H E. Alibis (Grounds 20-22) 654. At trial, Nyiramasuhuko presented alibis according to which she was in Kigali until she moved to Murambi, Gitarama Prefecture, with the Interim Government on 12 April 1994 and remained there until 1 June 1994, after which she moved to Muramba, Gisenyi Prefecture, where she stayed from 2 June 1994 until she fled Rwanda. 47 She stated that, although she was frequently moving around the country and made many trips to Butare Town to participate in meetings and visit her family, she never left Hotel Ihuliro at night when in Butare Town. 468 655. The Trial Chamber found that Nyiramasuhuko filed a belated notice of alibi. 1469 Furthermore, it found that, irrespective of whether Nyiramasuhuko was staying in Murambi, the short distance between Butare and Murambi would have permitted her to be present in Butare Town on the nights the attacks occurred at the Butare Prefecture Office. 470 The Trial Chamber also determined that it was not reasonably possibly true that Nyiramasuhuko was in Muramba from 7 to 9 June 1994, from 12 to 16 June 1994, and on 18 and 19 June 1994.1471 It further noted that Nyiramasuhuko admitted being present in Butare on the nights of 14, 15, and 30 May, as well as 11 June 1994.1472 The Trial Chamber concluded that Nyiramasuhuko came to the prefectoral office one night in mid-May 1994, one night around the end of May 1994 or

the beginning of June 1994, and during the first half of June 1994 to order the killings and rapes of Tutsi refugees 473 and convicted her on this basis. 1474 656. Nyiramasuhuko submits that the Trial Chamber erred in finding that her notice of alibi was filed late and in its assessment of the alibi evidence relating to the periods of 14 to 16 May 1994 and early to mid-June 1994. The Appeals Chamber will examine these contentions in turn.

1. Notice of Alibi 657. On 1 March 2005, the Trial Chamber directed Nyiramasuhuko and her co-accused to "immediately make the necessary disclosures" in accordance with Rule 67 of the Rules if they wished to raise an alibi. l475 On 4 March 2005, Nyiramasuhuko filed a notice of alibi indicating that 1467 Trial Judgement, para.

2540. See also ibid., paras. 2406, 2426, 2428. 1468 Trial Judgement, para.

2540. Hotel Ihuliro was owned by Nyiramasuhuko's husband, Maurice Ntahobali. See ibid., para.

3107. Trial Judgement, para. 2536. 1470 Trial Judgement, para.

2577. See also ibid., para. 2543. 1471 Trial Judgement, para.

2577. See also ibid., paras. 2543, 2570, 2574, 2575. 1472 Trial Judgement, para.

2577. See also ibid., para. 2544. 1473 Trial Judgement, paras. 2644, 2702, 2715, 2773, 2779. See also ibid., paras. 2780, 2781. 1474 See infra, para. 749. 1475 See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Confidential Prosecutor's Motion to be Served with Particulars of Alibi Pursuant to Rule 67(A)(ii)(a), 1 March 2005 ("Alibi Decision"), para. 29, p. 7; Trial Judgement, para.

2536. See also Trial Judgement, para. 6439. 230 Case No. ICTR-98-42-A 14 December 2015

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20135/H she was in Murambi, Gitarama Prefecture, from the end of May to approximately 3 June 1994, and later in Muramba, Gisenyi Prefecture, from about 4 June until 2 July 1994. 1476 658. In the Trial Judgement, the Trial Chamber observed that the Nyiramasuhuko Notice of Alibi had been proffered "almost four months" after the Prosecution closed its case on 5 November 2004 and consequently found it to be belated.477 It further held that the will-say statements of Nyiramasuhuko's alibi witnesses disclosed to the Prosecution in January and February 2005 were no substitute for the requisite notice under Rule 67(A) of the Rules and, in any event, were also belated and did not specify that they related to Nyiramasuhuko's alibis. 1478 The Trial Chamber emphasised that a late notice of alibi may suggest that the alibi is fabricated, tailored to answer the Prosecution case, and took this into account in assessing Nyiramasuhuko's alibis. 1479 659. Nyiramasuhuko submits that, in the circumstances of this case, the Trial Chamber erred in law and in fact in finding that her notice of alibi was filed late and by using the timing of its filing as a basis for discrediting it. 1480 She argues that the Nyiramasuhuko Notice of Alibi was filed in accordance with the Alibi Decision. 481 According to Nyiramasuhuko, the Trial Chamber failed to consider that she was not in a position to file a notice

of alibi prior to the commencement of the trial since she was not notified of the dates between April and July 1994 during which she allegedly committed crimes at the prefectoral office. 482 Nyiramasuhuko contends that she was still unable to discern these dates after the conclusion of the Prosecution case and asserts that this matter was also conceded by the Prosecution. 1483 660. Nyiramasuhuko further submits that it was unreasonable for the Trial Chamber to conclude that it was possible that her alibis were recently fabricated and hold the belated nature of her notice of alibi against her as the Prosecution was in possession of materials and information putting it on notice about her whereabouts between April and July 1994.1484 In her view, the Trial Chamber erred 1476 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Avis au Procureur de l'intention de la Défense de Pauline Nyiramasuhuko d'invoquer une défense d'alibi, 4 March 2005 (confidential) ("Nyiramasuhuko Notice of Alibi"). See also Trial Judgement, para.

2536. See Trial Judgement, paras. 2536, 6427. 1478 Trial Judgement, para. 2537. 1479 Trial Judgement, paras. 2536, 2550, 2562. 1480 Nyiramasuhuko Notice of Appeal, para. 4.1; Nyiramasuhuko Appeal Brief, para. 686. 1481 Nyiramasuhuko Notice of Appeal, para. 4.3. 1482 Nyiramasuhuko Notice of Appeal, para. 4.2; Nyiramasuhuko Appeal Brief, para.

687. See also Nyiramasuhuko Reply Brief, paras, 182, 183. See Nyiramasuhuko Appeal Brief, para. 688, referring to Prosecution Closing Brief, paras. 145, 242 at pp. 72, 73, 99, Nyiramasuhuko Closing Arguments, T. 22 April 2009 pp. 12, 13. 1484 Nyiramasuhuko Notice of Appeal, paras. 4.4-4.7; Nyiramasuhuko Appeal Brief, paras. 690-693. Specifically, Nyiramasuhuko argues that: (i) her pre-defence brief and the will-say statements of relevant witnesses, filed within the requisite time-limit, informed the Prosecution that she claimed to have been at the seat of the Interim Government in Gitarama or Gisenyi during the relevant period; (ii) the Prosecution was provided in a timely manner with all necessary information to interview Denise Ntahobali, who could confirm that she resided in Muramba from 1 June 1994; and (iii) the Prosecution was in possession of her 1994 personal diary since 1997, which informed it that she was residing at 231 Case No. ICTR-98-42-A 14 December 2015

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20134/H in failing to acknowledge that the Prosecution did not suffer prejudice from the late filing of her notice of alibi. 485 661. The Prosecution responds that the Trial Chamber correctly found that Nyiramasuhuko filed a late notice of alibi and took it into account in its findings. 486 It argues that Nyiramasuhuko had sufficient information about the crimes charged to file a timely alibi notice and that her claim that other documents could substitute it is baseless 487 The Prosecution adds that it never conceded that Nyiramasuhuko had not been provided with the dates when the crimes were alleged to have occurred. 1488 662. Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution of its intent to enter a defence of alibi "[a]s early as reasonably practicable and in any event prior to the commencement of the trial". In its Alibi Decision, the Trial Chamber did not permit Nyiramasuhuko to derogate from this provision but merely directed "the Defence to immediately make the necessary disclosures in accordance with Rule 67 [of the Rules], if it wishe[d] to rely on the defence of alibi", 1489 The Nyiramasuhuko Notice of Alibi was filed on 4 March 2005, 1490 nearly four months after the conclusion of the Prosecution case on 5 November 2004, and after the commencement of the Defence case on 31 January 2005.1491 Accordingly, the Trial Chamber did not err in finding that Nyiramasuhuko's notice of alibi provided pursuant to Rule 67 of the Rules was belated.

663. Nyiramasuhuko advances a number of arguments to justify the late filing of her notice of alibi, such as not being notified of the dates on which she allegedly committed the crimes at the prefectoral office and not having an alibi for the entire period between April and July 1994.1492 However, these arguments do not change the fact that the Nyiramasuhuko Notice of Alibi was filed after the commencement of the trial and in a manner that was inconsistent with Rule 67(A)(ii)(a) of the Rules. Moreover, the Appeals Chamber does not accept Nyiramasuhuko's argument regarding the broad timeframe of the alleged crimes, as she was only required to indicate in her notice of alibi that she was not in a position to commit the crimes with which she was charged 493 In this regard, it the various seats of the Interim Government between April and June 1994. See idem. See also Nyiramasuhuko Reply Brief, paras. 185, 186. 1485 Nyiramasuhuko Notice of Appeal, para. 4.5. See also Nyiramasuhuko Reply Brief, para. 184. 1486 Prosecution Response Brief, paras. 382, 383, 386. 1487 Prosecution Response Brief, paras. 385, 386. 1488 Prosecution Response Brief, para. 385. 1489 See Alibi Decision, p. 7. 1490 Nyiramasuhuko Notice of Alibi. See also Trial Judgement, para. 2536. 1491 See Trial Judgement, paras. 2536, 6427, 6433. 1492 See Nyiramasuhuko Notice of Appeal, paras. 4.2, 4.3; Nyiramasuhuko Appeal Brief, paras. 687, 688. 1493 See, e.g., Renzaho Appeal Judgement, para, 303; Nchamihigo Appeal Judgement, para. 92; Celebici Appeal Judgement, para. 581. 232 Case No. ICTR-98-42-A 14 December 2015

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20133/H is worth noting that the Nyiramasuhuko Notice of Alibi generally indicates that she was in Murambi from the end of May to around 3 June 1994 and later in Muramba from around 4 June to 2 July 1994,1494 The Appeals Chamber also notes that Nyiramasuhuko was able to provide at trial a very detailed account of her whereabouts from April to July 1994, including during her admitted presence in Butare. 49S In addition, the Appeals Chamber observes that, contrary to Nyiramasuhuko's argument, the Prosecution did not concede that she lacked information regarding the dates of the crimes she allegedly committed between April and July 1994. 1496 664. The Appeals Chamber recalls that the manner in which an alibi is presented may impact its credibility. 497 The Appeals Chamber has also previously held that failure to raise an alibi in a timely manner may suggest fabrication of the alibi in order to respond to the Prosecution case. 1498 It was therefore correct for the Trial Chamber to note that "a late notice of alibi may suggest that the alibis are fabricated"1499 and fully within its discretion to take into account Nyiramasuhuko's failure to provide her notice of alibi on time when assessing the alibi evidence. 500 Contrary to Nyiramasuhuko's assertion, the Trial Chamber was not required to consider whether the Prosecution suffered prejudice from the belated disclosure. 501 665. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in finding that the Nyiramasuhuko Notice of Alibi was belated and in taking it into account in its assessment of the alibi evidence.

2. Assessment of Alibi Evidence 666. Before turning to Nyiramasuhuko's challenges to the Trial Chamber's assessment of the alibi evidence, the Appeals Chamber recalls that an accused does not bear the burden of proving his 1494 See Nyiramasuhuko Notice of Alibi. 1495 See Trial Judgement, paras. 2406-2417, 2419-2428, 2431, 2434-2442, 2540, 2542, 2544, 2549, 2551, 2552, 2558, 2.559, 2563, 2564, 2569, 2571, 2572, 2574, 2576; Nyiramasuhuko, T. 6 September 2005 pp. 27-36, 42, 49, 50, T. 27 September 2005 pp. 61-64, T. 29 September 2005 pp. 9, 48-52, T. 3 October 2005 pp. 60-62, T. 4 October 2005 pp. 7-10, 17, 47-49, T. 5 October 2005 pp. 11-19, 27-46, T. 6 October 2005 pp. 4, 6-9, 12-14, 25-32. See Nyiramasuhuko Appeal Brief, para.

688. The paragraphs of the Prosecution Closing Brief to which Nyiramasuhuko refers in support of her assertion merely discuss the refugees' inability to recall the exact dates on which they arrived at the Butare Prefecture Office in April and May 1994 or on which the abductions of the refugees took place during Nyiramasuhuko's and Ntahobali's visits to the prefectoral office between the end of April and late June 1994. See Prosecution Closing Brief, paras. 145, 242 at pp. 72, 73, 99. 1497 See, e.g., Ndahimana Appeal Judgement, para. 113; Kanyarukiga Appeal Judgement, para. 97; Munyakazi Appeal See Ndahimana Appeal Judgement, para. 114; Kanyarukiga Appeal Judgement, para. 97. 1499 Trial Judgement, para.

2536. See Ndahimana Appeal Judgement, para. 113; Munyakazi Appeal Judgement, para. 18; Kalimanzira Appeal Judgement, para.

56. See Ndahimana Appeal Judgement, para. 113; Kanyarukiga Appeal Judgement, para. 98. 233 Case No. ICTR-98-42-A 14 December 2015

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20132/H alibi beyond reasonable doubt. 1502 Rather, the accused must simply produce evidence tending to show that he was not present at the time of the alleged crime. 503 If the alibi is reasonably possibly true, it must be accepted. 1504 When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. 150s (a) Alibi for 14 to 16 May 1994 667. The Trial Chamber noted Nyiramasuhuko's alibi for the period from 12 April to 1 June 1994, according to which she moved to and stayed in Murambi with the Interim Government. 1506 It also noted the distance between Murambi and Butare Town as well as Nyiramasuhuko's acknowledgement that it was possible to make a return trip by car in a single day, 1507 The Trial Chamber stated that it was not convinced by Nyiramasuhuko's claim that she did not have access to a car until 25 May 1994.1508 In light of the above, the Trial Chamber found that evidence of Nyiramasuhuko's stay in Murambi between 12 April and early June 1994 "in and of itself, [did] not raise a reasonable doubt" regarding her presence at the Butare Prefecture Office between mid-May and early June 1994, especially in light of Nyiramasuhuko's admission that she frequently travelled to Butare Town to visit her family. 1509 668. The Trial Chamber further noted Nyiramasuhuko's admitted presence in

Butare Town on several dates from mid-April to early July 1994 during which she claimed going directly to Hotel Ihuliro to visit her family and remaining there at night. 510 However, it found that, irrespective of this claim, when "Nyiramasuhuko was at Hotel Ihuliro, she was in very close proximity to the [Butare Prefecture Office]" 1511 The Trial Chamber found that Nyiramasuhuko's alibi about being bed-ridden at Hotel Ihuliro from 14 to 16 May 1994 was not reasonably possibly true on the basis of: (i) the conflicting testimony of Defence witnesses;1512 (ii) the fact that the only witnesses who testified in support of her alibi were Nyiramasuhuko's "family members who may have had a Judgement, para. 17; Nahimana et al. Appeal Judgement, para.

414. See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Musema Appeal Judgement, para.

202. See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para.

414. See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 18; Rarera Appeal Judgement, para. 330. 1506 Trial Judgement, para. 2540. 1507 See Trial Judgement, para, 2541. 1508 Trial Judgement, para. 2542. 1509 Trial Judgement, para. 2543. 1510 Trial Judgement, para.

2544. See also ibid., para. 2540. 1511 Trial Judgement, para. 2545. 1512 Trial Judgement, para.

2550. See also ibid., paras. 2547-2549. 234 Case No. ICTR-98-42-A 14 December 2015

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20131/H motive to exculpate her", 1513 and (iii) Nyiramasuhuko's failure to provide any notice of alibi prior to the testimony of her Defence Witness Clarisse Ntahobali in February 2005.1514 669. Nyiramasuhuko submits that the Trial Chamber's finding that it was not convinced by her claim that she had no access to a car until 25 May 1994 despite Defence evidence to the contrary is speculative. 515 She contends that the Trial Chamber reversed the burden of proof and violated her right to be presumed innocent by requiring her to convince it that she did not have access to a car until 25 May 1994 and that she was not at the prefectoral office either at night or during the day between April and July 1994, except for one morning on 16 May 1994.1516 670. Nyiramasuhuko further submits that the Trial Chamber erred in finding that her alibi regarding her stay at Hotel Thuliro from 14 to 16 May 1994 was not reasonably possibly true.!517 In particular, she argues that the Trial Chamber erred in rejecting her alibi for this period because the witnesses who testified in its support were her relatives. 518 In Nyiramasuhuko's view, while a cautious approach to the testimony of her family members was warranted, the Trial Chamber could not simply reject their evidence on that basis and was required to analyse their credibility and provide concrete reasons for its adverse assessment. 1519 She

adds that, because most of her relatives lived at Hotel Ihuliro, they were best situated to provide evidence of her stay there. 1520 671. Moreover, Nyiramasuhuko contends that the Trial Chamber erred in finding that the testimony of Defence witnesses about her stay at Hotel Ihuliro with her family from 14 to 16 May 1994 was inconsistent. 521 She asserts that, contrary to the Trial Chamber's finding, she only testified about being unwell and made no assertion about being bed-ridden, and therefore no contradiction existed between her testimony and that of members of her family, who testified that she was ill without mentioning that she was bed-ridden. 1522 She also claims that the Trial Chamber erroneously considered Witness Clarisse Ntahobali to be an alibi witness and failed to provide reasons for its finding that her evidence, given prior to the filing of the Nyiramasuhuko Notice of Alibi, affected the testimony of other Defence witnesses with respect to her illness and stay at Hotel 1513 Trial Judgement, para.

2546. See also ibid., para. 2550. 1514 Trial Judgement, para. 2550. 15IS Nyiramasuhuko Notice of Appeal, para. 4.9, referring to Trial Judgement, para.

2542. Nyiramasuhuko Notice of Appeal, para. 4.10; Nyiramasuhuko Appeal Brief, para. 705, referring to Trial Judgement, para.

2542. See also Nyiramasuhuko Reply Brief, paras, 190-192. Nyiramasuhuko Notice of Appeal, para. 4.16; Nyiramasuhuko Appeal Brief, para. 706. 1518 Nyiramasuhuko Notice of Appeal, paras. 1.50, 4.15; Nyiramasuhuko Appeal Brief, paras. 305, 702, referring to Trial Judgement, paras. 2546, 2550. Nyiramasuhuko Reply Brief. para. 189. 1520 Nyiramasuhuko Áppeal Brief, para. 306. 1521 Nyiramasuhuko Notice of Appeal, para. 4.11. 1522 Nyiramasuhuko Notice of Appeal, paras. 4.12, 4.13, 4.15, 4.16; Nyiramasuhuko Appeal Brief, paras. 696, 697, 974, 975, referring, inter alia, to Trial Judgement, paras. 2547-2549. See also Nyiramasuhuko Reply Brief, para. 187 235 Case No. ICTR-98-42-A 14 December 2015

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20130/H Ihuliro from 14 to 16 May 1994, 1523 In addition, Nyiramasuhuko submits that the Trial Chamber erred in its assessment of the testimony of her Defence Witness Maurice Ntahobali about her access to his car, arguing that the witness did not specify the date he made the car available to her and therefore did not contradict, but instead corroborated, her testimony that she did not leave Hotel Ihuliro until the morning of 16 May 1994.1524 672. The Prosecution responds that the Trial Chamber applied the correct burden of proof and that the Trial Chamber's reference to not being "convinced" related to its assessment of Nyiramasuhuko's credibility. 525 The Prosecution argues that, in any event, Nyiramasuhuko's convictions were not based on the Trial Chamber being convinced of her access to a car prior to 25 May 1994 given Nyiramasuhuko's own admission of her presence in Butare in mid-May 1994, her access to her husband's car, and the prefectoral office being in close proximity to Hotel Ihuliro. 526 It further submits that the Trial Chamber correctly found that Nyiramasuhuko's alibi for her visit to Butare Town from 14 to 16 May 1994 could not be reasonably possibly true. 1527 The Prosecution asserts that the Trial Chamber properly took into consideration Nyiramasuhuko's failure to file her notice of alibi prior to Clarisse Ntahobali's testimony and the totality of the evidence

relevant to Nyiramasuhuko's alibi, including the testimony of witnesses not listed in the Nyiramasuhuko Notice of Alibi. 1528 The Prosecution adds that the Trial Chamber reasonably assessed the testimony of Nyiramasuhuko's family members with caution and was not required to provide the level of detail for its assessment of their credibility that Nyiramasuhuko asserts was required. 1529 673. The Appeals Chamber considers that the Trial Chamber's finding that it was "not convinced that Nyiramasuhuko did not have access to a car until 25 May 1994" was neither speculative nor suggestive of a shift in the burden of proof. 1530 The Trial Chamber provided a detailed analysis of the evidence adduced by Nyiramasuhuko regarding her access to transportation, such as other people's vehicles in April and May 1994 and, in the context of this analysis, considered that Nyiramasuhuko "had means of transport" to Butare despite her move to Murambi with the Interim Government in mid-April 1994.153l The Appeals Chamber considers that, by stating that it was "not convinced", the Trial Chamber was expressing the view that Nyiramasuhuko's evidence that she had no access to a car was not sufficiently credible and thus failed to raise a reasonable possibility 1523 Nyiramasuhuko Appeal Brief, paras. 699-701. See also Nyiramasuhuko Notice of Appeal, para. 4.18. 1524 Nyiramasuhuko Notice of Appeal, para. 4.14; Nyiramasuhuko Appeal Brief, para. 698. 1525 Prosecution Response Brief, para. 400. 1526 Prosecution Response Brief, para. 400. 1527 Prosecution Response Brief, paras. 388, 391-394, 401. 1528 Prosecution Response Brief, paras. 395, 396. 1529 Prosecution Response Brief, para. 397. 1530 Trial Judgement, para. 2542. 236 Case No. ICTR-98-42-A 14 December 2015

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20129/H that Nyiramasuhuko was without a vehicle for as long as she claimed. The Appeals Chamber finds that Nyiramasuhuko fails to show any error in this regard.

674. With respect to Nyiramasuhuko's contention regarding her family members' evidence, the Appeals Chamber recalls that it is settled jurisprudence that a witness's close personal relationship to an accused is one of the factors which a trial chamber may consider in assessing the witness's evidence. 532 It was therefore within the Trial Chamber's discretion to entertain concerns about Ntahobali's as well as Nyiramasuhuko Defence Witnesses Céline Nyiraneza's, WBUC's, Clarisse Ntahobali's, and Maurice Ntahobali's possible motives to exculpate Nyiramasuhuko because of their family ties and examine their testimony with appropriate caution 533 Although the Trial Chamber did not explicitly assess their individual credibility, it articulated the reasons for rejecting Nyiramasuhuko's alibi for her stay at Hotel Ihuliro from 14 to 16 May 1994, which were not based solely on these witnesses' connection to Nyiramasuhuko. The Trial Chamber found that their testimonies conflicted with respect to Nyiramasuhuko's lack of mobility due to her illness and considered the absence of any notice of alibi prior to the testimony of Clarisse Ntahobali. 1534 675. Nyiramasuhuko challenges the Trial Chamber's finding that "there was conflicting evidence as to whether Nyiramasuhuko stayed at Hotel Ihuliro during her visits to Butare."1535 In assessing the evidence, the Trial Chamber considered that

"Nyiramasuhuko claim[ed] to have been bed-ridden" during her stay in Butare from 14 to 16 May 1994.1536 However, a review of Nyiramasuhuko's testimony reveals that she did not testify about being bed-ridden but merely about being unwell and not leaving Hotel Ihuliro during this visit, 153? This was explicitly recalled by the Trial Chamber in the summary of her evidence. 538 The Trial Chamber's reference to Nyiramasuhuko testifying about being bed-ridden was therefore erroneous. The Appeals Chamber nonetheless considers that this error does not affect the Trial Chamber's finding that there was conflicting evidence as to whether Nyiramasuhuko stayed at Hotel Ihuliro. Indeed, as expressly noted by the Trial Chamber, Ntahobali, as well as Witnesses Nyiraneza and WBUC, testified that 1531 Trial Judgement, para.

2542. See also ibid., para. 2543. 1532 See, e.g., Kanyarukiga Appeal Judgement, para. 121; Karera Appeal Judgement, para. 137; Bikindi Appeal Judgement, para.

117. See Trial Judgement, para. 2546. 1534 Trial Judgement, paras. 2547, 2548, 2550. 1535 Trial Judgement, para. 2547. 1336 Trial Judgement, para. 2547, referring to Nyiramasuhuko, T. 4 October 2005 p. 8. 1337 See Nyiramasuhuko, T. 4 October 2005 p. 8 ("Q. [...] Did you remain in Butare over that week-end of the 14th tc the 15 of May 1994? A. Yes. I was not well, myself, and for that reason I was not in a hurry to return the next day. So I spent the night in Butare on the 14th and on the 15th. Then I felt much better on the 16th. And it is on that date that left Butare to go to Gitarama. Q. Madam, before you left on the 16th of May 1994, did you go anywhere in Butar utside of the Hotel Ihuliro? A. I did not leave the hotel over those davs. I only left the hotel in the morning of th 16th."). 1538 See Trial Judgement, para.

2416. Case No. ICTR-98-42-A 14 December 2015 ти.

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20128/H Nyiramasuhuko was housebound due to her illness, 1539 while Witness Maurice Ntahobali stated that, despite having malaria, Nyiramasuhuko "was moving around at one point and borrowed his service vehicle during her visit" 1540 676. As for Nyiramasuhuko's argument regarding the assessment of Clarisse Ntahobali's testimony, the Appeals Chamber notes that, contrary to Nyiramasuhuko's assertion, 1541 the Trial Chamber did not hold that Clarisse Ntahobali's testimony "affected" the remaining Defence evidence. The Trial Chamber clearly specified that it did not consider Nyiramasuhuko's alibi reasonably possibly true based, in part, on her "failure to provide any notice of alibi prior to the testimony of Clarisse Ntahobali", not on the basis of Clarisse Ntahobali's testimony. 1542 The Appeals Chamber considers that a reasonable trier of fact could have expressly taken into account Nyiramasuhuko's failure to provide notice prior to the testimony of Clarisse Ntahobali, who was the first Defence witness to give evidence regarding Nyiramasuhuko's whereabouts during the period when the alleged crimes took place.

677. Finally, the Appeals Chamber considers that Nyiramasuhuko is incorrect in her assertion that her husband, Witness Maurice Ntahobali, confirmed her testimony that she did not leave Hotel Ihuliro until the morning of 16 May 1994. While not specifying when he made his service vehicle available to Nyiramasuhuko, Maurice Ntahobali unambiguously testified that she moved around during this stay in Butare, 1543 678. In light of the foregoing, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber reversed the burden of proof or erred in its assessment of the alibi evidence for the period of 14 to 16 May 1994. (b) Alibis for Early June to 19 June 1994 679. The Trial Chamber found that Nyiramasuhuko's alibi for 1 to 3 June 1994, according to which she was in Muramba was not credible. 1544 The Trial Chamber observed that the testimonies of Nyiramasuhuko and her Witness Denise Ntahobali about leaving Murambi for Muramba on 1 June 1994 were inconsistent with the Nyiramasuhuko Notice of Alibi, which specified that 1539 Trial Judgement, para. 2547, referring to Ntahobali, T. 25 April 2006 p. 57, T. 1 June 2006 p. 68, Céline Nyiraneza, T. 24 February 2005 pp. 43, 44, Witness WBUC, T. 1 June 2005 p. 63 1540 Trial Judgement, para. 2548, referring to Maurice Ntahobali, T. 14 September 2005 pp. 38, 39 (English), p. 43 French). T. 16 September 2005 p.

61 iS41 Nyiramasuhuko Appeal Brief, para. 701, referring to Trial Judgement, para. 2550. 1542 Trial Judgement, para. 2550. 1543 See Maurice Ntahobali, T. 13 September 2005 p. 19, T. 14 September 2005 p. 38 ("I know that she went around. At one point in time, a vehicle was placed at her disposal, my service vehicle."), T. 16 September 2005 p. 61 ("Nyiramasuhuko was not bed-ridden during her stay in Butare and I believe I did say that for her movements when that was of primary importance, I did make available to her my own vehicle."). See also Trial Judgement, paras. 2480, 2548. 238 Case No. ICTR-98-42-A 14 December 2015

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20127/H Nyiramasuhuko was in Murambi from the end of May to around 3 June 1994, and after in Muramba from around 4 June until early July 1994. 1545 In addition, the Trial Chamber found Denise Ntahobali not credible for several reasons, including her close relationships with members of Nyiramasuhuko's Defence team. 546 It also found that the testimony of Witnesses WZJM, Maurice Ntahobali, and Céline Nyiraneza was not "sufficiently specific" to corroborate Nyiramasuhuko's testimony regarding her presence in Muramba from 1 to 3 June 1994.1547 680. With regard to Nyiramasuhuko's alibi for 4 to 10 June 1994, the Trial Chamber concluded that, based on Nyiramasuhuko's testimony about her attendance at the Interim Government meetings in Muramba and her 1994 personal diary, Nyiramasuhuko only raised a reasonable doubt about her presence in Butare on 6 and 10 June 1994.1548 The Trial Chamber did not accept Nyiramasuhuko's alibi for 4 and 5 June 1994 due to concerns about discrepancies in her diary entries, the credibility of the witnesses testifying in support of this alibi, and the lateness and incorrectness of the Nyiramasuhuko Notice of Alibi. 1549 The Trial Chamber similarly rejected Nyiramasuhuko's alibi regarding her attendance at Cabinet meetings in Muramba from 7 to 9 June 1994 based on the lack of support from her diary 1550 It also took into account conflicting testimonies of

Ntahobali and Denise Ntahobali placing Nyiramasuhuko in Butare Town around that time, as well as Nyiramasuhuko's and Denise Ntahobali's evidence that the trip from Butare Town to Muramba took between eight and ten hours together with Nyiramasuhuko's own admission that it was possible to travel to Butare Town and return to Muramba the very next day. 155l The Trial Chamber further found that Nyiramasuhuko was in Butare Prefecture on 11 June 1994. 1552 It also considered that Nyiramasuhuko's alibi placing her in Muramba from 12 to 16 June and on 18 and 1544 Trial Judgement, para.

2557. See also ibid., para. 2562. 154S Trial Judgement, paras. 2552, 2553. See also ibid., para. 2562. 1546 Trial Judgement, para.

2554. The Trial Chamber noted that Denise Ntahobali's husband worked as an investigator for Nyiramasuhuko from August 1999 to the beginning of 2005 and that her brother-in-law was working for Vviramasuhuko at the time of the trial. See idem. 547 Trial Judgement, para. 2556. 1548 See Trial Judgement, paras. 2563, 2564, 2570. 1549 See Trial Judgement, paras. 2558, 2559, 2562. 1550 See Trial Judgement, para. 2565. admitted that she travelled to Butare on 11 June 1994 and returned the very next day on 12 June 1994. Therefore, the fact that Nyiramasuhuko may have been in Muramba on 6 and 10 June 1994 means that she could not have been in Butare between 7 and 9 June 1994." See ibid., para. 2569 (emphasis added, internal reference omitted). However, the Trial Chamber's ultimate conclusion was that Nyiramasuhuko had "not raised a doubt as to her presence in Butare between 7 and 9 June 1994." See ibid., para. 2570 (emphasis added). See also ibid., para. 2773 ("Although Nyiramasuhuko could not have been present [at the Butare Prefecture Office] on 6 and 10 June 1994, she had ample opportunity to perpetrate these crimes on 7 to 9 June and 11 to 19 June 1994."). In the view of the Appeals Chamber, a holistic reading of the Trial Chamber's findings shows that the Trial Chamber concluded that Nyiramasuhuko failed to raise a reasonable possibility that she was not in Butare Town between 7 and 9 June 1994. See ibid., paras. 2565-2570. 1552 Trial Judgement, para. 2571. 239 Case No. ICTR-98-42-A 14 December 2015

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20126/H 19 June 1994 was not reasonably possibly true but that there was, however, a reasonable possibility that she remained in Muramba on 17 June 1994.1553 681. Nyiramasuhuko submits that the Trial Chamber: (i) reversed the burden of proof; (ii) erred in its assessment of her evidence; and (ili) erred in its assessment of other Defence evidence. The Appeals Chamber will consider Nyiramasuhuko's contentions in turn. (i) Reversal of the Burden of Proof 682. Nyiramasuhuko contends that by requiring her to prove her presence in Muramba between 1 and 11 June 1994, the Trial Chamber reversed the burden of proof. 1554 683. The Prosecution responds that the Trial Chamber applied the correct burden of proof. 5ss 684. The Appeals Chamber recalls the legal standard applicable to the assessment of alibi evidence set out above. 556 The Appeals Chamber observes that the Trial Chamber correctly articulated the relevant standard, stating that "[t]here can be no conviction for an allegation which takes place during an alibi that is reasonably possibly true", with the "onus remain[ing] on the Prosecution to prove that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence"!$5? Based on its review of the alibi evidence, the Trial Chamber concluded that the alibi placing Nyiramasuhuko in Muramba from 7 to 9 June, from 12 to 16 June, as

well as on 18 and 19 June 1994 was "not reasonably possibly true", 1558 The Appeals Chamber notes that, apart from alleging that the Trial Chamber reversed the burden of proof, Nyiramasuhuko does not advance any argument to substantiate her assertion or point to particular language used by the Trial Chamber that evinces a misapplication of the appropriate standard. The Appeals Chamber therefore rejects Nyiramasuhuko's contention in this respect. (ii) Nyiramasuhuko's Evidence 685. Nyiramasuhuko submits that the Trial Chamber erred in systematically requiring that her testimony about her whereabouts between April and July 1994 be corroborated by her 1994 personal diary. 1559 In particular, she contends that the Trial Chamber erred in accepting that she 1553 Trial Judgement, paras. 2574, 2575, 2577. 1554 Nyiramasuhuko Notice of Appeal, paras. 4.27, 4.36; Nyiramasuhuko Appeal Brief, paras. 724, 736. See also ibid., par. osecution Response Brief, para. 416. 1556 See supra, para. 666. 1557 Trial Judgement, para, 2538 (internal references omitted). See also ibid., paras. 185, 186. 1558 Trial Judgement, para. 2577. 1559 Nyiramasuhuko Notice of Appeal, paras. 4.26, 4.29, 4.33, 4.34, 7.22; Nyiramasuhuko Appeal Brief, paras. 724, 726, 240 Case No. ICTR-98-42-A 14 December 2015

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20125/H attended Interim Government meetings in Muramba only when her diary contained entries to that effect. 1560 Nyiramasuhuko argues that, except for stating that she had a motive to exculpate herself, the Trial Chamber failed to assess her credibility, which, in her view, evinces bias against her. 561 686. Nyiramasuhuko further submits that the Trial Chamber erred in finding that, between 1 and 10 June 1994, she was at the Interim Government's headquarters in Murambi rather than in Muramba without explaining why it rejected her testimony that the Interim Government fled to Muramba on 1 June 1994 due the advancement of the RPF. 562 Nyiramasuhuko posits that even the Prosecution evidence established that the flight took place in the beginning of June 1994.1563 She adds that the Trial Chamber erred in failing to consider that the date specified in the Nyiramasuhuko Notice of Alibi as to when she left Murambi for Muramba in early June 1994 was an inadvertent error, which did not come to her attention until the issuance of the Trial Judgement. 1564 Nyiramasuhuko alleges that Witness WZJM, while unable to provide a specific date, either "supported or corroborated" her testimony and that of Denise Ntahobali about Nyiramasuhuko's presence in Muramba at the beginning of June. 1565 687. In addition, Nyiramasuhuko contends that it was unreasonable for the Trial Chamber to reject her

claim that she attended a Cabinet meeting on 4 June 1994.1566 She argues that the mention of "Cabinet Meeting Decisions" in her diary on the 4 June page supports her testimony that she was in Muramba attending a Cabinet meeting on 4 June 1994.1567 688. Nyiramasuhuko adds that when considering the meetings of 7 and 8 June 1994, the Trial Chamber erred in deeming unimportant the corresponding missing pages of the diary and in failing to construe their absence in her favour, in light of the Prosecution's failure to preserve this evidence and notice the missing pages. 568 She argues that the Trial Chamber erred in making an adverse 1560 Nyiramasuhuko Notice of Appeal, para. 4.26; Nyiramasuhuko Appeal Brief, para. 726. 1561 Nyiramasuhuko Appeal Brief, para.

725. See also Nyiramasuhuko Notice of Appeal, paras. 4.28, 4.35. 1962 Nyiramasuhuko Notice of Appeal, para. 7.26; Nyiramasuhuko Appeal Brief, para. 730. 1563 Nyiramasuhuko Appeal Brief, para.

730. Nyiramasuhuko Appeal Brief, paras. 707, 710, referring to Trial Judgement, paras. 2552, 2553. See also Nyiramasuhuko Notice of Appeal, para. 4.8. Nyiramasuhuko submits that the will-say statement of Denise Ntahobali filed five weeks before the Nyiramasuhuko Notice of Alibi notified the Prosecution that Denise Ntahobali left Hotel Ihuliro with Nyiramasuhuko for Murambi at the end of May and one or two days later for Muramba. She claims that it was unreasonable for the Trial Chamber to conclude that she would deliberately contradict the testimony of her own witness by the Nyiramasuhuko Notice of Alibi, especially because Denise Ntahobali confirmed the dates specified in her will-say statement not in the Nyiramasuhuko Notice of Alibi. See Nyiramasuhuko Appeal Brief, paras. 708, 709 (French), referring to Denise Ntahobali, T. 9 June 2005 pp. 32, 50-52 (French). Nyiramasuhuko Appeal Brief, paras. 733-736, referring to Witness WZJM, T. 21 February 2005 pp. 77-79, T. 22 February 2005 pp. 12, 13, 21-25. See also Nyiramasuhuko Reply Brief, paras. 197, 198. 1566 Nviramasuhuko Notice of Appeal, para. 4.25; Nyiramasuhuko Appeal Brief, para. 727, referring to Trial Judgement, para.

2558. See also Nyiramasuhuko Reply Brief, para. 200. 1567 Nviramasuhuko Notice of Appeal, para. 4.25; Nyiramasuhuko Appeal Brief, paras. 727, 728. 1568 Nyiramasuhuko Notice of Appeal, paras. 4.30, 4.31, referring to Trial Judgement, para. 2565. 241 Case No. ICTR-98-42-A 14 December 2015

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20124/H finding against her, even though she opposed the introduction of the diary into evidence and raised the issue of the missing pages. 1569 689. Nyiramasuhuko also submits that it was unreasonable for the Trial Chamber to conclude that her testimony about returning to see her family in Butare on 11 June 1994 was inconsistent with the testimonies of Witnesses Denise, Maurice, and Clarisse Ntahobali, Nyiraneza, WBUC, WZJM, and CEM, who testified about her return to Hotel Ihuliro about a week rather than ten days after she left Butare on 31 May 1994.1570 Nyiramasuhuko contends that the Trial Chamber erred in failing to consider that she was able to provide exact dates because of her diary and that without such contemporaneous evidence, it was unreasonable to consider a "few days' difference as contradictions", given the time that had elapsed since the events. 1571 690. The Prosecution responds that the Trial Chamber properly evaluated the probative value of Nyiramasuhuko's diary as well as her testimony together with other evidence and reasonably rejected her alibis for various dates between 1 and 19 June 1994. 1572 It further submits that: (i) the Trial Chamber's consideration of Nyiramasuhuko's testimony implies assessment of her credibility, for which it was not required to provide detailed findings; (ii) the evidence establishing the flight of the Interim Government from

Murambi to Muramba in the beginning of June 1994 was too general to corroborate Nyiramasuhuko's alibi for early June 1994; (iii) the Trial Chamber correctly took into account the inconsistencies between the Nyiramasuhuko Notice of Alibi and the testimonies of Nyiramasuhuko and Denise Ntahobali as to when they departed Murambi for Muramba; and (iv) the Trial Chamber reasonably found that the testimony of Witness WZJM was not sufficiently specific to corroborate Nyiramasuhuko's alibi for the impugned period. 1573 691. Nyiramasuhuko replies, inter alia, that there is no contradiction between her notice of alibi and her testimony as to when she left for Muramba as the dates provided in the Nyiramasuhuko Notice of Alibi were only an approximation 1574 692. The Appeals Chamber recalls that trial chambers have full discretionary power in assessing the credibility of witnesses and in determining the weight to be accorded to their respective 1569 Nyiramasuhuko Notice of Appeal, para. 4.32, referring to Trial Judgement, para.

2565. See also Nyiramasuhuko Reply Brief, para.

201. Nyiramasuhuko Notice of Appeal, para. 4.22, referring to ibid., para. 4.16, Trial Judgement, para.

2555. Although Nyiramasuhuko refers to Witness "WHJM", the Appeals Chamber understands Nyiramasuhuko to be referring to Witness WZJM as no witness under the pseudonym "WHJM" appears to have testified at trial. See Nyiramasuhuko Appeal Brief, paras. 733-736 (French). Nyiramasuhuko Notice of Appeal, para. 4.23, referring to Trial Judgement, para. 2557. 1572 Prosecution Response Brief, paras. 419, 421-423, 426. See also AT. 14 April 2015 p. 54. 1573 Prosecution Response Brief, paras. 403, 414, 417, 424. 1574 Nyiramasuhuko Reply Brief, para. 194. 242 Case No. ICTR-98-42-A 14 December 2015

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20123/H testimony. 575 This assessment is based on a number of factors, including the witness's demeanour in court, his role in the events in question, the plausibility and clarity of the witness's testimony, whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence, any prior examples of false testimony, any motivation to lie, and the witness's responses during cross-examination. 576 Trial chambers are also endowed with the discretion to decide in the circumstances of each case whether corroboration is necessary. 1577 693. The Appeals Chamber considers that a reasonable trier of fact could have questioned the credibility of Nyiramasuhuko's alibis in the absence of corroboration given the inherent self-interest of her testimony. In this regard, the Trial Chamber properly expressed caution in assessing Nyiramasuhuko's testimony in light of her "obvious motive to exculpate herself" and deemed "Nyiramasuhuko's diary useful in evaluating consistencies and inconsistencies in Nyiramasuhuko's testimony."!578 Similarly, the Appeals Chamber considers that a reasonable trier of fact could have disbelieved Nyiramasuhuko's alibi in instances where the diary entries she sought to rely on were inconsistent with and provided little support for her claims of attendance of Interim Government meetings in Muramba!579, Contrary to

Nyiramasuhuko's contention, the Trial Chamber's detailed consideration of the alibi evidence pertaining to June 1994, including Nyiramasuhuko's testimony, shows that the Trial Chamber assessed her credibility to find that her testimony was not sufficiently credible to accept her alibi as reasonably possibly true in the absence of credible corroboration. 1580 The Appeals Chamber fails to see how this determination evinces bias against Nyiramasuhuko on the part of the Trial Chamber.

694. Furthermore, the Appeals Chamber finds no merit in Nyiramasuhuko's argument regarding the date of the Interim Government's relocation from Murambi to Muramba. The Trial Chamber did not make a specific finding that Nyiramasuhuko was at the Interim Government's headquarters in Murambi rather than Muramba between 1 and 10 June 1994 and did not reject Nyiramasuhuko's testimony in relation to the date or the circumstances of the flight of the Interim Government to Muramba in June 1994,1581 Instead, the Trial Chamber rejected Nyiramasuhuko's claim that she was in Muramba from 1 to 5 June and from 7 to 9 June 1994 as not credible based on an 1575 See, e.g., Nzabonimana Appeal Judgement, para. 45; Ndindiliyimana et al. Appeal Judgement, para. 331; Vdahimana Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 194 576 See Kanyarukiea Appeal Judgement, para.

121. See also Bikindi Appeal Judgement, para. 114; Nchamihigo Appea 15779 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 251; Munyakazi Appeal Judgement, para. 25; Karera Appeal Judgement, para. 45. 1578 Trial Judgement, para. 2539. 1579 See Trial Judgement, paras. 2558, 2559, 2562, 2565, 2574, 2575. 1580 See Trial Judgement, paras. 2427-2439, 2558, 2559, 2561, 2563-2565, 2571, 2572, 2574, 2575. 1581 See Trial Judgement, paras. 2552, 2553. 243 Case No. ICTR-98-42-A 14 December 2015

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20122/H inconsistency between her testimony and the Nyiramasuhuko Notice of Alibi as well as because of a lack of credibility of and corroboration from Defence evidence. 582 695. In relation to the discrepancy about the date of Nyiramasuhuko's departure for Muramba, the Trial Chamber noted that both Nyiramasuhuko and Denise Ntahobali indicated that they left Murambi on 1 June 1994 and arrived in Muramba on that same day, their departure being prompted by the advancement of the hostile forces. 583 It found that Nyiramasuhuko's presence in Muramba on 1 June 1994 was inconsistent with the Nyiramasuhuko Notice of Alibi, which provided that she was in Murambi "from the end of May to around 3 June 1994" and then in Muramba "from around 4 June 1994 to early July 1994.»1584 The Appeals Chamber notes that Nyiramasuhuko's argument in reply that her notice of alibi merely approximated the date of the departure for Muramba contradicts the allegation of error and arguments that she advanced in her notice of appeal and appeal brief. While endowed with discretion not to consider contradictory submissions, 1585 the Appeals Chamber nevertheless observes that the use of the term "around" to estimate the timing of the departure for Muramba in the Nyiramasuhuko Notice of Alibi was noted by the Trial Chamber several times. 1586 Moreover, apart from alleging that the impugned date was an unintentional oversight, Nyiramasuhuko does not substantiate her claim that it was unreasonable for the Trial Chamber to consider the discrepancy as to the dates in assessing the totality of the evidence she tendered.

696. The Appeals Chamber similarly discerns no error in the Trial Chamber's finding that the testimony of Witness WZJM regarding Nyiramasuhuko's presence in Muramba in June 1994 "was not sufficiently specific to corroborate Nyiramasuhuko's assertion that it was on 1, 2 and 3 June 1994."1587 Indeed, Witness WZJM merely recalled seeing Nyiramasuhuko for the first time in Muramba in early June 1994 and subsequently on a number of other occasions without specifying the dates in corroboration of Nyiramasuhuko's alibi. 588 Nyiramasuhuko cites the passage of time as a reason for Witness WZJM's inability to provide exact dates, 1589 but fails to show how this demonstrates that the Trial Chamber's finding was unreasonable. 1582 See Trial Judgement, paras. 2551-2559, 2562, 2565-2570. 1583 See Trial Judgement, para.

2552. The Appeals Chamber notes that Nyiramasuhuko is incorrect in asserting that in her will-say statement, Denise Ntahobali specified the dates on which she and Nyiramasuhuko left Butare for Murambi and subsequently for Muramba as it merely repeats that she saw her "mother again at the end of May 1994 at Hotel Ihuliro" and that "around the beginning of June" the witness travelled from Murambi to Muramba. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Disclosure, 24 January 2005 (originally filed in French, English translation filed on 8 February 2005) (confidential, p. 1371 (Registry pagination). Trial Judgement, para. 2553. 1585 See supra, para. 35. 1586 See Trial Judgement, paras. 2536, 2553. See also Nyiramasuhuko Notice of Alibi ("Gitarama à Murambi: fin mai 1994 aux environs du 3 juin 1994", "Gisenyi à Muramba: aux environs du 4 juin 1994 jusqu' au 2 juillet 1994"). 1587 Trial Judgement, para. 2556. 1588 See Witness WZJM, T. 21 February 2005 pp. 76, 77, 79. 158 See Nyiramasuhuko Appeal Brief, para. 735. 244 Case No. ICTR-98-42-A 14 December 2015

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20121/H 697. Turning to Nyiramasuhuko's contention regarding the Trial Chamber's assessment of her alibi for 4 June 1994, the Trial Chamber noted that Nyiramasuhuko sought to rely on her diary entries of 3 and 4 June 1994 in support of her attendance at a Cabinet meeting in Muramba on the latter date, yet the only dated notations that appeared on the 4 June entry were notes pertaining to a meeting on 17 June 1994.159 The Trial Chamber also noted Nyiramasuhuko's reliance on a series of entries following the title "Cabinet Meeting Decisions", which otherwise contained neither the date nor the location of the meeting where they were adopted. 591 Recalling Nyiramasuhuko's own admission that the recorded events only occasionally coincided with dates of the diary entries on which the event occurred, the Trial Chamber concluded that the entry of 4 June 1994 "provid[ed] little support for Nyiramasuhuko's contention that she attended a Cabinet meeting in Muramba" on this date.1592 The Appeals Chamber observes that the 4 June 1994 diary entry merely reflects several undated appointments of officials under the title "Council of Ministers Decisions" and notes under the title "Appointment of 17/6/94" 1593 The Appeals Chamber fails to see how this entry provides support for Nyiramasuhuko's claim that she was in Muramba on 4 June 1994 or undermines the reasonableness of the Trial Chamber's rejection of this claim.

698. Regarding Nyiramasuhuko's arguments concerning her alibi for 7 and 8 June 1994, the Appeals Chamber observes that the Trial Chamber explicitly acknowledged that her diary pages for these dates were removed. 1594 It also expressly declined to draw an "adverse inference based upon the absence of these pages, but merely not[ed] that Nyiramasuhuko's assertion that there were meetings [on these dates] was not corroborated by her diary" 1595 The Appeals Chamber therefore finds no merit in Nyiramasuhuko's assertions that the Trial Chamber considered the missing pages unimportant or made an adverse finding against her in this respect. The Appeals Chamber is also not convinced by Nyiramasuhuko's suggestion that the absence of the missing pages should have resulted in an inference in her favour since it would have required the Trial Chamber to speculate about the pages' content. In any event, in rejecting Nyiramasuhuko's alibi for the impugned dates, the Trial Chamber did not rely solely on the absence of support from Nyiramasuhuko's diary but also on the testimony of Ntahobali and Denise Ntahobali that placed Nyiramasuhuko in Butare around 8 June 1994.1596 1590 See Trial Judgement, para. 2558. 159l Trial Judgement, para. 2558. 1592 Trial Judgement, para. 2558. 1593 Exhibit PI44C (Diary of Pauline Nyiramasuhuko), p. K0271198 (Registry pagination). 1594 Trial Judgement, para. 2565. 1595 Trial Judgement, para. 2565, fin. 7228. 1596 See Trial Judgement, paras. 2566, 2567, 2573. 245 Case No. ICTR-98-42-A 14 December 2015

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20120/H 699. Finally, the Appeals Chamber rejects Nyiramasuhuko's challenge to the Trial Chamber's finding that her testimony about returning to Butare on 11 June 1994 was inconsistent with the testimonies of other Defence witnesses. The Trial Chamber correctly noted that Nyiramasuhuko testified that she was not in Butare between 31 May and 11 June 1994. 1597 The Trial Chamber further noted that, by contrast: (i) Witness Denise Ntahobali testified that she returned from Muramba to Butare with Nyiramasuhuko "seven days after 1 June, around 8 June 1994", 1598 (ii) Ntahobali testified to seeing Nyiramasuhuko at Hotel Ihuliro "three to five days" following his return to Butare around 5 June 1994;1599 (ili) Clarisse Ntahobali testified that Nyiramasuhuko visited Butare twice after the end of May 1994, "two or three days later" and one week later; 1600 (iv) Witness WBUC testified that Nyiramasuhuko returned to Butare a week after her departure on 30 May 1994,1601 Nyiramasuhuko only cites the passage of time as an explanation for the discrepancy between her and other witnesses' accounts and fails to show that it was unreasonable for the Trial Chamber to find that her claim that from the time she moved to Muramba she did not return to Butare until 11 June 1994 was contradicted by the testimonies of other Defence witnesses. 1602 700. Based on the foregoing, the Appeals Chamber finds

that Nyiramasuhuko has failed to demonstrate the Trial Chamber erred in its assessment of her alibi evidence. (iii) Other Defence Evidence 701. Nyiramasuhuko submits that the Trial Chamber erred in its assessment of the evidence of Defence Witnesses Denise Ntahobali, Clarisse Ntahobali, and Edmond Babin. a. Witness Denise Ntahobali 702. Nyiramasuhuko contends that the Trial Chamber erred in discrediting Denise Ntahobali's testimony about their stay in Murambi between 31 May to 1 June 1994, and in Muramba from 1 June until the beginning of July 1994 because it disbelieved other aspects of the witness's 1597 See Trial Judgement, para. 2434; Nyiramasuhuko, T. 6 September 2005 pp. 33, 34, T. 22 November 2005 p. 5. 1598 Trial Judgement, para.

2566. See also ibid., para. 2449; Denise Ntahobali, T. 9 June 2005 pp. 44, 45, 48. 1599 Trial Judgement, para.

2567. See also ibid., para. 2487; Ntahobali, T. 26 April 2006 pp. 12, 35, T. 1 June 2006 Pod See Clarisse Nahobali, T. 9 February 2005 pp. 58, 61, 62. See also Trial Judgement, para. 2463. 1601 See Witness WBUC, T. 2 June 2005 p.

7. See also Trial Judgement, paras. 2476, 2477. 1602 Moreover, contrary to Nyiramasuhuko's assertion, neither Witness Nyiraneza nor Witness WZJM testified about her visiting Butare in June 1994, and Witness CEM attested to not seeing Nyiramasuhuko in Butare in June 1994. See Witness WZJM, T. 21 February 2005 pp. 76, 79, 80; Céline Nyiraneza, T. 24 February 2005 pp. 46-48; Witness CEM, T. 14 February 2005 p. 60, T. 15 February 2005 p.

23. See also Trial Judgement, para. 2452-2454, 2465- 2469, 2493. As for Maurice Ntahobali, he merely recounted Nyiramasuhuko's return to Hotel Ihuliro during the first half of June 1994. See Maurice Ntahobali, T. 13 September 2005 p. 27 (under seal extract). 246 Case No. ICTR-98-42-A 14 December 2015

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20119/H testimony that were irrelevant to Nyiramasuhuko's alibi for these periods. 1603 Nyiramasuhuko argues that the Trial Chamber failed to explain why Denise Ntahobali was not credible on this issue. 160* In Nyiramasuhuko's view, while it was appropriate for the Trial Chamber to take into account that members of Denise Ntahobali's family were on Nyiramasuhuko's Defence team, absent any evidence of an "impact" of this kinship on her testimony, this consideration should have had no negative bearing on her credibility. 1605 To the contrary, Nyiramasuhuko points to Denise Ntahobali's honesty about her discussions with members of the Defence team and asserts that the presence of family members on it was "a matter of public knowledge at the ICTR, including the Chamber.*1606 703. In addition, Nyiramasuhuko claims that the Trial Chamber erred in finding the evidence of Denise Ntahobali not credible based on an inconsistency between this witness's and Nyiramasuhuko's testimonies as to whether they were accompanied by a convoy when they left Murambi on 1 June 1994.1607 She posits that since gendarmes and the Prime Minister's staff remained after the departure of other Ministers, being the last Minister to leave Murambi did not exclude the possibility of leaving in a convoy. 1608 704. The Prosecution responds that the Trial Chamber correctly assessed Denise Ntahobali's evidence in

relation to Nyiramasuhuko's alibi for 1 to 3 June 1994 in light of her close relationship with Nyiramasuhuko's Defence team, inconsistencies between Nyiramasuhuko's and her evidence, prior false testimony, as well as contradictory evidence from Clarisse Ntahobali. 1609 It further argues that it was reasonable for the Trial Chamber to consider the inconsistency between the accounts of Nyiramasuhuko and Denise Ntahobali regarding the presence of a convoy when assessing the witness's credibility. 1610 705. The Appeals Chamber observes that the Trial Chamber provided a comprehensive explanation for finding that Denise Ntahobali's account of Nyiramasuhuko's presence in Muramba on 1, 2, and 3 June 1994 lacked credibility. 16"' It explicitly noted that Denise Niahobali's testimony about her and Nyiramasuhuko's stay in Murambi on 1 June 1994 and departure for Muramba on this date was not consistent with the Nyiramasuhuko Notice of Alibi and was contradicted by 1603 Nyiramasuhuko Appeal Brief, para. 718, referring to Trial Judgement, para.

2554. See also Nyiramasuhuko Reply Brief, para. 195. 1604 Nyiramasuhuko Appeal Brief, para. 718, 1605 Nyiramasuhuko Appeal Brief, paras. 712, 713. 1606 Nyiramasuhuko Appeal Brief, paras. 711, 712. Nyiramasuhuko Notice of Appeal, para. 4.19; Nyiramasuhuko Appeal Brief, paras. 715, 716. See also Nyiramasuhuko Reply Brief, para. 196. 1608 Nyiramasuhuko Appeal Brief, para. 716. 1609 Prosecution Response Brief, paras. 404-409. 1610 Prosecution Response Brief, para. 407. 247 Case No. ICTR-98-42-A 14 December 2015

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20118/H Clarisse Ntahobali's evidence. 1612 The Trial Chamber also recalled in great detail other instances where it found Denise Ntahobali's evidence not credible. 1613 Nyiramasuhuko does not demonstrate that, in this context, no reasonable trier of fact could have considered that certain aspects of Denise Ntahobali's testimony lacked credibility when assessing other aspects of her testimony. Against this background, the Appeals Chamber finds no merit in Nyiramasuhuko's claims that the Trial Chamber erred in relying on its finding that certain parts of Denise Ntahobali's testimony lacked credibility and failed to provide a reasoned opinion when finding her alibi evidence not credible. Furthermore, since the existence of ties between an accused and a witness is a factor which may be considered in assessing witnesses' credibility, 614 it was not improper for the Trial Chamber to entertain concerns about Denise Ntahobali's "very close relationships" with and "particularly strong connection" to Nyiramasuhuko's Defence team, irrespective of her honesty on this issue. 615 706. Likewise, the Appeals Chamber sees no error in the Trial Chamber's consideration of the discrepancy between the testimonies of Nyiramasuhuko and Denise Ntahobali about the presence of a convoy upon their departure from Murambi. A review of Denise Ntahobali's testimony reveals that she specifically referenced a

convoy of multiple vehicles and numerous gendarmes, including groups of gendarmes behind and in front of other vehicles. 616 Although Nyiramasuhuko did mention the presence of some gendarmes and the staff of the Prime Minister's office, as well as being the last minister to leave, she made no mention of a convoy. 1617 Nyiramasuhuko's arguments aim at demonstrating that Denise Ntahobali's account was plausible and was not irreconcilable with her own testimony. However, the Trial Chamber did not conclude that this aspect of Denise Ntahobali's testimony was implausible or irreconcilable with Nyiramasuhuko's testimony but, instead, pointed out that Nyiramasuhuko did not mention the convoy when describing the circumstances of her departure from Murambi. 1618 In the view of the Appeals Chamber, Nyiramasuhuko's arguments do not demonstrate that no reasonable trier of fact could have identified the impugned differences and considered them when assessing Denise Ntahobali's credibility.

707. The Appeals Chamber therefore concludes that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in its assessment of Witness Denise Ntahobali's evidence. 1611 Trial Judgement, paras. 2552-2557. 1612 Trial Judgement, paras. 2552, 2553, 2555. 1613 See Trial Judgement, para. 2554. 1614 See supra, para. 674. 1615 Trial Judgement, para. 2554 1616 Denise Ntahobali, T. 9 June 2005 pp. 44, 45. See also Trial Judgement, paras. 2447, 2554. 1617 Nyiramasuhuko, T. 5 October 2005 p.

34. See also Trial Judgement, paras. 2428, 2554. 1618 See Trial Judgement, para.

2554. See also ibid., para. 2552. 248 Case No. ICTR-98-42-A 14 December 2015

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20117/H b. Witness Clarisse Ntahobali 708. Nyiramasuhuko contends that the Trial Chamber erroneously relied on the fact that Clarisse Ntahobali testified in support of her alibi for early June 1994.1619 In her view, the Trial Chamber erred in treating Clarisse Ntahobali as an alibi witness in relation to Nyiramasuhuko's stay in Muramba between 1 and 11 June 1994, emphasising that Clarisse Ntahobali, unlike Denise Ntahobali, did not reside with Nyiramasuhuko during this period. 620 Nyiramasuhuko further argues that, contrary to the Trial Chamber's finding, Clarisse Ntahobali confirmed the testimonies of Nyiramasuhuko and Denise Ntahobali that they left Hotel Ihuliro and went directly to Murambi at the end of May 1994.1621 Nyiramasuhuko concedes that Clarisse Ntahobali testified about her visit with family members in Butare two to three days after her visit at the end of May 1994.1622 Nonetheless, she asserts that this was an honest mistake caused by the witness's confusion about the number of days that elapsed between 31 May 1994 and her subsequent visit and faults the Trial Chamber for making an adverse finding against her. 1623 709. The Prosecution responds that Nyiramasuhuko's arguments concerning Clarisse Ntahobali's testimony are undeveloped and meritless and should be summarily dismissed. 1624 710. The Appeals Chamber considers Nyiramasuhuko's submission that the Trial

Chamber erred in treating Clarisse Ntahobali as an alibi witness regarding her alibi for early June 1994 to be without merit. The Appeals Chamber emphasises that the Trial Chamber, as the trier of fact, was bound to make its own factual findings irrespective of any characterisation of the evidence by the parties. 1625 The Appeals Chamber also notes that Nyiramasuhuko fails to explain how the fact that Clarisse Ntahobali did not reside with her in Muramba between 1 and 11 June 1994 undermines this witness's evidence about Nyiramasuhuko's visits to and presence in Butare. 1619 Nyiramasuhuko Appeal Brief, para. 714, referring to Trial Judgement, para. 2553. 1620 Nyiramasuhuko Notice of Appeal, paras. 4.17, 4.18; Nyiramasuhuko Appeal Brief, paras. 700, 714, referring to Trial Judgement, para.

2553. Nyiramasuhuko further argues that Clarisse Ntahobali testified, like many other witnesses, that she had obtained the information regarding Nyiramasuhuko's whereabouts in early June 1994 from Nyiramasuhuko when Nyiramasuhuko visited Hotel Ihuliro around 10 June 1994. See Nyiramasuhuko Appeal Brief, para. 714. 1621 Nyiramasuhuko Appeal Brief, para. 719, referring, inter alia, to Trial Judgement, para.

2555. Nyiramasuhuko notes that, according to the Nyiramasuhuko Notice of Alibi, she was in Murambi but mostly in Muramba from 2 to 11 June, from 13 to 24 June, and from 25 June to 1 July 1994 with her daughter Denise Ntahobali and her granddaughter. See ibid., para. 720. 1622 Nyiramasuhuko Appeal Brief, para. 721. 1623 Nyiramasuhuko Notice of Appeal, para. 4.20; Nyiramasuhuko Appeal Brief, para.

721. Nyiramasuhuko alleges that Clarisse Ntahobali was the only witness who testified about one of Nyiramasuhuko's visits to Hotel Ihuliro during that time. See idem. Nyiramasuhuko adds that the Trial Chamber ignored more serious inconsistencies in the Prosecution evidence than those imputed to Clarisse Ntahobali. See Nyiramasuhuko Notice of Appeal, para. 4.21 (French). 624 Prosecution Response Brief, paras. 410-413. 1625 See Kanyarukiga Appeal Judgement, para. 124. 249 Case No. ICTR-98-42-A 14 December 2015 1.

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20116/H 711. The Appeals Chamber further observes that Nyitamasuhuko is incorrect in asserting that the Trial Chamber found that Clarisse Ntahobali contradicted the evidence of Nyiramasuhuko and Denise Ntahobali about leaving Hotel Ihuliro and going directly to Murambi at the end of May 1994. The Trial Chamber did not make such a finding. Rather, the Trial Chamber found that by testifying that Nyiramasuhuko had returned to Butare two to three days after 31 May 1994, "on 2 or 3 June 1994", Clarisse Ntahobali "contradicted Nyiramasuhuko and Denise Ntahobali's testimony that [from Murambi] they went directly to [Muramba in] Gisenyi préfecture" and that Nyiramasuhuko was in Muramba on these dates. 626 The Appeals Chamber observes that Clarisse Ntahobali indeed testified about seeing Nyiramasuhuko "at the end of May at Hotel Thuliro" before she left for Murambi, then "two or three days later" as Nyiramasuhuko was "going to settle or stay at Muramba", and subsequently one week later. 627 While Clarisse Ntahobali's testimony corroborated the accounts of Nyiramasuhuko and Denise Ntahobali that they went directly to Murambi when leaving Hotel Ihuliro at the end of May 1994, the Appeals Chamber fails to see how this evidence undermines the Trial Chamber's conclusion that Clarisse Ntahobali "placed] Nyiramasuhuko in Butare town on 2 or 3 June 1994", 1628 Furthermore, since this witness was specific as to the timing of Nyiramasuhuko's two visits to Hotel Ihuliro after the end of May 1994, the Appeals Chamber is not convinced by Nyiramasuhuko's allegation of confusion about the days that elapsed between Nyiramasuhuko's visit to Hotel Ihuliro on 31 May 1994 and her next visit.

712. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's challenges to the assessment of Witness Clarisse Ntahobali's evidence. c. Witness Edmond Babin 713. Nyiramasuhuko submits that the Trial Chamber ignored Witness Edmond Babin's testimony with respect to the duration of the trip between Muramba and Butare Town in peacetime, and erred in relying solely on the testimonies of Nyiramasuhuko and Denise Ntahobali on this point as well as in minimising the difficulties associated with the journey during wartime in June 1994.1629 Nyiramasuhuko adds that, by not considering Witness Babin's evidence, the Trial Chamber implicitly found him not credible but failed to provide a reasoned opinion for this conclusion. 1630 Consequently, she argues that no reasonable trier of fact could have found that, in June 1994, she 1626 Trial Judgement, para.

2555. See also ibid., para. 2557. 1627 Clarisse Ntahobali, T. 9 February 2005 pp. 58, 61, 62. See also T. 10 February 2005 p. 23; Trial Judgement, aras. 2462, 2463. 2555. 628 Trial Judgement, para.

2557. See also ibid., para. 2555 1629 Nyiramasuhuko Notice of Appeal, paras. 7.23, 7.24; Nyiramasuhuko Appeal Brief, paras. 314, 731. 1630 Nyiramasuhuko Appeal Brief, para. 314. 250 Case No. ICTR-98-42-A 14 December 2015

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20115/H could have attended Interim Government meetings in Gisenyi during the day and been present at the prefectoral office at night, despite, at a minimum, a 16-hour return trip. 1631 714. The Prosecution responds that Nyiramasuhuko misrepresents the Trial Chamber's findings in relation to her presence in Butare and Muramba in June 1994.1632 715. The Trial Judgement reflects that the Trial Chamber did not disregard Witness Babin's evidence; his testimony with respect to the duration of the trips between Butare, Gisenyi, and Gitarama was expressly summarised and his estimate of the time needed to travel from Murambi to Butare was considered in the Trial Chamber's deliberations. 1633 While the Trial Chamber did not expressly discuss Witness Babin's estimate of the duration of the trip between Muramba and Butare when evaluating Nyiramasuhuko's ability to travel between these locations on consecutive days, it primarily relied on the time estimate provided by Denise Ntahobali, which exceeded that of Witness Babin, stating that "[e]ven if the travel time between Muramba to Butare was between 8 and 11 hours at the beginning of June 1994, Nyiramasuhuko admitted that she travelled to Butare on 11 June 1994 and returned the very next day on 12 June 1994", 1634 Nyiramasuhuko does not challenge this finding.

716. Furthermore, the Appeals Chamber notes that, contrary to Nyiramasuhuko's contention that the Trial Chamber minimised the difficulties associated with the journey between Muramba and Butare in June 1994, the Trial Chamber explicitly acknowledged that "the RPF had captured Kabgayi along the main road from Gitarama to Butare around 2 June 1994" and considered it reasonable that "Nyiramasuhuko would have been forced to travel on secondary roads", 1635 Furthermore, the Trial Chamber did not find that Nyiramasuhuko attended meetings in Muramba during the day and returned to the prefectoral office at night. Instead, it found, in accordance with Nyiramasuhuko's own admission, that "she travelled to Butare on 11 June 1994 and returned [to Muramba] the very next day on 12 June 1994.*1636 Nyiramasuhuko fails to show that no reasonable trier of fact could have found that it was possible for Nyiramasuhuko to be in Butare at night and then in Muramba the very next day. 1631 Nyiramasuhuko Appeal Brief, para. 732. 1632 Prosecution Response Brief, para. 425. 1633 Trial Judgement, paras. 2455, 2541. 1634 Trial Judgement, para.

2569. See also Edmond Babin, T. 25 April 2005 p. 10 ("Q. And how much time did you use to cover [the distance between Butare and Gisenyi], excluding the stopover time at Kibuye? A. It took us 8 hours 4 minutes to cover the distance."); Denise Ntahobali, T. 9 June 2005 p. 50 ("Q. Witness, do you have any idea how long, more or less, that trip from Muramba to Butare took? A. It took us a long time, a very long time, between eight to 10 hours."). 1635 Trial Judgement, para. 2569. 1636 Trial Judgement, para.

2569. See also Nyiramasuhuko, T. 6 September 2005 p. 42. 251 Case No. ICTR-98-42-A 14 December 2015 cu

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20114/H 717. Based on the above, the Appeals Chamber dismisses Nyiramasuhuko's submissions regarding the consideration of Witness Babin's evidence.

3. Conclusion 718. For the foregoing reasons, the Appeals Chamber concludes that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in finding that the Nyiramasuhuko Notice of Alibi was filed late and in its assessment of the alibi evidence relating to the time periods between 14 and 16 May 1994 and between early June and mid-June 1994. Accordingly, the Appeals Chamber dismisses Grounds 20 to 22 of Nyiramasuhuko's appeal in their entirety. Case No. ICTR-98-42-A 252 14 December 2015

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20113/H F. Butare Prefecture Office (Grounds 23-25, 28-31) 719. The Trial Chamber convicted Nyiramasuhuko of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis taking refuge at the Butare Prefecture Office. 637 The Trial Chamber also determined that Nyiramasuhuko bore superior responsibility for killings committed by Interahamwe as a result of attacks at the prefectoral office pursuant to Article 6(3) of the Statute and considered this as an aggravating factor when determining her sentence. 1638 The Trial Chamber further convicted Nyiramasuhuko of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il as a superior under Article 6(3) of the Statute for rapes committed by Interahamwe at the Butare Prefecture Office. 1639 720. Nyiramasuhuko submits that the Trial Chamber erred in convicting her in relation to crimes committed at the Butare Prefecture Office. 1640 She contends that the Trial Chamber erred in: (i) making imprecise and improper findings; (ii) its assessment of the evidence; (iii) finding her responsible for ordering killings at the prefectoral office; and (iv) finding her responsible as a superior for rapes committed by Interahamwe during attacks at the prefectoral office. The Appeals Chamber will consider these contentions in turn.

1. Imprecise and Improper Findings 721. Nyiramasuhuko argues that the Trial Chamber made imprecise and improper findings with respect to her responsibility for killings and rapes of Tutsis who had sought refuge at the Butare Prefecture Office. (a) Killings 722. The Trial Chamber provided its most detailed assessment of Nyiramasuhuko's criminal responsibility for the killing of Tutsis taking refuge at the Butare Prefecture Office when evaluating 1637 Trial Judgement, paras. 5876, 5969, 5970, 6049-6051, 6098, 6099, 6120, 6166, 6167, 6186. 1638 Trial Judgement, paras. 5886, 5970. See also ibid., paras. 5652, 5884, 5885, 6052, 6207. 1639 Trial Judgement, paras. 6085, 6087, 6088, 6093, 6182, 6183, 6186. 1640 The Appeals Chamber observes that Nyiramasuhuko principally challenges her criminal responsibility for crimes committed at the Butare Prefecture Office by alleging errors in the Trial Chamber's assessment of the crime of genocide. See Nyiramasuhuko Notice of Appeal, paras. 7.1-7.6, 7.8, 7.9; Nyiramasuhuko Appeal Brief, paras. 824-827, 841, 842, 847, 849-852, 856-860, 870-873, 875, 1288-1293. However, because her challenges with respect to the crime of genocide principally relate to the sufficiency of the findings as they concern the modes of responsibility and include challenges as they pertain to the other crimes for which she was convicted, the Appeals Chamber has addressed her contentions with respect to all crimes where relevant. 253 Case No. ICTR-98-42-A 14 December 2015

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20112/H the crime of genocide in the "Legal Findings" section of the Trial Judgement. 64l In particular, the Trial Chamber assessed Nyiramasuhuko's role in the attacks at the prefectoral office that occurred in mid-May 1994 ("Mid-May Attack"), around the end of May or the beginning of June 1994 when Nyiramasuhuko and Ntahobali came to the prefectoral office three times in one night ("Night of Three Attacks"), and in the first half of June 1994 ("First Half of June Attacks"), 1642 Specifically, with respect to the Mid-May Attack, the Trial Chamber found: Between mid-May and mid-June 1994 Nyiramasuhuko, Ntahobali, Interahamwe and soldiers went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted and raped; and were killed in various locations throughout Butare préfecture. In mid-May 1994, Nyiramasuhuko, Ntahobali and about 10 Interahamwe came to the [Butare Prefecture Office] aboard a camouflaged pickup. Nyiramasuhuko pointed out Tutsi refugees to the Interahamwe, ordering them to force the refugees onto the pickup [...]. Ntahobali also gave the Interahamwe orders, telling them to stop loading the truck because it could not accept anymore dead. The refugees were taken to other locations in Butare to be killed. Therefore, both Nyiramasuhuko and Ntahobali were responsible for ordering the killings of numerous Tutsi refugees

who were forced on board the pickup. As regards to the Night of Three Attacks, the Trial Chamber recalled the following: Around the end of May to the beginning of June 1994, Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup on three occasions in one night. They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare préfecture to be killed. Nyiramasuhuko ordered Interahamwe to rape refugees [...]. The Interahamwe beat, abused and raped many Tutsi With respect to the First Half of June Attacks, the Trial Chamber found: In the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and as a result numerous women were raped at that location. Ntahobali, injured soldiers, and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. During at least one of these attacks, Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA J...].1645 The Trial Chamber concluded the "Genocide" section of the Trial Judgement by finding that Nyiramasuhuko was responsible for ordering the killing of "Tutsis taking refuge at the Butare préfecture office" 646 It further found Nyiramasuhuko responsible as a superior on the same basis, concluding that it would take this form of

responsibility into account in sentencing, 647 The Trial Chamber recalled these conclusions throughout the remainder of the "Legal Findings" section of the 1641 See Trial Judgement, paras. 5866, 5867, 5871, 5873, 5874, 5876, 5969, 5970. 1642 See Trial Judgement, paras. 5866-5871, 5873, 5874, 5876, 5877. 1643 Trial Judgement, para. 5867 (internal references omitted). See also ibid., para. 2781(i). 1611 Trial Judgement, para. 5873 (internal reference omitted). See also ibid., para. 2781(iii). 1645 Trial Judgement, para. 5874 (internal reference omitted). See also ibid., para. 2781(v). 1646 Trial Judgement, para.

5969. See also ibid., paras. 5876, 5970. 1647 Trial Judgement, paras. 5652, 5886, 5970, 6207. See also ibid., paras. 5884, 5885. 254 Case No. ICTR-98-42-A 14 December 2015

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20111/H Trial Judgement when considering Nyiramasuhuko's responsibility for other crimes based on the same conduct. 1648 723. Nyiramasuhuko submits that the Trial Chamber erred in failing to provide a reasoned opinion by not specifying the factual basis on which it relied to find her responsible under Articles 6(1) and 6(3) of the Statute for ordering the killing of Tutsi refugees at the prefectoral office. 649 She argues that the Trial Chamber erred in failing to point to a factual or legal basis to support the conclusion that she issued orders to kill during the Mid-May Attack, the Night of Three Attacks, and the First Half of June Attacks and contends that no such basis exists. 1650 With respect to the Mid-May Attack in particular, she submits that the Trial Chamber only found that she ordered Tutsi refugees to be abducted without explaining how it inferred from it an order to kill. l651 724. The Prosecution responds that the Trial Chamber properly addressed Nyiramasuhuko's responsibility under Article 6(1) of the Statute for ordering killings during the Mid-May Attack and the Night of Three Attacks. 652 It contends that the Trial Chamber's findings that Nyiramasuhuko ordered abductions during these attacks reflect that she was found to have implicitly ordered killings given the nature of those attacks and that the abducted persons were killed. 1653 The Prosecution appears

to submit that the Trial Chamber did not find that Nyiramasuhuko ordered abductions, and by implication killings, during the First Half of June Attacks but contends that this has no impact on her ordering responsibility in light of the Trial Chamber's findings with respect to the Mid-May Attack and the Night of Three Attacks. 1654 725. On 25 March 2015, the Appeals Chamber requested the Prosecution to provide supplementary submissions discussing what evidence cited in the Trial Judgement and findings of the Trial Chamber would support the conclusion that Nyiramasuhuko was convicted for ordering 1648 See Trial Judgement, paras. 6049-6052 (extermination as a crime against humanity), 6098, 6099, 6120 (persecution as a crime against humanity), 6166, 6167 (violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II). 1649 Nyiramasuhuko Appeal Brief, paras. 769, 819, 829, 850, 862-869, 1283, 1294. See also Nyiramasuhuko Reply Brief, paras. 239, 266-272. 1650 Nyiramasuhuko Appeal Brief, paras. 769, 819, 865, 866, 869, 1286, referring to Trial Judgement, paras. 2644, 2715, 2738, 2749, 2781, 5867-5876, 5886, 5969, 5970. See also Nyiramasuhuko Reply Brief, paras. 239, 248. Nyiramasuhuko Appeal Brief, paras. 820, 821, 862, referring to Trial Judgement, paras. 5867-5869. Nyiramasuhuko argues that it was an error for the Trial Chamber to infer that such an order "significantly contributed to the death of those persons". See ibid., para.

821. This contention is addressed below in Section IV.F.3. 1652 Prosecution Response Brief, para. 548. 1653 Prosecution Response Brief, paras. 544-548, 550, 555. See also AT. 14 April 2015 pp. 42, 43. 1654 Prosecution Response Brief, para.

550. The Prosecution concludes that, in light of the Trial Chamber's conclusions regarding the Mid-May Attack and the Night of Three Attacks, "the only reasonable inference was that the refugees abducted to be killed were killed." See idem. During the appeals hearing, the Prosecution also pointed to Witness SU's evidence related to the First Half of June Attack and referenced in paragraph 2754 of the Trial Judgement that Nyiramasuhuko ordered Interahamwe to load people into a vehicle to be killed as evidence supporting the conclusion that Nyiramasuhuko's orders to load Tutsis into her truck during attacks were understood by everyone to mean that these people would be killed. See AT. 14 April 2015 p. 43. 255 Case No. ICTR-98-42-A 14 December 2015

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20110/H killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Night of Three Attacks. 655 In response, the Prosecution submits that the Trial Chamber correctly concluded that Nyiramasuhuko was convicted for ordering killings based on her conduct during the Night of Three Attacks 656 It contends that this conclusion is the clear and correct result of the Trial Chamber's assessment of "the evidence of the préfecture office crimes as a whole" as well as the fact that the Trial Chamber's "findings may be implied in its conclusions, rather than expressly stated."1657 In support, the Prosecution points to evidence and findings pertaining to the Night of Three Attacks demonstrating: (i) Nyiramasuhuko's general authority; (ii) that she ordered rapes, killings, and that Tutsis be loaded onto the pickup truck and that all these orders were complied with; and (ili) that abducted Tutsis were taken away and killed. 1658 726. Nyiramasuhuko responds that the relevant findings of the Trial Chamber do not provide a basis to conclude that it found that she ordered killings during the Night of Three Attacks and contests the Prosecution's position that the findings may be implied. 659 She emphasises that the Trial Chamber made findings in respect of each attack and that the only finding concerning her conduct during the Night of Three Attacks was that she ordered

Interahamwe to rape refugees and that Interahamwe beat, abused, and raped many Tutsi women. 1660 Nyiramasuhuko stresses that the Trial Chamber only concluded that she, Ntahobali, and Interahamwe came to the prefectoral office on three occasions abducting Tutsi refugees on each occasion, without finding that she ordered abductions or killings during that particular night. 1661 She further contends that, contrary to the Prosecution's position, the Trial Chamber did not consider a pattern of killings in order to establish her ordering liability for this attack. 1662 727. The Appeals Chamber observes that the Trial Chamber convicted Nyiramasuhuko of genocide, crimes against humanity, and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il for ordering "the killing of Tutsis taking refuge at the Butare préfecture office."1663 The Trial Chamber further found that, in relation to these events, Nyiramasuhuko was responsible as a superior for killings committed by Interahamwe based on her 165S 25 March 2015 Order, p. 2. 1656 Prosecution Supplementary Submissions, para. 1. 1657 Prosecution Supplementary Submissions, para.

2. See also ibid., paras. 1-7, 20. 1658 Prosecution Supplementary Submissions, paras. 8-19. See also AT. 14 April 2015 pp. 42-44. 1659 Nyiramasuhuko Supplementary Submissions, paras. 1, 6, 7, 27, 32, 33. She also asserts that the Trial Chamber's findings clearly suggest that she was not held responsible for ordering killings committed by soldiers. See Nyiramasuhuko Supplementary Submissions, paras. 5, 12, 17, 19. 1660 Nyiramasuhuko Supplementary Submissions, paras. 4, 13. See also AT. 15 April 2015 p. 4. 1661 Nyiramasuhuko Supplementary Submissions, paras. 17, 18. 1662 Nyiramasuhuko Supplementary Submissions, paras. 21-24, 26, 27, 30. Nyiramasuhuko also contends that: (i) the Prosecution cannot present any evidence of a consistent pattern of conduct unless the accused receives sufficient and timely notice specifically identifying the evidence to be used in this manner; and ii) it is improper to raise the theory of consistent pattern of conduct on appeal when it was not raised at trial. See ibid., paras. 25, 26. 256 Case No. ICTR-98-42-A 14 December 2015

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20109/H orders and stated that it would consider this conclusion in sentencing. 1664 The Trial Chamber did not link these general findings to specific attacks at the prefectoral office in which it had concluded that Nyiramasuhuko participated.

728. A review of the Trial Chamber's most detailed factual and legal findings reveals that the Trial Chamber expressly concluded that Nyiramasuhuko was responsible for "ordering the killings of numerous Tutsi refugees who were forced on board the pickup" during the Mid-May Attack. 1665 Nyiramasuhuko is correct in her submissions, however, that the Trial Chamber did not refer to any express order to kill nor did it expressly state that it inferred as the only reasonable conclusion that Nyiramasuhuko ordered the killings that resulted from that attack. Moreover, the Trial Chamber did not specify that Nyiramasuhuko's conduct of pointing out Tutsi refugees to the Interahamwe and ordering the Interahamwe to force them onto the pickup truck had a direct and substantial effect on the eventual killings of those Tutsis. 1666 729. The Appeals Chamber recalls that Article 22(2) of the Statute and Rule 88(C) of the Rules require trial chambers to give a reasoned opinion, 667 which includes the provision of cleai, reasoned findings of fact as to each element of the crime charged. 668 A reasoned opinion in the trial judgement is essential for allowing a meaningful exercise of the right of appeal by the parties and enabling the Appeals Chamber to understand and review the trial chamber's findings.

166) With respect to the Mid-May Attack, while it is clear that the Trial Chamber found that Nyiramasuhuko was responsible under Article 6(1) of the Statute for ordering killings during this attack and that she bore responsibility as a superior under Article 6(3) of the Statute on the same basis, the Appeals Chamber finds that the absence of clear findings as to the essential elements necessary to establish her ordering responsibility has resulted in a failure to provide a reasoned opinion and constitutes an error of law. The Appeals Chamber will consider whether this error invalidates the Trial Chamber's decision to convict Nyiramasuhuko for ordering killings during the Mid-May Attack - and finding her responsible as a superior on the same basis - by examining whether the Trial Chamber's factual findings and the evidence relied upon by the Trial Chamber and identified by the parties could 1663 Trial Judgement, paras. 5969, 6050, 6098. See also ibid., paras. 5876, 5970, 6049, 6051, 6099, 6120, 6166, 6167. 1664 Trial Judgement, paras. 5884-5886, 5970, 6052. 1665 Trial Judgement, para. 5867. 1666 Trial Judgement, paras. 2644, 2781(i), 5866-5871. The Trial Chamber's analysis of Nyiramasuhuko's responsibility for extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of

Article 3 common to the Geneva Conventions and of Additional Protocol Il on the basis of this conduct provides no further information. See ibid., paras. 6049-6051, 6098, 6099, 6166, 1667 See also, e.g., Bizimungu Appeal Judgement, para. 18; Nchamihigo Appeal Judgement, para. 165; Krajisnik Appeal 1668 See Ndindiliyimana et al. Appeal Judgement, para. 293; Renzaho Appeal Judgement, para. 320; Kajelijeli Appeal Judgement, para, 60; Kordié and Cerkez Appeal Judgement, para.

383. Cf. also Orié Appeal Judgement, para. 56. 257 Case No. ICTR-98-42-A 14 December 2015

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20108/H sustain the Trial Chamber's conclusions when assessing Nyiramasuhuko's responsibility for ordering. 1670 730. Concerning the Night of Three Attacks, the Trial Chamber also made findings about Nyiramasuhuko's involvement in abductions and killings committed during this event in the "Legal Findings" section of the Trial Judgement, but, unlike with respect to the Mid-May Attack, it did not expressly find that Nyiramasuhuko ordered killings during this night or explain if her conduct during the Night of Three Attacks supported her convictions for ordering killings. 61 Rather, the Trial Chamber merely concluded that "Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup on three occasions in one night. They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare préfecture to be killed."1612 The Appeals Chamber finds that the absence of a clear finding in the "Legal Findings" section of the Trial Judgement raises doubts as to whether her conviction for ordering the killing of Tutsis taking refuge at the prefectoral office was also based upon her conduct during the Night of Three Attacks. 673 This ambiguity also raises doubts as to whether the Trial Chamber's findings that she bore responsibility under Article 6(3) of the Statute for killings committed by Interahamwe following her orders was also based upon her participation in these attacks.

731. Notwithstanding the ambiguity in the "Legal Findings" section of the Trial Judgement, the Appeals Chamber observes that, contrary to Nyiramasuhuko's contentions, the "Factual Findings" section of the Trial Judgement contains express conclusions that, during the Night of Three Attacks, Nyiramasuhuko "ordered Interahamwe and soldiers to rape Tutsi women, and to kill other refugees", 1674 that she "gave orders to the Interahamwe to [attack women and children, assault them, and force them aboard the pickup]" who "were taken away from the [Butare Prefecture 1669 Bizimung Appeal Judgement, para. 18; Hadzhasanovic and Kubura Appeal Judgement, para.

13. See also Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20. 670 See infra, Section IV.F.3. 1671 Trial Judgement, paras. 5873, 5969, 6050, 6098, 6166. 1672 Trial Judgement, para. 5873 (internal reference omitted). See also ibid., paras. 2738, 2781 (ili). 1673 The confusion is compounded by the fact that the Trial Chamber expressly concluded in the "Legal Findings" section of the Trial Judgement that "Nyiramasuhuko ordered Interahamwe to rape refugees" with respect to the Night of Three Attacks. See Trial Judgement, para. 5873. 1674 See Trial Judgement, para.

2698. The Appeals Chamber notes that Nyiramasuhuko contends that, notwithstanding the Trial Chamber's assertion in paragraph 2698 of the Trial Judgement that it was "convinced that Nyiramasuhuko [...J ordered Interahamwe and soldiers to rape Tutsi women, and to kill other refugees" during the Night of Three Attacks, the Trial Chamber did not conclude that Nyiramasuhuko ordered killings as such a finding is not contained in its later conclusions in paragraphs 2702, 2781, and 5873 of the Trial Judgement. See AT. 15 April 2015 p. 3; Nyiramasuhuko Supplementary Submissions, paras. 11, 12, 20. The Appeals Chamber finds that a plain reading of paragraph 2698 of the Trial Judgement in isolation and in the context of all of the Trial Chamber's findings contradicts Nyiramasuhuko's contention. 258 Case No. ICTR-98-42-A 14 December 2015

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20107/H Office] and killed elsewhere", 1675 and that she "ordered the Interahamwe to force Tutsi refugees onto the pickup" which left with the abducted Tutsi refugees 1676 The Trial Chamber's discussion of the evidence of the witnesses that it relied upon with respect to the Night of Three Attacks also reflects that Nyiramasuhuko participated in the abductions and killings during that night, issued express orders to kill and abduct refugees who were later killed, and that she held a position of authority among the assailants during the attacks. '677 Similarly, and contrary to Nyiramasuhuko's contention that the Trial Chamber did not rely on a pattern of killings in relation to the Night of Three Attacks, the Trial Chamber made extensive findings that Tutsi refugees abducted from the prefectoral office during these and other attacks at the prefectoral office were killed. 1678 732. In this context, the Appeals Chamber finds that the Trial Chamber's deliberations in the "Factual Findings" section of the Trial Judgement demonstrate that the Trial Chamber found that Nyiramasuhuko ordered killings during the Night of Three Attacks and that her conviction in this respect is incorporated in its general conclusion in the "Legal Findings" section of the Trial Judgement that she ordered Interahamwe to kill Tutsis taking refuge at the prefectoral office and that she was responsible as a

superior on the same basis. 679 733. However, the analysis above demonstrates that the Trial Chamber manifestly failed to set out in a clear and articulate manner the basis for Nyiramasuhuko's criminal responsibility for ordering killings during the Night of Three Attacks. Instead, the parties and the Appeals Chamber have had to interpret scattered legal and factual findings as well as the evidence supporting them in order to decipher whether Nyiramasuhuko was found responsible for ordering killings committed during the Night of Three Attacks and as a superior for killings committed by Interahamwe who followed her orders. In these circumstances, the Appeals Chamber concludes that the Trial Chamber 1675 See Trial Judgement, para. 2736. 1676 See Trial Judgement, para. 2738. 1677 See Trial Judgement, paras. 2681, 2687-2689, 2691, 2693, 2695, 2696, 2698-2700, 2704, 2706, 2708-2712, 2715, 2736, 2738, 2779. 1678 See Trial Judgement, paras. 2736, 2739-2749, 2781(iv). See also ibid., paras. 2774-2779. The Appeals Chamber finds no merit in Nyiramasuhuko's apparent contention that the Prosecution cannot rely on evidence of a consistent pattern of conduct as defined in Rule 93 of the Rules without sufficient notice. The Appeals Chamber observes that the Prosecution is not seeking to introduce such evidence on appeal but is simply highlighting findings of the Trial Chamber and evidence it

relied upon tending to show that there was a pattern of killings at the prefectoral office. Moreover, the Appeals Chamber is satisfied that the Trial Chamber did not abuse its discretion in assessing evidence as it pertained to various attacks at the prefectoral office as trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record. Cf. supra, soldiers during this attack. Specifically, the Appeals Chamber observes that in the "Legal Findings" section of the Trial Judgement, the Trial Chamber found that, although "soldiers played a role in the events at the [Butare Prefecture Office], no evidence has been led to establish any relationship between the soldiers and Nyiramasuhuko". See Trial Judgement, para.

5887. Although made in the context of evaluating Nyiramasuhuko's responsibility under Article 6(3) of the Statute, such a conclusion suggests that no finding of any liability was imposed on Nyiramasuhuko for the 259 Case No. ICTR-98-42-A 14 December 2015

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20106/H erred in law by failing to provide a reasoned opinion in support of Nyiramasuhuko's conviction for ordering killings in relation to the Night of Three Attacks and her superior responsibility on the same basis.

734. Notwithstanding this error, the Appeals Chamber is satisfied that Nyiramasuhuko has not been denied the opportunity to fully exercise her right to appeal this aspect of her ordering conviction, particularly in light of the opportunity given to her to litigate what evidence cited in the Trial Judgement and findings of the Trial Chamber would support it in relation to the Night of Three Attacks. Consequently, the Appeals Chamber will consider whether this error invalidates the Trial Chamber's decision to convict Nyiramasuhuko for ordering killings during the Night of Three Attacks - and finding her responsible as a superior on the same basis - by examining whether the Trial Chamber's factual findings and the evidence relied upon by it and identified by the parties could sustain the Trial Chamber's conclusions when assessing Nyiramasuhuko's responsibility for ordering. 1680 In so doing, the Appeals Chamber will consider Nyiramasuhuko's additional submissions that the record is insufficient to establish the elements of ordering under Article 6(1) of the Statute.

735. Turning to Nyiramasuhuko's challenges concerning her responsibility for ordering killings during the First Half of June Attacks, the Appeals Chamber observes that, not only did the Trial Chamber not refer to Nyiramasuhuko's involvement in abductions or killings during the First Half of June Attacks in the "Legal Findings" section of the Trial Judgement, 168l but its conclusions in the "Factual Findings" section of the Trial Judgement do not demonstrate that the Trial Chamber intended to convict her for ordering killings during these attacks. Rather, the Trial Chamber's only factual conclusion with respect to Nyiramasuhuko was that she ordered Interahamwe to commit rapes, without reference to her involvement in abductions or killings of Tutsis during these attacks, in contrast to its findings regarding Ntahobali, 682 These omissions raise further questions as to whether the Trial Chamber's findings that Nyiramasuhuko bore superior responsibility under conduct of soldiers. A careful review of the relevant Trial Chamber's findings and other legal findings does not suggest otherwise. 1680 See infra, Section IV.F.3. 1681 See Trial Judgement, para. 5874. 1682 Trial Judgement, paras. 2773 (Therefore, the Chamber finds it established beyond a reasonable doubt [...] that, in addition to those attacks described above, Ntahobali, injured soldiers and Interahamwe came to the [Butare

Prefecture Office] in June 1994 to rape women and abduct refugees. During one of these attacks Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA. It further finds that in June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and that as a result, numerous women were raped at that location."), 2781(v) ("In the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and that as a result numerous women were raped at that location. Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. During at least one of these attacks Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA."). 260 Case No. ICTR-98-42-A 14 December 2015

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20105/H Article 6(3) of the Statute for killings committed by Interahamwe following her orders is also based on her conduct during these attacks.

736. While the Trial Chamber's discussion of the evidence it relied upon in relation to the First Half of June Attacks appears to reflect that Nyiramasuhuko participated in abductions and killings, issued orders in general, and held a position of authority among the assailants during these attacks, 1683 the Trial Chamber nowhere concluded that Nyiramasuhuko expressly ordered abductions or killings on the basis of this evidence. In this context, the Appeals Chamber cannot with any certainty conclude that the Trial Chamber relied on this evidence when generally concluding in the "Legal Findings" section of the Trial Judgement that Nyiramasuhuko ordered the killing of Tutsis taking refuge at the prefectoral office. In the absence of any relevant factual and legal findings underlying Nyiramasuhuko's responsibility for ordering killings during the First Half of June Attacks, the Appeals Chamber concludes that Nyiramasuhuko was not convicted in relation to the killings perpetrated as a result of these attacks. Likewise, the Appeals Chamber finds that her superior responsibility for killings committed by Interahamwe who followed her orders is not based on her conduct during these attacks.

737. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber failed to provide a reasoned opinion with respect to Nyiramasuhuko's responsibility for ordering the killing of Tutsis taking refuge at the prefectoral office during the Mid-May Attack and the Night of Three Attacks and, consequently, with respect to its conclusions that she bore superior responsibility for killings committed by Interahamwe who followed these orders. However, the Appeals Chamber is satisfied that Nyiramasuhuko has been given the opportunity to fully litigate these conclusions on appeal. Consequently, the Appeals Chamber will consider whether the Trial Chamber's failure to make findings as to the essential elements necessary to establish her ordering responsibility under Article 6(1) of the Statute and, thus, with respect to its conclusion that she bore superior responsibility for killings committed by Interahamwe who followed these orders in relation to the Mid-May Attack and the Night of Three Attacks invalidates its decision to hold Nyiramasuhuko responsible on these bases when assessing her responsibility for ordering killings later in this section. The Appeals Chamber determines that Nyiramasuhuko's contentions concerning her responsibility for ordering killings during the First Half of June Attacks as well as her responsibility as a superior for these killings are moot as she was not convicted on this basis. 1683 See Trial Judgement, paras. 2754, 2758, 2764, 2769, 2779. Case No. ICTR-98-42-A 261 14 December 2015

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20104/H (b) Rapes 738. The Trial Chamber found that the Prosecution provided insufficient notice of its intention to pursue rape as genocide and concluded that convicting Nyiramasuhuko on this basis would be prejudicial. 684 Accordingly, the Trial Chamber stated that it would not enter a conviction for genocide on the basis of any rapes that occurred, 1685 but clarified that it would nonetheless consider evidence of rapes in the following manner: The Chamber [...] will mention rapes in the course of its legal findings on genocide. This will be done to convey the entire set of facts in a coherent fashion, including that the intensity and repeated nature of the attacks provides evidence that rape was, in fact, utilised as a form of genocide. The Chamber will not take this into account in assessing genocide, but instead will consider this for the counts of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto. 1686 739. When assessing the Mid-May Attack in the "Genocide" section of the Trial Judgement, the Trial Chamber held that Nyiramasuhuko aided and abetted rapes. 687 In the same section, it further concluded that she ordered rapes during the Night of Three Attacks and the First Half of June Attacks. 1688 The Trial Chamber nevertheless recalled that it would

"not take rapes into account in assessing genocide, but instead [would] consider them for the counts of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II" 1689 740. When discussing Nyiramasuhuko's liability for rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the . Geneva Conventions and of Additional Protocol II, the Trial Chamber observed that Nyiramasuhuko was only charged pursuant to Article 6(3) of the Statute and convicted her for rapes perpetrated by Interahamwe at the prefectoral office on this basis. 1690 The Trial Judgement reflects that her responsibility pursuant to Article 6(3) of the Statute is predicated on her having ordered rapes. 1691 741. Nyiramasuhuko argues that the Trial Chamber erred by convicting her of genocide on the basis of rapes committed at the prefectoral office. 1692 She submits that the Trial Chamber went 1684 Trial Judgement, paras. 5863, 5864. 1685 Trial Judgement, para. 5864. 1686 Trial Judgement, para. 5865 (internal reference omitted). See also ibid., paras. 6085, 6180. 1687 Trial Judgement, para.

5869. See also ibid., para. 5877. 1688 Trial Judgement, paras. 5873, 5874. See also ibid., para. 5877. 1689 Trial Judgement, para. 5877. 1690 Trial Judgement, paras. 6087, 6088, 6093, 6180, 6182, 6183. 1691 Trial Judgement, paras. 6087, 6093 ("Nyiramasuhuko ordered Interahamwe to rape Tutsis at the [Butare Prefecture Office], and bears responsibility as a superior for their rapes. The Chamber therefore finds her guilty of rape as a crime against humanity, pursuant to Article 6(3) of the Statute"), 6182. Cf. ibid., paras. 5884-5886. Nyiramasuhuko Notice of Appeal, paras. 7.7, 7.9; Nyiramasuhuko Appeal Brief, paras. 840-855, 870-873, 1288, 1289, 1291-1293. See also AT. 14 April 2015 p. 23. 262 Case No. ICTR-98-42-A 14 December 2015

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20103/H beyond discussing rapes committed at the prefectoral office but made specific findings as to her individual criminal responsibility under Article 6(1) of the Statute for aiding and abetting and ordering rapes when assessing the charge of genocide. 693 She contends that the error of this approach is evident as she was only charged under Article 6(3) of the Statute with respect to rapes. 1694 742. Nyiramasuhuko also appears to argue that the Trial Chamber erred in convicting her as a superior and pursuant to Article 6(1) of the Statute for aiding and abetting rapes during the Mid-May Attack. 1695 She also submits that the Trial Chamber erred in failing to identify the rapes committed by Interahamwe at the prefectoral office of which she was found responsible as a superior. 1696 743. The Prosecution responds that the Trial Chamber did not convict Nyiramasuhuko for genocide on the basis of rapes or for aiding and abetting rapes under any of the other counts. 1697 744. Notwithstanding its findings that Nyiramasuhuko aided and abetted and ordered rapes in the "Genocide" section of the Trial Judgement as well as its reliance on these conclusions when determining that she possessed the mens rea for genocide, 1698 the Trial Chamber repeatedly confirmed that it would not convict Nyiramasuhuko of genocide in relation to rapes committed at the prefectoral office 1699 The Trial Chamber's conclusions on Nyiramasuhuko's responsibility for genocide unequivocally reflect that she was found guilty of this crime on the sole basis of the killings that she ordered during attacks at the prefectoral office. 1700 Nyiramasuhuko's contention that she was convicted for genocide on the basis of rapes, thus, is without merit.

745. Moreover, the Appeals Chamber concludes that the Trial Chamber did not err in finding in the "Genocide" section of the Trial Judgement that Nyiramasuhuko aided and abetted or ordered rapes in relation to the Mid-May Attack, the Night of Three Attacks, or the First Half of June Attacks. While the Trial Chamber was not obligated to make findings on individual criminal responsibility for rapes under Article 6(1) of the Statute in relation to the crime of genocide as it determined that the Nyiramasuhuko and Ntahobali Indictment was defective in this respect, 1693 Nyiramasuhuko Notice of Appeal, paras. 7.2, 7.3; Nyiramasuhuko Appeal Brief, paras. 827, 841, 842, 847, 849- 852, 872, 873. 1694 Nyiramasuhuko Appeal Brief, para.

1292. See also Nyiramasuhuko Notice of Appeal, paras. 7.8, 7.10. 1695 Nyiramasuhuko Appeal Brief, paras. 756, 764, 766-768, 870, 874, 1288. 1696 Nyiramasuhuko Appeal Brief, para. 1289, referring to Trial Judgement, paras. 2781, 6088. 1697 Prosecution Response Brief, paras. 579, 584. 1698 Trial Judgement, paras. 5870, 5873, 5874. 1699 See Trial Judgement, paras. 5868, 5873, 5877. See also ibid., paras. 6085, 6180. 1700 Trial Judgement, paras. 5969, 5970. 263 Case No. ICTR-98-42-A 14 December 2015

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20102/H Nyiramasuhuko does not demonstrate that it was an error for the Trial Chamber to do so where it did not enter a conviction against her on this basis.

746. Likewise, the Trial Judgement unambiguously reflects that Nyiramasuhuko was not convicted of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute for aiding and abetting rapes during the Mid-May Attack !701 It is clear from the Trial Judgement that Nyiramasuhuko was convicted under these counts solely pursuant to Article 6(3) of the Statute and only on the basis of the rapes committed by Interahamwe who were following her orders. 702 As the Trial Chamber did not find that she ordered Interahamwe to commit rapes during the Mid-May Attack, 03 it is clear that Nyiramasuhuko was not convicted in relation to the rapes committed during this attack.

747. Finally, the Appeals Chamber finds no merit in Nyiramasuhuko's unsupported contention that the Trial Chamber failed to factually identify acts of rape committed by Interahamwe at the prefectoral office that would support her liability. The Trial Chamber's conclusions reflect that the rapes supporting her responsibility were those committed by Interahamwe who accompanied her to the prefectoral office and followed her orders during the Night of Three Attacks and one of the First Half of June Attacks. 1704 748. Based on the foregoing, the Appeals Chamber rejects Nyiramasuhuko's arguments that she was convicted of genocide on the basis of rapes committed at the Butare Prefecture Office, or that she was convicted of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II for rapes that she aided and abetted during the Mid-May Attack. The Appeals Chamber further finds that Nyiramasuhuko has not demonstrated that the Trial Chamber failed to sufficiently identify the rapes for which she was held criminally responsible. 1701 Trial Judgement, paras. 6087, 6182. 1702 Trial Judgement, paras. 6087, 6093, 6182. Cf. ibid., paras. 5884-5886. 1703 Trial Judgement, para. 5869 ("There was no evidence of Nyiramasuhuko's direct involvement in ordering the rape of Witness TA or the

other Tutsi women on this occasion in mid-May 1994. [...] Therefore, Nyiramasuhuko, by her presence and position of authority, is guilty of aiding and abetting the rapes at the [Butare Prefecture Office].") (internal reference omitted). See also ibid., para. 5877 ("(T]he evidence establishes that [...] Nyiramasuhuko aided and abetted rapes [..]."). The Appeals Chamber notes that the Trial Chamber relied on the fact that "Nyiramasuhuko issued instructions to rape the women" when discussing her mens rea of genocide for the Mid-May Attack. See ibid., para.

5870. Although this statement may be misleading, it is clear, when read in context, that this statement does not refer to the Mid-May Attack but to later attacks at the prefectoral office where Nyiramasuhuko was found to have ordered rapes. See ibid., paras. 5873, 5874. 1704 See Trial Judgement, paras, 2781(iii), (v), 5884, 6088. 264 Case No. ICTR-98-42-A 14 December 2015

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20101/H (c) Conclusion 749. The Appeals Chamber concludes that the Trial Judgement reflects that Nyiramasuhuko was convicted of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis taking refuge at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks, and that Nyiramasuhuko's superior responsibility for these killings was considered as an aggravating factor in sentencing. The Appeals Chamber finds that Nyiramasuhuko was not convicted in relation to any of the killings committed during the First Half of June Attacks. It also concludes that Nyiramasuhuko was convicted of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a superior pursuant to Article 6(3) of the Statute for the rapes committed by Interahamwe following her orders during the Night of Three Attacks and one of the First Half of June Attacks.

750. The Appeals Chamber finds that the Trial Chamber erred in law in failing to provide a reasoned opinion with respect to Nyiramasuhuko's responsibility for ordering killings during the Mid-May Attack and the Night of Three Attacks. The Appeals Chamber will consider whether the Trial Chamber's failure to make findings as to the essential elements necessary to establish Nyiramasuhuko's ordering responsibility under Article 6(1) of the Statute in relation to these events invalidates the decision when assessing her responsibility for ordering killings later in this section. The Appeals Chamber dismisses Nyiramasuhuko's remaining challenges concerning the imprecision or impropriety of the Trial Chamber's findings concerning her participation in crimes during attacks at the prefectoral office.

2. Assessment of Evidence 751. With respect to the Mid-May Attack, the Trial Chamber found that, one night in mid-May 1994, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office aboard a camouflage pickup truck.170s The Trial Chamber concluded that Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup truck, that Nahobali and about eight other Interahamwe raped Witness TA, and that the pickup truck left the prefectoral office, abducting Tutsi refugees in the process.'706 As discussed above, the Trial 705 Trial Judgement, paras. 2644, 2781(i) 106 Trial Judgement, paras. 2644, 2781(i), 5867 265 Case No. ICTR-98-42-A 14 December 2015

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20100/H Chamber convicted Nyiramasuhuko for ordering killings during this attack and found that she bore superior responsibility for the killings committed by Interahamwe who followed her orders. 1707 752. As regards the Night of Three Attacks, the Trial Chamber found that, around the end of May or the beginning of June 1994, Ntahobali, Nyiramasuhuko, and Interahamwe came to the Butare Prefecture Office on board a camouflaged pickup truck three times in one night. 1708 They abducted Tutsi refugees each time and took them to other sites in Butare Prefecture to be killed. 1709 The Trial Chamber further found that Nyiramasuhuko ordered Interahamwe to rape refugees during these attacks. 1710 The Trial Chamber convicted Nyiramasuhuko for ordering killings during these attacks and as a superior for ordering rapes and found that she bore superior responsibility for the killings committed by Interahamwe who followed her orders!"' The Trial Chamber partly relied on evidence pertaining to the abduction and/or killings of Mbasha's wife, Trifina, Annonciata, and Semanyenzi during these attacks in support of its findings. 1712 753. Concerning the First Half of June Attacks, the Trial Chamber determined that, during one of the attacks, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the Butare Prefecture Office and as a result numerous women were raped at that location.'713 The

Trial Chamber convicted Nyiramasuhuko as a superior for ordering rapes on this basis. l714 754. Nyiramasuhuko challenges the Trial Chamber's assessment of the evidence concerning these attacks. The Appeals Chamber will first examine Nyiramasuhuko's submissions regarding unpleaded and prejudicial evidence before turning to her contentions pertaining to alleged collusion, the identification evidence, the Mid-May Attack, the Night of Three Attacks, and the First Half of June Attacks. (a) Unpleaded and Prejudicial Evidence 755. The Trial Chamber observed that the identities of Mbasha's wife, Trifina, Annonciata, and Semanyenzi did not appear in the Nyiramasuhuko and Ntahobali Indictment, the Prosecution Pre-Trial Brief or its appendix, or the Prosecution's opening statement. l715 It also noted that their identities had only been disclosed in four witness statements less than two months prior to trial, 1707 See supra, para. 749. 1708 Trial Judgement, paras. 2661, 2715, 2738, 2781 iii), 5873. 1709 Trial Judgement, paras. 2736, 2738, 2749, 2781(iii), 5873. 1710 Trial Judgement, paras. 2702, 2781(ii), 5873. 1711 See supra, para. 749. 1712 Trial Judgement, paras. 2172, 2746-2749. The Trial Chamber had previously determined that Nyiramasuhuko and Ntahobali could not be convicted on the basis of the crimes committed against these named individuals for lack of notice. See ibid., para.

2172. Trial Judgement, paras. 2773, 2781(v), 5874. 1714 See supra, para. 749. 266 Case No. ICTR-98-42-A 14 December 2015 Qu

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20099/H without indication that this new information was being provided.l'16 Consequently, the Trial Chamber found that the late disclosure of these victims' names "accorded bias to the Defence in preparing its case" and concluded that it would not convict Nyiramasuhuko or Ntahobali for the alleged crimes against these victims if they were to be established.'" Relying on the Admissibility Appeal Decision of 2 July 2004 and the Kupreskic et al. Appeal Judgement, the Trial Chamber stated that it would nonetheless consider the evidence concerning these individuals for "other permissible purposes", including "background information, circumstantial evidence in support of other allegations, to demonstrate a special knowledge, opportunity or identification of the accused". 1718 756. Nyiramasuhuko submits that the Trial Chamber erred in relying on the evidence about Mbasha's wife and children, Trifina, Annonciata, and Semanyenzi as circumstantial evidence to support her convictions for the abductions and killings of other unnamed Tutsi refugees at the Butare Prefecture Office. 719 She contends that the Trial Chamber erred in its application of the Kupreskié et al. Appeal Judgement and breached Rule 93 of the Rules, as evidence of a consistent pattern of conduct must be disclosed by the Prosecution pursuant to Rule 66 of the Rules. 1720 She avers that the Prosecution did not comply with

Rule 66 of the Rules as the Trial Chamber found that the victims' names were disclosed less than two months prior to the trial. 721 Moreover, she argues that the Kupreskié et al. Appeal Judgement also prevents the use of evidence for this purpose where it would be "critically unfair" and argues that such is the case in this instance in light of the Prosecution's "repeated violation of disclosure obligations"l722 as well as the fact that this evidence was central to establishing her guilt in relation to attacks at the prefectoral office. 1723 171S Trial Judgement, para. 2172. 1716 Trial Judgement, para. 2172. 1717 Trial Judgement, para. 2172. 2172, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-97-21-AR73, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the "Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible", signed 2 July 2004, filed 5 July 2004 ("Admissibility Appeal Decision of 2 July 2004"), paras. 14, 15, Kupreskié et al. Appeal Judgement, paras. 321-323, 336. Nyiramasuhuko. Notice of Appeal, para. 8.1; Nyiramasuhuko Appeal Brief, paras. 501, 504, 903, 904. See also Nyiramasuhuko Reply Brief, para.

245. The Appeals Chamber observes that, in her notice of appeal, Nyiramasuhuko alleges that the Trial Chamber erred in its assessment of the evidence of Prosecution Witnesses QJ, TK, RE, QBQ, SU, SS, and FAP. See Nyiramasuhuko Notice of Appeal, paras. 8.5-8.10. To the extent that these arguments are developed under her ground of appeal related to the assessment of evidence for the Night of Three Attacks, the Appeals Chamber will address them under that ground. See infra, Section IV.F.2(e). 1720 Nyiramasuhuko Appeal Brief, para. 905. 1721 Nyiramasuhuko Appeal Brief, paras. 905, 906, 909. 1722 In this regard, Nyiramasuhuko notes that the Prosecution was "aware of the victims' identities at the very least since 4 November 1998 and 1 December 1999 and deliberately failed to disclose them". See Nyiramasuhuko Appeal Brief, para.

909. Nyiramasuhuko Notice of Appeal, para. 8.4; Nyiramasuhuko Appeal Brief, paras. 908-911. See also Nyiramasuhuko Reply Brief, para.

245. Nyiramasuhuko contends that the Trial Chamber rewarded the Prosecution's deliberate breach of its disclosure obligations by considering the belatedly disclosed and essentially convicting her on 267 Case No. ICTR-98-42-A 14 December 2015

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20098/H 757. Nyiramasuhuko alternatively submits that the Trial Chamber erred in unreasonably relying on the evidence of the named individuals "as circumstantial evidence of what happened to other Tutsi refugees who were at the [Butare Prefecture Office].»l724 In her view, the use of the evidence in this manner went beyond the permitted uses identified by the Trial Chamber, namely to "demonstrate special knowledge, an opportunity or identification of the accused" 1725 She requests the exclusion of the evidence related to the abductions and/or killings of Mbasha's wife, Trifina, Annonciata, and Semanyenzi. 1726 758. The Prosecution responds that nothing precluded the Trial Chamber from determining that the evidence related to Mbasha's wife and children and Trifina could be admitted as circumstantial evidence establishing Nyiramasuhuko's charged conduct in relation to crimes committed at the prefectoral office.'2 It also responds that it was not required to plead Annonciata's and Semanyenzi's identities in the Nyiramasuhuko and Ntahobali Indictment as their identities and account of the killings were evidence and not material facts. 728 It contends that the disclosure provisions, as interpreted in the Kupreskié et al. Appeal Judgement, do not apply in this instance as the relevant evidence was not used to establish a consistent pattern of conduct. 72% In the alternative, the

Prosecution argues that Nyiramasuhuko does not show how her convictions could not stand without the evidence concerning Mbasha's wife and her children, Trifina, Annonciata, and Semanyenzi. 1730 759. The Appeals Chamber observes that, after considering and finding credible evidence pertaining to the abduction of Mbasha's wife and children 73) and the killing of Trifina, 1732 the Trial the basis of this evidence given its centrality to the findings that she abducted and killed Tutsi refugees from the Butare Prefecture Office. See Nyiramasuhuko Appeal Brief, paras. 910, 911. 1724 Nyiramasuhuko Appeal Brief, para. 912, referring to Trial Judgement, para. 2716. 1725 Nyiramasuhuko Appeal Brief, paras. 912, 915 (emphasis omitted), referring to Trial Judgement, paras. 2172, 2176. 1726 Nyiramasuhuko Appeal Brief, para. 918. the first time on appeal. See ibid., para. 156. 1728 Prosecution Response Brief, para. 536. 1729 Prosecution Response Brief, paras. 536, 662. The Prosecution also submits that the Trial Chamber erred in finding that it did not disclose Trifina's identity until two months before trial. See ibid., para. 512, fn.

1255. In this regard, it contends that it fully complied with its disclosure obligations pursuant to Rule 66(A)(ii) of the Rules. See idem. Nyiramasuhuko responds that, because the Prosecution did not appeal the Trial Chamber's finding that it violated Rule 66 of the Rules, it cannot be contested now. See Nyiramasuhuko Reply Brief, para.

242. In light of the rejection of the entirety of Nyiramasuhuko's arguments under Ground 28 of her appeal, the Appeals Chamber declines to address this issue. See infra, Section IV.F.2(a). 1730 Prosecution Response Brief, paras. 536, 662. 1731 Trial Judgement, paras. 2717-2727. Regarding the Prosecution's argument that Nyiramasuhuko did not object to the admission of the evidence related to Trifina at trial, the Appeals Chamber observes that, as noted by Nyiramasuhuko, Ntahobali objected in his closing brief that evidence related to this event, among other evidence, constituted factual allegations that were not pleaded in the Indictment. See Nyiramasuhuko Reply Brief, para. 247, referring to Ntahobali Closing Brief, para.

78. The Trial Chamber accepted that this objection was validly raised on behalf of both Ntahobali and Nyiramasuhuko and ruled on the issue for both of them. See Trial Judgement, paras. 2167, 2172. Accordingly, given Nyiramasuhuko's contentions on appeal that this evidence was nonetheless improperly used to convict her, the 268 Case No. ICTR-98-42-A 14 December 2015

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20097/H Chamber recalled that it would not enter convictions on the basis of this conduct but found that the "credible and consistent information" with regard to these events provided circumstantial support for its findings regarding the abduction of other unnamed Tutsi refugees from the Butare Prefecture Office. 133 The Trial Chamber also relied, in part, on evidence that Semanyenzi and Annonciata had been abducted from the prefectoral office but escaped and returned to it, informing refugees that those who had been abducted were killed. 1734 The Trial Chamber considered this evidence when concluding that the refugees abducted from the prefectoral office were killed. 1735 760. In this context, the Appeals Chamber rejects Nyiramasuhuko's argument that the Trial Chamber, through its reference to the Kupreskié et al. Appeal Judgement, improperly admitted evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute without the notice required by Rule 93 of the Rules. 1736 Nothing in the Trial Chamber's analysis supports the contention that evidence concerning Mbasha's wife and children, Trifina, or Annonciata and Semanyenzi was admitted for the purposes set out under Rule 93 of the Rules, 1737 nor do the excerpts of the Kupreskié et al. Appeal Judgement that the Trial Chamber relied upon suggest that this is the only purpose for which unpleaded evidence can be admitted and considered. 1738 All of Nyiramasuhuko's arguments in this regard are dismissed.

761. Furthermore, the Appeals Chamber sees no error in the Trial Chamber's reliance on this evidence as circumstantial support for other pleaded allegations. The Trial Chamber considered that insufficient notice had been given to Nyiramasuhuko concerning the crimes against these particular individuals and that she was prejudiced in this regard. 739 Such a conclusion, however, is not Appeals Chamber considers that Nyiramasuhuko is not precluded from challenging the relevant Trial Chamber's findings on appeal. 1732 Trial Judgement, paras. 2728-2730. 1733 Trial Judgement, paras. 2727, 2730. 1734 See Trial Judgement, paras. 2746, 2747. 1735 See Trial Judgement, paras. 2746-2749. Nyiramasuhuko also argues that it was improper for the Trial Chamber to have relied on evidence concerning the unnamed woman as circumstantial evidence to convict her. See Nyiramasuhuko Appeal Brief, para.

903. However, the Appeals Chamber notes that the Trial Chamber did not exclude the use of such evidence for lack of notice. See Trial Judgement, paras. 2172, 2731-2738. Consequently, Nyiramasuhuko's contentions fail to explain why this evidence should have been excluded and why it was an error for the Trial Chamber to have 1736 Rule 93(A) of the Rules provides that evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice and Rule 93(B) of the Rules requires the Prosecution to disclose acts tending to show such a pattern of conduct pursuant to Rule 66 of the Rules. 1737 See Trial Judgement, paras. 2172, 2746-2749. 1738 See Kupreskié et al. Appeal Judgement, paras. 321-323, 336, referred to in Trial Judgement, para. 2172, fn. 5763. 1739 See Trial Judgement, para.

2172. Nyiramasuhuko's arguments are based on the incorrect premise that the Trial Chamber found that the Prosecution violated its disclosure obligations pursuant to Rule 66 of the Rules with respect to the identities of Mbasha's wife. Trifina, Annonciata, and Semanyenzi in paragraph 2172 of the Trial Judgement. Even if that were the case, Nyiramasuhuko does not demonstrate that any violation in this regard prevented the Trial Chamber from relying on the evidence of these individuals as circumstantial evidence to establish other allegations pleaded in the 269 Case No. ICTR-98-42-A 14 December 2015

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20096/H equivalent to a finding that the evidence is inadmissible under Rule 89(C) of the Rules.1740 The Prosecution has an obligation to state the material facts underpinning the charges in an indictment, but not the evidence by which such material facts are to be proven.14l In addition, Rule 89(C) of the Rules allows a trial chamber to admit any relevant evidence it deems to have probative value. 1742 762. In this case, the evidence identified by Nyiramasuhuko is related in time, geographically, and thematically to the pleaded allegations of her involvement in crimes committed during attacks at the Butare Prefecture Office. While Nyiramasuhuko argues that the Prosecution violated its disclosure obligations, the findings upon which she relies to support this position only reflect the conclusion that she was not provided sufficient notice that she was charged with the crimes against these specific individuals and that convicting her on this basis would be impermissible.'43 Nyiramasuhuko does not substantiate that the manner in which the information about these particular victims was disclosed required the Trial Chamber to exclude it. Nor does she substantiate her contention that such evidence was essential for establishing her guilt with respect to the crimes she was found to have committed in relation to attacks at the prefectoral office. 1744 763. As to Nyiramasuhuko's

alternative argument that the Trial Chamber erred in using the evidence of the named individuals in a manner that fell outside the limitations that it had imposed on the uses of this evidence, the Appeals Chamber finds that Nyiramasuhuko misrepresents the Trial Judgement. 1745 A plain reading of the Trial Judgement shows that "special knowledge, opportunity, or identification of the accused" were not the only permitted uses identified by the Trial Chamber, which also stated that it could be used for "circumstantial evidence in support of other allegations", 1746 764. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's arguments concerning the allegedly improper use of unpleaded and prejudicial evidence. 1740 See Admissibility Appeal Decision of 2 July 2004, paras. 14, 15. 1741 See, e.g., Nzabonimana Appeal Judgement, para. 29; Ntagerura et al. Appeal Judgement, para. 21; Kupreskié et al. Appeal Judgement, para. 88. 1743 Trial Judgement, para. 2172. 174 Indeed, Nyiramasuhuko's submissions as they concern Semanyenzi, Annonciata, and Fidèle ignore the fact that hese ford of ive i suppoll of the chargest Nir obligatio borere posity for pleading of duties aroducte from the prefectoral office. 1745 Nyiramasuhuko Appeal Brief, paras. 912, 915, referring to Trial Judgement, paras. 2172, 2176. 1746 Trial Judgement, para. 2172. 270 Case No. ICTR-98-42-A 14 December 2015

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20095/H (b) Collusion 765. The Trial Chamber considered and rejected Defence allegations of fabrication of testimony against, inter alios, Witnesses TK, QJ, SS, and SU,'47 When assessing evidence about the events at the Butare Prefecture Office, the Trial Chamber explicitly evaluated the familial relationships between Witnesses TK and QJ, Witnesses TK and RE, and Witnesses SS and SU, and determined that these relationships did not leave their credibility in doubt. 748 766. With respect to Witnesses TK and QJ, Nyiramasuhuko notes that they are related and that the Trial Chamber considered and rejected Witness TK's testimony about never discussing with Witness QJ the 1994 events or about coming to Arusha 749 She argues that despite this consideration, the Trial Chamber erred in finding that this did not undermine Witness TK's credibility as a whole. 750 She contends that she was not allowed to cross-examine Witness QJ on whether Witness TK would be testifying after him and that the Trial Chamber failed to sufficiently scrutinise Witness TK's statement during her subsequent testimony that she and Witness QJ did "not spend time discussing [the events of 1994]" even though they both gave interviews to Prosecution investigators on the same day 175l She also highlights that Witness TK testified that she did not know anyone with whom she was travelling to Arusha but admitted

during cross-examination that she flew to Arusha with Witness SJ. l752 In Nyiramasuhuko's view, these circumstances: (i) reflect that Witnesses TK and QJ sought to conceal what they had discussed between themselves and with others in their prior statements and testimonies; and ii) should have been considered by the Trial Chamber. 1753 767. Nyiramasuhuko also argues that it was insufficient for the Trial Chamber to acknowledge merely that Witness RE was related to Witness TK without concluding that it put Witness RE's credibility in doubt. 1754 She notes that, in her prior statement, Witness RE did not mention what happened to Mbasha's wife and children and stated that Nyiramasuhuko only came twice instead of three times in one night to the prefectoral office. 755 She posits that Witness RE's later recollection 1748 See Trial Judgement, paras. 2245, 2281, 2283, 2677, 2685, 2720, 2757, 2761. 749 Nyiramasuhuko Appeal Brief, paras. 1080, 1081. See also ibid., paras. 260, 287 750 Nyiramasuhuko Notice of Appeal, para. 10.24; Nyiramasuhuko Appeal Brief, paras. 1080, 1081. See also ibia paras. 287-290, 294. Nyiramasuhuko Appeal Brief, paras. 288, 289. 1752 Nyiramasuhuko Appeal Brief, para. 293. 271 Case No. ICTR-98-42-A 14 December 2015

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20094/H of events, which followed more closely Witness TK's evidence, demonstrates a real possibility of collusion. 1756 768. In addition, Nyiramasuhuko points out that Witnesses SS and SU testified that they witnessed the events from April to July 1994 together, thereafter lived with each other and maintained close ties, and gave statements to Tribunal investigators on the same day in 1996.1757 She argues that the fact that "material information" related to the prefectoral office provided by both witnesses during their testimonies was not in their prior statements should have led the Trial Chamber to treat their evidence with caution. 1758 She also contends that the Trial Chamber never established the veracity of Witness SU's statement that she did not discuss the events with Witness SS.1759 769. Nyiramasuhuko argues that the Trial Chamber's erroneous evaluation of the evidence of these witnesses in light of the circumstances described above reveals an improper appearance of bias and warrants her acquittal. 1760 770. The Prosecution responds that the Trial Chamber properly assessed the family relationship between Witnesses TK and QJ and properly exercised its discretion in assessing their evidence. 1761 It further contends that Nyiramasuhuko fails to demonstrate that any of the witnesses had a motive to lie based on their relationships with each other. 1762 771. At the outset,

the Appeals Chamber recalls its prior conclusion that, even if Nyiramasuhuko were to demonstrate errors in the Trial Chamber's analysis of the evidence in the manner she alleges, this would not be sufficient to demonstrate bias on the part of the Trial Chamber in the context of this case. 1763 772. As noted above, the Trial Chamber expressly considered the ties between Witnesses TK and QJ, Witnesses RE and TK, and Witnesses SS and SU, and rejected Defence evidence that they fabricated evidence.1764 The Trial Chamber provided several reasons as to why it found Witnesses TK and QJ credible, notwithstanding its disbelief that they had not discussed the events 1756 Nyiramasuhuko Appeal Brief, para. 292. 1757 Nyiramasuhuko Appeal Brief, paras. 295, 296. 1758 Nyiramasuhuko Appeal Brief, paras. 295-298. Specifically, Nyiramasuhuko points out that, although not contained in their prior statements, both witnesses similarly testified that: (i) she was present and ordered Interahamwe to commit pageard or at vice i a he cure thr i hearind were it. seiden and returned to the Nyiramasuhuko Appeal Brief, para. 296 1760 Nyiramasuhuko Appeal Brief, para. 316. 1761 Prosecution Response Brief, paras. 696-698. 1762 Prosecution Response Brief, paras. 99, 100. 1763 See supra, Section IV.A.1. 1764 See supra, para. 765. 272 Case No. ICTR-98-42-A 14 December 2015

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20093/H and their participation in proceedings with each other. 765 In particular, the Appeals Chamber observes that the Trial Chamber accepted Witness TK's evidence in light of its "significantly detailed nature [...] and the corroboration of numerous elements of her testimony by other witnesses", 1766 The Trial Chamber also expressly discussed Witness TK's evidence regarding her knowledge of other witnesses, in particular those who travelled with her to Arusha. 1767 There is also no merit in Nyiramasuhuko's contention that the Trial Chamber barred cross-examination on whether Witness QJ knew that Witness TK was called to testify for the Prosecution, as the witness was asked and answered this question. 1768 Nyiramasuhuko does not demonstrate how the Trial Chamber erred in this regard 773. In relation to Witness RE, the Appeals Chamber considers Nyiramasuhuko's reliance on alleged inconsistencies between the witness's prior statement and testimony to establish collusion with Witness TK to be speculative. In particular, Nyiramasuhuko's submission ignores the fact that Witness RE's evidence was corroborated by witnesses other than Witness TK. 1769 774. With respect to Witnesses SS's and SU's evidence, the Appeals Chamber is not persuaded that alleged inconsistencies between their prior statements and testimonies evidenced collusion between them. In particular, the Appeals Chamber

observes that their evidence, which Nyiramasuhuko suspects resulted from collusion, is corroborated by other witnesses. 770 Moreover, while Nyiramasuhuko extensively challenges the credibility of their respective testimonies based on differences between them, she fails to show that the alleged discrepancies within their evidence were so material that, by accepting their evidence, the Trial Chamber failed to exercise caution or sufficient concern for collusion.'771 Having examined Nyiramasuhuko's arguments in detail, the Appeals Chamber concludes that they fail to demonstrate that the Trial Chamber abused its broad discretion in assessing the evidence of these witnesses. 1765 See Trial Judgement, paras. 2677, 2685, 3795. 1766 See Trial Judgement, para.

2677. See also ibid., para. 2662. 1767 See Trial Judgement, para. 2685. 1768 See Witness QJ, T. 12 November 2001 pp. 59, 60 (closed session). In particular, a review of the relevant transcripts does not demonstrate that the Trial Chamber's management of the examination of Witness QJ prevented sufficient interrogation on the nature of the witness's relationship with Witness TK or whether these two witnesses had discussed the events or their testimonies. See Nyiramasuhuko Appeal Brief, paras. 288, 289, referring to Witness QJ, T. 12 November 2001 pp. 55, 56, 61 (closed session), T. 15 November 2001 pp. 61, 62, Witness TK, T. 21 May 2002 pp. 40, 41, 102, 103 (closed session), T. 23 May 2002 pp. 47-49. While the Appeals Chamber has found that the Trial Chamber erred in relying on an aspect of Witness TK's evidence when convicting Ntahobali in relation to rapes at the Butare Prefecture Office, this conclusion is unrelated to the issue of Witness TK's credibility. See infra, 1769 See Trial Judgement, paras. 2686, 2687, 2695, 2698, 2703, 2707, 2729, 2738, 2747. The Appeals Chamber is also not persuaded that the variance between Witness RE's prior statement and testimony required express analysis from the Trial Chamber, or that it demonstrates that the Trial Chamber failed to sufficiently consider whether her testimony was fabricated based on unsupported allegations of collusion with Witness TK. 1770 See Trial Judgement, paras. 2660, 2661, 2686, 2687, 2693, 2695, 2698, 2701, 2702 (concerning Witness SS's evidence). See ibid., paras. 2655-2660, 2698, 2702, 2746 (concerning Witness SU's evidence). 1771 See infra, Section IV.F.2(e). 273 Case No. ICTR-98-42-A 14 December 2015

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20092/H 775. Based on the foregoing, the Appeals Chamber rejects Nyiramasuhuko's contention that the Trial Chamber erred in failing to conclude that the credibility of Witnesses TK, QJ, RE, SS and SU was undermined by their familial relationships and suspicions of collusion. (c) Identification Evidence 776. In concluding that Nyiramasuhuko participated in the Mid-May Attack and Night of Three Attacks, the Trial Chamber referred to the identification evidence provided by Prosecution Witnesses SU, SD, SS, SJ, QJ, TA, TK, RE, FAP, QY, and QBQ. 1772 777. Nyiramasuhuko submits that the Trial Chamber erred in its assessment of the credibility and reliability of the evidence relating to her identification during the Mid-May Attack and the Night of Three Attacks. 1773 Specifically, she argues that the Trial Chamber erred in: (i) improperly relying on in-court identifications; (ii) accepting several witnesses' evidence that they had prior knowledge of her; and (iii) accepting witnesses' testimonies of having seen her at the Butare Prefecture Office. 1774 The Appeals Chamber will address these contentions in turn. (i) In-Court Identification 778. Nyiramasuhuko submits that the Trial Chamber erred in relying on several in-court identifications in light of its position that it would not rely upon such evidence. 775 She also argues that the in-court identifications of her had no probative

value given that she was the only female defendant in a trial involving six co-accused. 1776 779. The Prosecution rejects Nyiramasuhuko's contention that the Trial Chamber stated that it would not, under any circumstance, rely on in-court identifications. 777 It further argues that the Trial Chamber took into account many factors when weighing such evidence. 778 1772 Trial Judgement, paras. 2628, 2629, 2686, 2698. See also ibid., paras. 2683-2685, 2687-2702. 1773 Nyiramasuhuko Notice of Appeal, paras. 6.1, 10.15; Nyiramasuhuko Appeal Brief, paras. 772-775, 815, 816. While Nyiramasuhuko made express reference in her notice of appeal under Ground 24 to paragraphs of the Trial Judgement which relate to the Trial Chamber's general approach to identification evidence, the Night of Three Attacks, and the First Half of June Attacks, she only developed arguments supporting challenges to the Trial Chamber's assessment of the identification evidence related to the Night of Three Attacks under Ground 24 and to the Mid-May Attack under Ground 30. See Nyiramasuhuko Notice of Appeal, paras. 6.1, 10.15; Nyiramasuhuko Appeal Brief, paras. 772-817. 1774 Nyiramasuhuko Appeal Brief, paras. 777-795, 797-802, 806-814. Nyiramasuhuko contends that these purported errors reflect that the Trial Chamber approached identification evidence presented by the Prosecution as a priori believable and credible,

and that it exercised no caution when evaluating such evidence. See ibid., para. 815. 1775 Nyiramasuhuko Notice of Appeal, para. 6.1; Nyiramasuhuko Appeal Brief, para. 777, referring to Trial Judgement, paras. 173, 2196, 2239, 2263, 2280, 2296, 2961 (which concern identification evidence provided by Witnesses QJ, SJ, SU, RE, and SS). 1776 Nyiramasuhuko Appeal Brief, para. 777. 1777 Prosecution Response Brief, para. 486. 1778 Prosecution Response Brief, para. 486. 274 Case No. ICTR-98-42-A 14 December 2015

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20091/H 780. In the section of the Trial Judgement concerning "Evidentiary Matters", the Trial Chamber discussed principal considerations that would guide its assessment of evidence relating to the identification of the accused. 1779 With respect to in-court identifications, the Trial Chamber stated: No probative weight will be assigned to an identification given for the first time by a witness while testifying, who identifies the accused while he is standing in the dock. Because all of the ircumstances of a trial necessarily lead such a witness to identify the person on trial (or, wher nore than one person is on trial, the particular person on trial who most closely resembles the mai who committed the offence charged), no positive probative weight will be given by the Chamber to these "in court" identifications.

781. The Appeals Chamber recalls that any in-court identification should be assigned "little or no credence" given the signals that can identify an accused aside from prior acquaintance. 1781 782. Nyiramasuhuko's submissions fail to identify any error committed by the Trial Chamber with respect to in-court identifications in her case. Her contentions merely refer to the Trial Chamber's summary of identification evidence provided by each witness, without substantiating how the Trial Chamber erred in its consideration of these testimonies. 1782 A review of the Trial Chamber's analysis reveals that the Trial Chamber did not rely on in-court identifications when accepting the ability of witnesses to identify Nyiramasuhuko in connection with the attacks at the Butare Prefecture Office 783 Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's submissions regarding the Trial Chamber's assessment of in-court identifications. (ii) Prior Knowledge 783. Within the "Factual Findings" section of the Trial Judgement concerning the Night of Three Attacks, the Trial Chamber discussed identification evidence relevant to Nyiramasuhuko's participation in these attacks, l784 In particular, the Trial Chamber concluded that "several witnesses knew Nyiramasuhuko before the April to July 1994 events] including Witnesses SU, SD, SS and SJ", and that these witnesses "had an opportunity to identify

her in the conditions of calm prior to the commencement of large-scale violence"1785 The Trial Chamber also stated that "Nyiramasuhuko was widely known as the Minister in charge of Women's Affairs and therefore would likely be recognisable.*1786 1779 Trial Judgement, paras. 171-173. 1780 Trial Judgement, para. 173, referring to Kunarac et al. Appeal Judgement, para. 320. 1781 Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para.

96. See also Kunarac et al. Appeal Judgement, para. 320. 1782 Nyiramasuhuko Appeal Brief, para. 777, referring to Trial Judgement, paras. 2196, 2239, 2263, 2280, 2296, 2961. 1783 See Trial Judgement, paras. 2628, 2629, 2683-2702, 2758, 2765. 1784 Trial Judgement, Section 3.6.19.4.7.3. 1785 Trial Judgement, para, 2698. 1786 Trial Judgement, para. 2698. 275 Case No. ICTR-98-42-A 14 December 2015

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20090/H 784. Nyiramasuhuko submits that the Trial Chamber erred in finding that the evidence that Witnesses SU, SD, SS, and SJ knew her prior to April 1994 was sufficiently reliable. 787 The Appeals Chamber will assess Nyiramasuhuko's challenges as they relate to each witness in turn. a. Witness SU 785. As noted above, the Trial Chamber determined that Witness SU was one of several witnesses who "knew Nyiramasuhuko before the April to July 1994 events" when discussing Nyiramasuhuko's participation in the Night of Three Attacks!788 The Trial Chamber provided further analysis regarding Witness SU's prior knowledge of Nyiramasuhuko when considering allegations of Nyiramasuhuko's order to rape during an attack at the Butare Prefecture Office in the first half of June 1994.1789 In this section of the Trial Judgement, the Trial Chamber again found that Witness SU previously knew Nyiramasuhuko and specifically referred to the witness's evidence that she had "walked past Nyiramasuhuko's home" in Ndora Commune when visiting relatives. 1790 786. Nyiramasuhuko submits that, in relying on Witness SU's testimony, the Trial Chamber erred in failing to consider that Nyiramasuhuko had not lived in Ndora Commune since 1968 and that Witness SU was unable to identify the period prior to 1994 when she knew her.1791 Nyiramasuhuko argues that, even if Witness SU were telling the truth, the fact that

she met her more than 20 years prior to 1994, coupled with the obvious lack of familiarity between the witness and her since the witness acknowledged that she never spoke with Nyiramasuhuko, rendered Witness SU's identification "unavoidably doubtful", 1792 787.. The Prosecution responds that Nyiramasuhuko mischaracterises Witness SU's evidence and fails to acknowledge that the witness provided additional biographical information about Nyiramasuhuko and her family that supports the Trial Chamber's finding that the witness had prior knowledge of her. 1793 1787 Nyiramasuhuko Appeal Brief, para. 778. 1788 Trial Judgement, para. 2698. 1789 Trial Judgement, Section 3.6.19.4.9.2. 1790 Trial Judgement, para. 2758. 1791 Nyiramasuhuko Appeal Brief, para. 778. 1792 Nyiramasuhuko Appeal Brief, para. 779 (emphasis omitted). 1793 Prosecution Response Brief, para.

479. The Prosecution contends that Witness SU's evidence reflects that she was talking about Nyiramasuhuko's "husband's home", the place where she was married. See idem, referring f Witness SU. T. 21 October 2002 p. 62 (closed session) 276 Case No. ICTR-98-42-A 14 December 2015

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20089/H 788. The Appeals Chamber considers that the fact that Nyiramasuhuko may not have been living in Ndora Commune since 19681794 does not suggest that the witness lied about seeing her in front of her home in Ndora. Nyiramasuhuko also misconstrues Witness SU's evidence when arguing that the witness could not provide any indication about the period prior to 1994 she saw her. 795 Witness SU's testimony reflects that she simply could not recall when she last saw Nyiramasuhuko before the events of April 1994.1796 Likewise, the fact that Witness SU may have first seen Nyiramasuhuko more than 20 years prior to April 1994 and had not spoken with her does not per se demonstrate that the Trial Chamber, which took note of this, acted unreasonably in relying on this witness's identification evidence.1797 Nyiramasuhuko's contentions ignore that Witness SU correctly identified Maurice Ntahobali as Nyiramasuhuko's husband and stated that Nyiramasuhuko had four children with him.l798 The Appeals Chamber finds that Nyiramasuhuko does not demonstrate that no reasonable trier of fact could have concluded that Witness SU had knowledge of her prior to April 1994. b. Witness SD 789. Nyiramasuhuko contends that the Trial Chamber erred in finding that Witness SD had prior knowledge of her given that the witness's knowledge was based on having seen a picture of Nyiramasuhuko in the Imvaho journal.

1799 790. The Prosecution responds that Nyiramasuhuko fails to substantiate any error in the Trial Chamber's finding that Witness SD had prior knowledge of her. 1800 791. Notwithstanding its finding of Witness SD's prior knowledge of Nyiramasuhuko when discussing identification evidence relevant to Nyiramasuhuko's participation in the Night of Three Attacks, the Trial Chamber did not find that Witness SD saw Nyiramasuhuko on this nightl801 and the Trial Judgement reflects that the Trial Chamber did not rely on Witness SD's identification of Nyiramasuhuko at the Butare Prefecture Office 1802 In this context, the Appeals Chamber finds it 1794 The Appeals Chamber considers that Nyiramasuhuko's evidence in support of her contention that she did not live in Ndora Commune after 1968 is ambiguous. See Nyiramasuhuko, T. 31 August 2005 pp. 21, 22. 1795 Nyiramasuhuko Appeal Brief, para. 778. 1796 Witness SU, T. 21 October 2002 p. 61 (closed session). 1797 See Trial Judgement, para.

2263. See Witness SU, T. 14 October 2002 p. 14, T. 16 October 2002 p.

10. See also Maurice Ntahobali, T. 12 September 2005 pp. 16, 17 (testifying that he was a lecturer at a higher education institution, was married to and had three girls and one boy with Nyiramasuhuko); Clarisse Ntahobali, T. 8 February 2005 pp. 87, 88, T. 9 February 2005 p. 6. 1799 Nyiramasuhuko Appeal Brief, paras. 778, 786, fn. 634. 1800 Prosecution Response Brief, para. 478. 1801 See Trial Judgement, paras. 2312-2318, 2686. 1802 In this regard, the Appeals Chamber notes that the Trial Chamber refused to rely on Witness SD's evidence in one context and only found that Witness SD's evidence generally corroborated Witness TA's evidence as it related to the attacks that occurred seven and 11 days after the Mid-May Attack ("Last Half of May Attacks") as well as provided 277 Case No. ICTR-98-42-A 14 December 2015

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20088/H unnecessary to examine Nyiramasuhuko's challenges to the Trial Chamber's assessment of Witness SD's prior knowledge of Nyiramasuhuko. c. Witness SS 792. Within the same section of the Trial Judgement relevant to the Night of Three Attacks where it determined that Witness SS was one of several witnesses who had prior knowledge of Nyiramasuhuko, the Trial Chamber expressly recalled Witness SS's evidence that she had passed the road in front of Nyiramasuhuko's house and had seen her three times prior to the genocide. 1803 It also noted Witness SS's evidence of having encountered Nyiramasuhuko at a roadblock during the genocide, in daylight and from less than three metres away. 1804 The Trial Chamber further observed that Witness SS testified that "Nyiramasuhuko was the prime minister who was in charge of gender issues" 1805 The Trial Chamber then stated that "[because of the multiple opportunities Witness SS had to observe the Accused, and the witness' [s] opportunity to observe Nyiramasuhuko in daylight and prior to the genocide, the Chamber finds Witness SS'[s] identification of Nyiramasuhuko to be both reliable and credible.»1806 793. Nyiramasuhuko contends that, by crediting Witness SS's evidence of having seen her at her house on three occasions in 1990, the Trial Chamber failed to consider contradictory evidence that the building to which Witness SS referred - Hotel

Ihuliro - did not exist before 1993 and did not open until December that year 1807 Nyiramasuhuko also emphasises that simply because Witness SS knew that she was the Minister of Family and Women's Development is not a reliable basis for identifying her as this fact was widely known. 1808 794. Nyiramasuhuko further contends that the Trial Chamber failed to apply appropriate caution when also relying on Witness SS's account of previously having seen her at a roadblock during the genocide.1809 Specifically, she argues that the Trial Chamber failed to sufficiently consider the circumstantial evidence of the vehicle driven by Ntahobali during the Night of Three Attacks. See Trial Judgement, paras. 2620, 2650, 2651, 2663. The Appeals Chamber observes that, while Witness SD's evidence indicated that Nyiramasuhuko participated in attacks at the prefectoral office, the Trial Chamber did not rely on this element of the witness's testimony as it did not find that Nyiramasuhuko was present during the Last Half of May Attacks. See Trial Judgement, paras. 2653, 2781(ii). Trial Judgement, para. 2689. 1804 Trial Judgement, para. 2689. 1805 Trial Judgement, para. 2689. 1806 Trial Judgement, para. 2690. 1807 Nyiramasuhuko Appeal Brief, paras. 781, 782. See also ibid., para. 780. 1808 Nyiramasuhuko Appeal Brief, para. 786. 1809 Nyiramasuhuko Appeal Brief, paras. 783-785. See also ibid., paras. 775, 776. 278 Case No. ICTR-98-42-A 14 December 2015

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20087/H difficult circumstances surrounding this identification. 1810 Nyiramasuhuko also highlights Witness FAP's evidence that she was stopped at the same roadblock and under the same circumstances as Witness SS, noting that Witness FAP did not identify Nyiramasuhuko as being present. 1811 795. The Prosecution responds by stressing that Witness SS testified that she did not know of Hotel Ihuliro but of the private residence of Nyiramasuhuko's husband "at that location" 1812 It also contends that Nyiramasuhuko ignores the Trial Chamber's consideration of evidence that Witness SS also saw Nyiramasuhuko at the Huye Stadium prior to the genocide. 1813 The Prosecution adds that the Trial Chamber sufficiently considered the difficult circumstances in which Witness SS observed Nyiramasuhuko at the roadblock during the genocide and that Nyiramasuhuko does not show the relevance of Witness FAP's evidence. 814 796. The Appeals Chamber notes that Witness SS was examined extensively as to the three occasions on which she saw Nyiramasuhuko at her home prior to 1994. Her evidence reflects that she saw Nyiramasuhuko during the day on three occasions in 1990, in front of a two storey building, which she was told belonged to Nyiramasuhuko's husband, Maurice Ntahobali. 1815 Nyiramasuhuko argues that the building Witness SS is referring to is Hotel Ihuliro 816 The Appeals Chamber observes that

the evidence pointed out by Nyiramasuhuko indicates that Hotel Thuliro was not operational prior to late 1993.1817 However, contrary to Nyiramasuhuko's suggestion, this evidence does not reflect that the building itself did not exist. 1818 The fact that Hotel Ihuliro did not open or receive guests until 1994 is not incompatible with Witness SS's evidence of seeing Nyiramasuhuko in 1990 in front of the two storey building owned by Maurice Ntahobali that eventually became Hotel Ihuliro. roadblock. See ibid., para. 784, 1811 Nyiramasuhuko Appeal Brief, para. 785. 1812 Prosecution Response Brief, para. 480. 1813 Prosecution Response Brief, para. 480. 1814 Prosecution Response Brief, para.

481. The Prosecution argues that it is not clear that Witness FAP was at the roadblock at the same time as Witness SS. See idem. 1815 See Witness SS, T. 3 March 2003 pp. 34-36, T. 4 March 2004 pp. 13-15, T. 5 March 2004 pp. 15, 16. 1816 See Nyiramasuhuko Appeal Brief, para. 781. 1817 See Maurice Ntahobali, T. 12 September 2005 p. 73, T. 13 September 2005 pp. 4, 5, 87-89, T. 14 September 2005 p. 12, T. 16 September 2005 pp. 69, 70; Clarisse Ntahobali, T. 9 February 2005 pp. 23, 33 (testifying that the hotel was functioning when the witness returned to Rwanda in December 1993 but that "before [she] left, the hotel virtually did not exist"); Céline Nyiraneza, T. 24 February 2005 p. 42 (French) ("Q. Madame, cet hôtel de votre grande sœur, est-ce que c'était un endroit qui était ouvert depuis peu de temps au mois d'avril 1994 ou cela faisait plus de temps ? R. Il y avait peu de temps que l'hôtel avait ouvert."); Nyiramasuhuko, T. 6 October 2005 p. 28 ("Q. Madam, did you stay in Hotel Uhiliro [sic] in 1990? A. No, in 1990, [...] this hotel did not exist"). The Appeals Chamber observes that the testimony of Denise Ntahobali to which Nyiramasuhuko refers does not shed light on when Hotel Ihuliro was open. See Denise Ntahobali, T. 9 June 2005 p. 16 (French). 279 Case No. ICTR-98-42-A 14 December 2015

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20086/H 797. Although not expressly referred to by the Trial Chamber in its analysis of Witness SS's prior knowledge of Nyiramasuhuko, the Appeals Chamber further observes that the witness also testified to having seen Nyiramasuhuko introduced as minister during a ceremony at Huye Stadium, 1819 which the Trial Chamber recalled when summarising her testimony. 1820 Nyiramasuhuko does not challenge this evidence and the Appeals Chamber considers that a reasonable trier of fact, based on all of Witness SS's testimony, including her knowledge that Nyiramasuhuko was the "minister who was in charge of gender issues", could have determined that she knew Nyiramasuhuko prior to the genocide. That this fact might have been well known does not undermine the probative nature of Witness SS's ability to identify Nyiramasuhuko.

798. Likewise, the Appeals Chamber finds that Nyiramasuhuko does not demonstrate that the Trial Chamber failed to sufficiently consider the difficult circumstances surrounding Witness SS's identification of her at a roadblock during the genocide. Before relying on this evidence, the Trial Chamber recalled that the identification was "[djuring the events of April to July 1994" and assessed the circumstances surrounding this encounter, including the fact that Witness SS was less than three metres from Nyiramasuhuko and that it occurred during the day. 1821 In the view of the Appeals Chamber, Nyiramasuhuko's argument that the identification was made under stressful circumstances as the witness saw her as well as "a corpse with its arms amputated" on the same occasion does not undermine the reliability of this identification. 1822 799. Turning to Nyiramasuhuko's contention that Witness FAP was stopped at the same roadblock and under the same circumstances as Witness SS, but that Witness FAP did not identify Nyiramasuhuko as being present, the Appeals Chamber observes that several aspects of both witnesses' testimonies could suggest that they passed the same roadblock around the same time. 823 Nevertheless, Nyiramasuhuko's submissions fail to demonstrate that Witness SS's evidence of Nyiramasuhuko's presence at the roadblock is incompatible with Witness FAP's evidence, particularly as Witness FAP was not questioned as to whether Nyiramasuhuko was present. 1824 Moreover, having carefully reviewed the relevant aspects of both witnesses' testimonies, the 1819 Witness SS, T. 4 March 2003 pp. 14, 15, 17. 1820 Trial Judgement, para. 2296. 1821 See Trial Judgement, paras. 2689, 2690. 1822 Witness SS, T. 3 March 2003 p.

32. See also Nyiramasuhuko Appeal Brief, para. 784. 1823 Both witnesses testified that they left Butare University Hospital with other refugees, including Burundian refugees, on foot and were escorted by four soldiers until they were stopped at a roadblock in front of Nyiramasuhuko's home. Witness SS testified that this occurred on 27 May 1994 and Witness FAP indicated that this was around the last two weeks of May 1994. See Witness SS, T. 3 March 2003 pp. 24, 26, 29, T. 4 March 2003 pp. 45, 46, 48, 49, T. 5 March 2003 pp. 19, 20, T. 10 March 2003 p. 61; Witness FAP, T. 11 March 2003 pp. 40-44, 46, T. 12 March 2003 , 30, 35, 37-39, 42, T. 13 March 2003 pp. 23 (closed session), 30. PhA See Witness FAP, T. 11 March 2003 pp. 40-44, T. 12 March 2003 pp. 37-39, T. 13 March 2003 pp. 20, 23 (closed 280 Case No. ICTR-98-42-A 14 December 2015

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20085/H Appeals Chamber is not persuaded that the witnesses' observations were made at the same time or from the same perspective. 1825 800. In light of the above, the Appeals Chamber finds no error in the Trial Chamber's conclusion that Witness SS had prior knowledge of Nyiramasuhuko. d. Witness SJ 801. The Trial Chamber stated that Witness SJ identified Nyiramasuhuko during the Night of Three Attacks1826 and, as noted above, concluded that Witness SJ was one of several witnesses who knew her before the relevant events.1827 802. Nyiramasuhuko argues that it was unreasonable for the Trial Chamber to have found beyond reasonable doubt that Witness SJ knew her and her family. 1828 803. The Prosecution responds that Nyiramasuhuko fails to consider that the witness also identified her in court. 1829 804. As submitted by both Nyiramasuhuko and the Prosecution in other parts of their submissions, 1830 a review of Witness SJ's evidence reveals that the witness did not identify Nyiramasuhuko at the prefectoral office during the Night of Three Attacks. 1831 The Trial Chamber therefore erred in finding that Witness SJ identified Nyiramasuhuko during the Night of Three Attacks and in relying on this to find that Nyiramasuhuko was present during these attacks. As developed in Section V.I.2(b)(iii)a.ii below, the Appeals Chamber considers that the Trial Chamber more generally erred in

relying on Witness SI's evidence related to the prefectoral 1825 For example, the Appeals Chamber observes that Witness FAP testified that she was accompanied by 15 to 50 other l'utsi refugees and that Witness SS was unable to estimate the amount in the group. Compare Witness FAF r. 11 March 2003 p. 41, T. 13 March 2003 p. 23 (closed session) with Witness SS, T. 4 March 2003 pp. 48, 49. Ever assuming that Witnesses FAP and SS were part of the same group, it is not clear that they were in immediate physical proximity to each other. The Appeals Chamber also observes that both witnesses were cross-examined on the basis of whether they knew each other and denied that they did. Witness FAP, T. 13 March 2003 pp. 20, 23 (closed session); Witness SS, T. 4 March 2003 pp. 59, 60 (closed session). 1826 Trial Judgement, paras. 2660, 2686. 1827 Trial Judgement, para.

2698. See also ibid., para. 2697. 1828 Nyiramasuhuko Appeal Brief, paras. 795, 810-812. 1829 Prosecution Response Brief, para. Witness SJ's evidence was not reliable because it was not corroborated is erroneous. See idem. 1830 See Nyiramasuhuko Appeal Brief, paras. 993, 1031, 1032, 1079, 1139, 1189; Prosecution Response Brief, ara.

469. See also contra Prosecution Response Brief, para. 483 831 Witness SJ. T. 29 May 2002 pp. 19-65, T. 30 May 2002 pp. 150-158, T. 3 June 2002 pp. 18-24, 31, 32. The Appeal: Chamber observes that there was no mention of Witness SJ identifying Nyiramasuhuko during the Night of Three Attacks in the summary of Witness SJ's testimony in the Trial Judgement and that the portions of Witness SJ's testimony referenced by the Trial Chamber in support of the statement that Witness SJ "testified that Ntahobali, Nyiramashuko, and Interahamwe attacked the [Butare Prefecture Office]" during the Night of Three Attacks do not refer to Nyiramasuhuko's presence. See Trial Judgement, paras. 2225-2241, 2660, fn. 7442, referring to Witness SJ, T. 29 May 2002 pp. 55, 57, 59. 281 Case No. ICTR-98-42-A 14 December 2015

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20084/H office. *32 In these circumstances, the Appeals Chamber finds it unnecessary to examine Nyiramasuhuko's challenges to the Trial Chamber's assessment of Witness SI's prior knowledge of Nyiramasuhuko. The Appeals Chamber will discuss whether the Trial Chamber's erroneous reliance on Witness SJ's evidence related to the prefectoral office has occasioned a miscarriage of justice after examining Nyiramasuhuko's remaining challenges to the Trial Chamber's reliance on the evidence of other Prosecution witnesses about her presence at the prefectoral office. (iii) Identification at the Butare Prefecture Office 805. The Trial Chamber relied on Witness TA's identification of Nyiramasuhuko during the Mid-May Attack.1833 With respect to the Night of Three Attacks, the Trial Chamber stated that, "[in addition to Witnesses TK and QJ, Witnesses SS, QBQ, RE, FAP and SJ identified Nyiramasuhuko during this night of three attacks at the [Butare Prefecture Office].»1834 It also concluded that several witnesses had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity, including Witnesses TA, QJ, TK, RE, FAP, QY, and QBQ. 1835 806. Nyiramasuhuko submits that the Trial Chamber erred in accepting the testimonies of Witnesses TA, QJ, TK, RE, FAP, QY, and QBQ of having seen her at the prefectoral office. 1836 The Appeals Chamber will examine

Nyiramasuhuko's contentions regarding each of these witnesses in turn. a. Witness TA 807. The Trial Chamber concluded that Nyiramasuhuko was present and participated in the Mid-May Attack based primarily on Witness TA's evidence. 1837 As noted above, the Trial Chamber also mentioned Witness TA as one of several witnesses who had an adequate opportunity to observe 1832 See infra, para. 1657. 1833 Trial Judgement, paras. 2628, 2629. 1834 Trial Judgement, para.

2686. The Appeals Chamber does not exclude the possibility that the Trial Chamber may have intended to refer to Witness SU instead of Witness SJ in paragraph 2686 of the Trial Judgement in light of its discussion of Witness SU's evidence that Nyiramasuhuko was present on the Night of Three Attacks in its factual findings and the fact that Witness SJ did not in fact testify to seeing Nyiramasuhuko that night. See ibid., paras. 2251- 2256, 2706, 2715, 2731, 2732, 2736, 2738. However, the Appeals Chamber notes that Nyiramasuhuko did not develop any argument other than those addressed in the prior sub-section on Witness SU's prior knowledge in support of her contention that the Trial Chamber erred in relying on Witness SU's identification evidence in relation to the Night of Three Attacks. See supra, Section IV.F.2(c)(ii)a. Although expressly referring in her notice of appeal to paragraph 2758 of the Trial Judgement, in which the Trial Chamber discussed Witness SU's identification of Nyiramasuhuko during the First Half of June Attacks, Nyiramasuhuko also did not develop any argument challenging the Trial Chamber's assessment of Witness SU's identification evidence as it relates to the First Half of June Attacks in her appeal brief. Consequently, the Appeals Chamber declines to examine the reasonableness of the Trial Chamber's assessment of Witness SU's identification of Nyiramasuhuko at the Butare Prefecture Office. 1835 Trial Judgement, para. 2698. 1836 Nyiramasuhuko Appeal Brief, paras. 787-794, 796-809, 813, 814. 282 Case No. ICTR-98-42-A 14 December 2015

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20083/H Nyiramasuhuko at the prefectoral office from close proximity when discussing the Night of Three Attacks. 1838 808. Nyiramasuhuko submits that the Trial Chamber erred in finding Witness TA's identification of her reliable during the Mid-May Attack on the basis that she described how she was dressed and heard her ordering the Interahamwe to attack people.1839 Nyiramasuhuko points out that Witness TA had no prior knowledge of Nyiramasuhuko, only saw her for the first time for a few minutes on an afternoon prior to the attack, and that her sighting of Nyiramasuhuko during the Mid-May Attack occurred at night in difficult conditions 1840 As part of her challenges regarding the Trial Chamber's findings on the Night of Three Attacks, Nyiramasuhuko further submits that the Trial Chamber erred in finding that Witness TA had an adequate opportunity to observe her from close proximity at the prefectoral office as it failed to discuss the details of how the witness observed her and the context in which the observations were made. 1841 809. The Prosecution responds that the Trial Chamber provided a reasoned opinion as to why it considered Witness TA's identification of Nyiramasuhuko during the Mid-May Attack reliable and argues that Nyiramasuhuko fails to demonstrate that this was unreasonable. 1842 It adds that Nyiramasuhuko's contentions regarding her identification by Witness TA

during the Night of Three Attacks are irrelevant as Witness TA did not testify to seeing her on the Night of Three Attacks. 1843 810. The Trial Chamber expressly found Witness TA's identification of Nyiramasuhuko during the Mid-May Attack reliable. It stated: Witness TA described Nyiramasuhuko's clothing and quoted her as ordering the Interahamwe to attack certain individuals. Therefore, Witness TA was close enough to hear what Nyiramasuhuko was saying and identified her as the mother of Shalom. For these reasons, the Chamber finds this identification to be reliable. 184 811. The Appeals Chamber considers that a reasonable trier of fact could have relied on Witness TA's ability to describe Nyiramasuhuko's clothing and the fact that she could hear her 1837 Trial Judgement, para. 2644. 1838 Trial Judgement, para. 2698. 1839 Nyiramasuhuko Notice of Appeal, para. 10.15. See also AT. 14 April 2015 p.

20. Nyiramasuhuko appears to argue that Witness TA's description of Nyiramasuhuko's clothing during the Mid-May Attack contradicts her prior statement in which she described Nyiramasuhuko as "dressed like an ordinary women also in [k]itenge". However, Witness TA also described Nyiramasuhuko as wearing a kitenge during the Mid-May Attack in her testimony. The Appeals Chamber dismisses Nyiramasuhuko's argument on the basis that she fails to identify any contradiction between the witness's prior statement and her testimony. See Nyiramasuhuko Notice of Appeal, fn. 20; Exhibit D6B (Witness TA's Statement), p. 3; Witness TA, T. 25 October 2001 p. 40. 1840 Nyiramasuhuko Notice of Appeal, para. 10.15, referring to Witness TA, T. 24 October 2001 pp. 109, 110. See also AT. 14 April 2015 p. 21. 1841 Nyiramasuhuko Appeal Brief, para. 806. 1842 Prosecution Response Brief, paras. 619, 620. 1843 Prosecution Response Brief, para. 484, fn.

1190. See also ibid., para. 470. 1844 Trial Judgement, para. 2629. 283 Case No. ICTR-98-42-A 14 December 2015

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20082/H specific orders to the Interahamwe during the Mid-May Attack as probative of the reliability of her testimony that she saw Nyiramasuhuko from close proximity. This reflects the Trial Chamber's careful consideration of Witness TA's identification of Nyiramasuhuko in light of the circumstances of the attack and the witness's lack of prior knowledge of Nyiramasuhuko before the events at the prefectoral office. Nyiramasuhuko's argument that Witness TA had no prior knowledge of her and only saw her for the first time for a few minutes on an afternoon prior to the Mid-May Attack fails to appreciate that the Trial Chamber accepted the witness's testimony that she learned of the familial relationship between Nyiramasuhuko and Ntahobali from other refugees at the prefectoral office and that she was able to identify Nyiramasuhuko as the Minister of Women's Affairs 1845 Nyiramasuhuko also overlooks Witness TA's testimony, as recalled by the Trial Chamber, that there was moonlight behind the prefectoral office during several of the attacks at the prefectoral office and that there was occasionally public lighting from across the street. 1846 Nyiramasuhuko appears to merely disagree with the Trial Chamber's assessment of Witness TA's identification evidence and fails to demonstrate that the Trial Chamber erred in accepting it.

812. Furthermore, the Appeals Chamber notes that the Trial Chamber did not conclude that Witness TA saw Nyiramasuhuko at the prefectoral office during the Night of Three Attacks. Rather, in the "Factual Findings" section of the Trial Judgement related to those attacks it only mentioned Witness TA as a witness who had an opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity. 1847 As discussed above, the Trial Chamber addressed the details and context of how Witness TA observed Nyiramasuhuko in its factual findings on the Mid-May Attack. 1848 813. Based on the foregoing, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in relying on Witness TA's identification of Nyiramasuhuko during the Mid-May Attack, or in stating that Witness TA had an adequate opportunity to identify Nyiramasuhuko at the prefectoral office. 1845 Trial Judgement, paras. 2190, 2633. 1846 Trial Judgement, para.

2630. The Appeals Chamber has discussed at length challenges in relation to Witness TA's evidence about the lighting at the prefectoral office in Section V.I.2(b)(ii) below. 1847 Trial Judgement, para. 2698. 1848 Trial Judgement, para. 2629. 284 Case No. ICTR-98-42-A 14 December 2015 au

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20081/H b. Witness QJ 814. The Trial Chamber found that Witness QJ identified Nyiramasuhuko on the Night of Three Attacks and that he had an adequate opportunity to observe her at the prefectoral office from close proximity. 1849 815. Nyiramasuhuko submits that the Trial Chamber failed to discuss and assess the relevant circumstances in which Witness QJ identified her at the prefectoral office and that it erred in concluding that the witness had an adequate opportunity to identify her.?850 She contends that the Trial Chamber could not have reasonably relied on the identification evidence of Witness QJ, who only saw her on one occasion at the prefectoral office and provided an insufficiently detailed and generic physical description of her. 1851 816. The Prosecution responds that Nyiramasuhuko fails to show that the Trial Chamber erred in its assessment of Witness QJ's identification evidence. 1852 817. The Appeals Chamber notes that the Trial Judgement does not set out how the Trial Chamber concluded that Witness QJ identified Nyiramasuhuko on the Night of Three Attacks and how the witness had an adequate opportunity to observe her at the prefectoral office from close proximity. 1853 The Appeals Chamber has carefully reviewed the relevant portions of Witness QI's testimony and observes that the witness only referred to one encounter with Nyiramasuhuko on the Night of Three

Attacks and that nothing in his testimony suggests that he had met her prior to that night. 1854 818. Witness QJ's testimony, however, reveals that the incident with Nyiramasuhuko that he recounted occurred when there was light. 1855 Witness QJ also provided evidence on the colour of the Toyota pickup truck and, although he could not describe what she was wearing, gave a physical description of Nyiramasuhuko. 1856 While the witness did not indicate at trial the distance between him and Nyiramasuhuko,1857 it transpires from his testimony that he was close enough to describe 1849 Trial Judgement, paras. 2686, 2698. 1850 Nyiramasuhuko Appeal Brief, paras. 787, 806. 1851 Nyiramasuhuko Appeal Brief, paras. 788, 789, 794. 1852 Prosecution Response Brief, para.

484. The Prosecution emphasises that Witness QJ was close to Nyiramasuhuko when Mbasha's wife was abducted during the Night of Three Attacks and that Nyiramasuhuko ignores that, in addition to a physical description of her, Witness QJ corroborated Witness TK's account that Nyiramasuhuko arrived at the prefectoral office in a pickup with Interahamwe. See ibid., paras. 482, 484 853 The Appeals Chamber notes that paragraphs 2686 and 2698 of the Trial Judgement do not refer to evidence supporting the conclusions reached in these paragraphs. See Witness QJ, T. 8 November 2001 pp. 145-164, T. 12 November 2001 pp. 13, 38, 78-101 (closed session), 102-124, T. 13 November 2001, pp. 118-123. See also Trial Judgement, para. 2196. 1855 Witness QJ, T. 8 November 2001 pp. 146, 158-161, 163, T. 12 November 2001 pp. 94-96, (closed session), 123. 1856 Witness QJ, T. 8 November 2001 pp. 146, 158-161, 163, T. 12 November 2001 pp. 94-96, (closed session), 123. 1857 See Witness QJ, T. 8 November 2001 pp. 147-153. 285 Case No. ICTR-98-42-A 14 December 2015

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20080/H what Mbasha's wife was wearing and estimate the distance between Nyiramasuhuko and the veranda where Mbasha's wife and children were sleeping1858 The Appeals Chamber further observes that the Trial Chamber found that Witness QI's identification of Nyiramasuhuko during the Night of Three Attacks was corroborated by Witnesses TK, SS, QBQ, RE, FAP, and SU, 1859 The Trial Chamber also emphasised that Witness QI's account was similar to that of Witness TK regarding the abduction of Mbasha's wife during this particular night. 1860 819. The Appeals Chamber considers that, as part of its reasoned opinion, the Trial Chamber should have articulated the basis on which it was satisfied that the witness was able to identify Nyiramasuhuko and that, in failing to do so, the Trial Chamber committed an error. 861 However, in light of the details provided by Witness QJ in his testimony and the corroborative evidence of Nyiramasuhuko's presence during the Night of Three Attacks, including the similarity of the accounts of Witnesses TK and QJ regarding the abduction of Mbasha's wife, the Appeals Chamber finds that a reasonable trier of fact could have relied on Witness QJ's identification of Nyiramasuhuko on the Night of Three Attacks. In light of the foregoing, the Appeals Chamber concludes that this error has not invalidated the Trial Chamber's decision to rely on Witness QJ in support

of its finding that Nyiramasuhuko was present during the Night of Three Attacks and therefore dismisses Nyiramasuhuko's submissions in this respect. c. Witness TK 820. The Trial Chamber found that Witness TK identified Nyiramasuhuko on the Night of Three Attacks and that the witness had an adequate opportunity to observe her at the prefectoral office from close proximity. 1862 It noted that Witness TK did not know Nyiramasuhuko's surname, but that Nyiramasuhuko and Ntahobali were identified to her as mother and son and that other women at the prefectoral office had pointed out Nyiramasuhuko to Witness TK during a daytime meeting and referred to her by the name "Pauline" 1863 It also accepted the witness's explanation as to why she had not mentioned Nyiramasuhuko's presence at the prefectoral office in her prior statement. 1864 1858 See Witness QJ, T. 8 November 2001 pp. 147-153, T. 12 November 2001 pp. 93, 94 (closed session). 1859 Trial Judgement, paras. 2686, 2736, 2738. The Trial Chamber further referred to Witness SJ but, for reasons explained above, the Appeals Chamber considers that it erred. See supra, para.

804. Trial Judgement, paras. 2717, 2718. 1861 See Lukié and Likié Appeal Judgement, para. 118 ("The Appeals Chamber considers that, as part of its reasoned opinion, a trial chamber should articulate the basis on which it was satisfied that the witness had prior knowledge of an accused and was therefore able to recognise that individual at the crime scene."), referring to Kupreskié et al. Appeal Judgement, para. 39; Renzaho Appeal Judgement, para. 528. 1862 Trial Judgement, paras. 2686, 2698. 1863 Trial Judgement, para. 2668. 1864 Trial Judgement, para. 2683. 286 Case No. ICTR-98-42-A 14 December 2015

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20079/H 821. Nyiramasuhuko asserts that the Trial Chamber failed to discuss and assess the relevant circumstances in which Witness TK identified her at the prefectoral office and erred in concluding that the witness had an adequate opportunity to identify her there 1865 She also argues that the Trial Chamber's reliance on Witness TK's evidence was an error given the fact that the witness had no prior knowledge of her and that the identification was based solely on unidentified refugees having stated that the woman present was "Pauline" 1866 She submits that the witness was unable to provide a sufficiently precise description of her and highlights that the only identification of her in the witness's prior statement relates to having seen her during the day in late June 19941867 In addition, Nyiramasuhuko contends that, when assessing the general reliability of Witness TK's identification evidence, the Trial Chamber failed to consider that Witness TK's identification of Kanyabashi was unbelievable in light of the witness's concession in her prior statement that she would not be able to identify him. 1868 822. The Prosecution responds that, in addition to the physical description she provided, Witness TK gave other details of Nyiramasuhuko's presence at the prefectoral office. 1869 It also points to the fact that the Trial Chamber reviewed and discussed the inconsistencies

between Witness TK's testimony and her prior statements and found her explanations reasonable. 1870 The Prosecution argues that Nyiramasuhuko fails to demonstrate how Witness TK's evidence about the identification of Kanyabashi is relevant to the witness's identification of Nyiramasuhuko. 1871 823. The Appeals Chamber observes that the Trial Chamber reviewed and found credible Witness TK's direct evidence of Nyiramasuhuko's involvement in several specific incidents that occurred during the Night of Three Attacks. 1872 As mentioned above, the Trial Chamber discussed in detail how Witness TK came to know who Nyiramasuhuko was. Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in concluding that the witness had an adequate opportunity to observe her from close proximity, which is supported by a comprehensive reading of the witness's evidence. 1873 824. Furthermore, while the witness's ability to identify Nyiramasuhuko was based on information provided by unidentified women she met at the prefectoral office who referred to 1865 Nyiramasuhuko Appeal Brief, paras. 787, 806. 1866 Nyiramasuhuko Appeal Brief, para. 791. 1867 Nyiramasuhuko Appeal Brief, paras. 790, 791. 1868 Nyiramasuhuko Appeal Brief, paras. 792, 793. 1869 Prosecution Response Brief, para. 482. 1870 Prosecution Response Brief, para. 475. 1871 Prosecution Response Brief, para. 475. 1872 See Trial Judgement, paras. 2662, 2668, 2717, 2730. 1873 See Witness TK, T. 20 May 2002 pp. 40, 41, 45-47, 55, 73-75, 86, 87, 90-99, T. 22 May 2002 pp. 51, 52, 59, 60. 103, 108, 109, T. 23 May 2002 p. 45. 287 Case No. ICTR-98-42-A 14 December 2015

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20078/H Nyiramasuhuko as "Pauline", 1874 the Appeals Chamber recalls that the Trial Chamber has the discretion to consider cautiously and rely on hearsay evidence.® In this instance, not only was Nyiramasuhuko identified to Witness TK by her first name, but also as Ntahobali's mother. 1876 Moreover, having reviewed Witness TK's evidence describing Nyiramasuhuko, the Appeals Chamber does not consider that the description the witness provided was so general as to cast doubt on the reasonableness of the Trial Chamber's reliance on Witness TK's identification of Nyiramasuhuko. 1877 In this regard, the Appeals Chamber also notes that Witness TK's identification of Nyiramasuhuko's presence during the Night of Three Attacks was corroborated by other evidence found credible by the Trial Chamber. 1878 825. Turning to Nyiramasuhuko's argument that the Trial Chamber should have disregarded Witness TK's evidence in light of the witness's failure to identify Nyiramasuhuko as participating in this attack in her prior statement, the Appeals Chamber recalls that a trial chamber has the discretion to accept a witness's testimony, notwithstanding inconsistencies between the testimony and the witness's previous statements, as it is for the trial chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the witness's evidence. 1879 In this instance, the Trial Chamber

considered that Witness TK did not mention Nyiramasuhuko's presence at the prefectoral office in her prior statement and accepted her explanation for the omission 1880 Nyiramasuhuko simply repeats arguments she raised at trial without demonstrating how the Trial Chamber erred. 1881 826. Finally, the Appeals Chamber considers that Nyiramasuhuko does not show the relevance of any purported inconsistencies between Witness TK's testimony and her previous statement concerning her identification of Kanyabashi and how it renders her identification of Nyiramasuhuko unreliable. 1882 The Appeals Chamber finds that this alleged inconsistency, which does not concern 1874 Witness TK, T. 20 May 2002 pp. 40, 41, T. 22 May 2002 pp. 52, 59, 60. 1875 See, e.g., Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39. 1876 See Witness TK, T. 20 May 2002 pp. 76, 77. See also Trial Judgement, para. 2668. 1877 Witness TK, T. 20 May 2002 p. 41. 1878 The Appeals Chamber recalls that the Trial Chamber found that Nyiramasuhuko was present at the Butare Prefecture Office on the Night of Three Attacks based on the testimonies of Witnesses SJ, SU, QY, QJ, TK, SS, QBQ. RE, and FAP. See Trial Judgement, paras. 2686, 2732, 2736, 2738. In other sub-sections above and below, the Appeals Chamber has found no error with

respect to the assessment of the identification evidence of Witnesses SU, TK, SS, QBQ, and FAP and determined that the errors with respect to Witnesses QJ and RE have not invalidated the decision or occasioned a miscarriage of justice. See supra, Sections IV.F.2(c)(ii)a, IV.F.2(c)(ii)c, IV.F.2(c)(ii)b, infra, Sections IV.F.2(c)(iii)d, IV.F.2(c)(iii)e, IV.F.2(c)(iii)g. The Appeals Chamber will assess below whether the impact of the Trial Chamber's erroneous reliance on Witnesses SJ's and QY's evidence related to the prefectoral office has occasioned a miscarriage of justice. See infra, para. 856. 1879 Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, para. 96. 1880 Trial Judgement, para. 2683. 1881 See Nyiramasuhuko Closing Brief, para. 67. 1882 See Nyiramasuhuko Appeal Brief, paras. 792, 793, referring to Witness TK, T. 27 May 2002 pp. 73, 74. Case No. ICTR-98-42-A 14 December 2015

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20077/H the identification of Nyiramasuhuko by Witness TK, is insufficient to undermine the reasonableness of the Trial Chamber's acceptance of Witness TK's identification evidence of Nyiramasuhuko.

827. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in relying on Witness TK's identification of her on the Night of Three Attacks. d. Witness RE 828. The Trial Chamber found that Witness RE identified Nyiramasuhuko on the Night of Three Attacks and that she had an adequate opportunity to observe her at the prefectoral office from close proximity, 1883 Specifically, the Trial Chamber recalled that, although Witness RE did not see Nyiramasuhuko on the Night of Three Attacks, the witness testified that Ntahobali and Interahamwe came in a vehicle and heard Ntahobali promise to protect Mbasha's wife, saying he would take her to "Pauline who was in the vehicle" 1884 On this basis, the Trial Chamber stated that "Witness RE surmised that Nyiramasuhuko was at the [prefectoral office]" 1885 It concluded that this evidence was hearsay and provided "additional support to the identification of Nyiramasuhuko" at the prefectoral office. 1886 The Trial Chamber further stated: Witness RE's testimony also [lends] support to Witnesses SS'[s] and QBQ's testimon[ies] that Nyiramasuhuko was giving orders to rape in this time period. She testified that Nyiramasuhuko came to the [Butare Prefecture Office] with President Sindikubwabo one day. During this visit, Nyiramasuhuko said, the people should be killed and the young girls among them raped. Although given at a different time than the [Night of Three Attacks], this evidence shows a level of planning and intent on Nyiramasuhuko's part.

829. Nyiramasuhuko submits that the Trial Chamber erred in finding that Witness RE had an adequate opportunity to identify her at the prefectoral office as it failed to discuss the details as to how Witness RE observed her and the context in which the observations were made.1888 She emphasises that Witness RE did not know her before 1994 and testified to have seen her at the prefectoral office only on one occasion during a visit with President Sindikubwabo. 1889 Nyiramasuhuko argues that this evidence provides an insufficient basis to support the identification, given the witness's inability to describe Sindikubwabo. 1890 She also contends that it was unreasonable for the Trial Chamber to rely on Witness RE's identification evidence, since she did not see her during the Night of Three Attacks and only inferred that she was present based on 1883 Trial Judgement, paras. 2686, 2698. 1884 Trial Judgement, para. 2694. 1885 Trial Judgement, para. 2694. 188 Trial Judgement, para. 2694. 1887 Trial Judgement, para. 2695 (internal reference omitted). 1888 Nyiramasuhuko Appeal Brief, para. 806. 1889 Nyiramasuhuko Appeal Brief, para. 799. 1890 Nyiramasuhuko Appeal Brief, para. 799. 289 Case No. ICTR-98-42-A 14 December 2015

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20076/H remarks made by Ntahobali189l Furthermore, she argues that the Trial Chamber should have exercised extreme caution with respect to Witness RE's identification evidence generally, because, when identifying Ntahobali in court - a person who the witness purportedly saw on three occasions at the prefectoral office - she singled out Nteziryayo, who is nearly 25 years older than Ntahobali. 1892 830. The Prosecution responds that the Trial Chamber properly assessed Witness RE's evidence and that the in-court identification of Ntahobali is irrelevant to the assessment of the witness's identification of Nyiramasuhuko. 1893 831. With respect to Nyiramasuhuko's argument that the Trial Chamber erred in failing to assess how Witness RE observed her and the context in which the observations were made, the Appeals Chamber underlines that the Trial Chamber recalled and relied on Witness RE's testimony of having seen Nyiramasuhuko on another occasion when she came to the prefectoral office with Sindikubwabo. 189* However, the Appeals Chamber notes that, elsewhere in the Trial Judgement, the Trial Chamber rejected Witness RE's evidence in this respect, finding that her testimony was not sufficient to establish, inter alia, that Nyiramasuhuko met with Sindikubwabo at the prefectoral office. 1895 The Appeals Chamber finds that these findings are irreconcilable and that no reasonable trier

of fact could have found that Witness RE's testimony was insufficient to establish that Nyiramasuhuko met with Sindikubwabo at the prefectoral office, while relying on the exact same part of her testimony to conclude that she had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity.1896 That being said, the Appeals Chamber considers that this error is immaterial since Witness RE testified that she did not see Nyiramasuhuko on the Night of Three Attacks but surmised that she was at the prefectoral office from Ntahobali's words. 1897 832. Turning to Nyiramasuhuko's contention that it was unreasonable for the Trial Chamber to rely on Witness RE's evidence because she did not see Nyiramasuhuko during the Night of Three Attacks, the Appeals Chamber repeats that the Trial Chamber has the discretion to consider cautiously and rely on hearsay evidence. 189 In the present case, the Trial Judgement reflects that the 1891 Nyiramasuhuko Appeal Brief, paras. 797, 798, 801. Cf. AT. 14 April 2015 pp. 29, 30. 1892 Nyiramasuhuko Appeal Brief, paras. 800-802. 1893 Prosecution Response Brief, paras. 466, 472, 484, 487. See also ibid., para. 469. 1894 See Trial Judgement, para.

2695. See also ibid., para. 2276. 1895 See Trial Judgement, paras. 2901, 2902. 1896 Trial Judgement, para. 2698. 1897 Trial Judgement, para. 2694. 1898 See, e.g., Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39. 290 Case No. ICTR-98-42-A 14 December 2015

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20075/H Trial Chamber cautiously assessed Witness RE's hearsay evidencel89 and relied on it only as corroborative of the evidence of several other witnesses who identified Nyiramasuhuko as being present during this night. 190 Nyiramasuhuko fails to demonstrate how the Trial Chamber erred in its assessment.

833. As for Nyiramasuhuko's contention that Witness RE's evidence is generally unreliable in light of her in-court misidentification of Ntahobali, the Appeals Chamber recalls that it is within a trial chamber's discretion as the primary trier of fact to evaluate the credibility of separate portions of a witness's testimony differently if the circumstances of the case so require. 190' In this instance, the Trial Chamber recalled that Witness RE mistook Nteziryayo for Ntahobali, but concluded that it did not consider this misidentification to be probative when assessing evidence of Nyiramasuhuko's presence at the prefectoral office during the Night of Three Attacks 902 Nyiramasuhuko, who simply repeats an argument she raised at trial, '93 fails to show that the Trial Chamber erred in finding that this misidentification of Ntahobali was not probative or that the Trial Chamber exercised insufficient caution in relation to the witness's identification of Nyiramasuhuko.

834. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in concluding that Witness RE had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity, but that this error has not occasioned a miscarriage of justice in relation to the identification of Nyiramasuhuko by Witness RE on the Night of Three Attacks. Furthermore, the Appeals Chamber finds no error in the Trial Chamber's reliance on Witness RE's evidence as providing additional support to identification evidence placing Nyiramasuhuko at the prefectoral office on the Night of Three Attacks. e. Witness FAP 835. The Trial Chamber found that Witness FAP identified Nyiramasuhuko on the Night of Three Attacks and that she had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity.19* In particular, the Trial Chamber recalled Witness FAP's evidence that, during the Night of Three Attacks, Nyiramasuhuko stood by the vehicle and told the Interahamwe to take the young girls and the women who were not old, and to rape and kill them because they had refused to marry Hutus.1905 It further noted Witness FAP's evidence that she 1899 Trial Judgement, para.

2694. See also ibid., para. 2719. 1900 Trial Judgement, para. 2686. 1901 Bagosora and Nsengiyumva Appeal Judgement, para.

253. See also Nizeyimana Appeal Judgement, para.

108. Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 1902 Trial Judgement, fn. 7548. 1903 See Nyiramasuhuko Closing Brief, paras. 113, 128, 129. 1904 Trial Judgement, paras. 2686, 2698. 1905 Trial Judgement, para. 2696. 291 Case No. ICTR-98-42-A 14 December 2015

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20074/H described Nyiramasuhuko as wearing a military uniform and that Witness FAP, who was lying on the ground, "could only see Nyiramasuhuko's top."1906 836. Nyiramasuhuko submits that the Trial Chamber erred in finding that Witness FAP had an adequate opportunity to identify her at the prefectoral office as it failed to discuss the details as to how Witness FAP observed her and the context in which the observations were made. 1907 837. The Prosecution responds that Nyiramasuhuko does not demonstrate that the Trial Chamber erred in relying on Witness FAP to find that Nyiramasuhuko was present during the Night of Three Attacks. 1908 It argues that Witness FAP's testimony corroborates other evidence that Nyiramasuhuko arrived in a pickup truck with Interahamwe.1909 838. The Appeals Chamber considers that Nyiramasuhuko's argument that the Trial Chamber did not discuss how Witness FAP observed her and the context in which the observations were made fails to appreciate that the Trial Chamber detailed these circumstances elsewhere in the Trial Judgement, 1910 noting in particular Witness FAP's evidence that Nyiramasuhuko wore a military uniform and that the witness was lying on the ground and thus "could only see Nyiramasuhuko's top."1911 Nyiramasuhuko does not challenge the reasonableness of these findings and ignores that the Trial Chamber found that the evidence of Witness FAP

was corroborated by Witness QBQ as to Nyiramasuhuko's conduct at the prefectoral office on that evening, providing further support for Witness FAP's identification of her. 1912 The Trial Chamber also emphasised that several witnesses identified Nyiramasuhuko wearing a military shirt and kitenge cloth skirt or just a military shirt. 1913 This too is consistent with Witness FAP's testimony. 1914 839. Moreover, the Appeals Chamber observes that, although Witness FAP testified that she did not know Nyiramasuhuko prior to this event, l91s she also testified that she knew Nyiramasuhuko's home and the name of her husband, 1916 that she heard other refugees refer to the woman who arrived in the vehicle as "Pauline" and that she was accompanied by her son "Shalom", 191 and that 190 Trial Judgement, para. 2696. 1907 Nyiramasuhuko Appeal Brief, para. 806. 1908 Prosecution Response Brief, paras, 472, 484. 1909 Prosecution Response Brief, para. 485. 1910 See Trial Judgement, paras. 2304, 2696. 1911 Trial Judgement, para. 2696. 1912 Trial Judgement, paras. 2699, 2700. 1913 Trial Judgement, para. 2698. 1914 Witness FAP, T. 11 March 2003 p. 54 ("A. The first time I saw [Nyiramasuhuko] she was wearing military uniform."), T. 13 March 2003 p. 5 ("Q. Madam Witness, you told us that that night Mrs. Nyiramasuhuko was allegedly wearing a military uniform, at least in the upper part of her body? A. Yes."). See also Trial Judgement, para. 2696. 1915 Witness FAP, T. 12 March 2003 pp. 12, 13. See also ibid., p. 39. 1916 Witness FAP, T. 12 March 2003 p. 39. 1917 Witness FAP, T. 11 March 2003 p.

50. See also Witness FAP, T. 12 March 2003 pp. 13, 16. 292 Case No. ICTR-98-42-A 14 December 2015

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20073/H she was aware of Nyiramasuhuko's position as the Minister of Family Affairs 1918 Witness FAP further testified that she observed Nyiramasuhuko from about 10 metres away and on three occasions that evening.1919 Nyiramasuhuko does not discuss these aspects of Witness FAP's evidence.

840. The Appeals Chamber concludes that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in its assessment of Witness FAP's identification evidence. f. Witness QY 841. In the "Factual Findings" section of the Trial Judgement related to the Night of Three Attacks, the Trial Chamber found that Witness QY had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity. 1920 842. Nyiramasuhuko submits that the Trial Chamber erred in reaching this finding, as it failed to discuss the details as to how Witness QY observed her and the context in which the observations were made.1921 Nyiramasuhuko also argues that the Trial Chamber erred in relying on Witness QY's identification evidence, since Witness QY refers to her height to describe the person Witness QY saw at the prefectoral office. 92 She contends that the Trial Chamber failed to assess the circumstances in which Witness QY identified her, since Witness QY stated that nobody could look at "the accused persons" closely, 1923 843. The Prosecution responds that Witness QY's reference that she could not look at the accused misstates the evidence as it only refers to Kanyabashi and not Nyiramasuhuko. 1924 844. The Appeals Chamber observes that the Trial Chamber's conclusion that Witness QY had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close

proximity when assessing her involvement in the Night of Three Attacks is not supported by any reference to the record. 1925 Nothing in the Trial Chamber's summary of Witness QY's evidence reflects that the witness saw Nyiramasuhuko during the Night of Three Attacks. 1926 1918 Witness FAP, T. 11 March 2003 p. 48, T. 12 March 2003 pp. 13, 52, T. 13 March 2003 pp. 5, 6. 1919 Witness FAP, T. 11 March 2003 pp. 50, 54, T. 12 March 2003 pp. 12-14, 52. 1920 Trial Judgement, para. 2698. 1921 Nyiramasuhuko Appeal Brief, para. 806. 1922 Nyiramasuhuko Appeal Brief, para. 813. 1923 Nyiramasuhuko Appeal Brief, para. 814, referring to Witness QY, T. 19 March 2003 pp. 64, 65 ("nobody could look at them closely. To look at them was, for us, like looking face to face at a lion"). 1924 Prosecution Response Brief, para. 474. 1925 See Trial Judgement, para. 2698. 1926 See Trial Judgement, paras. 2319-2327. 293 Case No. ICTR-98-42-A 14 December 2015

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20072/H 845. In addition, the Appeals Chamber notes that, in the "Factual Findings" section of the Trial Judgement related to attacks on the prefectoral office around the end of April or early May 1994, the Trial Chamber questioned Witness QY's ability to identify Nyiramasuhuko. 1927 It added that Witness QY's identification of Nyiramasuhuko on certain nights of the events could not be considered reliable given her uncertainty as to when Nyiramasuhuko was present. 928 The Trial Chamber unequivocally rejected Witness QY's evidence implicating Nyiramasuhuko in attacks at the prefectoral office "between late April or carly May 1994" due to discrepancies in her testimony, the unreliable nature of her identification evidence, and her admission that she had lied to the Trial Chamber about whether she knew Witnesses QBQ and SJ. 1929 846. The conclusions of the Trial Chamber in these distinct sections of the Trial Judgement are irreconcilable and the Appeals Chamber finds that no reasonable trier of fact could have relied on Witness QY's evidence to establish Nyiramasuhuko's presence during the Night of Three Attacks given the concerns related to her credibility highlighted by the Trial Chamber in relation to other attacks at the prefectoral office. The Appeals Chamber will discuss whether this error has occasioned a miscarriage of justice in its conclusion to the present

sub-section. g. Witness QBQ 847. The Trial Chamber found that Witness QBQ identified Nyiramasuhuko on the Night of Three Attacks and that she had an adequate opportunity to observe Nyiramasuhuko at the prefectoral office from close proximity. 1930 In particular, it concluded that Witness QBQ identified Nyiramasuhuko when she arrived aboard a white Toyota pickup truck at the prefectoral office and was about four and a half metres away from her. 1931 The Trial Chamber added that "[ilt was not so dark as to prevent Witness QBQ from seeing Nyiramasuhuko's face. Night had not yet fallen." 1932 848. The Trial Chamber also found that Witness QBQ had an opportunity to identify Nyiramasuhuko from close proximity as she previously had seen Nyiramasuhuko arrive on foot at 1927 Trial Judgement, para. 2616. 1928 Trial Judgement, para. 2620. 1929 See Trial Judgement, paras. 2616, 2620-2626. 1930 Trial Judgement, paras. 2686, 2698. 1931 Trial Judgement, para. 2691. 1932 Trial Judgement, para. 2691 (internal references omitted). The Trial Chamber further stated that Witness QBQ corroborated Witness SS's observation that Nyiramasuhuko stood next to the vehicle and gave orders to the Interahamwe to "rape the women and the girls and kill the rest." See ibid., para.

2693. The Trial Chamber added that Witness QBQ testified that upon hearing Nyiramasuhuko's order, the Interahamwe immediately attacked the people on the veranda, that many women were raped while Nyiramasuhuko was still on the spot, and that the Interahamwe Nyiramasuhuko, and Ntahobali subsequently loaded the Tutsi refugees onto the vehicle and took them to be killed. See ibid., para. 2699. 294 Case No. ICTR-98-42-A 14 December 2015

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20071/H the prefectoral office in the morning, accompanied by Prefect Nsabimana, and that she was two and a half metres away from Nyiramasuhuko on this occasion. 1933 849. Nyiramasuhuko submits that the Trial Chamber erred in finding that Witness QBQ had an adequate opportunity to identify her at the prefectoral office as it failed to discuss the details of how she observed her and the context in which the observations were made. 1934 Nyiramasuhuko avers that the Trial Chamber erred in relying on Witness QBQ's evidence of having seen her during the day with Nsabimana prior to the attack in light of the witness's prior statement, which does not refer to this meeting and indicates that she had only seen her at night 1935 Likewise, she highlights that Witness QBQ's evidence that other individuals had identified her lacks reliability as the sources of these identifications are unknown. 936 Nyiramasuhuko also argues that Witness QBQ's explanation as to why she could not describe her while testifying was unbelievable in light of the fact that she allegedly saw her on four occasions, including twice during the night and while she was two and a half metres from her. 1937 850. The Prosecution responds that the Trial Chamber duly assessed Witness QBQ's testimony in light of her inability to identify Nyiramasuhuko in court. 938 It adds that Witness QBQ provided other corroborative details

of Nyiramasuhuko's presence during the Night of Three Attacks.1939 851. The Appeals Chamber observes that Nyiramasuhuko's argument that the Trial Chamber failed to provide a reasoned opinion for its conclusion that Witness QBQ had an adequate opportunity to identify her at the prefectoral office merely refers to paragraph 2698 of the Trial Judgement and fails to appreciate that the Trial Chamber provided a more detailed discussion of Witness QBQ's identification of Nyiramasuhuko earlier in the same section of the Trial Judgement. 1940 This argument is therefore without merit.

852. With respect to Nyiramasuhuko's contention that the Trial Chamber erred in relying on Witness QBQ's evidence of having seen Nyiramasuhuko during the day, in light of the fact that in her prior statement she had only referred to seeing Nyiramasuhuko at night, the Appeals Chamber reiterates that it is for the trial chamber to determine whether an alleged inconsistency between a witness's testimony and prior statement is sufficient to cast doubt on the evidence of the witness 1933 Trial Judgement, para. 2692. 1934 Nyiramasuhuko Appeal Brief, para. 806. 1935 Nyiramasuhuko Appeal Brief, paras. 807, 1163, 1164, referring to and comparing Trial Judgement fn. 6569 with Exhibit D147 (Witness QBQ's Statement) and Witness QBQ, T. 3 February 2004 pp. 52, 53, 64, 65. 1936 Nyiramasuhuko Appeal Brief, para.

809. Nyiramasuhuko also notes that Witness QBQ could not identify three of the four defendants in the case about whom she testified. See idem. 1937 Nyiramasuhuko Appeal Brief, para. 808. 1938 Prosecution Response Brief, para. 483. 1939 Prosecution Response Brief, para. 483. 295 Case No. ICTR-98-42-A 14 December 2015

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20070/H concerned. '4 In the present instance, the Trial Chamber accepted Witness QBQ's testimony that, three days after her arrival at the prefectoral office, she had seen Nyiramasuhuko arrive on foot in the morning accompanied by Prefect Nsabimana. 1942 The Trial Chamber did not address the fact that during cross-examination, Witness QBQ was asked why there was no mention of this first encounter during the day in her prior statement, to which she answered that "[qluite probably the investigators did not correctly take note of what I stated". 943 However, it is well-established jurisprudence that a trial chamber does not need to set out in detail why it accepted or rejected a particular testimony. 194 In this case, the Appeals Chamber is not persuaded that the Trial Chamber ignored Witness QBQ's failure to mention the first encounter in her prior statement or that the inconsistency between Witness QBQ's testimony and her prior statement prevented a reasonable trier of fact from relying on this aspect of Witness QBQ's testimony. 1945 853. Regarding Nyiramasuhuko's argument that Witness QBQ's identification evidence is unreliable because the witness did not know Nyiramasuhuko and those who identified Nyiramasuhuko to the witness were unknown, 1946 the Appeals Chamber repeats that trial chambers have the discretion to consider cautiously and rely on hearsay evidence. 947 In

summarising Witness QBQ's testimony, the Trial Chamber expressly noted that people at the prefectoral office identified Nyiramasuhuko for her. 1948 This shows that the Trial Chamber was aware of the hearsay nature of Witness OBQ's identification evidence 1949 Moreover, in light of the Trial Chamber's finding that Nyiramasuhuko was widely known as the Minister in charge of Women's Affairs and therefore would likely be recognisable,1950 the Appeals Chamber is satisfied that the Trial Chamber exercised sufficient caution in assessing this aspect of Witness QBQ's evidence and that it was not unreasonable for the Trial Chamber to have relied on it. 1951 854. Finally, Witness QBQ's testimony reflects that when asked while testifying whether she could recognise Nyiramasuhuko today, she stated that "[i]t was a very long time ago, I don't think 1940 See Trial Judgement, paras. 2691-2693. 1941 Hategekimana Appeal Judgement, para. 190; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, Bit Trial Judgerent, pera, 2692, referring to Witness QBQ, T: 3 February 2004 pp. 7-10, 52, 53. See also lia, par ziness QBQ, T. 3 February 2004 pp. 52-54, See also Witness QBO s Statement. 194 See, e.g., Gatete Appeal Judgement, para. 136; Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269. 1945 The Appeals Chamber considers Nyiramasuhuko's argument

concerning inconsistent findings made by the Trial Chamber with respect to the assessment of Witness QBQ's evidence as to the timing of the meeting between Nsabimana and Nyiramasuhuko and the timing of the Night of Three Attacks in Section IV.F.2(e)(i) below. 1946 Nyiramasuhuko Appeal Brief, para. 809. 1947 See supra, para. 824. 1948 See Trial Judgement, para. 2329. 1949 See Witness QBQ, T. 3 February 2004 p. 7. 1950 Trial Judgement, para. 2698. 1951 See Witness QBQ, T. 3 February 2004 p. 7. 296 Case No. ICTR-98-42-A 14 December 2015

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20069/H I will be in a position to recognise her. You can observe that I, myself, have changed from what I was in 1994.*1952 The Appeals Chamber notes that, although the Trial Chamber did not expressly address this issue when assessing the reliability of Witness QBQ's evidence, it noted in the summary of Witness QBQ's evidence that she was not in a position to identify Nyiramasuhuko since the event took place a long time ago. 1953 The Appeals Chamber is not convinced by Nyiramasuhuko's argument that Witness QBQ's statement that she was no longer in a position to identify Nyiramasuhuko renders her evidence on her identification of Nyiramasuhuko at the prefectoral office unbelievable. 1954 855. Accordingly, the Appeals Chamber finds that Nyiramasuhuko has failed to show any error in the Trial Chamber's assessment of Witness QBQ's identification evidence related to the Night of Three Attacks. 1955 (iv) Conclusion 856. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in relying on the testimonies of Witnesses SJ and QY to establish that Nyiramasuhuko was present during the Night of Three Attacks and in finding that Witness RE had an adequate opportunity to observe Nyiramasuhuko from close range. However, the Appeals Chamber concludes that these errors have not occasioned a miscarriage of justice in light of the direct and corroborative evidence of Witnesses SU, SS, QJ, TK, FAP, and QBQ of Nyiramasuhuko's presence at the Butare Prefecture Office during the Night of Three Attacks, as well as Witness RE's indirect yet corroborative evidence of Nyiramasuhuko's presence that supports the firsthand accounts. The Appeals Chamber rejects Nyiramasuhuko's remaining arguments regarding the assessment of the identification evidence.

857. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contentions that the Trial Chamber erred in finding that the evidence established her presence during the Mid-May Attack and the Night of Three Attacks at the Butare Prefecture Office beyond reasonable doubt. 1952 Witness QBQ, T. 3 February 2004 p. 24. 1953 See Trial Judgement, para. 2334. 1954 Cf. Kvocka et al. Appeal Judgement, para.

473. Cf. also Lukié and Lukic Appeal Judgement, para. 120; Limaj et al. Appeal Judgement, fn.

68. In reaching this finding, the Appeals Chamber has also considered its finding that the Trial Chamber erred in relying on Witness QBQ's evidence as to when she saw Nyiramasuhuko with Nsabimana during the day. See infra, Section IV.F.2.(e)(i). 297 Case No. ICTR-98-42-A 14 December 2015

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20068/H (d) Mid-May Attack 858. The Trial Chamber, relying principally on the testimony of Witness TA, found that during the Mid-May Attack, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office aboard a camouflage pickup truck. 1956 It concluded that Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup truck and that the pickup truck left the prefectoral office, taking the Tutsi refugees forced on board the vehicle, some of whom were forced to undress, to be killed at other locations. 1957 The Trial Chamber convicted her for ordering the killing of the numerous Tutsis forced to board the pickup truck and took into account her superior responsibility for killings committed by Interahamwe based on her orders in sentencing. 1958 859. The Trial Chamber also determined that, during the Mid-May Attack, Ntahobali and about eight other Interahamwe raped Witness TA, and that some of the Interahamwe raped two other Tutsi women 1959 The Trial Chamber found that there was no evidence of Nyiramasuhuko's direct involvement in ordering rapes on this occasion, but held that "Nyiramasuhuko, by her presence and position of authority, [was] guilty of aiding and abetting the rapes at the [Butare Prefecture Office."1960 However, as discussed in Section IV.F.1(b) above, the Trial Chamber did not convict Nyiramasuhuko on the basis of any of the rapes perpetrated during the Mid-May Attack and only relied on this finding as evidence of her mens rea.

860. Nyiramasuhuko submits that the Trial Chamber erred in its assessment of the evidence concerning the Mid-May Attack 196 In support of her contention, she argues that the Trial Chamber unreasonably placed the attack in mid-May 1994 despite Witness TA's vague recollection that it occurred in "May" and her emphasis that she could not remember months or days. 1962 Nyiramasuhuko also appears to argue that the Trial Chamber should have addressed Witness TA's prior statement that Nyiramasuhuko was not with Ntahobali on the first night when Ntahobali allegedly raped her, which was the Mid-May Attack, and that the witness omitted to mention in the same statement that she saw Nyiramasuhuko at 3.00 p.m. on the afternoon prior to the attack. 1963 1956 Trial Judgement, paras. 2644, 2781(i). The Trial Chamber considered that other evidence was consistent with or corroborated the circumstances described by Witness TA. See ibid., paras. 2632, 2633. 1957 Trial Judgement, paras. 2644, 2781(i), 5867. 1958 See supra, para. 749. 1959 Trial Judgement, paras. 2644, 2781(i). 1960 Trial Judgement, para.

5869. See also ibid., para. 5877. 1961 Nyiramasuhuko Notice of Appeal, para. 10.16; Nyiramasuhuko Appeal Brief, paras. 962-976. The Appeals 1962 Nyiramasuhuko Notice of Appeal, para. 10.3; Nyiramasuhuko Appeal Brief, para. 967; Nyiramasuhuko Reply Brief, paras. 289, 295. 1963 Nyiramasuhuko Notice of Appeal, para. 10.12; Nyiramasuhuko Appeal Brief, paras. 765, 1005; Nyiramashuko Reply Brief, paras. 228, 290, 298. See also AT. 14 April 2005 p. 21. 298 Case No. ICTR-98-42-A 14 December 2015

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20067/H She additionally asserts that the Trial Chamber erred in concluding without reasonable justification that the evidence of Defence Witnesses WUNJN and WUNHE that Witness TA was at her uncle's house as opposed to the prefectoral office during the time of the Mid-May Attack did not undermine Witness TA's credibility. 1964 861. In Nyiramasuhuko's view, the Trial Chamber also erred in finding that Witness SD corroborated Witnesses QY's and TA's evidence regarding her presence during attacks conducted at night. 965 She contends that no reasonable trier of fact would have relied on Witness TA's testimony without corroboration, particularly since it was contradicted by Witnesses QBP, RE, and QBQ who testified that they were present at the prefectoral office from April 1994 but witnessed only one attack involving Nyiramasuhuko, which the Trial Chamber determined was the Night of Three Attacks, 1966 and by Witnesses SJ and SD who were also there but did not testify that Nyiramasuhuko was ever present at night. 1967 862. The Prosecution responds that the Trial Chamber reasonably relied on Witness TA's uncorroborated testimony to find that Nyiramasuhuko participated in the Mid-May Attack at the prefectoral office. 968 It argues that the Trial Chamber did not err in finding that the attack took place in mid-May 1994 based on Witness TA's testimony and in accepting Witness

TA's explanation that her prior statement was wrongly recorded. 99 It further responds that the testimonies of Witnesses QBP, RE, QBQ, SD, and SJ were irrelevant to the Trial Chamber's assessment of Witness TA's evidence in relation to the Mid-May Attack because they were not at the prefectoral office during the attack and that, even if they had been there, it was within the Trial Chamber's discretion to prefer Witness TA's evidence. 1970 863. Nyiramasuhuko replies that the Trial Chamber acted outside its discretion in failing to provide a reasoned opinion as to why it preferred Witness TA's evidence over that of Witnesses QBP, RE, QBQ, SD, and SJ, particularly since Witness TA was the only witness to testify about the Mid-May Attack and her evidence should have been treated with caution 1971 1964 Nyiramasuhuko Notice of Appeal, para. 10.14. 1965 Nyiramasuhuko Appeal Brief, paras. 962-968, referring to Trial Judgement, paras. 2620, 2650, 2651. See also AT. 14 April 2005 p. 22. 1966 Nyiramasuhuko Notice of Appeal, para. 10.4; Nyiramasuhuko Appeal Brief, paras. 969, 971. See also AT. 14 April 2015 p. 22. 1967 Nyiramasuhuko Appeal Brief, paras. 968, 970, 971, referring to Trial Judgement, paras. 2178, 2628, 2644, Witness SJ, T. 3 June 2002 pp. 123-125, Witness SD, T. 17 March 2003 pp. 9, 10. See also ibid., paras. 689, 703, 704, 722, 950-961; Nyiramasuhuko Reply Brief, para.

294. See also AT. 14 April 2014 p. 22. 1968 Prosecution Response Brief, paras. 616-620. 1969 Prosecution Response Brief, paras. 621-626. 1970 Prosecution Response Brief, paras. 630-632. The Appeals Chamber notes that the Prosecution stated during the appeals hearing that it did not think that the witnesses moved on the same day from the prefectoral office to the BER See AT. 16 April 2015 p. 14. 1971 Nyiramasuhuko Reply Brief, paras. 291, 299. 299 Case No. ICTR-98-42-A 14 December 2015

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20066/H She argues that the Prosecution's assertion that Witnesses RE, SD, SJ, and QBP were not at the prefectoral office at the time is mistaken in light of their evidence,'' in particular Witness QBP's testimony that she was always with Witness TA at the prefectoral office and at the EER and Witness RE's testimony that she was with Witness SJ between April and July 1994, 1973 In addition, Nyiramasuhuko asserts that the Trial Chamber found that the refugees were always together at either the prefectoral office or the EER and that it was therefore not possible that Witness TA was at the prefectoral office during the Mid-May Attack while the other refugees were at the EER. 1974 She also points out that Witness TA testified that she was first at the EER with the other refugees from the prefectoral office before being transferred to the prefectoral office where she stayed for one and a half months. 1975 In further support of her contentions, Nyiramasuhuko argues that the Trial Chamber should have explained how it reconciled its finding that the Mid-May Attack occurred with its finding that the refugees from the prefectoral office were at the EER between 15-20 May 1994 and the end of May 1994.1976 864. The Appeals Chamber considers that Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in concluding that the relevant attack occurred in mid-May 1994 based on Witness

TA's testimony that it took place "neither at the beginning nor at the end of that month". 1977 Witness TA consistently testified that she had difficulties remembering the days on which events at the prefectoral office occurred, including the date of Nyiramasuhuko's visit to the prefectoral office during the afternoon. 1978 She situated the attack in this time period when asked to clarify its date following her acknowledgement that she did not know on which specific date in May it occured. 1979 Although Witness TA testified that "no one could remember months or days", this was in response to questions posed to her during cross-examination as to when she first saw the Prefect at the prefectoral office, after she conceded to being unable to remember in which month this happened.198 Given her assertion that the Mid-May Attack occurred in May, at neither the beginning nor the end of the month, the Trial Chamber's finding is therefore consistent with, and accurately reflects, Witness TA's testimony. 1972 Nyiramasuhuko Reply Brief, para. 291, referring to Witness QBP, T. 24 October 2002 pp. 79-81, Witness QBQ, T. 3 February 2004 pp. 6, 7, Witness SD, T. 17 March 2003 pp. 6-8, 36, 37, Witness SJ, T. 28 May 2002 pp. 112, 113. 1973 Nviramasuhuko Reply Brief, para. 292. 1974 Nyiramasuhuko Reply Brief, para. 293, referring to Trial Judgement, paras. 2174, 3934. See also AT. 14 April 2015

pp. 21, 22. 1975 Nyiramasuhuko Reply Brief, para. 292, referring to Witness TA, T. 24 October 2001 pp. 95, 96, T. 30 October 2001 pp. 69-71 (closed session). See also AT. 14 April 2015 pp. 21, 22, referring to Witness TA, T. 7 November 2001 pp. 79, 80. 1976 Nyiramasuhuko Reply Brief, para. 293; AT. 14 April 2015 pp. 21. 1977 Trial Judgement, para. 2628, referring to Witness TA, T. 25 October 2001 p. 29, T. 29 October 2001 pp. 51, 52. 1978 Witness TA, T. 6 November 2001 p. 84 1979 Witness TA, T. 25 October 2001 p. 29, T. 29 October 2001 p.

52. See also Witness TA, T. 24 October 2001 p. 94, T. 6 November 2001 p. 84. 1980 Witness TA, T. 6 November 2001 pp. 105, 106. 300 Case No. ICTR-98-42-A 14 December 2015

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20065/H 865. Regarding Nyiramasuhuko's argument that the Trial Chamber erred in omitting to consider inconsistencies between Witness TA's prior statement and testimony, the Appeals Chamber observes that, unlike her testimony, Witness TA's prior statement reflects that she stated that Nyiramasuhuko "was not with [Ntahobali] this night" of the Mid-May Attack and contains no reference to the witness seeing Nyiramasuhuko at the prefectoral office at 3.00 p.m. on the day of that attack. 1981 When challenged with these inconsistencies, the witness affirmed her testimony, suggesting that the information in her prior statement was improperly recorded or less important than her testimony. 1982 866. The Appeals Chamber recalls that a trial chamber has the discretion to accept a witness's testimony, notwithstanding inconsistencies between it and the witness's previous statements, 1983 and the fact that a trial chamber does not address or mention alleged discrepancies does not necessarily mean that it did not consider them. 94 In the view of the Appeals Chamber, it would have been preferable for the Trial Chamber to note that Witness TA's prior statement indicated that Nyiramasuhuko was not with Ntahobali during the Mid-May Attack and explain why this inconsistency did not impact the credibility of her testimony. However, the Appeals Chamber considers that, in light of Witness TA's

repeated affirmations of the accuracy of her testimony as well as her repeated explanations that her statement was not a full and accurate recording of the information she provided to investigators, 985 it was not unreasonable for the Trial Chamber to consider that this inconsistency did not undermine the credibility of Witness TA's detailed account of Nyiramasuhuko's presence and participation in the Mid-May Attack.

867. The Appeals Chamber similarly considers that the Trial Chamber was under no obligation to expressly discuss the absence of any mention in Witness TA's prior statement that she saw Nyiramasuhuko around 3.00 p.m. on the day of the Mid-May Attack. The statement is brief when compared to her testimony. The Appeals Chamber considers that this element of Witness TA's testimony was peripheral to the core features of her evidence concerning the attack, and it is reasonable that more details would arise over the course of the witness's examination in court.

868. In its assessment of Witness TA's testimony relating to the Mid-May Attack, the Trial Chamber considered and concluded, for several reasons, that the evidence of Witnesses WUNHE 1981 Witness TA's Statement, p. K0043300 (Registry pagination). 1982 See Witness TA, T. 5 November 2001 pp. 55, 56, 59, 60; T. 6 November 2001 pp. 58, 61. 1983 Kanyarukiga Appeal Judgement, para. 121; Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, para.

96. See also Rutaganda Appeal Judgement, para. 443; Musema Appeal Judgement, para.

89. Ntawukulilyayo Appeal Judgement, para. 152; Nchamihigo Appeal Judgement, para. 165; Krajisnik Appeal Judgement, para. 139; Musema Appeal Judgement, paras. 18-20. 301 Case No. ICTR-98-42-A 14 December 2015

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20064/H and WUNJN placing Witness TA at her uncle's home rather than the Butare Prefecture Office when the Mid-May Attack occurred did not undermine her credibility. 1986 Nyiramasuhuko does not advance any argument to show that the Trial Chamber's conclusion was insufficiently reasoned or unreasonable. The Appeals Chamber rejects Nyiramasuhuko's unsubstantiated contention without further consideration.

869. As for Nyiramasuhuko's contention that the Trial Chamber erred in finding that Witness SD corroborated Witnesses QY's and TA's testimonies that Nyiramashuko was present at the prefectoral office during attacks conducted at night, the Appeals Chamber notes that the Trial Chamber did not rely on Witness SD's evidence in reaching its findings on the Mid-May Attack or Nyiramasuhuko's involvement in attacks, but in relation to the attacks which occurred seven to 11 days after the Mid-May Attack for which Nyiramasuhuko was not convicted. 1987 Likewise, the Trial Chamber did not rely on Witness QY's testimony in support of its findings on the Mid-May Attack, but only considered it with respect to the Night of Three Attacks and as to attacks prior to the Mid-May Attack where it rejected her evidence implicating Nyiramasuhuko.1988 The Appeals Chamber therefore dismisses Nyiramasuhuko's arguments as baseless.

870. The Appeals Chamber is also unconvinced that no reasonable trier of fact could have relied on Witness TA's uncorroborated testimony regarding the Mid-May Attack in light of the evidence of Witnesses QBP, QBQ, RE, SD, and SJ. Nyiramasuhuko fails to identify any material contradiction between the fact that these witnesses did not specifically mention the Mid-May Attack and Witness TA's detailed account of the attack. Nyiramasuhuko refers to nothing in their testimonies reflecting that they testified that Nyiramasuhuko did not come to the prefectoral office prior to the Night of Three Attacks or the first half of June 1994 or denied that attacks other than those they specifically described also took place. Nyiramasuhuko merely refers to excerpts of Witnesses RE's and QBQ's testimonies describing the Night of Three Attacks, 1989 Witness QBP's 1985 Witness TA, T. 1 November 2001 p. 15 (closed session); T. 5 November 2001 pp. 68, 126, 130; T. 6 November 2001 pp. 61, 68. 1986 Trial Judgement, paras. 2639-2641 1987 Trial Judgement, paras. 2650, 2651. The Trial Chamber noted Witness SD's evidence that Nyiramasuhuko was present in the vehicle during the Last Half of May Attacks but the Trial Judgement clearly reflects that the Trial Chamber did not rely on this part of Witness SD's evidence. See ibid., paras. 2650, 2651. 1988 See Trial Judgement, paras. 2621-2626, 2698, 2713. The

Appeals Chamber notes that it has concluded above that the Trial Chamber's reliance on Witness QY's evidence identifying Nyiramasuhuko as being at the prefectoral office on the Night of Three Attacks was erroneous but that this error had not occasioned a miscarriage of justice in light of corroborative evidence that she was there during this night. See supra, para. 856. 1989 Nyiramasuhuko refers to: (i) aspects of Witness RE's testimony reflecting that she saw Nyiramasuhuko during the Night of Three Attacks and with President Sindikubwabo between the return of the refugees from Nyange and their transportation to Rango Forest; and (ii) Witness QBQ's testimony recounting the abduction and escape of Semanyenzi See Nyiramasuhuko Appeal Brief, paras. 969, 971, referring to Trial Judgement, paras. 2657, 2658, fns. 7436, 7437, referring in turn to Witness RE, T. 24 February 2003 pp. 9, 19, 21, T. 25 February 2003 pp. 3, 4, 39, T. 27 February 2003 p. 5, Witness QBQ, T. 3 February 2004 pp. 63, 70, 71. 302 Case No. ICTR-98-42-A 14 December 2015

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20063/H testimony detailing an attack in the first half of June 1994,1990 and the Trial Chamber's acknowledgements that these were the only attacks at the prefectoral office that these witnesses testified about.'' Similarly, Nyiramasuhuko only cites parts of Witnesses SJ's and SD's testimonies recounting the occasions on which they saw Nyiramasuhuko during the day," which Nyiramasuhuko implies reflects that she was not present at night. A review of the testimonies of Witnesses QBP, QBQ, RE, SD, and SJ reveals that they merely described the occasions they personally saw Nyiramasuhuko at the prefectoral office. Their testimonies, and presence at the prefectoral office, do not necessarily demonstrate that they were aware of all of the attacks that occurred there or all of the occasions when Nyiramasuhuko was present. 993 The Appeals Chamber also notes that Witnesses SD and RE testified that attacks at the prefectoral office occurred in addition to those that they specifically described in their testimonies. 1994 871. In addition, Nyiramasuhuko does not reference anything in the evidence of Witnesses QBP, QBQ, RE, SD, and SJ that demonstrates that they were present at the prefectoral office with Witness TA during the Mid-May Attack, 195 particularly in light of: (i) the Trial Chamber's findings that refugees were moved from the prefectoral office to the EER between 15 and 20 May

1994, and 1990 Nyiramasuhuko Appeal Brief, paras. 969, 971, referring to Trial Judgement, paras. 2657, 2658, fns. 7436, 7437, referring in turn to Witness QBP, T. 24 October 2002 p. 84, T. 28 October 2002 pp. 71, 74, T. 29 October 2002 pp. 31, 32, 82, 83 (closed session). Nyiramasuhuko Appeal Brief, paras. 969, 971, referring to Trial Judgement, paras. 2657, 2658. 1992 Nyiramasuhuko refers to: (i) Witness SJ's testimony that she was present at the prefectoral office from April 1994 and saw Nyiramasuhuko there on three or four occasions at meetings that were held in the day and never in the night; and (ii) Witness SD's testimony describing the vehicle that he saw used in the attacks, that it came to the prefectoral office during the night, and that he saw Nyiramasuhuko at meetings at the prefectoral office during the day time. See Nyiramasuhuko Appeal Brief, paras. 968-971, referring to Trial Judgement, paras. 2178, 2628, 2644, Witness SD, T. 17 March 2003 pp. 9, 10. 1993 Witness QBQ, T. 3 February 2004 pp. 7-10, 52 (testifying that she saw Nyiramasuhuko for the first time three days after she arrived at the prefectoral office during the day and, when questioned as to whether she saw Nyiramasuhuko another time, responding that she saw her that evening with Ntahobali and the Interahamwe); Witness RE, T. 24 February 2003 pp. 17, 18, T. 25 February 2003 pp. 39, 40 (testifying that

after her retum from Nyaruhengeri (Nyange) and before she was transferred to Rango Forest, Nyiramasuhuko came to the prefectoral office and that this was the first time she saw Nyiramasuhuko); Witness SJ, T. 3 June 2002 p. 121, T. 5 June 2002 p. 121 (testifying that she saw Nyiramasuhuko on three or not more than four occasions at the prefectoral office and that she heard that Nyiramasuhuko came on other occasions); Witness QBP, T. 24 October 2002 p. 84 (testifying that after she returned from Nyange to the prefectoral office, she saw Nyiramashuko arrive); Witness SD, T. 17 March 2003 pp. 8, 9 (testifying that she saw Nyiramasuhuko at the prefectoral office having a meeting with Nsabimana). The Trial Chamber determined that Witnesses QBQ's and RE's evidence concerned the Night of Three Attacks. See Trial Judgement, pars, 2, 8. 6 iness SD, T. 17 March 2003 p. 9-11, 4, 49, 50, 65-71; Witness RE, T. 24 February 2003 p. 19. 1995 In support of her contention that these witnesses were present at the prefectoral office during the Mid-May Attack, Nyiramasuhuko refers to the following in paragraph 291 of her reply brief: Witness QBP, T. 24 October 2002 pp. 79-81 (testifying about her journey to the prefectoral office, EER, and back to the prefectoral office but not referring to any dates); Witness QBQ, T. 3 February 2004 pp. 6, 7 (testifying that she went to the prefectoral office

towards the end of April 1994); Witness SD, T. 17 March 2003 pp. 6-8, and 36, 37 (closed session) (testifying that, after 6 April 1994, she went to Runyinya Commune for three days, then to the Butare University Hospital for one week, then to the prefectoral office for one week, then to the BER for one week, and then back to the prefectoral office, and that she spent the whole of April and probably May at the prefectoral office); Witness SJ, T. 29 May 2002 pp. 112, 113 (testifying that she went to the prefectoral office in April 1994). Case No. ICTR-98-42-A 14 December 2015 ple

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20062/H returned around 31 May 1994;1996 (ii) the emphasis that Witnesses QBP, QBQ, RE, SD, and SJ placed on their inability to provide specific dates as to the time period they were at the prefectoral office;197 and (iii) the witnesses' recollections of being at the EER around the time period of the Mid-May Attack, reflecting that their presence at the prefectoral office was not constant during the time period in question.

872. Nyiramasuhuko's reliance on certain aspects of these witnesses' testimonies to assert that they were definitely at the prefectoral office during the Mid-May Attack is without merit. The Appeals Chamber notes that the Trial Chamber expressly found that Witness RE arrived at the EER "sometime around mid-May 1994", and that Witness SI's testimony corresponded to the same time period implying that she too was at the EER then 19% It further notes that Witness SJ testified that during the two weeks she was at the prefectoral office she went to the EER on three or four non-consecutive days but could not recall the month or dates of her visits there.2000 The Trial Chamber also found that Witness QBQ provided corroborating evidence as to the torrential rain that the refugees from the prefectoral office sheltered from on the first night of their arrival at the EER. 2001 Nyiramasuhuko fails to demonstrate any error in the reasoning of the Trial Chamber in this regard by referring to Witness RE's testimony that she and Witness SJ were "always together", because Witness RE herself testified that this was not the case.2002 Nyiramasuhuko also fails to demonstrate that Witness QBP was necessarily at the prefectoral office during the time of the Mid-May Attack and over-states the witness's testimony that she was with Witness TA at the 1996 Trial Judgement, para.

3934. Witness QBP, T. 24 October 2002 p. 80; Witness QBQ, T. 3 February 2004 pp. 6, 7, 52; Witness RE, T. 24 February 2003 pp. 9-11; Witness SD, T. 17 March 2003 pp. 7, 8, and 37 (closed session). 1998 Witness SD testified that he sought refuge at the Butare University Hospital before being forced to go to the prefectoral office, then to the EER, then back to the prefectoral office but was vague in relation to the specific dates on which he did so. See Trial Judgement, para. 2312; Witness SD, T. 17 March 2003 pp. 7, 8, and 37 (closed session). Witness SJ testified that she went to the prefectoral office on a Sunday in April 1994 and stayed for about two weeks, during which time she went to the EER on three or four days that were not successive. See Trial Judgement, paras. 2225, 2226, 3884; Witness SJ, T. 30 May 2002 pp. 78, 91, 95, T. 3 June 2002 p. 120, T. 4 June 2002 pp. 63, 64. Witness QBP testified that she went to the prefectoral office in mid-April 1994, then to the EER for one or two weeks, ind then returned to the prefectoral office. See Trial Judgement, para. 2265; Witness QBP, T. 24 October 2002 pp. 79 30. T. 29 October 2002 p. 83 (closed session). The Trial Chamber determined that Witness RE was at the BER ir Mid-May 1994. See Trial Judgement, para.

3935. Witness QBQ testified that she went to the prefectoral office in mid-April 1994 and then to the EER where she stayed for one to two weeks. See ibid., paras. 2328, 2334; Witness QBQ, T. 3 February 2004 pp. 6, 7, 23, 24, 52, T. 4 February 2004 p. 8. 1999 Trial Judgement, paras. 3935, 3936, 3943. 2000 Witness SJ, T. 30 May 2002 pp. 78, 87, 88, 91, 92, 95, 108, 109, T. 4 June 2002 pp. 63, 64. See also Trial Judgement, paras. 2226, 3884. 2001 Trial Judgement, para. 3943. 2002 Witness RE, T. 24 February 2003 pp. 55, 56 (closed session) ("Q. I understand, Madam Witness, from your answer that [Witness SJ] was constantly with you during these events, which occurred between April and July. Am I not right? A. Yes. It's true we were together because we met at the [prefectoral office] to which she had come to seek refuge, just as we had done; but it wouldn't be true to say that we were always together because that wasn't possible."). See also Witness RE, T. 24 February 2003 p. 60 (closed session) (French). 304 Case No. ICTR-98-42-A 14 December 2015

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20061/H prefectoral office and the EER as her testimony does not reflect that they were continuously together at each location. 2003 873. In light of the above, the Appeals Chamber finds Nyiramasuhuko's contention that the Trial Chamber's finding that the refugees were always together precludes the possibility that Witnesses QBP, QBQ, RE, SJ, and SD were not at the prefectoral office during the Mid-May Attack to be without merit. The Appeals Chamber observes that the Trial Chamber did not make this statement as a finding but in its summary of Witness TA's evidence2004 Witness TA's testimony reflects that she arrived at the EER, where there were many refugees, and then moved to the prefectoral office with these refugees. She stated that the refugees "never stayed one group at the EER and one group at the [prefectoral office]" but that "they were all together" 20005 Nyiramasuhuko does not demonstrate that Witnesses QBP, QBQ, RE, SD, and SJ were present at the prefectoral office with Witness TA in mid-May 1994 and formed part of the group of refugees to which Witness TA refers. Nor does she demonstrate that, even if the witnesses had been a part of that group, their testimonies necessarily undermined the reasonableness of the Trial Chamber's conclusion, based on Witness TA's evidence, that the Mid-May Attack occurred. The Appeals Chamber therefore sees no error in the Trial Chamber's findings.

874. Furthermore, the Appeals Chamber recails that a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony.2006 The Trial Chamber carried out a detailed assessment of Witness TA's evidence concerning the Mid-May Attack2007 and Nyiramasuhuko fails to identify any contradiction between Witness TA's evidence and that of Witnesses QBP, QBQ, RE, SD and SJ that would have prevented a reasonable trier of fact from relying on her uncorroborated evidence.

875. Finally, the Appeals Chamber finds Nyiramasuhuko's contention that the Trial Chamber should have explained how its finding that the displaced Tutsis who sought refuge at the Butare 2003 Nyiramasuhuko argues that "Witness QBP testified that she was always with Witness TA at the [prefectoral office] and at EER". See Nyiramasuhuko Reply Brief, para.

292. However, the excerpts of Witness QBP's testimony that Nyiramasuhuko highlights do not demonstrate that they were continually together. See Witness QBP, T. 29 October 2002 p. 47 (closed session) ("A. No, I was with Immaculate and [Witness TA] at the préfecture. There were members of our family who were living in the Arab quarters and in the various places where I went, at the Protestant school, I was with [Witness TA] and Immaculate."). In addition, Witness QBP's evidence about initially arriving at the prefectoral office, going to the EER, and returning to the prefectoral office from Nyange reflects that she was with her children and does not include any reference to Witness TA. See Witness QBP, T. 24 October 2002 pp. 79, 80; T. 28 October 2002 pp. 37, 48, 49. 2004 Trial Judgement, para. 2174. 2005 Witness TA, T. 30 October 2001 p. 70 (closed session), T. 7 November 2001 pp. 67, 68. 200 See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimungu Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 2007 Trial Judgement, paras. 2628-2642. 305 Case No. ICTR-98-42-A 14 December 2015

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20060/H Prefecture Office were transferred to the EER between 15 and 20 May 1994 and stayed there until approximately 31 May 1994 reconciles with its findings as to the Mid-May Attack to be without merit. The Appeals Chamber observes that the Trial Chamber, relying on Nsabimana's testimony which it determined was corroborated by Witnesses RE, SX, Bararwandika, and HB16, found that the Tutsis who sought refuge at the prefectoral office were transferred to the EER between 15 and 20 May 1994 and stayed there until approximately 31 May 1994 when they returned to the prefectoral office 200 Several other related findings of the Trial Chamber give the impression that, at a minimum, no refugees were intended to remain at the prefectoral office once they were ordered to go to the EER.2009 Notwithstanding these considerations, the Trial Chamber concluded that "it is not disputed that there were a large number of refugees at the [Butare Prefecture Office] compound between April and June 1994.*2010 876. In the view of the Appeals Chamber, Nyiramasuhuko does not demonstrate that the Trial Chamber's findings are either categorical or necessarily in conflict. It bears noting that Witness TA could only provide estimates with respect to the timing of the events at the prefectoral office. 2011 While the Trial Chamber's conclusions reflect that refugees at the prefectoral office left

once Nsabimana ordered them to go to the EER, its findings are not categorical that no refugees remained or arrived at the prefectoral office between the time refugees left for the EER and returned in significant numbers to the prefectoral office at the end of May 19942012 Witnesses TK, SU, SS, and FAP all testified that they arrived at the prefectoral office towards the end of May 1994, and did not testify that they were transferred to the EER, 2013 reflecting that Tutsis arrived at the prefectoral office during this time period. In addition, evidence referred to by the Trial Chamber demonstrates that the prefectoral office and EER were in the immediate proximity of each other2014 and that refugees moved back and forth between the two locations. 2015 In this context, the Appeals Chamber is not persuaded that the Trial Chamber's conclusions about the transfer of refugees from the prefectoral office to the EER are contradictory with its findings concerning the Mid-May Attack. 2008 Trial Judgement, para. 3934. 2009 See, e.g., Trial Judgement, para. 3933. 2010 Trial Judgement, para. 2627. 2011 See Witness TA, T. 24 October 2001 p. 94, T. 29 October 2001 p. 52. 2012 Trial Judgement, para.

3934. See also ibid., para. 3936 ("Accordingly, the Chamber considers the refugees must have started arriving at the EER around the start or middle of May 1994.") (emphasis added). See Witness SU, T. 14 October 2002 p. 8; Witness SS, T. 3 March 2003 pp. 22-24, 26, T. 10 March 2003 p. 28, T. 11 March 2003 p. 14; Witness FAP, T. 12 March 2003 p. 42; Witness TK, T. 20 May 2002 pp.

26. See also Witness TK, T. 21 May 2002 pp. 121, 122 (closed session); Trial Judgement, paras. 2201-2203, 2242, 2281, 2298, 2014 See Trial Judgement, paras. 3856, 3890, 3920, referring to Witness RE, T. 24 February 2003 p. 11, Witness QBQ. T. 3 February 2004 pp. 23, 78, Nsabimana, T. 9 October 2006 p. 71. 2015 See, e.g., Trial Judgement, paras. 2265, 2226, 3884, 3912, referring to Witness QBP, T. 24 October 2002 p. 80, T. 28 October 2002 pp. 18, 48, 49, 52, T. 30 October 2002 pp. 4-6, Witness SJ, T. 30 May 2002 pp. 78, 91, 95, T. 4 June 2002 pp. 63, 64, Witness WUNBJ, T. 3 April 2006 pp. 38, 39 (closed session). See also Witness WUNBJ, T. 8 March 2006 p. 49; Alexandre Bararwandika T. 4 July 2006 p. 10. 306 Case No. ICTR-98-42-A 14 December 2015

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20059/H 877. Based on the foregoing, the Appeals Chamber finds that, in her arguments addressed above, Nyiramasuhuko has not demonstrated that the Trial Chamber erred in its assessment of Witness TA's evidence pertaining to the Mid-May Attack. (e) Night of Three Attacks 878. The Trial Chamber, relying on the testimonies of multiple witnesses, found that, around the end of May or the beginning of June 1994, Ntahobali, Nyiramasuhuko, and Interahamwe came to the Butare Prefecture Office on board a camouflaged pickup truck three times in one night. 2016 It determined that they abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare Prefecture to be killed.2017 It found that Nyiramasuhuko ordered the Interahamwe to commit these crimes, and determined that Ntahobali and the Interahamwe attacked women and children at the prefectoral office, assaulted them, and forced them onto the pickup truck.2018 The Trial Chamber further concluded that Nyiramasuhuko ordered Interahamwe and soldiers to rape Tutsi women and to kill other refugees and that she ordered Interahamwe to rape refugees because they were Tutsis and that Interahamwe beat, abused, and raped many Tutsi women?019 The Trial Chamber convicted Nyiramasuhuko for ordering Interahamwe to kill the refugees abducted during the Night of Three Attacks and as a superior for the rapes

committed by Interahamwe upon her orders during that night. 2020 879. The Trial Chamber identified several refugees assaulted during these attacks and specifically found that: (i) Ntahobali and the Interahamwe abducted Mbasha's wife and children; (ii) the Interahamwe, on the orders of Nyiramasuhuko, assaulted and killed a woman named Trifina at the prefectoral office; and (iii) an unknown woman and her children were assaulted at the prefectoral office during the attacks2021 Recalling its finding that she did not receive notice of the identity of Mbasha's wife and children or of Trifina, the Trial Chamber did not convict Nyiramasuhuko for these specific abductions and killings,.2022 Rather, the Trial Chamber used this as circumstantial evidence to support its findings on abductions and killings of other unnamed Tutsi refugees at the prefectoral office, 2023 880. Nyiramasuhuko submits that the Trial Chamber conducted a "piecemeal, questionable and erroneous assessment of the evidence" when reaching conclusions about the Night of Three 2016 Trial Judgement, paras. 2661, 2715, 2738, 2781(iii). 2017 Trial Judgement, paras. 2715, 2736, 2738, 2748, 2749, 2781 (ili). 2018 Trial Judgement, paras. 2736, 2738, 2781(iii). 2019 Trial Judgement, paras. 2698, 2702, 2781(iii). 2020 See supra, para. 749. 2021 Trial Judgement, paras. 2727, 2730, 2736, 2738. See also ibid., para. 2661. 2022 Trial Judgement, paras. 2172, 2716, 2727, 2730, 2782. 2023 Trial Judgement, paras. 2172, 2716, 2727, 2730. 307 Case No. ICTR-98-42-A 14 December 2015

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20058/H Attacks, disregarding significant contradictions and erroneously finding Prosecution evidence mutually corroborative.* 2024 In particular, Nyiramasuhuko argues that the Trial Chamber erred in: (i) failing to sufficiently consider differences within the Prosecution evidence as to the timing of the Night of Three Attacks as well as the number of attacks that occurred; (ii) failing to consider that Witnesses TA and SD did not testify about the Night of Three Attacks; (iii) its assessment of the abduction of Mbasha's wife and children and the unnamed woman and her children; (iv) its assessment of Nyiramasuhuko's presence and conduct during the attacks as well as her orders to commit rape; (v) its assessment of the attack on a woman named Trifina; and (vi) its evaluation of evidence concerning the locations where abducted refugees were killed and the abductions of Semanyenzi in particular 2025 The Appeals Chamber will address these challenges in turn. (i) Timing and Number of Attacks 881. Nyiramasuhuko argues that the Trial Chamber erred in disregarding "significant and critical contradictions" in the evidence of Witnesses SJ, QBQ, QBP, FAP, QJ, RE, SS, SU, and TK to find that they all testified about the same event - the Night of Three Attacks - which occurred during one night "in early June 1994" 2026 Specifically, Nyiramasuhuko submits that Witness QBQ testified that she

arrived at the Butare Prefecture Office in April 1994 and that the Night of Three Attacks occurred on the evening of the day she saw Nsabimana and Nyiramasuhuko together at the prefectoral office, which was the "third day following her arrival" 2027 Nyiramasuhuko stresses that the Trial Chamber, relying on Witness QBQ's evidence, elsewhere determined that this meeting between Nsabimana and Nyiramasuhuko at the prefectoral office occurred in April 1994.2028 Consequently, Nyiramasuhuko argues that it was unreasonable to find that Witness QBQ testified about the Night of Three Attacks, which the Trial Chamber found to have occurred "in early June 1994", and that this error has led to a miscarriage of justice.2029 882. In the same vein, Nyiramasuhuko highlights that Witness SJ testified that the Night of Three Attacks occurred within two weeks following her arrival at the prefectoral office in April 1994.2030 She argues that the Trial Chamber unreasonably relied on other elements of Witness SJ's evidence 2024 Nyiramasuhuko Appeal Brief, paras. 980, 1042, 1114-1116. 2025 Nyiramasuhuko Notice of Appeal, paras. 8.5-8.7, 8.9, 8.10, 10.17-10.26, 10.30, 10.41, 10.42, 10.44, 10.45, 10.48, 10.49; Nyiramasuhuko Appeal Brief, paras. 977-1192, 1220-1280; Nyiramasuhuko Reply Brief, paras. 300-336. 2026 Nyiramasuhuko Appeal Brief, paras. 977, 978, 980 (emphasis omitted). 2027 Nyiramasuhuko

Appeal Brief, paras. 984, 985, 1161 (emphasis omitted). Cf. ibid., paras. 1013, 1033, 1036, 1099. 2028 Nyiramasuhuko Appeal Brief, paras. 986, 1162, 1190. 2029 Nyiramasuhuko Appeal Brief, paras. 987, 1190. See also Nyiramasuhuko Reply Brief, paras. 307, 309. In this context, Nyiramasuhuko contends that it was unreasonable for the Trial Chamber to rely on similarities between the evidence of Witness QBQ and other witnesses concerning the survival of Semanyenzi to find that Witness QBQ testified about the Night of Three Attacks in early June 1994. See Nyiramasuhuko Appeal Brief, para. 983, 987, 1034. 2030 Nyiramasuhuko Appeal Brief, paras. 1188, 1189, referring to Trial Judgement, paras. 2231-2236. See also ibid., paras. 989-991, referring, inter alia, to Witness SJ, T. 29 May 2002 pp. 19, 20, and 134, 135 (closed session). 308 Case No. ICTR-98-42-A 14 December 2015

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20057/H that were consistent with evidence of witnesses who testified about the Night of Three Attacks in early June 1994 to find that Witness SJ testified about that same night. 031 883. Nyiramasuhuko also argues that the Trial Chamber took irreconcilable and contradictory approaches with respect to the testimonies of Witnesses QBQ and SJ, on one hand, and Witness QY's evidence on the other?032 Specifically, she points to the Trial Chamber's acknowledgement that Witness QY's testimony contained parallels with other evidence about the Night of Three Attacks but found that the witness was testifying about another event as she described attacks that occurred in late April or early May 1994.2033 884. In addition to contradictions about the timing of the Night of Three Attacks, Nyiramasuhuko contends that the Trial Chamber overlooked or erred in its analysis of inconsistencies within the Prosecution evidence as to the number of attacks that purportedly occurred at the prefectoral office during this evening 2034 Specifically, she argues that the Trial Chamber relied on the evidence of Witness QBP, but that this witness only testified about one attack.2035 Nyiramasuhuko further contends that, while the Trial Chamber acknowledged that Witnesses QBQ and SU only testified about two attacks instead of three, 2036 its explanation for this variance would not apply to these witnesses given

evidence that they remained there during all three attacks.2037 Finally, Nyiramasuhuko argues that the Trial Chamber failed to consider sufficiently variances between the evidence of Witnesses QBQ and RE and their prior statements, which, respectively, reflect that only one or two attacks occurred on this evening. 2038 885. The Prosecution responds that the Trial Chamber reasonably found, based on corroborating and consistent evidence of Witnesses QJ, TK, RE, SU, FAP, and SS, that the Night of Three Attacks occurred in late May or the beginning of June 1994.2039 It further submits that Witness QBQ's evidence corroborated other witnesses on specific facts during the Night of Three 2031 Nyiramasuhuko Appeal Brief, paras. 988, 989, 992, 1187. 2032 Nyiramasuhuko Appeal Brief, paras. 997-999. 2033 Nyiramasuhuko Appeal Brief, paras. 995, 996 2034 Nyiramasuhuko Appeal Brief, paras. 1154-1187. 2035 Nyiramasuhuko Appeal Brief, paras. 1066-1070, 1155. Nyiramasuhuko suggests, inter alia, that the Trial Chamber later did not refer to Witness QBP's evidence of only one attack as it was contradictory to its findings that three attacks occurred on this evening and for which the Trial Chamber provided no explanation. See ibid., paras. 1155, 1156. 2036 Nyiramasuhuko Appeal Brief, paras. 1154, 1169. See also ibid., para.

983. During the appeals hearing, Nyiramasuhuko argued that Witness SJ also only testified about two attacks. See AT. 14 April 2015 p.

30. This is contrary to her submissions in her appeal brief. See Nyiramasuhuko Appeal Brief, paras. 1187, 1188. 2037 Nyiramasuhuko Appeal Brief, paras. 1169, 1170, 1180, 1181. 2038 Nyiramasuhuko Appeal Brief, paras. 983, 1158-1160, 1165, referring to Witness RE, T. 24 February 2003 pp. 18, 19, Exhibit D87 (Witness RE's Statement, dated 5 December 1996, signed on 10 December 1996) (confidential) ("Witness RE's Statement"), Witness QBQ's Statement. In this regard, Nyiramasuhuko further argues that the Trial Chamber, in footnote 7442 of the Trial Judgement, only referred to Witness RE's evidence about three attacks and ignored evidence from the witness that she only "personally witnessed two attacks." See ibid., para. 1160, referring to Witness RE, T. 25 February 2003 p. 48. 2039 Prosecution Response Brief, paras. 643, 645-647, 649. 309 Case No. ICTR-98-42-A 14 December 2015

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20056/H Attacks 2040 According to the Prosecution, given that the details provided about the attack were corroborated by other witnesses, it was reasonable for the Trial Chamber to conclude that Witness SJ was testifying to the Night of Three Attacks even if her evidence concerning the timing of the attack was found to be unreliable. 2041 886. The Prosecution also contends that Nyiramasuhuko's submissions concerning inconsistencies about the number of attacks should be dismissed as the Trial Chamber directly addressed the issue of Witnesses QBQ and SU testifying to two attacks and the evidence reflects that they moved around and were not in a position to see the third attack. 2042 The Prosecution further responds that Nyiramasuhuko's argument regarding contradictions between the testimonies of Witnesses QBQ and RE and their prior statements are without merit. 2043 887. The Appeals Chamber notes that Nyiramasuhuko does not demonstrate with references purported contradictions among the evidence of Witnesses FAP, QJ, RE, SS, SU, and TK about the timing of the Night of Three Attacks undermining that they testified about this event. 2044 Nyiramasuhuko's contentions in this regard are therefore dismissed.

888. With respect to Nyiramasuhuko's remaining submissions, the Appeals Chamber observes that the Trial Chamber determined that Witnesses QBQ and SJ testified about the Night of Three Attacks2045 In this regard, the Trial Chamber noted that Witness QBQ's evidence reflected that the attack she described occurred in the evening, about three days after she arrived at the prefectoral office around the end of April 1994.2046 However, emphasising that the attack described by Witness QBQ involved the abduction and escape of Semanyenzi, an event that Witnesses RE, SS, SU, and FAP testified occurred during the Night of Three Attacks, the Trial Chamber found that Witness QBQ's testimony pertained to these attacks, which occurred "at the beginning of June 1994. *2047 889. That being said, the Appeals Chamber notes an apparent contradiction in the Trial Chamber's findings with respect to Witness QBQ. While the Trial Chamber rejected Witness QBQ's evidence about when the Night of Three Attacks occurred - i.e. around the end of April 1994 - it elsewhere relied on intrinsically related evidence from her to establish that 2040 Prosecution Response Brief, para. 647. 2041 Prosecution Response Brief, paras. 647-649. 2042 Prosecution Response Brief, para. 650. 2046 See Trial Judgement, paras. 2328-2334 310 Case No. ICTR-98-42-A 14 December 2015

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20055/H Nyiramasuhuko and Nsabimana met at the prefectoral office around the end of April 1994.2048 The Appeals Chamber nonetheless considers that this error has not occasioned a miscarriage of justice for the reasons developed below.

890. The Appeals Chamber notes that Witness QBQ estimated that she arrived at the prefectoral office "towards the end of April" 1994.2049 She consistently asserted that she saw Nyiramasuhuko with Nsabimana three days later and that the attacks she observed occurred that evening, 2050 Insofar as the Trial Chamber relied on Witness QBQ's estimates regarding the timing of this meeting to find that Nyiramasuhuko and Nsabimana met at the prefectoral office one day around the end of April 1994,2051 the reliance on this aspect of the witness's evidence was unreasonable in light of its earlier conclusion that Witness QBQ testified about the Night of Three Attacks as well as its express rejection of Witness QBQ's intrinsically related evidence as to the timing of the transfer of refugees from the prefectoral office to Rango Forest.2052 891. However, the Appeals Chamber finds that this error does not undermine the reasonableness of the Trial Chamber's determination that Witness QBQ testified about the Night of Three Attacks nor that it occasioned a miscarriage of justice. Indeed, the Appeals Chamber observes that the Trial Chamber considered Witness QBQ's corroborated evidence that: (i) Ntahobali, Nyiramasuhuko, and Interahamwe came multiple times in one night to abduct Tutsi refugees; 2053 (ii) a woman, who refused to be abducted, was killed in front of the pickup truck, 054 (ji) the

pickup truck used in the attacks was "a Toyota or a Toyota Hilux" and that Ntahobali was driving it;2055 2048 See Trial Judgement, para. 2900 ("Based on the evidence of Witnesses SJ and QBQ, the Chamber is satisfied that a meeting took place between Nyiramasuhuko and Nsabimana around the end of April 1994, at the [Butare Prefecture Office].") In both sections of the Trial Judgement, the Trial Chamber recalled Witness QBQ's evidence that she arrived at the prefectoral office towards the end of April 1994 and that, three days later, she observed Nyiramasuhuko and Nsabimana walk to the prefectoral office. See ibid., paras. 2328, 2329, 2888. Witness QBQ's evidence about the subsequent attacks, which the Trial Chamber determined related to the Night of Three Attacks, suggests that these attacks occurred in the evening of the day she observed Nyiramasuhuko and Nsabimana. See ibid., paras. 2330-2333. 2049 Witness QBQ, T. 3 February 2004 pp. 6, 52. 2050 Witness QBQ, T. 3 February 2004 pp. 7, 8, 10, 52, 53, 55, 63, 64. 2051 Trial Judgement, para.

2900. In this regard, the Appeals Chamber observes that the Trial Chamber also relied on Witness SI's evidence to determine that Nsabimana and Nyiramasuhuko met at the prefectoral office around the end of April 1994. See idem. However, similar to Witness QBQ, the Trial Chamber later rejected Witness SJ's estimates as to the timing of the Night of Three Attacks, further undermining the reasonableness of its reliance on this witness's evidence as to the timing of the meeting at the prefectoral office. See ibid., para. 2659. 2052 Trial Judgement, paras. 2658, 5072. 2053 See Trial Judgement, paras. 2330-2333, 2660, 2714, 2738. The Trial Chamber considered Witness QBQ's account in this regard consistent with that of Witnesses TK, RE, SS, SU, and FAP. See ibid., paras. 2215, 2253, 2278, 2287, 2307, 2308, 2660, 2704, 2706, 2707, 2738. See Trial Judgement, paras. 2331, 2729. The Trial Chamber considered that Witness QBQ's evidence about the woman being killed corroborated the testimonies of Witnesses TK and RE with respect to Trifina's death. See ibid., para. 2729. 2055 Trial Judgement, paras. 2663, 2664. 311 Case No. ICTR-98-42-A 14 December 2015

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20054/H and (iv) Nyiramasuhuko ordered rapes during this night2056 Given the considerable overlap between Witness QBQ's evidence and other evidence relating to the Night of Three Attacks, the Appeals Chamber considers that it was within the discretion of the Trial Chamber to consider that she testified about the same attack that Witnesses TK, RE, QJ, FAP, SS, and SU testified about that occurred around the end of May or early June 1994 notwithstanding her evidence that it occurred near the end of April 1994.

892. Furthermore, the Appeals Chamber is not persuaded by Nyiramasuhuko's contention that the Trial Chamber's refusal to rely on Witness QY's evidence - which contained parallels with other evidence about the Night of Three Attacks but was rejected, in part, on the basis that the witness described attacks which occurred in late April or early May 19942057 - required the rejection of Witness QBQ's testimony. Nyiramasuhuko's contentions ignore the fact that the Trial Chamber also rejected Witness QY's evidence on the basis that it found aspects of it unreliable and because she had lied to the Trial Chamber about whether she knew Witnesses QBQ and SJ.2058 The Trial Chamber expressed no such concerns about Witness QBQ.

893. Tuning to Nyiramasuhuko's submissions with respect to Witness SJ, the Trial Chamber rejected the witness's evidence about the Night of Three Attacks, and the Appeals Chamber has found that no reasonable trier of fact could have relied on intrinsically related aspects of the witness's testimony to make findings concerning identification during the Night of Three Attacks2059 Given these conclusions, Nyiramasuhuko does not demonstrate how any inconsistencies between Witness SJ's testimony and other evidence about when the Night of Three Attacks occurred would undermine the reasonableness of the Trial Chamber's findings concerning this event. 2060 894. Concerning Nyiramasuhuko's argument about inconsistencies as to the number of attacks that occurred during the Night of Three Attacks and, in particular, the fact that Witness QBP testified that only one attack occurred, the Appeals Chamber observes that, although the Trial Chamber stated that Witness QBP testified about the Night of Three Attacks, 2061 a careful review of the witness's testimony reveals that she did not testify about these attacks. Indeed, as noted in 2056 The Trial Chamber determined that Witness QBQ's testimony regarding Nyiramasuhuko's orders to rape the Tutsis was corroborated by Witness SS and that Witness RE's evidence tended to support this fact as well. See Trial Judgement, paras. 2693, 2695, 2701. Trial Judgement, para. 2619. 2058 See Trial Judgement, paras. 2616, 2620, 2626. 2059 See supra, para. 804, infra, para. 1764. 2060 In light of this analysis, the Appeals Chamber need not address whether the Trial Chamber erred in taking inconsistent approaches with respect to the evidence of Witnesses QY and S.J. 2061 Trial Judgement, para. 2657. 312 Case No. ICTR-98-42-A 14 December 2015

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20053/H another part of the Trial Judgement, 2 Witness QBP's testimony concerned an attack at the prefectoral office that occurred after the Night of Three Attacks in the first half of June 1994.2063 This error, however, has not occasioned a miscarriage of justice as the Trial Chamber did not rely on Witness QBP's evidence regarding the timing of the Night of Three Attacks to establish Nyiramasuhuko's participation or conduct during this particular nigh 2064 or the crimes committed during them 2065 The fact that Witness QBP testified about only one attack, rather than three, which occurred separately from the Night of Three Attacks fails to demonstrate that the Trial Chamber erred in its conclusions on the Night of Three Attacks. The Appeals Chamber therefore dismisses Nyiramasuhuko's contention in this respect. 2065 895. As to Nyiramasuhuko's contention that Witnesses QBQ and SU only testified about two attacks and that the Trial Chamber's explanation for the variance - that a number of refugees had fled the immediate environs of the prefectoral office - would not apply to these witnesses given their evidence that they remained there during all three attacks, the Appeals Chamber observes that Nyiramasuhuko's references do not support her position that they necessarily would have observed all three attacks.2067 The Appeals Chamber is also not persuaded by Nyiramasuhuko's claim that their evidence is necessarily inconsistent with other evidence concerning the Night of Three Attacks because the witnesses did not testify about a third attack. 2068 2062 Trial Judgement, para. 2750. 2063 Witness QBP, T. 24 October 2002 pp. 84-86, 88, T. 28 October 2002 pp. 71, 74. 2064 See Trial Judgement, para.

2698. See also ibid., paras. 2683-2697, 2699-2702. Witness QBP's testimony was only relied upon as circumstantial evidence for the Night of Three Attacks in relation to the vehicle used during the attacks at the prefectoral office, and as to what Nyiramasuhuko wore in general. See ibid., paras. 2698, fn. 7559. 2065 In this regard, the Trial Chamber acknowledged that Witness QBP may have been referring to different attacks than the witnesses who testified about the Night of Three Attacks and that Annonciata and Semanyenzi informed them of where abducted refugees were taken and killed. See Trial Judgement, para. 2747, fn. 7689. 2066 Given that Witness QBP did not testify about the Night of Three Attacks, Nyiramasuhuko's other contentions that Witness OBP's evidence about the attack she observed is consistent with other evidence about the Night of Three Attacks are moot. See Nyiramasuhuko Appeal Brief, paras. 1025, 1066-1069, 1089, 1109-1111, 1132, 1134, 1138 1141, 1155, 1156, 1196, 1215, 1263, 1274, 1277. Nyiramasuhuko Appeal Brief, paras. 1169, 1170, 1180, 1181. With respect to Witness QBQ, Nyiramasuhuko emphasises that the witness testified that she stayed at the prefectoral office while other refugees were being removed during the second attack. With respect to Witness SU, Nyiramasuhuko points to the evidence of Witness SS, who testified about three attacks and that she and

Witness SU remained at the prefectoral office together during them. See ibid., paras. 1170, 1180. See also ibid., para. 1060 (noting that Witness SS saw Nyiramasuhuko three times in the course of one night while Witness SU only saw her on two occasions). The Appeals Chamber considers that Witness QBQ's evidence merely reflects being in the same location during the second attack that night. See Witness QBQ, T. 3 February 2004 p.

22. As for Witness SU, the Appeals Chamber observes that Nyiramasuhuko's references to Witness SS's testimony provide no support for her contention. 2068 The Appeals Chamber notes that Nyiramasuhuko also argues that the Trial Chamber reached contradictory findings as to the number of attacks observed by Witness QBQ in paragraphs 2658 and 2660 of the Trial Judgement. See Nyiramasuhuko Appeal Brief, para.

1099. See also ibid., paras. 1161, 1279. In paragraph 2658 of the Trial Judgement, the Trial Chamber stated that "the only attack at the [Butare Prefecture Office] described by Witness QBQ involved the abduction and escape of Semanyenzi." In paragraph 2660 of the Trial Judgement, it stated that Witness QBQ testified to observing "only two attacks". The Appeals Chamber understands that at paragraph 2658, the Trial Chamber considered that the only attack Witness QBQ observed, throughout her time at the prefectoral office, was the Night of Three Attacks. On the other hand, at paragraph 2660 of the Trial Judgement, the Trial Chamber was 313 Case No. ICTR-98-42-A 14 December 2015

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20052/H 896. Likewise, the Appeals Chamber considers that the absence of any express reference to Nyiramasuhuko coming to the prefectoral office on two occasions in Witness QBQ's prior statement does not necessarily reflect a contradiction with her testimony as to the number of attacks given the brief description contained in her prior statement. 2069 897. As for the discrepancy between Witness RE's prior statement and testimony, the Appeals Chamber notes that the witness testified about some assailants making three trips on the Night of Three Attacks,2070 whereas she stated that the assailants came twice in her prior statement. 2071 The Appeals Chamber recalls that a trial chamber has the discretion to accept a witness's testimony, notwithstanding inconsistencies between the said testimony and his previous statements.2072 Given the similarities between the core elements of Witness RE's evidence and that of Witnesses FAP, SS, SU, and TK with respect to the Night of Three Attacks,2073 the Appeals Chamber does not find that the variance required the Trial Chamber to reject Witness RE's evidence concerning the Night of Three Attacks.

898. Based on the foregoing, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that inconsistencies in the evidence as to the timing of the Night of Three Attacks or the number of attacks that occurred undermined the reasonableness of the Trial Chamber's findings with respect to this event. (ii) Failure to Consider Witness TA's and SD's Evidence 899. Nyiramasuhuko argues that the Trial Chamber erred in failing to consider that Witnesses TA and SD, who were at the Butare Prefecture Office during the relevant time, did not testify about the Night of Three Attacks. 2074 She contends that these omissions, which materially contradict evidence assessing the number of attacks within the Night of Three Attacks. Consequently, the Appeals Chamber does not see any contradiction in these findings. 2069 Witness QBQ's Statement, p. K0104992 (Registry pagination) ("Pauline paid two more visits to the [prefectoral] office to take people away in a similar fashion."). 2070 Witness RE, T. 24 February 2003 p. 22. 2071 Witness RE's Statement, p. K0035131 (Registry pagination). 2072 Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, para. 96. 2073 These core elements include: i) the arrival of Ntahobali, Nyiramasuhuko, and the Interahamwe on a camouflaged pickup truck: (ii) the Interahamwe attacking and abducting refugees,

including a woman and her children; (ili) the pickup truck departing with refugees and returning the same night to abduct other refugees; and (iv) the fact that the Night of Three Attacks occurred prior to the transfer of refugees from the Butare Prefecture Office to Rango Forest. See, e.g., Trial Judgement, paras. 2196, 2203, 2212-2215, 2220, 2242, 2251-2253, 2277, 2278, 2284, 2285, 2287, 2289, 2299, 2302, 2304, 2307, 2308, 2655, 2660, 2663, 2704, 2706, 2709, 2710, 2717-2719, 2731-2736, 2738. 2074 Nyiramasuhuko Appeal Brief, paras. 981, 1000-1008, 1034, 1037, 1038, 1112, 1113, 1143, 1144, 1191. See also ibid., paras. 981, 1071, 1130. See also Nyiramasuhuko Reply Brief, para.

309. Cf. AT. 14 April 2015 p. 18. 314 Case No. ICTR-98-42-A 14 December 2015

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20051/H that the Night of Three Attacks occurred, undermine the reasonableness of the Trial Chamber's findings.2075 900. The Prosecution responds that Nyiramasuhuko's arguments regarding Witnesses TA and SD should be summarily dismissed for failing to demonstrate how the Trial Chamber erred. 2076 901. The Appeals Chamber observes that nothing in the Trial Chamber's summary of the evidence of Witnesses TA and SD or its analysis of the Night of Three Attacks reflects that the Trial Chamber considered either witness to have testified about the Night of Three Attacks.2077 In this context, Nyiramasuhuko does not show that either Witness TA or Witness SD provided evidence that was incompatible with the occurrence of the Night of Three Attacks, as neither denied their occurrence or provided evidence that contradicted that of Witnesses TK, RE, FAP, SS, and SU on these attacks. Accordingly, Nyiramasuhuko does not demonstrate that no reasonable trier of fact could have found that the Night of Three Attacks occurred notwithstanding the fact that Witnesses TA and SD did not directly corroborate evidence about this attack. 2078 902. Therefore, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in failing to consider that Witnesses TA and SD did not testify about the Night of Three Attacks. (iii) Abductions of Mbasha's Wife and Children and of

Unnamed Woman and Children 903. The Trial Chamber concluded that, during the Night of Three Attacks, Ntahobali and the Interahamwe abducted Mbasha's wife and children.2079 In coming to this conclusion, the Trial Chamber relied on the testimonies of Witnesses TK, QJ, and RE but rejected the evidence of Witness SJ who also testified about the event.2080 The Trial Chamber also noted that Witnesses SU, SS, and FAP each testified about the abduction of a woman accompanied by children at the Butare Prefecture Office during the Night of Three Attacks2081 It stated that Witness FAP's testimony corroborated "numerous details of Witness TK's testimony regarding the abduction of Mbasha's 2075 See Nyiramasuhuko Appeal Brief, paras. 1000-1008, 1031, 1032, 1034, 1035, 1037-1039. 2076 Prosecution Response Brief, paras. 638, 639 2077 See Trial Judgement, paras. 2174-2193, 2312-2318, 2654-2661, 2703-2738. See also supra, Sections IV.F.2(c) (i)b, IV.F.2(c)(iii)a. 2078 The Appeals Chamber observes that Witnesses TA and SD testified to the existence of attacks other than those they specifically described. See, e.g. Witness TA, T. 1 November 2001 pp. 50, 51; Witness SD, T. 17 March 2003 pp. 9-11, 11, 49. 50. 65-71, T. 18 March 2003 p. 18 079 Trial Judgement, para.

2727. As noted previously, the Trial Chamber determined that it would not enter convictions on the basis of the abduction of Mbasha's wife due to insufficient notice but nonetheless considered that the credible and consistent information with regard to this event provided circumstantial support for its findings regarding the abduction of other unnamed Tutsi refugees from the Butare Prefecture Office. See supra, Section IV.F.2(a). 2080 Trial Judgement, paras. 2717-2723, 2727. 2081 Trial Judgement, paras. 2732-2734. See also ibid., para. 2731. 315 Case No. ICTR-98-42-A 14 December 2015

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20050/H wife and children", 2082 but also identified elements in Witness FAP's evidence that differed 2083 The Trial Chamber, noting "the differences in their testimonies" concluded that it was "convinced that Witnesses SU, SS and FAP were describing attacks on different individuals among the group which was abducted from the [Butare Prefecture Office] on the night of three attacks. 2084 In this regard, it concluded that "Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office], assaulted them and forced them aboard the pickup?»2085 904. Nyiramasuhuko contends that the Trial Chamber erred in holding that the abduction of Mbasha's wife and children as testified to by Witnesses TK, RE, QJ, and SJ was different from the abductions of an unnamed woman and her children described by Witnesses FAP, SS, and SU and consequently failed to consider the significant contradictions within their evidence that rendered all of it unreliable. 2086 Alternatively, she argues that the Trial Chamber erred by insufficiently assessing differing evidence of Witnesses TK, RE, QJ, and SJ about the abduction of Mbasha's wife and children as well as contradictions between Witnesses FAP, SS, and SU concerning the attack on the unnamed woman and her children. 2087 a. Same Attack 905. Nyiramasuhuko submits that it was unreasonable for the Trial Chamber to

determine that the attack on the unnamed woman and her children as described by Witnesses FAP, SS, and SU was different from the abduction of Mbasha's wife and her children described by Witnesses TK, QJ, RE, and SJ.2088 Specifically, Nyiramasuhuko emphasises that Witnesses TK, QJ, RE, SJ, SS, and FAP all described the woman and her children as lying on the veranda during the first attack. 2089 She further contends that "[these witnesses" described the woman and her children arriving during the day, that Witnesses TK and QJ identified them as the Mbasha family,2090 that Witnesses TK, 2082 Trial Judgement, para. 2734. 2083 Trial Judgement, para. 2735 ("However, Witness FAP added the children told the Interahamwe not to rape them because they were too young; but instead to take their mother if necessary. The mother also cried out and refused to be raped in public and so the Interahamwe killed her on the ground. Witness FAP said Ntahobali and the Interahamwe killed the mother with knives and dumped her body in the vehicle. They also took her children who had been beaten and drove away."). 2084 Trial Judgement, para. 2736. 2085 Trial Judgement, para.

2736. See also ibid., paras. 2738, 2781(iii). 2086 Nyiramasuhuko Appeal Brief, paras. 1015, 1020, 1021, 1023; Nyiramasuhuko Reply Brief, paras. 303, 323, 324. See also AT. 14 April 2015 p. 32. 2087 Nyiramasuhuko Appeal Brief, paras. 1027-1032, 1035, 1039, 1043, 1044, 1047, 1050-1055, 1057-1065, 1076-1079, 1082-1084, 1091, 1139, 1269, 1270. 2088 Nyiramasuhuko Appeal Brief, paras. 1015, 1020, 1021, 1023; Nyiramasuhuko Reply Brief, paras. 303, 323, 324. Nyiramasuhuko contends that the Prosecution, at the close of trial, argued that Witnesses FAP and SU were talking about the same event. See Nyiramasuhuko Appeal Brief, para. 1020, referring to Prosecution Closing Brief, paras. 294, 443 at pp. 113, 155. 2089 Nyiramasuhuko Appeal Brief, para.

1016. Nyiramasuhuko highlights that, although Witness SU did not mention the exact location, she was "close enough to see and hear what was said." See idem. 2090 Nviramasuhuko Appeal Brief, para. 1017. 316 Case No. ICTR-98-42-A 14 December 2015

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20049/H SU, FAP, and RE all testified that they came "from the Procure or Economat" 2091 and that Witnesses TK and SU similarly described the man accompanying them as partially or completely bald. 2092 Nyiramasuhuko stresses that Witness RE testified that the woman she described was "the only woman [she knew] who was taken away with her children."2093- 906. In Nyiramasuhuko's view, because these circumstances demonstrate that all the witnesses testified about the same event, the Trial Chamber failed to assess material contradictions in this evidence, which substantially affect its credibility. 209* In particular, Nyiramasuhuko highlights that: (i) while Witnesses FAP, SS, and SU all testified about hearing, for example, Nyiramasuhuko issue orders for Interahamwe to target girls, young women, and men, Witnesses TK, RE, and SJ, who were also on the veranda, did not corroborate this aspect of their evidence; (ii) Witness FAP made no reference to Ntahobali's alleged proposal to marry one of the Mbasha children; and (iii) unlike Witnesses TK, RE, SJ, and QJ, Witness FAP testified that the woman was killed. 2095 907. The Prosecution responds that Nyiramasuhuko simply disagrees with the Trial Chamber's conclusion without demonstrating that it was unreasonable for the Trial Chamber to conclude that Witnesses FAP, SS, and SU were not testifying about the abduction of Mbasha's wife and

children but about a different woman and her children. 2096 908. The Appeals Chamber observes that the Trial Chamber noted numerous elements of the evidence of Witnesses SU, SS, and FAP that could suggest that they testified about the same abduction? and, specifically, about Mbasha's wife and children 2098 This shows that the Trial Chamber was well aware of the similarities and differences in the relevant evidence.

909. The Appeals Chamber is not persuaded by Nyiramasuhuko's submissions that Witnesses SU, SS, and FAP must have testified about the abduction of Mbasha's wife and children 2091 Nyiramasuhuko Appeal Brief, para. 1018 (emphasis omitted). 2092 Nyiramasuhuko Appeal Brief, para.

1019. Nyiramasuhuko further notes that Defence Witness WKKTD, who the Trial Chamber relied upon to determine the gender, age, and number of children in the Mbasha family, also confirmed the description of Mr. Mbasha provided by Witnesses TK and SU. See idem. 2093 Nyiramasuhuko Appeal Brief, para. 1017 (emphasis omitted). 2094 Nyiramasuhuko Appeal Brief, paras. 1015, 1020, 1021, 1023. See also AT. 14 April 2015 p.

32. Nyiramasuhuko Appeal Brief, paras. 1085, 1087-1089. Nyiramasuhuko concedes that, like Witness RE, Witness FAP testified that Ntahobali said that his mother had asked the woman to retrieve her. See ibid., para. 1086. 2096 Prosecution Response Brief, paras. 664, 665, 672, 673. 2097 The Trial Chamber noted that the evidence of Witnesses FAP, SS, and SU converged on the following facts: (i) the lady came to the prefectoral office with a man and a child or children; (ii) the woman stayed on the veranda; (iii) during their abduction, the lady and/or the children cried out in protest; and (iv) the woman was hit or killed. See Trial Judgement, paras. 2250, 2252, 2285, 2304, 2305, 2732-2734. 2098 See Trial Judgement, para.

2734. The Trial Judgement identifies, several similarities within the evidence of Witnesses SU, SS, FAP, TK, RE, and QJ: (i) the woman arrived at the prefectoral with a tall, fair-complexioned man; (ii) the mother and Ntahobali had a discussion; (ili) the woman pleaded to spare her children; (iv) the woman and her children were taken from the veranda; and (v) the woman and children were eventually abducted. See ibid., paras. 2717-2719, 2732-2734. 317 Case No. ICTR-98-42-A 14 December 2015

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20048/H and that the Trial Chamber erred in failing to make such a finding. Specifically, while Nyiramasuhuko stresses that Witness RE's evidence reflects that only one woman and her children were abducted that evening, a review of the witness's testimony reflects that the abduction of Mbasha's wife and children was the only abduction of a woman and her children that she knew of.2099 910. The Appeals Chamber observes that the Trial Chamber expressly noted that Witnesses RE and FAP both described Ntahobali approaching a woman and children on the veranda of the prefectoral office, and coaxing her to leave.?100 The Trial Chamber also acknowledged that Witness FAP's evidence corroborated numerous details of Witness TK's evidence regarding the abduction of Mbasha's wife and children2101 Therefore, the Appeals Chamber is not persuaded that the Trial Chamber ignored elements of Witness FAP's testimony that corresponded with evidence concerning the abduction of Mbasha's wife and children or that it was compelled to find that Witness FAP was referring to this specific attack. In light of Witness FAP's testimony as noted by the Trial Chamber that the unknown woman she testified about was killed at the prefectoral office, 2102 which is distinct from evidence about the abduction of Mbasha's wife and children, 2103 the Appeals Chamber considers that Nyiramasuhuko fails to demonstrate that no reasonable trier of fact could have found, as the Trial Chamber did, that Witness FAP was not testifying about Mbasha's wife and her children.

911. Similarly, and considering the overlapping aspects of the evidence of Witnesses SS and SU, on one hand, and that of Witnesses TK, QJ, and RE on the other, the Appeals Chamber observes that Witness SU testified that the woman whom she observed being abducted was struck on the neck with a machete and, according to Witness SS, the woman she observed being abducted was dead when loaded onto the vehicle.2104 The Appeals Chamber observes that the Trial Chamber recounted all of this evidence in detail when deliberating on the relevant evidence. 105 Under these 2099 See Witness RE, T. 26 February 2003 p. 33 ("Q. Madam Witness, I was asking you - you said there were three trips of refugees that evening. I would like to know whether during the two subsequent trips whether there were other women with three children who were taken away? A. The only woman I know who was taken away with her children is this one that we are referring to."). 2100 See Trial Judgement, paras. 2719 ("She said that a woman who was sleeping on the [Butare Prefecture Office] veranda with her three children resisted the Interahamwe attack that night. Shalom told her: 'We're not going to kill you. We, rather, wanted to take you to Pauline who is in the vehicle so she can go and hide you.'"), 2734 "Witness FAP testified that the Interahamwe approached a mother of two children who was spending the night on

the veranda next to her. [...] Ntahobali tried to make the woman feel safe by saying that his mother had sent for her. Ntahobali also tried to reassure the girl who cried out by telling her that he was taking her to his mother."). 2101 Trial Judgement, para. 2734. 2102 Trial Judgement, para. 2735. 2103 See Trial Judgement, paras. 2196, 2213, 2214, 2277, 2717-2719. 2104 See Witness SU, T. 14 October 2002 p. 36; Witness SS, T. 3 March 2003 p. 57, T. 5 March 2003 p.

65. See also Trial Judgement, paras. 2252, 2285, 2732, 2733. 2105 See Trial Judgement, paras. 2728, 2732, 2737. 318 Case No. ICTR-98-42-A 14 December 2015

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20047/H circumstances, the Appeals Chamber finds that the Trial Chamber did not err when it concluded that the attacks described were different. b. Mbasha's Wife and Children 912. Nyiramasuhuko alternatively challenges the Trial Chamber's assessment of the evidence related to the abduction of Mbasha's wife and children and specifically points to inconsistencies regarding the manner they were abducted, the content of the conversation between Mbasha's wife and Ntahobali, the timing of the abduction, and whether Ntahobali was present 2106 She argues that "it is impossible to reconcile" the testimonies of Witnesses TK, QJ, and RE who described different circumstances of the abduction. 2107 Nyiramasuhuko further contends that, notwithstanding the Trial Chamber's finding that Witness QBQ testified about the Night of Three Attacks and her presence on the veranda, this witness provided no evidence concerning the abduction of Mbasha's wife and children 2108 Finally, Nyiramasuhuko submits that the witnesses who testified to the abduction of Mbasha's wife never mentioned it in their prior statements.2109 913. The Prosecution responds that the testimonies of Witnesses TK, QJ, and RE are consistent with respect to the abduction of Mbasha's family.211° It submits that Nyiramasuhuko's focus on the timing of the abduction is misplaced and that the fact that Witness QBQ did not testify about

this event does not undermine the reasonableness of the Trial Chamber's findings. Ill Additionally, the Prosecution argues that Nyiramasuhuko does not demonstrate any error regarding alleged discrepancies between the witnesses' testimonies and their prior statements. 2112 914. Regarding the manner of the abduction, the Appeals Chamber observes that Nyiramasuhuko submits that, whereas Witness TK testified to "violent actions to force" Mbasha's wife onto the vehicle, that "her children were literally being thrown at her", that she pleaded for them to be 2106 Nyiramasuhuko Appeal Brief, paras. 1043, 1044, 1047, 1050-1055, 1064, 1065, 1076-1079, 1082, 1083, 1269. See also ibid., para. 1270; Nyiramasuhuko Reply Brief, paras. 317, 319-321, 326. 2107 Nyiramasuhuko Appeal Brief, paras. 1047, 1076-1079, 1082-1084 (emphasis omitted). 2108 Nyiramasuhuko Appeal Brief, paras. 1033, 1036, 1041. See also AT. 14 April 2015 p.

31. The Appeals Chamber observes that Nyiramasuhuko repeats her arguments that Witnesses TA and SD did not testify about the Night of Three Attacks but, in this instance, more directly argues that they did not refer specifically to the abduction of Mbasha's wife and children. See Nyiramasuhuko Appeal Brief, paras. 1034, 1037, 1038, 1040. The Appeals Chamber has previously considered and rejected Nyiramasuhuko's contention that the failure of Witnesses TA and SD to provide evidence concerning the Night of Three Attacks undermined the Trial Chamber's conclusions that such attacks occurred. See supra, Section IV.F.2(e)(ii). Nyiramasuhuko has not provided any further argument or references and the reasoning above applies equally to this particular event, which occurred during the Night of Three Attacks. Consequently, the Appeals Chamber dismisses these contentions without further consideration. Nyiramasuhuko Appeal Brief, paras. 1074, 1084, referring, inter alia, to Witness RE, T. 25 February 2003 pp. 47. 48, Witness QJ, T. 12 November 2001 pp. 78, 79 (closed session), Exhibit D8 (Witness QJ's Statements, datec 8 May 1996, 21 November 1996, 22 January 1997, and 28 October 1997) (confidential) ("Witness QJ's Statements"). See also Nyiramasuhuko Reply Brief, para. 325; AT. 14 April 2015 p. 18. 2110 Prosecution Response Brief, paras. 666, 670. 2111 Prosecution Response Brief, para. 668. 319 Case No. ICTR-98-42-A 14 December 2015

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20046/H spared, and that she was forced to undress, 213 Witness RE testified to the contrary that Mbasha's wife was not undressed, had not been beaten, and was told that "they were going to hide her and they took her away, very nicely, with her consent. 2114 915. The Trial Chamber, having explicitly considered this discrepancy between the accounts of Witnesses TK and RE, determined that "Witness RE partially corroborated Witness TK's account of the abduction."2115 Recalling the Trial Chamber's discretion to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence, 2116 the Appeals Chamber sees no error in the Trial Chamber's assessment of this alleged discrepancy in their testimonies. Indeed, while Witness RE denied that Mbasha's wife was undressed, she in fact testified, similar to Witness TK, that the Interahamwe stripped people at the prefectoral office who were removed from it on that evening, an aspect of her testimony which the Trial Chamber expressly recalled in the Trial Judgement.2117 As to whether Mbasha's wife was "assaulted" or taken away "peacefully" , a review of the transcripts reveals that both witnesses provided materially consistent accounts of how Ntahobali induced Mbasha's wife to leave her position at the prefectoral office.2118

Witness TK testified that Mbasha's wife started pleading with the Interahamwe at the vehicle, and it is not clear from Witness RE's testimony that she then continued to observe the events. 2119 In addition, given that Witness TK's account of the abduction of Mbasha's wife and children was corroborated by Witness QJ,2120 Nyiramasuhuko does not demonstrate that no reasonable trier of fact could have 2112 Prosecution Response Brief, para. 667. 2113 Nyiramasuhuko Appeal Brief, paras. 1043, 1258 (emphasis omitted). 2114 Nyiramasuhuko Appeal Brief, para. 1044 (emphasis omitted). See also ibid., para. 1259. 2115 Trial Judgement, para.

2719. See also ibid., paras. 2214, 2277. 2116 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Hategekimana Appeal Judgement, para. 82; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 207. 2117 See Witness RE, T. 24 February 2003 p. 21 ("A. After these people were woken up, the Interahamwe asked them to remove their clothes. They then took them to their vehicles and carted them off to a place called Rwabayanga where they were executed."), T. 26 February 2003 p. 31 ("A. I have stated that those people who they have taken away to kill were undressed before being taken away, but this refers to those who are being taken away to be killed."); Witness TK, T. 20 May 2002 p. 87 ("A. They were loaded in atrocious conditions and most of those that were loaded in the vehicle were stripped before hand, Madam."); Trial Judgement, paras. 2215, 2278. 2118 Compare Witness TK, T. 20 May 2002 p. 83 ("Q. Can you tell this court what then happened to Mrs. Mbasha after this conversation? A. At that point Shalom spoke to the lady and asked her to rise and to go towards the vehicle. He reassured her, and told that she should not be afraid, and that nothing bad will come of her.") with Witness RE, T. 26 February 2003 p. 32 ("Q. Madam Witness, did I understand, from the description you made of the events that it was not necessary to beat up this woman for her to

follow the person you referred to as Shalom? A. They did not beat the woman. They told her they were going to hide her and they took her away, very nicely, with her consent. You will understand that somebody who is telling you that he's going to hide you, he should not be beating you."). 2119 See Witness TK, T. 20 May 2002 p. 86 ("A. Well, so far as the children of Madam Mbasha were concerned, they took them with their mother. They took them from the veranda where they were, that is, in front of the prefecture office, and once they got to the vehicle where they were to be loaded, those that wanted to load Madam Mbasha and her children started throwing her children upon her and Madam Mbasha prayed for the children, pleaded, saying that, "please pity my children, you can take me. Spare my children, please.[']"); Witness RE, T. 24 February 2003 p. 19, T. 25 February 2003 p. 47, T. 26 February 2003 p. 31. 2120 See Trial Judgement, paras. 2196, 2214, 2717, 2718, referring, inter alia, to Witness TK, T. 20 May 2002 pp. 85, 86, Witness QJ, T. 8 November 2001 pp. 154, 155. Case No. ICTR-98-42-A 14 December 2015

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20045/H considered the testimonies to be compatible or that the Trial Chamber abused its discretion by not expressly addressing the purported differences in their testimonies.

916. To substantiate discrepancies regarding the conversation between Mbasha's wife and Ntahobali, Nyiramasuhuko notes that, according to Witness TK, Ntahobali asked Mbasha's wife if she knew him, she responded in the affirmative, Ntahobali then expressed his intention to marry the girl among the two children, and Mbasha's wife said it was impossible and pleaded for her children to be spared.?121 Nyiramasuhuko submits that Witness RE, on the other hand, did not testify about whether the lady knew Ntahobali, Ntahobali's intention to marry one of her children, the mother's plea to spare her children, but merely stated that Ntahobali told the mother: "We're not going to kill you. We rather wanted to take you to Pauline who is in the vehicle so that she can go and hide you.*2122 The Appeals Chamber is not convinced that these purported inconsistencies are material or that they required express consideration by the Trial Chamber. Indeed, having reviewed the testimonies cited by the Trial Chamber,2123 the Appeals Chamber notes that the evidence of Witnesses TK and RE is consistent as to the manner in which Ntahobali sought to induce Mbasha's wife to leave the prefectoral office, 124 which is reflected in the Trial Chamber's summary of their accounts.2125 In the view of the Appeals Chamber, Nyiramasuhuko does not demonstrate that no reasonable trier of fact could have considered the accounts of Witnesses TK and RE to be compatible and corroborative.

917. Concerning the timing of the abduction, Nyiramasuhuko argues that according to Witness QJ, it took place in broad daylight, while Witness TK and other witnesses described the event occurring at night.2126 The Appeals Chamber considers that Nyiramasuhuko's contention that Witnesses QJ and TK provided contradictory evidence as to whether the events occurred in broad daylight or at night is not supported by the record. The relevant portions of the witnesses' 2121 Nyiramasuhuko Appeal Brief, paras. 1052, 1053, referring to Witness TK, T. 20 May 2002 pp. 30, 31, 81-83. 2122 Nyiramasuhuko Appeal Brief, paras. 1054, 1055, 1077 (emphasis omitted), referring to Witness RE, T. 24 February 2003 p. 19, T. 26 February 2003 pp. 30, 31. 2123 Trial Judgement, paras. 2213, 2214, 2277, referring to Witness TK, 20 May 2002 pp. 76, 77, 81, 83, 86, Witness RE, T. 24 February 2003 p. 19, T. 25 February 2003 pp. 46, 47, T. 26 February 2003 pp. 30, 31. See also ibid., pizzas. 2668, 2674, 2717, 2719. Compare Witness TK, T. 20 May 2002 p. 83 ("Q. Can you tell this court what then happened to Mbasha's wife after this conversation? A. At that point Shalom spoke to the lady and asked her to rise and to go towards the vehicle. He reassured her, and told that she should not be afraid, and that nothing bad will come of her.") with Witness RE, T. 26 February 2003 p. 32 ("Q. Madam Witness, did I

understand, from the description you made of the events that it was not necessary to beat up this woman for her to follow the person you referred to as Shalom? A. They did not beat the woman. They told her they were going to hide her and they took her away, very nicely, with her consent. You will understand that somebody who is telling you that he's going to hide you, he should not be beating you."). 2125 See, e.g., Trial Judgement, paras. 2668 ("Then [Ntahobali] asked Mbasha's wife to go to the truck, telling her not to be afraid and that nothing bad would happen to her."), 2674 ("Shalom told her: 'We're not going to kill you. We, rather, wanted to take you to Pauline who is in the vehicle so she can go and hide you.") (internal references omitted). 2126 Nyiramasuhuko Appeal Brief, paras. 1064, 1065, 1082. 321 Case No. ICTR-98-42-A 14 December 2015

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20044/H testimonies reflect that they both considered that the abduction occurred in the evening and that they could only provide estimates as to when it happened. 2127 918. Nyiramasuhuko further submits that there is a discrepancy as Witness QJ never testified to Ntahobali's conversation with Mbasha's wife and did not identify him during the Night of Three Attacks 2128 The Appeals Chamber observes, however, that Witness QJ's testimony reveals that he volunteered that Mbasha's wife begged for pity once she and her children were being led to the vehicle and was not questioned as to whether any conversation preceded this event or if Ntahobali was involved in the abduction. 2129 The Appeals Chamber is not persuaded that any omission in Witness Q's evidence renders it incompatible with that of Witnesses TK and RE concerning this event.

919. Turning to Nyiramasuhuko's contention that Witness QBQ was on the veranda but did not testify about the abduction of Mbasha's wife and children,2130 the Appeals Chamber finds that Nyiramasuhuko does not demonstrate how this omission in Witness QBQ's evidence is necessarily incompatible with or undermines the testimonies of Witnesses TK, RE, and QJ concerning this event. Given the Trial Chamber's determination that Witnesses TK, RE, and QJ provided corroborated evidence of the abduction of Mbasha's wife and children, the Appeals Chamber is not convinced that the Trial Chamber was specifically required to consider that Witness QBQ never testified about the abduction of Mbasha's wife and children.

920. Finally, Nyiramasuhuko's general argument that none of the witnesses discussed this. abduction in their prior statements is unpersuasive. First, the events concerning the Mbasha family are recorded in prior statements given by Witness TK.2131 Second, Witnesses QJ, SJ, and RE were 2127 See, e.g., Witness QJ, T. 8 November 2001 pp. 158 ("Q. I now refer to the attack on the Mbasha family that you saw taking place at the préfectoral office. Can you give us an estimate of what time that attack took place? A. I don't quite recall the time. An estimate, it would be in the evening about this time."), 159 ("I don't quite recall the time. I think it was towards the evening at about now."), 160 ("Q. Witness QJ, do you know what time it is now? When you say it's about this time. Do you have a watch on you to know the time now? A. No it's an estimate. I have a watch. I just looked around what it looks like."), 163 ("A. In my country after three p.m. we can start saying that that's evening."), T. 13 November 2001 p. 122 ("A. When the Mbasha family - Nyiramasuhuko arrived on-board a vehicle. It was in the evening. [...] A. [Nsabimana] was not there. The incident occurred in the evening."); Witness TK, T. 23 May 2002 p. 44 ("Q. What time was Mrs. Mbasha and her children abducted? A. She was abducted in the evening. Night had already fallen. Yesterday I had said, I had given you an

approximation between 7:00 and 7:30 p.m."). See also Witness TK, 22 May 2002 p. 25 ("A. If I focus on what I saw, with respect to Mrs. Mbasha, it is because this woman remained with me in that location for some time. This woman arrived during the day and she was only taken away to be killed in the evening."); Trial Judgement, paras. 2196, 2211-2215. 2128 Nviramasuhuko Appeal Brief, paras. 1083, 1269. 2129 See, in particular, Witness QJ, T. 8 November 2001 p. 155 ("Q. Who was in the vehicle when this Mbasha family was driven to the Kabutare forest? Was it the Interahamwe who picked them up from where they were? A. It was Nyiramasuhuko and her Interahamwe. I don't know anyone else who was in the vehicle."). See also ibid., pp. 146-154, T. 12 November 2001 pp. 93, 94 (closed session). 2130 See Nyiramasuhuko Appeal Brief, paras. 1075, 1101. 2131 See Exhibit D44 (Witness TK's Statement, dated 12 November 1996) (confidential) ("Witness TK's November 1996 Statement"), p. K0037330 (Registry pagination) ("You asked me if I know names of people who were taken away 322 Case No. ICTR-98-42-A 14 December 2015

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20043/H cross-examined extensively on the absence of any mention of the specific abduction of Mbasha's wife and her children in their prior statements 2132 The Appeals Chamber, having reviewed this evidence and the relevant statements, is of the view that they are not necessarily inconsistent but merely contain less detail than their subsequent testimonies. 2133 921. In light of the foregoing, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate an error in the Trial Chamber's assessment of the evidence pertaining to the abduction of Mbasha's wife and children. c. Unnamed Woman and Children 922. Nyiramasuhuko argues that the Trial Chamber erred in its assessment of inconsistencies between the evidence of Witnesses FAP, SS, and SU with respect to the abduction of the unnamed woman and her children 2134 She points to discrepancies regarding the description of the woman and her children and the circumstances of the abduction. 2135 923. The Prosecution responds that the Trial Chamber reasonably determined that Witnesses FAP, SS, and SU were discussing attacks on different families. 2136 924. As to the description of the unnamed woman and children, Nyiramasuhuko notes that according to: (i) Witness FAP, the woman and her two children were on the veranda;2137 (ii) Witness SS, the woman was on the veranda and was accompanied by a child; 2138 and (iti) Witness SU, the

woman had twins, arrived "from the 'Economat' earlier that same day" 2139 The Appeals Chamber is not convinced that these are material differences and observes that the Trial Chamber explicitly considered these divergent accounts.2140 Beyond listing these inconsistencies, Nyiramasuhuko fails to show any error in the Trial Chamber's assessment. by [SJHALOM and PAULINE. Well, I saw two children of the MBASHA family among them. There were other children transported to Kabutare."); Exhibit D47 (Witness TK's Statement, dated 22 and 23 April 1998) (confidential) ("Witness TK's 1998 Statement"), p. K0052252 (Registry pagination) ("As I have mentioned in my previous statements I also remember Shalom and his discussion with the wife of Mbasha and his wanting to have sex (take as a wife) with one of their small daughters who was only about 9 years old. All the people from this family (Mbasha) were taken away and I never saw them alive again."). 2132 See Witness RE, T. 25 February 2003 pp. 47, 48, T. 26 February 2003 pp. 22, 31, 32; Witness QJ, T. 12 November 2001 pp. 71, 72, 78-87 (closed session); Witness SJ, T. 3 June 2002 pp. 40, 41. 2133 See Witness QJ's Statements; Exhibit D61 (Witness SJ's Statement, dated 3 December 1996) (confidential) ("Witness SJ's Statement"): Witness RE's Statement. 2134 Nyiramasuhuko Appeal Brief, paras. 1057-1063, 1091. See also AT. 15 April 2015 pp. 26, 27. 2135 Nyiramasuhuko Appeal Brief, paras. 1057, 1058, 1062, 1063, 1086, 1087. 2136 Prosecution Response Brief, para. 672. 2137 Nyiramasuhuko Appeal Brief, para. 1057. 2138 Nyiramasuhuko Appeal Brief, paras. 1063, 1088. 2139 Nyiramasuhuko Appeal Brief, paras. 1062, 1088 (emphasis omitted). 2140 See Trial Judgement, paras. 2250, 2285, 2304, 2732-2734. 323 Case No. ICTR-98-42-A 14 December 2015

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20042/H 925. Regarding the circumstances of the abduction, Nyiramasuhuko highlights a number of alleged discrepancies between the testimonies of Witnesses FAP, SS, and SU,2141 which the Trial Chamber expressly considered. 42 The Trial Chamber determined that, notwithstanding these discrepancies, it was "convinced beyond a reasonable doubt that Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office]" and that "Nyiramasuhuko gave orders to the Interahamwe to commit these crimes."2143 The Appeals Chamber finds that Nyiramasuhuko's mere listing of alleged inconsistencies fails to undermine the Trial Chamber's findings.

926. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's submissions that the Trial Chamber erred in its assessment of the evidence of Witnesses FAP, SS, and SU related to the abduction of an unnamed woman and her children at the prefectoral office. (iv) Nyiramasuhuko's Presence, Conduct, and Orders to Commit Rapes 927. Having considered the evidence of Witnesses TK, QJ, SS, SU, QBQ, RE, and FAP, the Trial Chamber found that Nyiramasuhuko was present during the Night of Three Attacks.2144 It further determined, based on the testimonies of Witnesses FAP, SS, and QBQ, that Nyiramasuhuko ordered the Interahamwe to rape refugees because they were Tutsis and that the Interahamwe beat, abused, and raped many Tutsi women during the attacks. 2145 928. Nyiramasuhuko argues that the Trial Chamber erred in assessing evidence of her presence and conduct, her alleged orders to commit rape, and the commission of rape during the Night of Three Attacks.2146 With respect to her presence, she submits that the Trial Chamber put various witness accounts together, despite material contradictions, to find that she was present during the Night of Three Attacks 2147 According to Nyiramasuhuko, Witnesses TK, RE, QBQ, QJ, and SU, 2141 Nyiramasuhuko refers to the following discrepancies: (i) Witness FAP testified that the children pleaded not to be raped and rather to rape their mother,

that Ntahobali reassured the woman that she would not be killed as his mother had sent him for her, and that the woman was ultimately killed on the spot with her body removed in the vehicle; (ii) Witness SS testified that the woman shouted "[p]lease do not take my child, he is still young", and that it was the Interahamwe who replied, "[iff this child is still young, then breastfeed him"; and (ili) Witness SU stated that the twins were first pulled from the woman, that the woman shouted that they were just children, that the woman was struck on the neck with a machete and that, after this, Nyiramasuhuko stated "[then breastfeed your children". See Nyiramasuhuko Appeal Brief, paras. 1058, 1062, 1063, 1086-1088, 1090, 1133 (emphasis omitted). 2142 See Trial Judgement, paras, 2252, 2285, 2304, 2732-2736. 2143 Trial Judgement, para. 2736. 2144 Trial Judgement, paras. 2683-2696, 2702, 2704, 2706-2712, 2715, 2717, 2718, 2728-2730, 2732-2734, 2736-2738, 2781(iii). See also supra, Section IV.F.2(c). 2145 Trial Judgement, paras. 2687-2693, 2696, 2698-2702, 2781(ji). 2146 See Nyiramasuhuko Notice of Appeal, paras. 10.12, 10.30, 10.34, 10.39-10.41, 10.45; Nyiramasuhuko Appeal Brief, paras. 1009, 1012, 1014, 1023, 1027-1030, 1035-1039, 1042, 1049, 1071, 1098, 1113, 1120-1124, 1128, 1129, 1133-1135, 1139, 1140, 1142, 1143, 1145-1153, 1189, 1196, 1207-1209, 1215, 1258, 1259, 1262, 1266-1272, 1275-1277. 2147 Nyiramasuhuko Appeal Brief, paras. 1023, 1039, 1049, 1113, 1152, 1153, 1189. 324 Case No. ICTR-98-42-A 14 December 2015

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20041/H who were on or near the veranda of the prefectoral office and within metres of each other, should have witnessed the same events, seen the same people and the same perpetrators, and that her presence could not go unnoticed by these witnesses. 2148 She argues that this is however not the case as the evidence of these witnesses is inconsistent as to her presence during the attacks.2149 Nyiramasuhuko further notes that Witness RE conceded that she did not see her that night but deduced her presence from words she heard between Mbasha's wife and Ntahobali. 2150 929. Nyiramasuhuko further submits that Witnesses SS and SU, who spent the nights together on the lawn of the prefectoral office, provided divergent accounts of Nyiramasuhuko's presence and her conduct during the Night of Three Attacks?151 She also points to discrepancies in their testimonies with respect to her alleged utterances during the second attack. 2152 She argues that the Trial Chamber's assessment of their evidence was unreasonable.2153 930. In addition, Nyiramasuhuko challenges the Trial Chamber's assessment of inconsistent accounts from Witnesses TK, RE, QJ, SS, SU, FAP, and QBQ on the presence of Kazungu, who was alleged to be present with Nyiramasuhuko during the Night of Three Attacks.2154 She specifically argues that Witnesses RE, TK, and SS testified to Kazungu's presence but contradicted each other

on his position as a soldier, an Interahamwe, or a body guard to her or one 2148 Nyiramasuhuko Appeal Brief, paras. 1016, 1026-1028, 1134; AT. 14 April 2014 pp. 25, 27-33. Nyiramasuhuko further argues that the Trial Chamber erroneously did not consider that Witness SJ, who was found to have testified about the Night of Three Attacks and was in a position similar to other witnesses who observed Nyiramasuhuko during this event, did not testify that Nyiramasuhuko was present and provided additional evidence contradictory to other Prosecution witnesses. See Nyiramasuhuko Appeal Brief, paras. 981, 993, 997, 1031, 1032, 1071, 1112, 1113, 1130, 1139, 1189; AT. 14 April 2015 pp. 26, 28-30. The Appeals Chamber recalls that the Trial Chamber rejected Witness SJ's evidence concerning the abduction of Mbasha's wife and children and that the Appeals Chamber has concluded that no reasonable trier of fact could have relied on intrinsically related evidence concerning the Night of Three Attacks. In this context, Nyiramasuhuko has not demonstrated that the failure of Witness SJ to expressly identify Nyiramasuhuko as being present during the Night of Three Attacks undermines the reasonableness of the Trial Chamber's findings to the contrary. Nyiramasuhuko also submits that Witness QBQ placed Nyiramasuhuko's presence in April 1994, "a totally different time" as the Trial Chamber's findings with

respect to the Night of Three Attacks. See Nyiramasuhuko Appeal Brief, paras. 1013, 1033, 1036, 1162, 1261. Nyiramasuhuko appears to contradict herself as she argues that Witness QBQ testified to Nyiramasuhuko being present and that rapes were being committed in front of her at the Butare Prefecture Office. See ibid., paras. 1105, 1140. As already discussed above, the Appeals Chamber observes that the Trial Chamber did not rely on Witness QBQ's evidence regarding the timing of the Night of Three Attacks. Furthermore, given the considerable overlap between the account of Witness QBQ and that of several other witnesses in relation to these attacks, the Appeals Chamber does not find that the Trial Chamber was unreasonable in relying on Witness QBQ's evidence, despite any variances with respect to the timing of the Night of Three Attacks. The Appeals Chamber dismisses Nyiramasuhuko's arguments pertaining to Witnesses SJ and QBQ in this respect. 2149 Nyiramasuhuko Appeal Brief, paras. 1029, 1030, 1035, 1036, 1039, 1042. See also AT. 14 April 2014 pp. 25, 26, 2150 Nyiramasuhuko Appeal Brief, paras. 1030, 1035, 1071, 1098, 1139, 1259, 1277; Nyiramasuhuko Reply Brief, BiN ramashuko Appeal Friel, paras, 145 1148. See ali AT 14 AnTil 2015 p. 88- 2152 Nyiramasuhuko notes that, according to Witness SS, she issued an order to "look for the young boys" and not to leave anyone behind, and

that the Interahamwe took women and girls as there were not many boys left, whereas Witness SU testified that Nyiramasuhuko asked the Interahamwe to start on one end and take men and women on board the vehicle. See Nyiramasuhuko Appeal Brief, paras. 1173, 1175, 1176. 2153 Nyiramasuhuko Appeal Brief, para. 1153. 2154 Nyiramasuhuko Appeal Brief, paras. 796, 803-805. 325 Case No. ICTR-98-42-A 14 December 2015

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20040/H of the prefects. 2155 Nyiramasuhuko also notes that Witnesses QJ, SU, FAP, and QBQ did not mention Kazungu at all 2156 Moreover, she contends that the findings in paragraph 2702 of the Trial Judgement, which concern her presence and conduct, are vague as they simply refer to an "attack" 2157 931. Regarding her orders to rape and the commission of rapes, Nyiramasuhuko submits that the Trial Chamber's assessment of evidence concerning her utterances, orders, and gestures during the Night of Three Attacks is unreasonable. 2158 She argues that the accounts of Witnesses FAP and SS that she ordered rapes or Witness QBQ that rapes had been ordered and committed during that night are inconsistent with the testimonies of Witnesses TK, RE, and SU, who did not testify to rapes being ordered or committed.2159 Nyiramasuhuko also argues that Witnesses SS and SU were together during the night and "[were] describing the same attack but referring to orders which even in their face are contradictory" 2160 932. The Prosecution responds that Nyiramasuhuko mischaracterises the relevant testimonies of the witnesses situated on the veranda and incorrectly asserts that, because Witnesses TK, RE, and QJ were on the veranda, they should have testified to the same events and seen the same persons.2161 Regarding Witnesses SS and SU, it submits that Nyiramasuhuko alleges discrepancies that

are either minor or non-existent and can be attributed to the witnesses' differing vantage points.2162 The Prosecution further responds that there was overwhelming and consistent evidence for the Trial Chamber to conclude that Nyiramasuhuko ordered the Interahamwe to rape Tutsi women and girls during the Night of Three Attacks.2163 2155 Nyiramasuhuko Appeal Brief, para. 796. 2156 Nyiramasuhuko Appeal Brief, para. 804. 2151 See Nyiramasuhuko Appeal Brief, para. 774. 2158 See Nyiramasuhuko Appeal Brief, para.

1153. See also Nyiramasuhuko Notice of Appeal, paras. 10.12, 10.30, 10.34; Nyiramasuhuko Reply Brief, paras. 327, 330. 2159 Nyiramasuhuko Appeal Brief, paras. 1100, 1104, 1105, 1120-1124, 1128, 1129, 1132-1135, 1140, 1142, 1143, 1149-1152, 1166, 1261. Nyiramasuhuko notes that, according to Witness SS, she stood near the door of the vehicle and allegedly stated: "Start from one side and take the young girls and women and go and rape them because they had refused to marry you." See ibid., para. 1133 (emphasis omitted), referring to Witness SS, T. 3 March 2003 p.

52. See also Nyiramasuhuko Notice of Appeal, paras. 10.12, 10.30, 10.34; Nyiramasuhuko Appeal Brief, paras. 1149, 1150, 1262, 1266, 1267; Nyiramasuhuko Reply Brief, paras. 220-223, 328, 327, 330. 2160 Nyiramasuhuko Appeal Brief, paras. 1149, 1150 (emphasis omitted). 2161 Prosecution Response Brief, para.

652. See also AT. 14 April 2014 p.

53. According to the Prosecution, Nyiramasuhuko fails to demonstrate that the Trial Chamber's findings regarding the rapes were undercut by other witnesses who did not specifically testify about them. See Prosecution Response Brief, paras. 675, 679. 2162 Prosecution Response Brief, paras. 656-658. 2163 Prosecution Response Brief, paras. 675-679. The Prosecution further submits that Witness FAP's prior statement is not inconsistent with her more detailed testimony, which adequately explained and clarified any alleged inconsistencies. See ibid., paras. 683-685. Regarding inconsistencies between Witness SS's testimony and her prior statement, the Prosecution responds that the Trial Chamber was entitled to rely on her testimony and that Nyiramasuhuko fails to demonstrate that the Trial Chamber unreasonably exercised its discretion. See ibid., para.

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20039/H 933. The Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all respects in order to be corroborative and that corroboration may exist even when some details differ.2164 The Appeals Chamber has carefully considered the evidence highlighted by Nyiramasuhuko concerning the size of the prefectoral office, and its veranda in particular, and the evidence from several Prosecution witnesses indicating that they were on the veranda or very near to it during the Night of Three Attacks 165 In addition, it has previously assessed evidence related to distinct aspects of the Night of Three Attacks from the same witnesses Nyiramasuhuko contends should have observed, heard, and testified uniformly about the attacks but purportedly provided contradictory evidence 2166 The Appeals Chamber is of the view that Nyiramasuhuko's submissions fail to sufficiently appreciate that all but one of the witnesses she has identified as providing inconsistent evidence were Tutsis seeking refuge at the prefectoral office and were the targets of the attacks.2167 The Appeals Chamber is also of the view that Nyiramasuhuko ignores the Trial Chamber's conclusion that "there were a large number of refugees" at the prefectoral office who were "in poor physical condition" and who "had fled other [communes] and [prefectures] to escape violence and the threat of

death.»2168 The Trial Chamber further determined that the circumstances at the prefectoral office, based on the evidence of survivors, "painted] a clear picture of unfathomable depravity and sadism."2169 In this context, the Appeals Chamber finds that the differences between the testimonies of Witnesses QBQ, TK, RE, SU, FAP, QJ, and SS concerning the Night of Three Attacks as highlighted by Nyiramasuhuko do not demonstrate that the Trial Chamber acted unreasonably in: (i) crediting aspects of their evidence; (ii) finding consistencies compelling; and (iti) determining that other inconsistencies did not raise doubt in their testimonies. More specifically, the fact that Witness RE did not see Nyiramasuhuko while Witnesses TK and QJ did does not undermine the reasonableness of the conclusion that Nyiramasuhuko was present in light of the totality of the evidence. The Appeals Chamber has already determined that a reasonable 2164 See Nzabonimana Appeal Judgement, para. 184; Ndahimana Appeal Judgement, para. 93; Ntabakuze Appeal Judgement, para.

150. See also Karemera and Ngirumpatse Appeal Judgement, para. 467; Nahimana et al. Appeal Judgement, para. 428. 2165 See, in particular, Exhibit P23C (Photo of Butare Prefecture Office); Exhibit P23D (Photo of Butare Prefecture Office); Exhibit P27 (Video of Butare Prefecture Office, EER, Ruins of Nyiramasuhuko's Home); Witness QBQ, T. 3 February 2004 pp. 11, 12; Witness TK, T. 20 May 2002 pp. 80, 81, T. 23 May 2002 pp. 93, 94; Witness RE T. 24 February 2003 pp. 28, 29; Witness SU, T. 17 October 2002 p. 52; Witness SJ, T. 3 June 2002 pp. 19-21; Witness SS, T. 5 March 2003 pp. 63, 65. 2166 See supra, Section IV.F.2(e) (iii). 2167 See Trial Judgement, paras. 2201-2203, 2242, 2274, 2281, 2297-2299, 2328. Furthermore, although Witness QJ was not a displaced Tutsi seeking refuge at the prefectoral office, he was a Tutsi who had a falsified identification card which indicated that he was Hutu. See ibid., para. 2194. 2168 Trial Judgement, para. 2627. 2169 Trial Judgement, para. 5866. 327 Case No. ICTR-98-42-A 14 December 2015

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20038/H trier of fact could have relied on Witness RE's hearsay account and other direct evidence of Nyiramasuhuko's presence at the prefectoral office during the Night of Three Attacks.2170 934. The Appeals Chamber also finds that Nyiramasuhuko's contention regarding alleged discrepancies in the testimonies of Witnesses SS and SU likewise lacks merit. Having reviewed their relevant testimonies, the Appeals Chamber observes that Witness SU merely testified that she saw Nyiramasuhuko telling the Interahamwe to take Tutsi refugees and "gesticulating and showing, pointing out where they had to start",2171 while Witness SS simply stated that Nyiramasuhuko got out of the vehicle and stood by the door while she gave instructions.2172 The Trial Chamber expressly considered these aspects of the witnesses' testimonies, which Nyiramasuhuko does not demonstrate are incompatible.

935. The Trial Chamber also noted that, according to Witness SU, during the second attack, Nyiramasuhuko "repeated her instructions to the Interahamwe to start on one side and to take men and women and load them in the vehicle"2173 and that, according to Witness SS, Nyiramasuhuko "said to bring the young boys and not leave anyone behind. *2174 Nyiramasuhuko merely repeats this evidence without demonstrating that, in the context of this attack in which the witnesses were potential victims, the differences in their evidence render their accounts incompatible or that it was unreasonable for the Trial Chamber to find that, taken as a whole, their evidence was fundamentally consistent, credible, and reliable.

936. Turning to alleged discrepancies regarding Kazungu's presence and position as either a body guard, soldier, or Interahamwe, the Appeals Chamber observes that the Trial Chamber took explicit note of divergent accounts on this matter from Witnesses TK, RE, QJ, SS, SU, FAP, and QBQ2175 Beyond disagreeing with the Trial Chamber's assessment, Nyiramasuhuko does not demonstrate how the Trial Chamber erred. Furthermore, given the overwhelming evidence of Nyiramasuhuko's presence during the Night of Three Attacks, it is unclear how any inconsistency regarding Kazungu would undermine the Trial Chamber's finding in this regard.

937. Nyiramasuhuko's contention that paragraph 2702 of the Trial Judgement is vague as to which "attack" she was allegedly present for and participated in is similarly without merit as, read in context, there is no ambiguity that the findings in this paragraph concern her involvement in the Night of Three Attacks. 2170 See supra, Section IV.F.2(c)(ii)d. 2171 Witness SU, T. 14 October 2003 p. 32. 2172 Witness SS, T. 3 March 2003 pp. 51, 52. 2173 Trial Judgement, para. 2253. 2174 Trial Judgement, para. 2287. 2175 See Trial Judgement, paras. 2196, 2203, 2211, 2251-2253, 2277, 2284, 2302-2309, 2330, 2331, 2687, 2707, 2709. 328 Case No. ICTR-98-42-A 14 December 2015

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20037/H 938. As to the alleged inconsistencies concerning the occurrence of rapes, the Trial Chamber noted that Witnesses FAP, SS, and QBQ testified to rapes or Nyiramasuhuko's orders to commit rapes during the Night of Three Attacks, while Witnesses TK, RE, and SU did not.2176 The Trial Chamber considered that Witnesses FAP, SS, and QBQ provided corroborative accounts that: (1) Nyiramasuhuko gave orders to the Interahamwe to rape the women and the girls; 2177 and (ii) upon hearing her orders, Tutsi women and girls were raped by the Interahamwe?178 Upon review of the relevant evidence, the Appeals Chamber finds that the Trial Chamber's conclusions that Nyiramasuhuko ordered rapes and that rapes were committed were reasonable, notwithstanding the fact that Witnesses TK, RE, and SU did not testify to orders or the commission of rapes.

939. For the foregoing reasons, the Appeals Chamber dismisses Nyiramasuhuko's challenges to the Trial Chamber's findings of her presence and conduct, her orders to rape Tutsi women and girls, and the occurrence of rapes during the Night of Three Attacks. (v) Trifina 940. The Trial Chamber found credible Witness TK's testimony that, on the orders of Nyiramasuhuko, Interahamwe assaulted and killed a woman named Trifina during the Night of 2176 Compare Trial Judgement, paras. 2214, 2215, 2251, 2253, 2277, 2278 (Witnesses TK, SU, RE) with ibid., paras. 2284, 2286, 2304, 2306, 2308, 2331, 2688, 2693, 2696, 2699, 2700, 2701, 2712 (Witnesses SS, FAP, and QBQ). The Appeals Chamber notes Nyiramasuhuko's submission that Witness SU did not mention rapes in her prior statement. See Nyiramasuhuko Appeal Brief, para. 1151, referring to Exhibit D72 (Witness SU's Statement, dated 20 November 1996) (confidential). Considering that Witness SU did not testify to Nyiramasuhuko ordering rapes or the commission of rapes during the Night of Three Attacks, the Appeals Chamber finds that there is no discrepancy between the witness's testimony and prior statement. 2177 See Trial Judgement, paras. 2284, 2304, 2331, 2688, 2693, 2696, referring to, inter alia, Witness SS, T. 3 March 2003 p. 52, T. 5 March 2003 p. 71, Witness QBQ, T. 3 February 2004 pp. 12, 61, Witness FAP, T. 11 March 2003 p. 54, T. 12

March 2003 p. 53. 2178 See Trial Judgement, paras. 2286, 2306, 2331, 2688, 2699, 2700, 2701, referring, inter alia, to Witness SS, T. 3 March 2003 p. 58, Witness QBQ, T. 3 February 2004 pp. 62, 63, Witness FAP, T. 11 March 2003 pp. 59, 60 The Appeals Chamber notes Nyiramasuhuko's submission that Witness FAP's testimony is inconsistent with her prior statements. See Nyiramasuhuko Appeal Brief, paras. 1120-1127. See also ibid., para.

1268. Having reviewed Witness FAP's relevant prior statement and her testimony, the Appeals Chamber observes no apparent discrepancy In her prior statement, Witness FAP explicitly stated that Nyiramasuhuko ordered rapes during the Night of Three Attacks and that some women were raped. See Witness FAP's Statement, p. K0104986 (Registry pagination). The Appeals Chamber considers that it can be expected that Witness FAP's prior statement is less detailed than her testimony and Nyiramasuhuko has not shown material contradictions between the two. Nyiramasuhuko also submits that Witness SS did not mention rapes in her prior statement. See Nyiramasuhuko Appeal Brief, para. 1151, referring to Exhibit D96 (Witness SS's Statement, dated 20 November 1996) (confidential) ("Witness SS's Statement"). The Appeals Chamber observes that, in her prior statement, Witness SS stated that Nyiramasuhuko came three times to the prefectoral office and ordered abductions but made no mention of rapes. See Witness SS's Statement, p. K0034442 (Registry pagination). The Appeals Chamber recalls that a trial chamber has the discretion to accept a witness's testimony, notwithstanding inconsistencies between the said testimony and his or her previous statements, as it is for the trial chamber to determine whether the alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned. See Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, para.

96. Furthermore, given that Witness SS's account of Nyiramasuhuko's orders to commit rapes were corroborated by Witnesses FAP and QBQ, and the fact that the witness does not deny the existence of the orders or the rapes, the Appeals Chamber dismisses Nyiramasuhuko's argument in this regard. 329 Case No. ICTR-98-42-A 14 December 2015

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20036/H Three Attacks2179 The Trial Chamber determined that Witnesses QBQ and RE provided corroborative evidence. 2180 However, in light of its prior determination that Nyiramasuhuko was not given sufficient notice in relation to this event, the Trial Chamber limited the use of this finding as only providing "circumstantial support for [its] findings regarding the abduction and killing of other unnamed Tutsi refugees from the [Butare Prefecture Office]"2181 941. Nyiramasuhuko submits that it was unreasonable for the Trial Chamber to find that the testimonies of Witnesses RE and QBQ corroborated Witness TK's account as to the killing of Trifina.2182 She avers that, according to Witness TK, while Mbasha's wife was being abducted, Trifina started shouting and Nyiramasuhuko, who was in front of the vehicle, asked that people making noise be stopped and "set aside" 2183 Nyiramasuhuko notes that Witness TK also testified to Trifina being stabbed, having her throat slit, and being thrown into the vehicle.2184 She argues that Witness RE, on the other hand, testified that when "they hit [Trifina] to wake up, she refused to go and one Interahamwe strangled her" and that "[Nyiramasuhuko] did not get off the vehicle and that is why I'm saying I did not hear [Nyiramasuhuko] say anything."2185 According to Nyiramasuhuko, the testimonies of these witnesses are irreconcilable as Witness TK

testified to her issuing an order concerning Trifina, while Witness RE testified to not seeing or hearing her during the entire night of attacks 2186 Nyiramasuhuko further submits that Witness QBQ, who was on the veranda with Witnesses TK and RE, never attributed utterances to her concerning Trifina. 2187 She notes that, according to Witness QBQ, a woman was struck with a club and died near the door of the vehicle.2188 942. The Prosecution responds that corroborative accounts need not be identical and that the discrepancies between the testimonies were minor.2189 It further responds that given the different vantage points, the traumatic and chaotic experiences, and the passage of time, variations are 2179 Trial Judgement, paras. 2728-2730. 2180 Trial Judgement, para. 2729. 2181 Trial Judgement, para.

2730. See also ibid., paras. 2172, 2716. 2182 Nyiramasuhuko Appeal Brief, para.

1095. See also Nyiramasuhuko Reply Brief, para.

336. Nyiramasuhuko submits that Witnesses TK, RE, and QBQ had the same vantage point as they were all on the veranda. See Nyiramasuhuko Appeal Brief, paras. 1097, 1101. See also Nyiramasuhuko Reply Brief, para.

335. Nyiramasuhuko Appeal Brief, para. 1096, referring to Witness TK, T. 20 May 2002 pp. 85, 86, 90-92. See also ibid., paras. 1136-1138, 1271. Nyiramasuhuko also submits that Witness SS was perhaps testifying about Trifina who allegedly had one child and that the Interahamwe told her to breastfeed the child. See ibid…, para. 1137, referring to Witness SS, T. 3 March 2003 pp. 55-57. Nyiramasuhuko Appeal Brief, paras. 1096, 1271 2185 Nyiramasuhuko Appeal Brief, para. 1097 (emphasis omitted). See also ibid., paras. 1137, 1272. 2186 Nyiramasuhuko Appeal Brief, para.

1098. See also ibid., paras. 1102, 1107, 1271, 1272. Nyiramasuhuko also notes that Witnesses FAP, SS, SU, and QJ did not testify to the murder of Trifina. See ibid., para. 1274. 2187 Nyiramasuhuko Appeal Brief, paras. 1101, 1102, 1136. 2188 Nyiramasuhuko Appeal Brief, para. 1107. 2189 Prosecution Response Brief, paras. 689, 690. 330 Case No. ICTR-98-42-A 14 December 2015

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20035/H reasonable and that the Trial Chamber reasonably determined that Witnesses TK, RE, and QBQ corroborated each others' accounts of the attack against Trifina. 2190 943. The Appeals Chamber does not consider that the Trial Chamber was unreasonable in finding that Trifina was attacked by the Interahamwe based on Nyiramasuhuko's orders, or that it erred in concluding that Witnesses RE's and QBQ's testimonies corroborated that of Witness TK. 2191 The Appeals Chamber observes that the Trial Chamber expressly considered the accounts of Witnesses TK, RE, and QBQ and stated that: Witness TK provided evidence that during the same attack by Interahamwe on Mbasha's wife [during which refugees were stripped and loaded on the truck at around 7.00 p.m. or 7.30 p.m.], a refugee girl named Trifina started shouting. Nyiramasuhuko said that noise should be stopped and those who were shouting should be set aside. Trifina was attacked with daggers and her shoulder was wounded, but she shouted even louder. Interahamwe then slit her throat, almost cutting her head off, and threw her dead body into the vehicle. When the vehicle was full of people Ntahobali drove it away with Nyiramasuhuko as a passenger. Witness TK's account was corroborated by Witnesses QBQ and RE. Witness QBQ said the Interahamwe heard Nyiramasuhuko give an order and immediately attacked the people on the veranda, pulling

them by their noses. The Interahamwe used a club to hit one woman who refused to comply and she died in front of the vehicle. Witness RE also stated that the Interahamwe strangled to death a young woman named Trifina because she refused to go. 2192 944. The Appeals Chamber observes that the three witnesses provided consistent accounts that: (i) a woman, which Witnesses TK and RE identified as Trifina, refused to be abducted by the Interahamwe during the Night of Three Attacks;2193 (ii) upon her refusal, the Interahamwe attempted to strangle her;219 and (iii) the woman was eventually killed at the prefectoral office. 2195 While Witnesses RE and QBQ did not testify, as Witness TK did, to Nyiramasuhuko stating that the noise be stopped and that those shouting be "set aside", the Appeals Chamber reiterates that corroboration is not a requirement and a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony.2196 The Appeals Chamber considers that the Trial Chamber, having found Witness TK's account credible regarding this event, was entitled to rely on her testimony to find that "Trifina was assaulted and killed by Interahamwe based on the orders of Nyiramasuhuko" despite the fact that neither Witness QBQ nor Witness RE testified about Nyiramasuhuko issuing such instructions.2197 As emphasised above, the Appeals Chamber finds no 2190

Prosecution Response Brief, para. 690. 2191 See Trial Judgement, paras. 2729, 2730. 2192 Trial Judgement, paras. 2728, 2729. 2193 See Witness TK, T. 20 May 2002 pp. 90-93; Witness QBQ, T. 3 February 2004 pp. 20, 21; Witness RE, T. 24 February 2003 p. 21. 2 ViT. T.27 May 2ay 20P. 73, T.2 MR 2002 . 13, 7: 2005: 080, T. 3 February 2004 p. 20, 21. Nchamihigo Appeal Judgement, para. 42. 2197 Trial Judgement, para. 2730. 331 Case No. ICTR-98-42-A 14 December 2015

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20034/H merit in Nyiramasuhuko's submission that witnesses, who were allegedly in the same location during the attacks, should have provided identical accounts of the attack on Trifina.

945. In light of the above, the Appeals Chamber dismisses Nyiramasuhuko's challenges to the Trial Chamber's assessment of the evidence regarding the attack against Trifina. (vi) Killing Locations and Abductions of Semanyenzi 946. The Trial Chamber determined that, regardless of whether refugees were taken to Rwabayanga, Kabutare, Mukoni, or the IRST, the only reasonable inference is that they were abducted from the Butare Prefecture Office to be killed 2198 In coming to this conclusion, the Trial Chamber considered the evidence of, among others, Witnesses SU, RE, FAP, and QBQ, and their hearsay accounts from survivors such as Semanyenzi, 2199 947. Nyiramasuhuko submits that the Trial Chamber erred in relying on hearsay evidence that the abducted persons were killed, particularly as the sources of this information did not testify at trial and because the victims of the killings were unknown. 200 She argues that these persons naturally would not return and that concluding that they were killed was not the only reasonable inference from the evidence.2201 Moreover, she contends that the Trial Chamber; in relying on this hearsay evidence of killings, disregarded numerous inconsistencies in the testimonies of witnesses who testified to the survival and utterances of Semanyenzi and Annonciata2202 She notes the Trial Chamber's acknowledgement of contradictory evidence regarding where

abducted refugees were taken, 203 but argues that it was unreasonable for the Trial Chamber to disregard inconsistencies on this point considering that witnesses, including Witnesses TK, RE, SS, SU, QBQ, and FAP, all testified about the same night of attacks and Semanyenzi's return.2204 Nyiramasuhuko further submits that it was unreasonable for the Trial Chamber to accept that Semanyenzi, abducted during the first attack, returned during the second attack and was abducted again, returned during the third attack and was abducted yet again, and finally survived and returned to the prefectoral office. 205 2198 Trial Judgement, para. 2749. 202 See Nyiramasuhuko Notice of Appeal, paras. 10.49, 10.50; Nyiramasuhuko Appeal Brief, paras. 1220-1256 See also Nyiramasuhuko Reply Brief, para. 31 208 Niamashuko Appal Bit parat 3-305, 506, 1220, 1222, 1223, See also ibid, paras, 1232-1234, 1237.1252, 1254-1256. 2205 Nyiramasuhuko Appeal Brief, para.

1224. Nyiramasuhuko also notes that Semanyenzi was not called as a witness to testify about the events at the Butare Prefecture Office, or his survival. See ibid., paras. 1225-1229. 332 Case No. ICTR-98-42-A 14 December 2015

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20033/H She also contends that the evidence of Witnesses SS and SU concerning Fidèle contradicts their prior statements. 206 948. The Prosecution responds that Nyiramasuhuko's submissions should be dismissed as Witnesses FAP, SS, SU, RE, TK, and QBQ corroborated each other on Semanyenzi's abduction and escape?207 According to it, the Trial Chamber's reference to the abduction and escape of Semanyenzi simply demonstrates that these witnesses were testifying about the same night. 208 949. The Appeals Chamber considers that Nyiramasuhuko does not show that the Trial Chamber abused its discretion in relying on hearsay evidence concerning the killings of refugees abducted from the prefectoral office. Indeed, when evaluating the hearsay evidence whose sources were Semanyenzi, Annonciata, and Fidèle2209 - who all saw killings of abducted persons at various locations in Butare - the Trial Chamber acknowledged that these individuals did not testify during the proceedings and that this hearsay evidence must be viewed with caution. 210 Moreover, the Trial Chamber carefully considered the hearsay evidence along with direct evidence concerning the nature of the attacks at the prefectoral office as well as evidence that refugees who were abducted did not return.2211 950. The Trial Chamber also explicitly noted that the evidence relating to where the refugees were taken to be killed was "inconsistent" 2212 It acknowledged that the witnesses who learned about the killings from Semanyenzi and Annonciata might have been expected to identify the same 2206 Nyiramasuhuko Appeal Brief, para.

503. The Appeals Chamber notes that Nyiramasuhuko further argues that the Trial Chamber erred in relying on: (i) Witness TA's evidence about killings that were unrelated to attacks in which she participated; (ii) Witness Ghandi Shukry's evidence that no "pit" existed at the prefectoral office; and (iti) evidence that there were corpses everywhere in. Butare Town. See ibid., paras. 492, 494, 499, 500. Nyiramasuhuko's submissions, however, reflect mere disagreement with the relevance of the impugned evidence without demonstrating how the Trial Chamber erred in recalling this evidence or show that it was relevant to its determination that refugees abducted from. the prefectoral office were killed. Consequently, the Appeals Chamber dismisses these contentions without further consideration. 2207 Prosecution Response Brief, para. 651. 2208 Prosecution Response Brief, para. 651. 2209 The Appeals Chamber notes that the Trial Chamber variously referred to Fidèle as "Fidel", "Fidelis", or "Fidele" in the Trial Judgement. See Trial Judgement, paras. 2745, 2746. 210 Trial Judgement, para. 2745. 2211 See Trial Judgement, paras. 2739-2747. 2212 Trial Judgement, para. 2747 ("The Chamber notes that Witnesses SJ, QY, RE, FAP and QBQ provided inconsistent testimony as to where an escaped refugee named Semanyenzi had been taken, although he allegedly told each of them how and from where he

escaped. Witness SJ said the Mbashas, Annonciata and Semanyenzi were all taken to the same a 27 The Chimber more the Winese, Go, eat he legor at not an place and that she later learned from Annonciata and Interahamwe that the location of the killings was Kabutare. Witness QY said that she learned from Annonciata that the refugees had been taken to Rwabayanga to be killed. Witness RE also learned from Semanyenzi and Annonciata that the people were killed. She said the refugees were killed at Rwabayanga. Witness FAP did not indicate where Semanyenzi had been taken, but testified that certain soldiers warned her that Interahamwe were taking people to Rwabayanga. Finally, Witness QBQ testified that Semanyenzi had survived at Mukoni. Given that each of these witnesses had learned from Semanyenzi and Annonciata where the killings had occurred, it might be expected that each would identify the same location.") (internal references omitted). 333 Case No. ICTR-98-42-A 14 December 2015

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20032/H location?213 However, the Trial Chamber also observed that not all the evidence about the location of killings came from these two survivors.2214 The Trial Chamber then noted that all four locations cited "were all sites of massacres or mass graves" or behind or near such sites and accepted that different groups of refugees could have been taken to these locations on different occasions.2215 It concluded that, "[regardless of whether the refugees were taken to Rwambayanga, Kabutare, Mukoni, or the IRST, the only reasonable inference is that the refugees were abducted from the (Butare Prefecture Office] in order to kill them."2216 951. Nyiramasuhuko fails to appreciate that Semanyenzi was not the only source of information regarding the location where abducted refugees were killed and her submissions reflect mere disagreement with the Trial Chamber's analysis without substantiating an error. Her misplaced emphasis on the location of the killings also ignores that the evidence of principal significance - i.e. that abducted refugees were killed - is entirely consistent2217 The Appeals Chamber also finds that Nyiramasuhuko does not demonstrate that the Trial Chamber's consideration of the evidence on the killing sites was unreasonable.

952. The Appeals Chamber also rejects Nyiramasuhuko's arguments with respect to Semanyenzi's abduction, survival, and subsequent abduction. It notes that, compared to findings about Mbasha's wife and children, Trifina, and the unnamed woman and her children, the Trial Chamber made no specific conclusions as to the circumstances of Semanyenzi's abduction or survival in its analysis of events during the Night of Three Attacks. 2218 The Trial Chamber explicitly observed that witnesses provided different accounts of when and to where Semanyenzi was abducted 2219 The Trial Chamber appears to have referenced his survival to ascertain whether witnesses were indeed testifying about the Night of Three Attacks,2220 and to assess whether abducted Tutsi refugees were killed. 221 In this regard, the Appeals Chamber is of the view that inconsistencies related to Semanyenzi's abduction and survival are not material to the Trial 2213 Trial Judgement, para. 2747. 2214 Trial Judgement, fn. 7689 ("The Chamber notes that Witnesses QJ and QBP did not attribute their knowledge of the location of the killings to Semanyenzi or Annonciata: [...] [Witness QBP] said she learned killings occurred in Kabutare from people who had gone to the market the next day; [...] Witness QJ did not indicate her source of information that the refugees were killed in Kabutare[]. The Chamber recognises that these two

witnesses may have been referring to different attacks than the other witnesses and therefore, the information they provided does not necessarily contradict that certain refugees were killed at Rwabayanga or Mukoni.") (internal references omitted). See also ibid., para. 2747 ("Witness SJ said the Mbashas, Annonciata and Semanyenzi were all taken to the same place and that she later learned from Annonciata and Interahamwe that the location of the killings was Kabutare.") 2215 Trial Judgement, para. 2748 2216 Trial Judgement, para. 2749. 2217 See Trial Judgement, para. 2749. 2218 See Trial Judgement, paras. 2654-2738. See also ibid., Section 3.6.19.4.7. 2219 See Trial Judgement, paras. 2237, 2278, 2307, 2333, 2745-2747. 2220 See, e.g., Trial Judgement, paras. 2656, 2658, 2659. 2221 See Trial Judgement, paras. 2745-2747. See also ibid., Section 3.6.19.4.8. 334 Case No. ICTR-98-42-A 14 December 2015

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20031/H Chamber's findings that the Night of Three Attacks occurred or that abducted refugees were eventually killed. Nyiramasuhuko does not demonstrate an error in the Trial Chamber's assessment.

953. The Appeals Chamber likewise finds that Nyiramasuhuko fails to demonstrate the materiality of the purported variances between the testimonies of Witnesses SS and SU and their prior statements concerning Fidèle.

954. Consequently, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in its assessment of the locations where persons were killed and the abductions of Semanyenzi. (vii) Conclusion 955. For the reasons developed above, the Appeals Chamber finds that the Trial Chamber erred in relying on the evidence of Witnesses QBP and SJ in support of its findings regarding the Night of Three Attacks but that this error has not occasioned a miscarriage of justice. The Appeals Chamber dismisses the remainder of Nyiramasuhuko's challenges to the assessment of the evidence pertaining to the Night of Three Attacks. (f) First Half of June Attacks 956. The Trial Chamber, relying on the testimonies of Witnesses QBP and SU, as partly corroborated by Witnesses SS and TA, found that during an attack on the Butare Prefecture Office conducted in the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women and that, as a result, numerous women were raped at that location?222 It found that, although Nyiramasuhuko could not have been present at the prefectoral office on 6 and 10 June 1994, she had ample opportunity to perpetrate these crimes between 7 and 9 June 1994, and between 11 and 19 June 19942223 The Trial Chamber convicted Nyiramasuhuko as a superior for failing to prevent and punish the rapes perpetrated by the Interahamwe during

this attack.2224 2222 Trial Judgement, paras. 2752-2769, 2773. The Appeals Chamber notes that, in paragraph 2750 of the Trial Judgement, the Trial Chamber stated that "Witness TA's evidence [...] corresponds with the attack described by Witness QBP which allegedly occurred in June 1994." In the following paragraph of the Trial Judgement, the Trial Chamber, in reference to Witnesses SU's and SS's evidence, stated that "these additional attacks occurred in the first half of June 1994", which may imply that it considered that Witnesses SS and SU testified to an attack additional to and distinct from that witnessed by Witnesses TA and QBP. However, reading the Trial Chamber's factual findings concerning attacks at the prefectoral office in June 1994 in context, the Appeals Chamber concludes that the Trial Chamber considered aspects of the testimonies of Witnesses SS, SU, TA, and QBP to pertain to the same attack. See ibid., paras. 2752, 2753, 2765, 2770. 2223 Trial Judgement, para. 2773. 2224 Trial Judgement, paras. 5874, 5877, 5886, 6087, 6088, 6093, 6182, 6183, 6186. 335 Case No. ICTR-98-42-A 14 December 2015

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20030/H 957. Nyiramasuhuko submits that the Trial Chamber erred in its assessment of the evidence concerning this attack by minimising the differences between Witnesses QBP's, SU's, SS's, TA's, and TK's testimonies, and concluding that they corroborated each other.2225 In support of her argument, Nyiramasuhuko argues that the Trial Chamber's finding that Witness QBP testified that she ordered rapes during this attack directly contradicts its finding that the only attack Witness QBP described in her testimony was the Night of Three Attacks 2226 In her view, the Trial Chamber therefore unreasonably concluded that Witness QBP corroborated Witness SU because Witness QBP testified about the Night of Three Attacks2227 Nyiramasuhuko further contends that the Trial Chamber failed to consider that Witness SU's testimony was contradicted by Witnesses TA, TK, and SS, who did not testify that Nyiramasuhuko was present during the attack 2228 According to Nyiramasuhuko, the Trial Chamber also unreasonably failed to address that Witnesses RE, FAP, QBQ, QY, SJ, and SD, who were present at the prefectoral office in the first half of June 1994, did not testify about additional attacks in June 1994 or the presence of Nyiramasuhuko at the prefectoral office during this time period,22 particularly in light of Witness SU's testimony that none of the refugees was asleep during the attack and

that Nyiramasuhuko was speaking loudly and moving around in an agitated manner 230 She also argues that the Trial Chamber's finding that she ordered rapes at the prefectoral office between 7 and 9 and between 11 and 19 June 1994 is incompatible with its acceptance of Witness SU's testimony that from the moment gendarmes were posted to protect the Tutsi refugees at the prefectoral office between 5 and 15 June 1994, no one was raped. 2231 958. The Prosecution responds that Witness QBP's testimony pertained to the same attack in the first half of June 1994 about which Witness SU testified and that the Trial Chamber was therefore reasonable in relying on Witnesses SU's and QBP's mutually consistent testimonies that • Nyiramasuhuko ordered Interahamwe to rape Tutsi women during this attack. 2232 It contends that the Trial Chamber did not rely on Witness TK's testimony as regards this attack and that the fact that Witnesses SS and TA did not identify Nyiramasuhuko as being present does not undermine the corroboration they provided of other aspects of Witnesses SU's and QBP's evidence 2233 It adds that 2225 Nyiramasuhuko Notice of Appeal, paras. 10.7, 10.8, 10.27; Nyiramasuhuko Appeal Brief, paras. 1194, 1199-1217; Vyiramasuhuko Reply Brief, paras. 338, 339, 341 226 Nyiramasuhuko Appeal Brief, paras. 1195-1198, referring to Trial Judgement, paras. 2657, 2752 2227 Nyiramasuhuko Appeal

Brief, paras. 1197, 1198; Nyiramasuhuko Reply Brief, paras. 337, 338. 2228 Nviramasuhuko Notice of Appeal, paras. 10.28-10.30, 10.34: Nyiramasuhuko Appeal Brief, paras. 1199-1211, 1216, 1217. See also Nyiramasuhuko Reply Brief, para. 337. 2229 Nyiramasuhuko Appeal Brief, paras. 1214, 1215, 1218; Nyiramasuhuko Reply Brief, paras. 340-342. 2230 Nyiramasuhuko Appeal Brief, paras. 1212-1214. See also AT. 14 April 2014 p. 23. 2231 Nyiramasuhuko Appeal Brief, paras. 737-740, referring to Trial Judgement, paras. 2773, 2808, 2809, 2811, 2812, Witness SU, T. 21 October 2002 pp. 37, 38. 2232 Prosecution Response Brief, paras. 703-706. 2233 Prosecution Response Brief, paras. 709-715. 336 Case No. ICTR-98-42-A 14 December 2015

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20029/H Witnesses QBP's and SU's direct and corroborated evidence is not undermined simply because Witnesses RE, FAP, QBQ, QY, SJ, and SD did not testify to seeing Nyiramasuhuko order rapes during an attack in the first half of June 19942234 Finally, the Prosecution submits that there is no contradiction between the Trial Chamber's finding with respect to the gendarmes at the prefectoral office because the dates in question do not entirely overlap 2235 In its view, Nyiramasuhuko also misstates the evidence and the Trial Chamber's findings, which reflect that the refugees were not necessarily protected by the gendarmes.2236 959. Nyiramasuhuko replies that no reasonable trier of fact would have concluded that Witnesses TA and SU necessarily discussed the same attack on the basis that Witnesses QBP and TA described the rape of Immaculée Mukagatare while Witness TA did not recollect Nyiramasuhuko's presence, and asserts that the Trial Chamber's findings are ultimately only reliant on the contradictory testimonies of Witnesses SU and QBP?23 She further replies that the Trial Chamber relied on Nsabimana's testimony that the gendarmes protected the Tutsis and that there were no further attacks, which, in her view, should have raised reasonable doubt as to her involvement in an attack during this time period. 2238 960. As discussed above, a careful review of Witness QBP's testimony

reveals that she did not testify about the Night of Three Attacks but that her testimony on an attack at the prefectoral office concerned an attack that occurred after the Night of Three Attacks in the first half of June 1994 during which Immaculée Mukagatare was raped 2239 Nyiramasuhuko's argument, which is premised on the assumption that Witness QBP's testimony related to the Night of Three Attacks and not to a later attack in the first half of June 1994, cannot therefore succeed. 2240 2234 Prosecution Response Brief, paras. 720-723. The Prosecution also argues that, in any case, the Trial Chamber acted within its discretion in preferring the testimonies of Witnesses SU and QBP and that the reasonableness of the Trial Chamber's findings is further demonstrated by Witnesses RE's, FAP's, and QBQ's testimonies that Nyiramasuhuko issued orders to rape at the prefectoral office, which provides additional circumstantial support for the Trial Chamber's findings. See ibid., para. 722. 2235 Prosecution Response Brief, para. 716. 2236 Prosecution Response Brief, paras. 716-719. 2237 Nyiramasuhuko Reply Brief, paras. 340-342. See also AT. 14 April 2015 p. 23. 2238 Nyiramasuhuko Reply Brief, para. 344, referring to Trial Judgement, paras. 2812-2815. The Appeals Chamber notes that Nyiramasuhuko also argues in her reply brief that the Trial Chamber "failed in its duty to provide a reasoned opinion by deciding to convict [her] in respect of an elastic period limited to the dates the Chamber did not believe her alibi, rather than on evidence beyond a reasonable doubt." See ibid., para.

343. Noting that Nyiramasuhuko failed to raise this allegation of error in her notice of appeal and her appeal brief and recalling that reply briefs shall be limited to arguments in reply to the response brief, the Appeals Chamber declines to consider this argument further. Witness QBP, T. 24 October 2002 pp. 84-86, 88, T. 28 October 2002 pp. 71, 74. See also supra, para. 894. 2240 As to the Trial Chamber's erroneous statement about the relevance of Witness QBP's evidence to the Night of Three Attacks, the Appeals Chamber observes that the Trial Chamber did not rely on Witness QBP's evidence regarding the timing of the Night of Three Attacks or Ntahobali's and Nyiramasuhuko's conduct during this event. Instead, the Trial Judgement reflects that Witness QBP's testimony was only relied upon as circumstantial evidence for. the Night of Three Attacks in relation to the vehicle used during the attacks at the prefectoral office and as to what 337 Case No. ICTR-98-42-A 14 December 2015

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20028/H 961. Concerning Nyiramasuhuko's argument that Witnesses TA and SU did not necessarily discuss the same attack, the Appeals Chamber observes that the Trial Chamber noted that Witness TA, like Witness QBP, was "also an eyewitness to the rape of Immaculée Mukagatare", which Witness QBP had recounted as occurring as part of the attack in the first half of June 1994 during which Nyiramasuhuko ordered the rape of Tutsi women2241 The Trial Chamber therefore considered that Witness TA's account of the rape of Immaculée Mukagatare concerned the same attack described by Witness QBP and therefore also related to Witness SU's testimony corroborating Witness QBP's recollection of Immaculée Mukagatare's rape. 242 Nyiramasuhuko fails to demonstrate that the Trial Chamber's finding in this respect was unreasonable.

962. Though Witness TA did not testify that Nyiramasuhuko was present during the attack, this was not of material importance considering the brief nature of her testimony in relation to the attacks at the prefectoral office in June 1994, the core of which was focused on her own rape by seven Interahamwe and her recollection of the violent rape of Immaculée Mukagatare2243 Likewise, Witness SS's testimony about this attack was limited to explaining how Witness SU attempted to dissuade the Interahamwe from raping her.2244 Witness SS's testimony concerning this incident was very brief and the witness was not questioned during examination or cross-examination as to the context in which it occurred, or on whether Nyiramasuhuko was present.2245 963. In light of the detailed and mutually corroborative evidence of Witnesses SU and QBP concerning the attack at the prefectoral office in the first half of June 1994 during which Nyiramasuhuko ordered Interahamwe to rape Tutsi women and the nature of Witnesses TA's and SS's testimonies on this attack, the Appeals Chamber is not persuaded that it was unreasonable on the part of the Trial Chamber to not expressly address that Witnesses TA and SS did not mention Nyiramasuhuko as being present during the attack or consider their evidence to contradict that of Witness SU.

964. Nyiramasuhuko also fails to demonstrate that the Trial Chamber abused its discretion by not finding that Witness TK contradicted Witness SU's testimony that Nyiramasuhuko ordered rapes during this attack. The Trial Chamber did not find that Witness TK's testimony pertained to the same attack during the First Half of June 1994 Attacks as described by Witness SU. By contrast, it stated that Witness TK corroborated Witness TA's testimony regarding "additional attacks" at the Nyiramasuhuko wore in general. See Trial Judgement, paras. 2663, 2698, fn.

7559. Consequently, the Appeals Chambes inds that this error has not occasioned a miscarriage of justice 2241 Trial Judgement, paras. 2750, 2769, 2770. 2242 Trial Judgement, paras. 2750, 2752, 2769, 2770. 2243 Witness TA, T. 29 October 2001 pp. 7-28, T. 1 November 2001 pp. 36-48. 2244 Trial Judgement, para. 2757. 2245 Witness SS, T. 3 March 2003 p. 74 (closed session). 338 Case No. ICTR-98-42-A 14 December 2015

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20027/H Butare Prefecture Office during the first half of June 19942246 The Trial Chamber also expressly noted that Witness TK did not see Nyiramashuko when rapes occurred at the prefectoral office during the first half of June 1994 and that her sightings of Nyiramasuhuko were either during the day or on the Night of Three Attacks?247 Nyiramasuhuko does not point to any aspect of Witness TK's testimony that would demonstrate that she and Witness SU testified to the same specific attack in the first half of June 1994 or that materially contradicts Witness SU's evidence about that specific attack that she described. Nyiramasuhuko also does not show that the Trial Chamber did not consider the aspects of Witness TK's testimony to which she points. 248 965. The Appeals Chamber finds that Nyiramasuhuko's contention that the Trial Chamber should have addressed that Witnesses RE, FAP, QBQ, QY, SJ, and SD did not testify that any attacks occurred or that Nyiramasuhuko was present at night in June 1994 or after the Night of Three Attacks despite being at the prefectoral office during the relevant time period is equally unpersuasive. The Appeals Chamber recalls its finding that the Trial Chamber erred in relying on Witnesses QY's and SJ's evidence in relation to the attacks at the prefectoral office 2249 and notes that the Trial Chamber considered in detail the evidence of Witnesses RE, FAP, QBQ, and SD in relation to the Night of Three Attacks and other attacks 2250 The Appeals Chamber considers that the Trial Chamber was not required to discuss any possible difference within the Prosecution evidence where that evidence was not incompatible.

966. Nyiramasuhuko fails to reference anything in the testimonies of Witnesses RE, FAP, QBQ, and SD reflecting that their evidence renders the Trial Chamber's findings on the attack described by Witnesses QBP and SU unreasonable, or that they were necessarily continuously present at the prefectoral office during the time of the attack. Nyiramasuhuko merely refers to the Trial Chamber's findings that Witnesses RE and FAP witnessed only one attack at the prefectoral office, which was the Night of Three Attacks,25l without showing that they denied the occurrence of later attacks or providing any support for her contention with respect to Witnesses QBQ and SD.2252 While Nyiramasuhuko highlights Witness SU's evidence that Nyiramasuhuko shouted during the 2246 Trial Judgement, para. 2771. 2247 Trial Judgement, paras. 2205, 2209-2215, 2218, 2686, 2698, 2704, 2717, 2728, 2730, 2771. 2248 In her appeal brief, Nyiramasuhuko merely refers to the Trial Chamber's summary of Witness TK's testimony and to excerpts of Witness TK's testimony reflecting that she did not see Nyiramashuko during attacks at the prefectoral office other than the Night of Three Attacks, or during the day. See Nyiramasuhuko Appeal Brief, paras. 1205-1211, referring to Trial Judgement, paras. 2654, 2771, 2773, Witness TK, T. 20 May 2002 pp. 96-98, T. 22 May 2002 pp. 56, 57, T. 28 May 2002 pp. 52, 53. 2219 See supra,

paras. 804, 846, infra, paras. 1657, 1678. 2250 Trial Judgement, paras. 2620, 2650, 2651, 2654, 2656, 2658, 2660, 2661, 2663, 2664, 2672-2674, 2676, 2680, 2686, 2687, 2691-2696, 2698-2700, 2703, 2707, 2710-2712, 2714, 2719, 2720, 2731, 2734-2736, 2738. 2251 Nyiramasuhuko Appeal Brief, para. 1215, referring to Trial Judgement, paras. 2654, 2656, 2657. 2252 See Nyiramasuhuko Appeal Brief, paras. 1214, 1215, 1218. Case No. ICTR-98-42-A 14 December 2015

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20026/H attack and that the refugees were not asleep, 2253 the Appeals Chamber is of the view that it was within the discretion of the Trial Chamber not to consider this as determinative that all refugees present during the attack would necessarily recall it in their testimony, particularly if they were not a targeted victim on that occasion. Given the prevailing circumstances at the prefectoral office, which included numerous attacks against the refugees and conditions of "unfathomable depravity and sadism", 2254 and in light of Witnesses SU's and QBP's reliable and corroborated evidence as to Nyiramasuhuko's participation in the attack, further supported by Witnesses TA's and SS's evidence, the Appeals Chamber finds no error in the Trial Chamber's finding that Nyiramasuhuko participated in an attack after the Night of Three Attacks in the first half of June 1994. The fact that Witnesses RE, FAP, QBQ, and SD did not testify to this specific attack or to Nyiramasuhuko's presence at the prefectoral office during this time period does not demonstrate the unreasonableness of the Trial Chamber's conclusion.

967. Finally, the Appeals Chamber sees no merit in Nyiramasuhuko's argument that the Trial Chamber's reliance on Witness SU's testimony that gendarmes were posted at the Butare Prefecture Office is inconsistent with its finding on Nyiramasuhuko's participation in an attack in the first half of June 1994. Nyiramasuhuko overlooks that the Trial Chamber relied on Witness SU's direct evidence of this attack in reaching its finding that Nyiramasuhuko ordered rapes 255 and that the Trial Chamber similarly relied on her testimony to find that Nsabimana posted gendarmes at the prefectoral office sometimes between 5 and 15 June 1994.2256 Contrary to Nyiramasuhuko's argument, there is no contradiction between these findings or within Witness SU's testimony as the Trial Chamber did not find that all abductions and rapes ceased once gendarmes or soldiers were posted at the prefectoral office 25 Nor did the Trial Chamber find, or Witness SU testify, that the attack occurred on a specific date. Indeed, the Trial Chamber's finding as to the timing of this attack is limited to the time period of "the first half of June 1994" 2258 2253 See Nyiramasuhuko Appeal Brief, paras. 1212-1214, referring to Witness SU, T. 14 October 2002 pp. 52-54, 57, 254 Trial Judgement, para.

5866. See also ibid., para. 2627. 2255 See Trial Judgement, paras. 2254-2256, 2753-2756, 2758-2762. 2256 Trial Judgement, paras. 2809, 2811, 2812. 2257 The Trial Chamber found that "Nsabimana requisitioned the soldiers and/or gendarmes to harm the refugees insofar as it relates it to Paragraph 6.36 of the Indictment." See Trial Judgement, para.

2815. It also stated that the "evidence establishe[d] that these soldiers forestalled attacks against those taking refuge" at the Butare Prefecture Office. See ibid., para. 5902, referring to Witness SU, T. 21 October 2002 p. 38, Witness SS, T. 10 March 2003 pp. 34, 35 According to Witness SU, the gendarmes prevented the abduction of refugees when a red Toyota vehicle came to the prefectoral office and they continued to guard the refugees. However, she testified that the gendarmes, realising that they were guarding Tutsi refugees, threatened to kill the refugees should the RPF arrive. See Witness SU, 2258 Trial Judgement, paras. 2751, 2773, 2781(v). Witness SU testified that she "did not know the exact date" when the gendarmes came to the prefectoral office but that it happened in June. See Witness SU, T. 21 October 2002 pp. 37, 40. 340 Case No. ICTR-98-42-A 14 December 2015

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20025/H 968. Therefore, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in relying on the evidence of Witnesses QBP and SU, as partly corroborated by Witnesses SS and TA, in finding that, in the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the Butare Prefecture Office and that, as a result, numerous women were raped at that location.

3. Ordering Responsibility 969. Notwithstanding the imprecision in the Trial Judgement, the Appeals Chamber has determined that the Trial Chamber convicted Nyiramasuhuko of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for ordering killings committed as a result of attacks at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks.2259 970. Nyiramasuhuko contends that the Trial Chamber erred in convicting her for ordering killings in the absence of any evidence that she issued orders to kill during these attacks.2260 She submits that the Trial Chamber only found that she ordered Tutsi refugees to be abducted during the Mid-May Attack and that there is no evidence that this order significantly contributed to the killing of the refugees or that the Interahamwe who loaded the vehicle with refugees actually killed them later?261 Alternatively, she submits that the Trial Chamber erred in failing to explain how it inferred an order to kill from her alleged orders that refugees be abducted 2262 971. With respect to the Night of Three Attacks, Nyiramasuhuko emphasises that the Trial Judgement contains no express

finding that she issued any order to kill during this attack and argues that it would be impermissible to infer such orders?263 In particular, she contends that the Trial Chamber's conclusion that she ordered rapes during this attack is insufficient to establish that she ordered killings.?264 Furthermore, she appears to argue that the Trial Chamber did not find that she 2259 See supra, para. 749. 2260 Nyiramasuhuko Appeal Brief, paras. 865, 866, 869, 1286, referring to Trial Judgement, paras. 2644, 2715, 2738, 2749, 2781, 5867-5876, 5886, 5969, 5970. See also Nyiramasuhuko Reply Brief, paras. 239, 248; Nyiramasuhuko Supplementary Sum ision, Bare, 2aAT: 15, 52120152, refering to Trial Judgement, paras. 5867-5869, See also Nyiramasuhuko Supplementary Submissions, para. 10. 2262 Nviramasuhuko Appeal Brief, paras. 820, 821, 862. See also Nyiramasuhuko Supplementary Submissions, para. 6 263 Nyiramasuhuko Supplementary Submissions, paras. 6, 11-13, 21-23, 27, 32. See also AT. 15 April 2015 pp. 3, 4 264 Nyiramasuhuko Supplementary Submissions, paras. 10, 13, 28. See also ibid., para. 29; AT. 15 April 2015 pp. 3,4 341 Case No. ICTR-98-42-A 14 December 2015

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20024/H ordered Interahamwe to load the refugees onto the vehicles during the Night of Three Attacks or that such conclusion would provide an adequate basis to establish her liability for ordering 2265 972. Nyiramasuhuko further contends that, with respect to the Mid-May Attack and the Night of Three Attacks, the Trial Chamber erred in finding that, between mid-May and mid-June 1994, the abducted refugees were killed at different locations, as it failed to point to evidence or factual findings supporting this conclusion?266 She contends that the Trial Chamber made no findings as to the perpetrators of such killings, the fact that the perpetrators were acting on her orders, the means used to commit the killings, or the location and victims of these killings.2267 973. In addition, Nyiramasuhuko submits that, in finding her guilty of genocide under Article 6(1) of the Statute for ordering killings, the Trial Chamber erred in its assessment of her mens rea?268 Specifically, she contends that it erred in relying on the findings that pits were dug which contained those killed at the prefectoral office, that she ordered rapes and distributed condoms on another occasion, and that she tacitly approved the inflammatory speeches at Nsabimana's Swearing-In Ceremony in order to establish her genocidal intent.2269 She also reiterates that the Trial Chamber could not legally rely on her

alleged orders or encouragements to rape refugees at the prefectoral office as it had stated that it would not take rapes into account when assessing her responsibility for genocide2270 974. The Prosecution responds that the Trial Chamber's finding that Nyiramasuhuko ordered abductions sufficiently establishes her responsibility under Article 6(1) of the Statute.2271 It contends that the evidence and the Trial Chamber's findings demonstrate that she issued such orders knowing the substantial likelihood that crimes would be committed in the execution of them and that her orders had a direct and substantial effect on the subsequent killings 2272 In support of these inferences, the Prosecution, for example, points to evidence that Nyiramasuhuko issued 2265 Nyiramasuhuko Supplementary Submissions, 17, 18, 22, 27. 2266 Nyiramasuhuko Appeal Brief, paras. 822, 853, 861, 867, 879, 1284, referring to Trial Judgement, paras. 5867, 5873. See also Nyiramasuhuko Reply Brief, paras. 240, 241; AT. 15 April 2015 pp. 3, 4. 2267 Nyiramasuhuko Appeal Brief, paras. 823, 853, referring to Trial Judgement, para.

5873. See also Nyiramasuhuko Supplementary Submissions, paras. 7-11; AT. 15 April 2015 p.

4. Nyiramasuhuko Appeal Brief, paras. 824-826, 856, 860, 1285, 1290. 2269 Nyiramasuhuko Notice of Appeal, paras. 7.3, 7.4; Nyiramasuhuko Appeal Brief, paras. 824-826, 858, 859, 896-900 1285, 1290, referring to Trial Judgement, paras. 5862, 5863, 5870, 5871, 5873, 5874, 5876. See also Nyiramasuhuko Reply Brief, paras. 252, 275-279. Nyiramasuhuko argues that the evidence in this regard was contradicted by Prosecution Witness Ghandi Shukry without explaining how or providing any reference. See Nyiramasuhuko Appeal Brief, para. 824. 2270 Nyiramasuhuko Notice of Appeal, paras. 7.5, 7.6; Nyiramasuhuko Appeal Brief, paras. 827, 856-860, 875, 1285, 1290. In Nyiramasuhuko's view, the Trial Chamber improperly used evidence of rapes to convict her of genocide as the evidentiary record to support her liability for ordering killings at the Butare Prefecture Office was otherwise insufficient. See Nyiramasuhuko Appeal Brief, paras. 846, 847. See also Nyiramasuhuko Reply Brief, para. 274. 2271 Prosecution Response Brief, paras. 543-548, 555. See also AT. 14 April 2015 pp. 42-44. 2272 Prosecution Response Brief, paras. 495, 543-548, 555. See also Prosecution Supplementary Submissions, paras. 15, 17-19; AT. 14 April 2015 p. 43. 342 Case No. ICTR-98-42-A 14 December 2015

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20023/H express orders to kill refugees during the attacks, that Tutsis were killed at the prefectoral office during attacks and that their bodies were thrown into pits, and that abducted Tutsis were not seen again.2273 975. The Prosecution further contends that the totality of the evidence demonstrates that Nyiramasuhuko possessed genocidal intent and that her targeting of Tutsi women for rape followed the same pattern as her orders to abduct and kill Tutsi refugees at the prefectoral office 2274 It also argues that the Trial Chamber correctly considered evidence of graves at the prefectoral office, Nyiramasuhuko's role in distributing condoms and ordering rapes, and her tacit approval of inflammatory speeches given during Nsabimana's Swearing-In Ceremony as evincing her genocidal intent. 2275 976. The Appeals Chamber recalls that a person in a position of authority may incur responsibility under Article 6(1) of the Statute for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act 276 Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. Ordering with such awareness has to be regarded as accepting that crime. 277 977. Bearing in mind the

prior determination that the Trial Chamber failed to provide a reasoned opinion with respect to Nyiramasuhuko's responsibility for ordering killings during the Mid-May Attack and the Night of Three Attacks,278 the Appeals Chamber has reviewed the relevant findings and evidence relied upon by the Trial Chamber and identified by the parties to determine whether they sustain its conclusion that Nyiramasuhuko is responsible for ordering killings under Article 6(1) of the Statute in relation to these attacks.

978. With respect to the Mid-May Attack, the Appeals Chamber observes that the Trial Chamber relied upon the evidence of Witness TA as it concerns Nyiramasuhuko's conduct 279 and recalled her evidence of Nyiramasuhuko's leading role in this attack in detail: 2273 Prosecution Response Brief, paras. 496-499, 545, 550. See also Prosecution Supplementary Submissions, paras. 15, 16: AT. 14 April 2015 pp. 42, 43. Prosecution Response Brief, paras. 556-563, 568-574, 586. 2275 Prosecution Response Brief, paras. 558, 560, 562, 565, 575, 576, 582. 2276 Ndindiliyimana et al. Appeal Judgement, paras. 291, 365; Hategekimana Appeal Judgement, para. 67; Renzaho Appeal Judgement, para. 315; Kamuhanda Appeal Judgement, paras. 75, 76. See also Semanza Appeal Judgement, BarS 6 1: 05rd pel lee meal lud 2 he also Zaid Appeal Judgement, para, 157; Kordi and Corker Appeal Judgement, para. 30. 2278 See supra, para. 750. 2279 See Trial Judgement, para. 2644. 343 Case No. ICTR-98-42-A 14 December 2015

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20022/H Nyiramasuhuko was standing in the courtyard of the [Butare Prefecture Office] pointing out Tutsi refugees to the Interahamwe, saying as she pointed, "[this is another one, and another one and another one, and why are you leaving that one?" Those Tutsis were refugees. Witness TA testified that those Tutsis were beaten up and forced onto the pickup. Nyiramasuhuko pointed at three refugees who had been cut up and ordered that they be loaded onto the vehicle. 2280 979. The Trial Chamber's analysis also reveals that it considered the Mid-May Attack at the prefectoral office in the context of other attacks that led to the killing of Tutsis who took refuge there.228l The Trial Chamber repeatedly concluded that Nyiramasuhuko issued orders to Interahamwe in the midst of the attacks at the prefectoral office, including orders to attack, rape, kill, and abduct refugees and that these orders were followed 2282 These findings, in the opinion of the Appeals Chamber, sustain the conclusion that Nyiramasuhuko was in a position of authority and that her orders to abduct Tutsis from the prefectoral office during the Mid-May Attack were made with the awareness of the substantial likelihood that killings would be committed in the execution of such orders.

980. Furthermore, and contrary to Nyiramasuhuko's challenges, the Trial Chamber identified the victims of the killings underpinning her ordering conviction during the Mid-May Attack as the numerous Tutsi refuges who were forced on board the pickup truck and abducted from the prefectoral office.2283 It made further findings that, from mid-May through mid-June 1994, Tutsis abducted from the prefectoral office were killed at several different venues in Butare Prefecture 2284 In reaching the conclusion that abducted refugees were killed, the Trial Chamber carefully considered the evidence that refugees were attacked and killed at the prefectoral office, 285 as well as circumstantial and hearsay evidence that those removed refugees were killed. 286 The Appeals Chamber has determined that the Trial Chamber has not erred in the assessment of this evidence.2287 Consequently, while the Trial Chamber did not expressly identify the specific perpetrators of the killings, the precise means used to kill the victims, or the precise locations of the killings for those abducted during the Mid-May Attack, Nyiramasuhuko does not demonstrate that these omissions constitute an error. The Appeals Chamber concludes that the Trial Chamber's factual findings and the evidence it relied upon sustain the finding that Nyiramasuhuko's orders to Interahamwe to load the pickup truck during the Mid-May Attack

had a direct and substantial effect on the subsequent 2280 Trial Judgement, para. 2628 (internal references omitted). 2281 See Trial Judgement, paras. 5867 ("Between mid-May and mid-June 1994, Nyiramasuhuko [...] went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted and raped; and were killed in various locations throughout Butare préfecture.") (internal reference omitted), 5870 ("Furthermore, there was a nattern of killing at the [Butare Prefecture Office] itself.") See Trial Judgement, paras. 2644, 2698, 2736, 2738, 2773, 2781, 5867, 5873, 5874. 2283 Trial Judgement, paras. 2644, 5867. 2284 Trial Judgement, paras. 2739, 2748, 2749. 2285 See Trial Judgement, paras. 2742 ("[The Chamber is convinced that during the attacks at the [Butare Prefecture Office], Tutsi refugees were killed and thrown into pits."). See also ibid., paras. 2739-2741. 2286 Trial Judgement, paras. 2743-2749. 344 Case No. ICTR-98-42-A 14 December 2015

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20021/H killing of those individuals, and that these findings and evidence demonstrate that she possessed the requisite mens rea for ordering liability.

981. With respect to the Night of Three Attacks, the Appeals Chamber recalls that the Trial Chamber did not expressly conclude in its legal findings that Nyiramasuhuko ordered killings during these specific attacks 2288 However, throughout the "Factual Findings" section of the Trial Judgement, it determined that Nyiramasuhuko "ordered Interahamwe and soldiers to rape Tutsi women, and to kill other refugees" 2289 that "Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office], assaulted them and forced them aboard the pickup", that "Nyiramasuhuko gave orders to the Interahamwe to commit these crimes", and that "the women and children were taken away from the [prefectoral office] and killed elsewhere.?*2290 The Trial Chamber further concluded that "Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup" during this attack and that these Tutsis were abducted.?29' In support of its findings, the Trial Chamber relied upon ample evidence that Nyiramasuhuko ordered Interahamwe to abduct Tutsis during the Night of Three Attacks2292 and upon the evidence of two witnesses that Nyiramasuhuko ordered Interahamwe to rape and kill during that night. 2293 2287 See supra, Section IV.F.2(d). 2288 See supra, para. 730. 2289 See Trial Judgement, para. 2698 (emphasis added). The Appeals Chamber has previously considered and

dismissed Nyiramasuhuko's contention that paragraph 2698 of the Trial Judgement does not reflect a finding that Nyiramasuhuko ordered killings during the Night of Three Attacks. See supra, Section IV.F.1(a). 2290 Trial Judgement, para. 2736 2291 Trial Judgement, para. 2738. second occasion, Nyiramasuhuko arrived at the [Butare Prefecture Office] in the same Hilux vehicle. Nyiramasuhuko summoned the Interahamwe present at the [Butare Prefecture Office] and told them to load people onto the vehicle. Nyiramasuhuko was leaning against the vehicle when it was being loaded with Tutsi refugees and left with the same vehicle."), 2708 ("Witness SS testified that Nyiramasuhuko got out of the vehicle, and said to also bring the young boys and not to leave anyone behind. The persons who came with Nyiramasuhuko took torches and started waking people. The Interahamwe took the young boys, but as they were not many, they also took women and girls. While some refugees were loaded onto the pickup, the soldiers and Interahamwe attacked them with weapons. When the vehicle left, Nyiramasuhuko, the Interahamwe, the driver and the soldier named Kazungu were on board."), 2709 ("On the third attack that same night, Witness SS testified that she saw Nyiramasuhuko, the driver, the Interahamwe and the soldier named Kazungu come back to the [Butare Prefecture Office] on board the vehicle. She heard

Nyiramasuhuko say, '[plut everyone on board, old women, old men, put everybody on board.' The Interahamwe got out of the vehicle, put out the light, took their torches and weapons, and woke up everybody. They had traditional weapons such as machetes and clubs, and the soldier had a gun. They loaded refugees onto the vehicle. When the vehicle left, Nyiramasuhuko, Interahamwe, the driver and the soldier named Kazungu were on board. In the back of the pickup were Interahamwe and the refugees who had been loaded onto the vehicle."), 2711 ("[According to Witness FAP], [o]n a second trip that night, Nyiramasuhuko and Ntahobali, the Interahamwe and a soldier returned in the vehicle. Nyiramasuhuko instructed the Interahamwe to load the Tutsi refugees into the vehicle. The Interahamwe herded young Tutsi men, women and children into the vehicle by beating them; there were no longer any grown men at the [Butare Prefecture Office]. The refugees' clothes were removed and given to the Hutu refugees from Gitarama and Bugesera.") (all internal 2293 See Trial Judgement, paras. 2693 ("[Witness QBQ] corroborated Witness SS' observation that Nyiramasuhuko stood next to the vehicle and gave orders to the Interahamwe to '[r]ape the women and girls and kill the rest.'") Case No. ICTR-98-42-A 14 December 2015

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20020/H 982. The Appeals Chamber also observes that, in the "Legal Findings" section of the Trial Judgement, the Trial Chamber concluded that the "abducted Tutsi refugees" were taken to "other sites in Butare préfecture to be killed" with respect to the Night of Three Attacks2294 This finding is based on the Trial Chamber's prior conclusions that women and children were taken away from the prefectoral office and killed during the Night of Three Attacks as well as its general findings that, from mid-May to mid-June 1994, Nyiramasuhuko participated in the abduction of Tutsi refugees from the prefectoral office in multiple truckloads and that these refugees were killed 2295 983. The Trial Chamber identified the victims of the Night of Three Attacks - Tutsi refugees abducted from the prefectoral office 296 - and made findings that, from mid-May through mid-June 1994, Tutsis abducted from the prefectoral office were killed at several different venues in Butare Prefecture. 29 While the Trial Chamber did not expressly identify the specific perpetrators of the killings, the precise means used to kill the victims, or identify all the locations of the killings for those abducted during the Night of Three Attacks, Nyiramasuhuko does not demonstrate that these omissions constitute an error for the same reasons discussed above?298 The Appeals Chamber concludes that Nyiramasuhuko's orders to rape, kill, and abduct refugees during the Night of Three Attacks had a direct and substantial effect on the subsequent killing of refugees abducted and killed elsewhere. Likewise, the Appeals Chamber concludes that the relevant findings and evidence relied upon by the Trial Chamber demonstrate that Nyiramasuhuko possessed the requisite mens rea to incur ordering liability.

984. Turning to Nyiramasuhuko's contentions regarding the assessment of her mens rea in relation to the crime of genocide, the Appeals Chamber observes that the Trial Chamber stated the following: Moving to the mens rea of genocide, it was clear that those staying at the [Butare Prefecture Office] were Tutsis and this fact was widely known throughout the préfecture. [...] Furthermore, there was a pattern of killing at the [prefectoral office] itself. There were pits dug which contained those killed at the [prefectoral office]. (...] In evaluating Nyiramasuhuko's mens rea at the [Butare Prefecture Office], the Chamber also considers Nyiramasuhuko's conduct at Nsabimana's swearing-in ceremony on 19 April 1994 [...], where she tacitly approved of the inflammators speeches of President Sindikubwabo and Prime Minister Kambanda, and also her distribution of condoms in June 1994 [...], where she urged Hutus to rape Tutsi women. These actions can only be understood as intending to eliminate this group of persons. By attacking this group of wounded and sick Tutsi refugees, and in light of the evidence as a whole, the only reasonable conclusion is (internal reference omitted), 2712 ("[According to Witness FAP], Nyiramasuhuko instructed Ntahobali and the Interahamwe to systematically select young women and young girls and to rape and kill them."). 2294 Trial Judgement, para. 5873. 2295 Trial Judgement, paras. 2736, 2739, 2749, 2781(iv). 2296 Trial Judgement, paras. 2749, 5873. 2297 Trial Judgement, paras. 2739, 2748, 2749. 2298 See supra, para. 980. 346 Case No. ICTR-98-42-A 14 December 2015

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20019/H that [...] Nyiramasuhuko [..] possessed the intent to destroy, in whole or in substantial part, the Tutsi group.

985. While Nyiramasuhuko contends that the Trial Chamber erred in considering evidence concerning the pits as it is contested and insufficient, she does not substantiate this contention. 2300 The Appeals Chamber further notes her submission that it was an error to consider her tacit approval of Sindikubwabo's and Kambanda's inflammatory speeches at Nsabimana's Swearing-In Ceremony as the Trial Chamber did not find that her presence contributed to the commission of a crime and as it did not occur simultaneously with her having ordered the killing of Tutsis seeking refuge at the prefectoral office. However, these contentions do not demonstrate that it was irrelevant to consider this finding when assessing her mens rea for the crime of genocide in relation to her participation in the killings resulting from attacks at the prefectoral office. Similarly, Nyiramasuhuko's mere disagreement with the Trial Chamber's consideration of her role in distributing condoms and ordering rapes at a time unrelated to the attacks at the prefectoral office is dismissed. Nyiramasuhuko fails to demonstrate that such conduct was irrelevant to the Trial Chamber's consideration of whether she possessed the mens rea for genocide in relation to her participation in attacks at the prefectoral office. Moreover, and of the greatest significance, the Appeals Chamber finds that the Trial Chamber's determination

that Nyiramasuhuko possessed the requisite mens rea for genocide is principally predicated upon her role in the attacks that occurred there. 2301 986. The Appeals Chamber also finds no merit in Nyiramasuhuko's contention that the Trial Chamber improperly considered her responsibility for rapes committed at the prefectoral office when determining that she possessed genocidal intent and convicting her of genocide for ordering killings during attacks at the prefectoral office. The Appeals Chamber observes that the relevant indictment pleads Nyiramasuhuko's genocidal intent2302 and that, in such circumstances, the facts by which such intent is to be established are matters of evidence that need not be pleaded 2303 Consequently, even though the Trial Chamber found that there was insufficient notice that Nyiramasuhuko was charged with rapes as a form of genocide, this conclusion did not preclude the Trial Chamber from considering evidence of her ordering rapes at the prefectoral office when 2299 Trial Judgement, paras. 5870, 5871 (internal references omitted). points to evidence that is reflective of the evidence considered by the Trial Chamber but fails to demonstrate how it erred in the assessment of such evidence. 2301 Trial Judgement, para. 5871 ("By attacking this group of wounded and sick Tutsi refugees, and in light of the evidence as a whole, the only reasonable conclusion is that Ntahobali, Nyiramasuhuko and the other Interahamwe assailants possessed the intent to destroy, in whole or in substantial part, the Tutsi group."). 2303 See Nchamihigo Appeal Judgement, para. 136; Nahimana et al. Appeal Judgement, para.

347. See also Blaskic Appeal Judgement, para. 219. 347 Case No. ICTR-98-42-A 14 December 2015

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20018/H assessing whether she possessed the requisite mens rea for genocide in relation to conduct that could support this charge.

987. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber's factual findings and the evidence it relied upon sustain the conclusion that Nyiramasuhuko bears responsibility under Article 6(1) of the Statute for ordering killings of Tutsis abducted from the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks. Accordingly, the Appeals Chamber concludes that the Trial Chamber's failure to provide a reasoned opinion regarding Nyiramasuhuko's responsibility under Article 6(1) of the Statute for ordering "the killings of Tutsis taking refuge at the Butare préfecture office»2304 does not invalidate its decision to convict her on this basis. Finally, the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in its assessment of her mens rea with respect to her responsibility for ordering the crime of genocide.

4. Superior Responsibility 988. As discussed above, the Trial Chamber found Nyiramasuhuko responsible pursuant to Article 6(3) of the Statute for failing to prevent and punish the killings perpetrated by the Interahamwe that she ordered during the Mid-May Attack and the Night of Three Attacks as well as for failing to prevent and punish the rapes perpetrated by the Interahamwe that she ordered during the Night of Three Attacks and one of the First Half of June Attacks at the Butare Prefecture Office. Specifically, the Trial Chamber recalled its finding that "Nyiramasuhuko and Ntahobali issued orders to Interahamwe and the Interahamwe complied with these orders and perpetrated the acts asked of them, which included abductions, rapes and killings.'2305 On this basis, as well as the fact that she "brought" the Interahamwe to the attacks and "considering the evidence in its entirety", the Trial Chamber concluded that she was in a superior-subordinate relationship with the Interahamwe at the prefectoral office and wielded effective control over them.2306 The Trial Chamber further concluded that Nyiramasuhuko's orders to the Interahamwe demonstrated that she knew that they were about to commit crimes and had later done so, and that she failed to prevent these crimes and punish the Interahamwe for obeying her orders.2307 989. Based on these findings, the Trial Chamber convicted

Nyiramasuhuko of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a superior pursuant to Article 6(3) of the 30 Trial Judgement, paras. 5969, 6050, 6098, 6166. See also ibid., para. 586 305 Trial Judgement, para. 5884 20 That Judgemen, paras: 5883. 6088. 348 Case No. ICTR-98-42-A 14 December 2015

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20017/H Statute for failing to prevent the rapes perpetrated by the Interahamwe that she ordered on the Night of Three Attacks and during one of the First Half of June Attacks and punish the Interahamwe who committed them.2308 Having convicted Nyiramasuhuko of genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for ordering the killing of the numerous Tutsis forced to board the pickup truck during the Mid-May Attack and Night of Three Attacks,2309 the Trial Chamber did not enter related convictions pursuant to Article 6(3) of the Statute and considered her responsibility as a superior only in relation to sentencing for these crimes. 2310 990. Nyiramasuhuko submits that the Trial Chamber erred in finding her responsible pursuant to Article 6(3) of the Statute for the killings of Tutsis who had sought refuge at the Butare Prefecture Office perpetrated by the Interahamwe and in convicting her under Article 6(3) of the Statute for the rapes they committed 23'' In particular, she contends that the Trial Chamber erred in: (i) finding that she had a superior-subordinate relationship with, and effective control over, the Interahamwe at the prefectoral office;

and (ii) convicting her pursuant to Article 6(3) of the Statute for her active participation in the attacks, contrary to the concept of superior responsibility.2312 The Appeals Chamber will address these contentions in turn. 2313 (a) Superior-Subordinate Relationship and Effective Control over the Interahamwe 991. In concluding that Nyiramasuhuko had a superior-subordinate relationship with, and effective control over, the Interahamwe to whom she issued orders at the Butare Prefecture Office, the Trial Chamber relied on "the evidence in its entirety", including, specifically, their compliance with her orders to abduct, rape, and kill Tutsi refugees and the fact that she "brought" the Interahamwe to the prefectoral office. 2314 2308 Trial Judgement, paras. 6086-6088, 6093, 6182, 6183, 6186. See also ibid., paras. 5873, 5874, 5877, 5886. 230% See supra, para. 749. 2310 See Trial Judgement, paras. 5886, 5970, 6052, 6207. See also ibid., paras. 5652, 5884, 5885. 2311 Nyiramasuhuko Notice of Appeal, paras. 5.7, 7.8, 7.10, 9.1, 9.2; Nyiramasuhuko Appeal Brief, paras. 744, 747-755, 759, 828, 919-932, 1288, 1289. 2312 Nyiramasuhuko Notice of Appeal, paras. 5.7, 7.8, 7.10, 9.1, 9.2; Nyiramasuhuko Appeal Brief, paras. 747-755, 759, 768, 920-932, 1288. See also Nyiramasuhuko Reply Brief, paras. 204-208, 220, 221, 223, 216-218; AT. 14 April 2015 Sis he Appeals Chamber obscres that Nyiramasuhuko makes a number of auditional submissions contending that the Trial Chamber erroneously convicted her pursuant to Article 6(3) of the Statute for aiding and abetting rapes at the prefectoral office. See Nyiramasuhuko Appeal Brief, paras. 750, 751, 756-758, 764-767; Nyiramasuhuko Reply Brief, para.

206. The Appeals Chamber reiterates that Nyiramasuhuko's superior responsibility for crimes perpetrated by the Interahamwe at the prefectoral office is strictly limited to those crimes that she ordered. See Trial Judgement, paras. 5884-5886, 6087, 6093, 6182; supra, paras. 727, 740. Nyiramasuhuko was therefore not found responsible, or convicted, as a superior pursuant to Article 6(3) of the Statute for the rapes that she aided and abetted during the Mid- May Attack. The Appeals Chamber dismisses Nyiramasuhuko's arguments in this regard as irrelevant. 2314 Trial Judgement, paras. 5884, 6088. 349 Case No. ICTR-98-42-A 14 December 2015

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20016/H 992. Nyiramasuhuko submits that the Trial Chamber erred in concluding that she had a superior-subordinate relationship with, and effective control over, the Interahamwe at the prefectoral office.?315 She points out that the Trial Chamber failed to discuss the origin and nature of her authority over the Interahamwe, including the existence of a prior or subsequent superior-subordinate relationship between them.2316 She further argues that the Trial Chamber's finding that she had effective control over the Interahamwe was unreasonably based on: (i) "the evidence in its entirety", in violation of her right to a reasoned opinion; 2317 (ii) the incorrect finding that she "brought" the Interahamwe to the prefectoral office when the evidence reflects that she merely accompanied them;2318 and (li) the Interahamwe's compliance with her orders to rape and kill Tutsis.2319 With respect to the latter, Nyiramasuhuko contends that evidence that orders are followed is, on its own, insufficient to prove that the person who issued the orders has effective control.2320 In addition, she asserts that the Trial Chamber failed to properly consider Witness FAP's testimony that Interahamwe did not obey her order to rape during one of the attacks2321 and that the Trial Chamber made no findings that, for example, the Interahamwe reported to her or that she rewarded them for anything, which, in

her view, demonstrates that her effective control was not established beyond reasonable doubt. 2322 993. The Prosecution responds that the Trial Chamber provided a reasoned opinion properly establishing Nyiramasuhuko's effective control over the Interahamwe at the prefectoral office based on its consideration of the totality of the evidence, including: (i) Nyiramasuhuko's role in transporting the Interahamwe to the prefectoral office; (ii) the de facto authority that flowed from her position as the Minister for Family and Women's Development; (iii) her membership in the MRND National Committee as a representative of Butare Prefecture; and (iv) the Interahamwe's repeated compliance with her orders2323 The Prosecution disputes Nyiramasuhuko's interpretation 2315 Nyiramasuhuko Notice of Appeal, paras. 9.1, 9.2; Nyiramasuhuko Appeal Brief, paras. 747-754, 920-928, 931. 2316 Nyiramasuhuko Appeal Brief, paras. 921-923. See also ibid., para. 828. 2317 Nyiramasuhuko Appeal Brief, paras. 927, 928; Nyiramasuhuko Reply Brief, para. 220. 2318 Nyiramasuhuko Appeal Brief, paras. 748, 921, 922, 928, referring to Trial Judgement, para. 6088; Nyiramasuhuko Reply Brief, para.

216. See also AT. 15 April 2015 p. 8 2319 Nyiramasuhuko Notice of Appeal, paras. 9.1, 9.2; Nyiramasuhuko Appeal Brief, paras. 749-752, 921, 922, 925, 928; Nyiramasuhuko Reply Brief, para. 216. 2320 Nyiramasuhuko Appeal Brief, paras. 750, 752, 924, 925. 2321 Nyiramasuhuko Appeal Brief, paras. 753, 754, 931, referring to Witness FAP, T. 11 March 2003 pp. 60, 61, T. 13 March 2003 pp. 8-10; Nyiramasuhuko Reply Brief, paras. 216, 231, 232. 2322 Nyiramasuhuko Appeal Brief, para. 926. 2323 Prosecution Response Brief, paras. 427-433, 438-441, 444, 446, 448, 451, 453, 454, 459-461, 464, referring, inter alia, to Trial Judgement, paras. 8, 11, 2698. See also AT. 14 April 2015 pp. 44, 45. The Prosecution also argues that the May 1994 and with the Bureau politique on 12 May 1994 as well as on evidence that she wore military attire when she addressed the Interahamwe at the prefectoral office. See Prosecution Response Brief, paras. 433-437. Nyiramasuhuko replies that the Prosecution unfairly relies on Defence evidence that the Trial Chamber did not expressly refer to, or specifically declined to consider, as opposed to Prosecution evidence. See Nyiramasuhuko Reply Brief, paras. 217, 218. The Appeals Chamber observes that the Trial Chamber did not rely on Nyiramasuhuko's evidence as to the meetings she attended in May 1994 in concluding that she was responsible as a superior pursuant to Article 6(3) of the Statute. 350 Case No. ICTR-98-42-A 14 December 2015

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20015/H of Witness FAP's testimony2324 and argues that the Trial Chamber was not obliged to find proof that the Interahamwe reported to her on a daily basis or were rewarded. 2325 994. Nyiramasuhuko replies that the Trial Chamber could not have relied on her status within the MRND as indicative of her effective control over the Interahamwe because the Prosecution failed to adduce evidence that those who attacked the Tutsis at the prefectoral office were members of the MRND party and instead presented testimony suggesting that, at the time, "Interahamwe" was a broad term used to refer to all those who attacked, robbed, raped, and killed.2326 995. The Appeals Chamber recalls that "[indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent [or] punish."2327 It further recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators.?328 The 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 effective control over the subordinate, in the sense of material ability to prevent or punish

criminal conduct, is satisfied 2329 996. Contrary to Nyiramasuhuko's submissions, the Trial Chamber discussed the nature of her authority over the Interahamwe, including the superior-subordinate relationship between them. 2330 Although the Trial Chamber did not expressly set out the basis on which this superior-subordinate relationship existed prior to each attack at the prefectoral office in relation to which it found her responsible, the Appeals Chamber considers that the pre-existing and hierarchical nature of the relationship between Nyiramasuhuko and the Interahamwe is implicit in its findings as demonstrated by the Trial Chamber's reliance on Nyiramasuhuko's repeated prominent role in the attacks reflected, notably, by the fact that she "brought" the Interahamwe to the prefectoral office Though it stated in its summary of Witness SS's evidence that she testified that Nyiramasuhuko wore military attire, the Prosecution fails to explain why this is probative of her effective control over the Interahamwe or to demonstrate that the Trial Chamber relied on it in reaching its findings. Since the Prosecution's suggestion that the Trial Chamber relied on this evidence is speculative, the Appeals Chamber does not consider this aspect of its response or Nyiramasuhuko's Esply. The Prosecution points out that the witness's evidence reflects that the Interahamwe followed

Nyiramasuhuko's order by raping Tutsi women. See Prosecution Response Brief, paras. 442, 443, referring to Witness FAP, Г. 11 March 2003 p. 60, T. 13 March 2003 p. 10 (French). 2325 Prosecution Response Brief, para. 452. 2326 Nyiramasuhuko Reply Brief, para. 219. 2327 Ndahimana Appeal Judgement, para. 53, referring to Blaskié Appeal Judgement, para. 69. 2328 Bizimungu Appeal Judgement, para. 133; Halilovié Appeal Judgement, paras. 59, 210. See also Bagosora and Nsengiyumva Appeal Judgement, fn. 687; Celebiéi Appeal Judgement, para. 303. 2329 Halilovié Appeal Judgement, para. 210; Celebiéi Appeal Judgement, para.

254. See also Karemera and girumpatse Appeal Judgement, para. 258 Trial Judgement, paras. 5884, 6088 351 Case No. ICTR-98-42-A 14 December 2015

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20014/H and issued them orders to rape, abduct, and kill Tutsi refugees, with which they complied.2331 In addition, the Trial Chamber's findings throughout the Trial Judgement also reveal that the Interahamwe considered Nyiramasuhuko as an authority figure and the direct evidence of her central role in leading them in the attacks at the prefectoral office is further supported by the influential status in Rwandan society she held at the time through her capacity as a government minister in both the Interim Government and its predecessor and her role as the elected representative of Butare Prefecture to the MRND National Committee. 2332 997. In this respect, the Appeals Chamber considers that it was unnecessary for the Trial Chamber to determine that the Interahamwe involved in the attacks were necessarily directly connected to the MRND party because Nyiramasuhuko's stature in Rwandan society in general, including her position within the MRND party, provided only supplemental support to the direct evidence of her superior-subordinate relationship with the Interahamwe who complied with her orders during attacks at the prefectoral office.

998. Concerning Nyiramasuhuko's challenges to the finding that she wielded effective control over these Interahamwe, the Appeals Chamber rejects the assertion that the Trial Chamber violated her right to a reasoned opinion on the basis that it relied on "the evidence in its entirety" in arriving at its conclusion. It is clear that, through its reference to its reliance on the entirety of the evidence, the Trial Chamber merely intended to indicate that it reached its findings beyond reasonable doubt on the basis of the totality of the evidence adduced in accordance with the jurisprudence of the Tribunal.2333 999. The Trial Chamber considered that Nyiramasuhuko's effective control over the Interahamwe at the prefectoral office "was evidenced by the fact that she brought them" there. 2334 The evidence relied upon by the Trial Chamber shows that Nyiramasuhuko's transportation of the Interahamwe to and from the prefectoral office was an integral part of the attacks. In particular, the Trial Chamber noted that Witnesses TA, SS, FAP, SU, and QBP testified not only that Nyiramasuhuko arrived at the prefectoral office alongside the Interahamwe,2335 but that immediately after their arrival, she issued them orders to rape, abduct, and kill with which they 2331 Trial Judgement, paras. 2644, 2702, 2738, 2781(i), (iii), (v), 5867, 5873, 5874, 5876, 5884, 6088. 2332 Trial Judgement, paras. 8,

11, 244, 5669, 5676-5678. The Trial Chamber also stated that "Nyiramashuko was widely known as the Minister in charge of Women's Affairs and therefore would likely be recognisable." See ibid., Barasee Bagosora and Nsengiyumva Appeal Judgement, para, 450; Nahimana es al. Appeal Judgement, para, 789; Ntagerura et al. Appeal Judgement, paras. 172-175, 399. 2334 Trial Judgement, para. 6088 (emphasis added). 2335 The Trial Chamber expressly found that Nyiramasuhuko arrived at the prefectoral office with Interahamwe and Ntahobali during the Mid-May Attack and Night of Three Attacks. See Trial Judgement, paras. 2644, 2738, 2781(i), 352 Case No. ICTR-98-42-A 14 December 2015

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20013/H complied, as she supervised and directed the attacks, standing against the vehicle as Tutsis were loaded into it and pointing out individuals to abduct. 2336 Given the methodical and repeated nature of the attacks against the Tutsi refugees at the prefectoral office, it is evident from a contextual reading of this evidence and the Trial Chamber's findings that Nyiramasuhuko did not merely accompany the Interahamwe to the prefectoral office, but that she brought them there with the intention of effecting the attacks, and that they did so without dissent. In this respect, the Appeals Chamber considers it immaterial whether Nyiramasuhuko was driving the vehicle.2337 1000. In addition to Nyiramasuhuko's transportation of the Interahamwe to the prefectoral office to carry out the attacks, the Trial Chamber also relied on their compliance with her orders to rape, abduct, and kill Tutsi refugees as demonstrative of her effective control over the Interahamwe 2338 The Appeals Chamber recalls that a superior's ability to issue binding orders that are complied with by subordinates is one of the indicators of effective control generally relied upon in the jurisprudence of the Tribunal. 2339 1001. Nyiramasuhuko does not show that, given the context of the multiple attacks at the prefectoral office, during which she was present and played a leading role, it was unreasonable for the

Trial Chamber to consider the Interahamwe's repeated compliance with her orders highly probative of their superior-subordinate relationship and of her effective control over them. Nyiramasuhuko's argument that the Interahamwe's compliance with her orders during the attacks was, on its own, insufficient to prove that she exercised effective control ignores that this was not the only factor relied on by the Trial Chamber. As recalled above, the Trial Chamber relied on evidence that Nyiramasuhuko played a decisive and pivotal role in the attacks by bringing the Interahamwe to the prefectoral office, and by issuing them orders. In its factual findings, the Trial Chamber also highlighted evidence that Nyiramasuhuko directed and supervised the Interahamwe (ji), 5867, 5869, 5873. See also ibid., paras. 2178, 2253, 2266, 2284, 2287, 2289, 2302, 2307, 2687, 2693, 2696, 2704, 2706, 2708-2711, 2732, 2765. 2336 See, e.g., Trial Judgement, paras. 2628, 2687, 2688, 2693, 2696, 2698, 2706, 2708, 2709, 2711, 2732, 2766, 2781(ji), (v), 5867, 5873. See also ibid., paras. 2178, 2181, 2251, 2253-2255, 2268, 2284, 2285, 2287, 2289, 2304, 2337 In this respect, the Appeals Chamber finds that paragraph 69 of the Ramuhanda Appeal Judgement does not demand another conclusion, contrary to Nyiramasuhuko's argument that, in this paragraph, "the Appeals Chamber states the evidence that a person is a passenger in a vehicle is not evidence that that person took attackers to the crime scene." See AT. 15 April 2015 p. 8. 2338 Trial Judgement, paras. 5884, 6088. 2339 Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fn. 139; Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, para.

299. See also Strugar Appeal Judgement, para. 256; Hadäihasanovié and Kubura Appeal Judgement, 353 Case No. ICTR-98-42-A 14 December 2015

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20012/H as they carried out her orders, sometimes providing them with specific instructions as the attacks unfolded.2340 1002. The Appeals Chamber is not convinced by Nyiramasuhuko's assertion that Witness FAP testified that Interahamwe disobeyed her order to rape during one of the attacks at the prefectoral office. Witness FAP expressly testified that, during the first attack of the Night of Three Attacks, Nyiramasuhuko ordered the Interahamwe to rape Tutsi women and that they carried out her orders.?4 Witness FAP testified that, during subsequent attacks that night, Nyiramasuhuko issued orders to the Interahamwe to rape Tutsi women and that the Interahamwe loaded the Tutsis onto the vehicle but did not rape them on the spot.2342 However, this does not necessarily indicate that the Interahamwe did not follow Nyiramasuhuko's order but reflects only that the women were not raped at the prefectoral office itself on those occasions. The Appeals Chamber notes that Witness FAP explained that Nyiramasuhuko's instructions to select young women and young girls and to rape them before killing them were the catalyst for the abduction of the Tutsis.2343 Nyiramasuhuko's argument that the Trial Chamber failed to properly consider Witness FAP's evidence that Interahamwe disobeyed one of her orders is therefore without merit 2344 1003. The Appeals Chamber is also unpersuaded by

Nyiramasuhuko's assertion that the Prosecution's failure to adduce evidence that the Interahamwe reported daily to Nyiramasuhuko, or that she rewarded them, raised reasonable doubt as to her effective control over them. The reporting of subordinates to a superior and rewards by a superior for doing so are indicia relevant to determining effective control but are not a necessary requirement. 2345 1004. Therefore, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in concluding that she had a superior-subordinate relationship with, and effective control over, the Interahamwe to whom she issued orders at the prefectoral office. 2340 See Trial Judgement, paras. 2628, 2687, 2688, 2693, 2696, 2706, 2708, 2709, 2711, 2732, 2766, 2781(iii), (v), 5867, 5973. See also ibid., paras. 2178, 2181, 2251, 2253-2255, 2268, 2284, 2285, 2287, 2289, 2304, 2307, 2308 2341 Witness FAP, T. 11 March 2003 pp. 59, 60. 2342 Witness FAP, T. 11 March 2003 pp. 60, 61. 2343 Witness FAP, T. 11 March 2003 pp. 60, 61, T. 13 March 2003 p.

9. See Nyiramasuhuko Appeal Brief, paras. 929, 932. Since the Appeals Chamber rejects her contention that Witness FAP's testimony reflects that the Interahamwe disobeyed Nyiramasuhuko's orders, Nyiramasuhuko's assertion that the Prosecution failed to lead evidence that Nyiramasuhuko punished the Interahamwe when they disobeyed her orders, as described by Witness FAP, is similarly dismissed. See ibid., paras. 753, 754. 2345 The Appeals Chamber recalls that, in the Kajelijeli Appeal Judgement, the Appeals Chamber upheld the Trial Chamber's reliance, with respect to establishing Kajelijeli's de facto superior position over Interahamwe, on evidence that the Interahamwe reported to him the details of the massacres they participated in following his instructions to kill Tutsis and orders to dress up and start work. However, the Interahamwe's daily reporting was only considered as one of several relevant evidentiary indicia of authority in the circumstances of the case and was not considered a necessary establishment of superior authority in general. See Kajelijeli Appeal Judgement, para. 90. 354 Case No. ICTR-98-42-A 14 December 2015

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20011/H (b) Superior Responsibility for Direct Participation in a Crime 1005. Nyiramasuhuko argues that by finding her responsible for ordering rapes and killings pursuant to Article 6(3) of the Statute, the Trial Chamber unreasonably convicted her for her direct participation in the crimes in a manner that is contrary to the concept of superior responsibility because it is intended to criminalise the failure of a person to act2346 Specifically, Nyiramasuhuko asserts that "[the Trial Chamber erred in illogically applying effective control standards in circumstances pertaining to responsibility under Article 6(1), since it is self-evident that a person cannot prevent of punish the execution of an order given by that person. 2347 1006. The Prosecution responds that the Trial Chamber acted in accordance with the jurisprudence by considering evidence of Nyiramasuhuko's orders to the Interahamwe as indicative of her superior responsibility, and that such evidence may be used to establish responsibility pursuant to both Articles 6(1) and 6(3) of the Statute.2348 1007. Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in relying on her orders to the Interahamwe and their compliance with these orders as evidence establishing her superior responsibility for these crimes. She further does not substantiate her contention that it is improper to find an accused criminally

responsible as a superior pursuant to Article 6(3) of the Statute where his conduct also meets the requirements of other forms of responsibility under Article 6(1) of the Statute and to convict an accused on this basis when a conviction under Article 6(1) of the Statute has not been entered 2349 Nyiramasuhuko's contention in this regard is dismissed without further consideration. (c) Conclusion 1008. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko's contentions that the Trial Chamber erred in finding her responsible as a superior for failing to prevent the killing of refugees abducted from the Butare Prefecture Office perpetrated by Interahamwe following her orders and punish the Interahamwe who committed them and in convicting her pursuant to Article 6(3) of the 2346 Nyiramasuhuko Notice of Appeal, paras. 5.7, 7.8, 7.10; Nyiramasuhuko Appeal Brief, paras. 755, 768, 929, 930, 932; Nyiramasuhuko Reply Brief, paras. 204, 206-208. 2347 Nyiramasuhuko Appeal Brief, para. 932. 2348 Prosecution Response Brief, paras. 427-430. 2349 Nyiramasuhuko fails to refer to any relevant jurisprudence in support of her contention. See Nyiramasuhuko Appeal Brief, para. 929, referring to The Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-2001-73-R72, Decision on Defence Motions (i) Objecting to the Form of the Third Amended Indictment and ii) Requesting the Harmonisation or Reconsideration of the Decision of 2 March 2005, 22 September 2005, para.

5. See also Nyiramasuhuko Reply Brief, para. 207. 355 Case No. ICTR-98-42-A 14 December 2015

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20010/H Statute in relation to the rapes committed by the Interahamwe following her orders at the Butare Prefecture Office.

5. Conclusion 1009. For the foregoing reasons, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in convicting her for ordering the killing of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks pursuant to Article 6(1) of the Statute and as a superior pursuant to Article 6(3) of the Statute for the rapes committed by Interahamwe upon her orders during the Night of Three Attacks and one of the First Half of June Attacks. The Appeals Chamber further finds that Nyiramasuhuko has not shown that the Trial Chamber erred in finding that she bore superior responsibility for the killings perpetrated by Interahamwe upon her orders during the Mid-May Attack and the Night of Three Attacks and in considering her responsibility in this regard in sentencing 2350 1010. Consequently, the Appeals Chamber dismisses Grounds 23 through 25 and 28 through 31 of Nyiramasuhuko's appeal. 2350 See also infra, Section XI.A.1. 356 Case No. ICTR-98-42-A 14 December 2015

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20009/H G. Distribution of Condoms (Grounds 26 in part and 27) 1011. Based on Prosecution Witness FAE's evidence, the Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector 2351 The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: "[glo and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands. *2352 1012. However, the Trial Chamber held that there was not "sufficient reliable evidence to show a link between Nyiramasuhuko's actions in distributing the condoms on this occasion, in addition to her utterances evincing her clear intent to target Tutsi women, and actual rapes committed against said Tutsi women."2353 Moreover, although the Trial Chamber determined that Nyiramasuhuko's order to the woman to whom she distributed the condoms was direct and could not be considered ambiguous in the context of the rapes and large scale massacres committed throughout Butare Prefecture at that time, it found that her statements were more akin to a "conversation"

and did not satisfy the "public" element of the crime of direct and public incitement to commit genocide.2354 Accordingly, the Trial Chamber found Nyiramasuhuko not guilty of genocide, rape as a crime against humanity, or direct and public incitement to commit genocide in relation to this incident. 2355 Nonetheless, the Trial Chamber found that "this circumstantial evidence shows Nyiramasuhuko's intent to destroy, in whole or in substantial part, the Tutsi group"2356 and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events.2357 1013. Nyiramasuhuko submits that the Trial Chamber erred in law and in fact in: (i) its assessment of Witness FAE's evidence and in convicting her for the distribution of condoms at the beginning of June 1994; and (ii) finding that her specific intent to commit genocide was the only reasonable 2351 Trial Judgement, paras. 4985, 5938, 6014. 2352 Trial Judgement, paras. 4985, 5938, 6014. 2353 Trial Judgement, para.

5939. See also ibid., paras. 6091, 6092. 2354 Trial Judgement, paras. 6015, 6016. The Trial Chamber found that "Nyiramasuhuko directed her speech to one oman, in the presence of four other men" and that "[in order to possess the requisite mens rea for the crime of dire id public incitement, the audience must be much broader than that found in the present circumstance." See ibi para. 6016. 2355 Trial Judgement, paras. 5940, 6018, 6091, 6092 2356 Trial Judgement, paras. 5940, 6018. 5876, 5969, 5970. 357 Case No. ICTR-98-42-A 14 December 2015 1.

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20008/H conclusion to be drawn from the evidence relating to this distribution. 2358 In light of these alleged errors, Nyiramasuhuko submits that the Appeals Chamber should overturn the Trial Chamber's findings and acquit her of the distribution of condoms at the beginning of June 1994.2359 1014. At the outset, the Appeals Chamber recalls that it has clarified in Section IV.B.4 above that, contrary to what Nyiramasuhuko appears to suggest, she was not found guilty in relation to the distribution of condoms. The Trial Chamber only relied on this circumstantial evidence, among other, to find that Nyiramasuhuko possessed the specific intent to commit genocide.2360 In this section, the Appeals Chamber will therefore consider Nyiramasuhuko's submissions only to the extent that they may show error in the Trial Chamber's reliance on the evidence concerning this incident as circumstantial evidence of her genocidal intent.

1. Assessment of Evidence 1015. Nyiramasuhuko submits that the Trial Chamber erred in finding, based on Witness FAE's testimony, that she distributed condoms in Cyarwa-Sumo Sector at the beginning of June 1994 to be used by the Interahamwe to rape Tutsi women 2361 Specifically, Nyiramasuhuko contends that the Trial Chamber: (i) unreasonably dismissed the inconsistencies between Witness FAE's prior statement and testimony in relation to whether Nyiramasuhuko personally handed out the condoms and the content of her statements as minor when the details added by the witness at trial "implied] more active participation" by Nyiramasuhuko in the incident than the witness originally recounted;2362 (ii) erred in dismissing additional inconsistencies between Witness FAE's prior statement and testimony with respect to whether Nyiramasuhuko had a gun with her and the seating arrangements of the persons in the vehicle from which she distributed the condoms;2363 and (iii) unreasonably accepted Witness FAE's explanation that her prior statement may contain errors because she gave it in French, a language she had not mastered, without an interpreter while the record revealed that she spoke French and that she had the opportunity to review and correct her statement and was able to do so in French 2364 Nyiramasuhuko asserts that, in these circumstances, 2358 Nyiramasuhuko Notice of Appeal,

paras. 7.12-7.26, heading "Ground 27" at p. 43; Nyiramasuhuko Appeal Brief, Bar iranashuko Notice of Appeal, "Relief sought at p. 43; Nyiramashuko Appeal Brief, para, 901. 2360 See supra, paras. 541, 546, 1012. 2361 Nyiramasuhuko Notice of Appeal, paras. 7.12-7.20, 7.22; Nyiramasuhuko Appeal Brief, paras. 882, 884-885, 2362 Nyiramasuhuko Notice of Appeal, para. 7.14; Nyiramasuhuko Appeal Brief, paras. 885, 887-895; Nyiramasuhuko Reply Brief, paras. 285-287. Nyiramasuhuko Appeal Brief, para. 892, fn. 731. 2364 Nyiramasuhuko Appeal Brief, paras. 888-891; Nyiramasuhuko Reply Brief, para.

287. Nyiramasuhuko points out that the witness information page of Exhibit D214 (Witness FAE's Statement) indicates that Witness FAE spoke French. See Nyiramasuhuko Appeal Brief, para. 889. 358 Case No. ICTR-98-42-A 14 December 2015

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20007/H the Trial Chamber should not have relied on Witness FAE's testimony or, at a minimum, should have required corroboration 2365 1016. Nyiramasuhuko further contends that the Trial Chamber shifted the burden of proof by stating that the evidence of Defence Witnesses WZNA, WNMN, and MNW "was not convincing enough to raise a reasonable doubt that FAE had remained at home during the events" 2366 She also argues that the Trial Chamber unreasonably concluded that the testimonies of these three witnesses were inconsistent because they testified to seeing Witness FAE at different times, while it simultaneously acknowledged that they testified to seeing her in "separate contexts" 2367 1017. The Prosecution responds that Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in the assessment of Witness FAE's evidence or in its assessment of Witnesses WZNA's, WNMN's, and MNW's evidence.2368 1018. The Appeals Chamber observes that Witness FAE's prior statement indicates that Nyiramasuhuko arrived in a car outside her house with a doctor named Ndindabahizi and three Interahamwe, that Ndindabahizi handed her neighbour a box of condoms, telling her to give them to their "young supporters" to be put on "before raping the Tutsi women likely to be infected with AIDS", and that Nyiramasuhuko then stated that "Tutsi women are to be killed because they are taking away our

husbands",2369 In comparison, at trial, Witness FAE testified that after Ndindabahizi gave the box of condoms to her neighbour, Nyiramasuhuko handed the woman a second box of condoms and instructed her to "[glo and distribute these condoms to your young men [...] so that they use them to rape Tutsi women and to protect themselves from [AIDS], and after having raped them they should kill all of them", before stating: "Let no Tutsi woman survive because they take away our husbands. *2370 1019. The Appeals Chamber finds that Nyiramasuhuko fails to demonstrate that the impugned differences between Witness FAE's testimony and her prior statement constitute material contradictions in her evidence. Nyiramasuhuko does not identify any actual inconsistencies in 2365 Nyiramasuhuko Appeal Brief, para. 893; Nyiramasuhuko Reply Brief, para. 284. 2366 Nyiramasuhuko Appeal Brief, para. 894 (emphasis omitted), referring to Trial Judgement, paras. 4977-4979, 4982. The Appeals Chamber notes that, in her notice of appeal, Nyiramasuhuko advanced additional contentions that she failed to reiterate or develop with arguments in her appeal brief. See Nyiramasuhuko Notice of Appeal, paras. 7.15, 7.16, 7.18-7.20. The Appeals Chamber dismisses these unsubstantiated contentions. The Appeals Chamber also notes that Nyiramasuhuko's arguments related to her alibis and to Witness FAE's membership in a

genocide survivor association have been addressed and dismissed above. See supra, Sections IV.C, IV.E.2. See Nyiramasuhuko Appeal Brief, para. 895; Nyiramasuhuko Reply Brief, para. 284. 2367 Nyiramasuhuko Appeal Brief, para. 894. 2368 Prosecution Response Brief, paras. 589-609 2369 Witness FAE's Statement, p. K0128360 (Registry pagination). 2370 Witness FAE, T. 17 March 2004 pp. 83, 84. See also Trial Judgement, paras. 4935, 4967. 359 Case No. ICTR-98-42-A 14 December 2015

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20006/H Witness FAE's evidence but merely refers to the witness's omission to mention certain details of the incident in her prior statement. The Appeals Chamber considers that these differences reflect additional details concerning the incident elicited during Witness FAE's examination in court as a consequence of more detailed questions and the presence of interpreters. Witness FAE's prior statement and testimony are consistent with respect to the fact that Nyiramasuhuko came to the Cyarwa-Sumo Sector with Ndindabahizi and three Interahamwe at the beginning of June 1994 and handed out condoms to a woman with the instructions that they be given to Interahamwe to rape Tutsi women before killing them.2371 1020. The Appeals Chamber is not persuaded that the Trial Chamber abused its discretion in accepting Witness FAE's explanation that any errors in, or discrepancies with, her prior statement were caused by the fact that she gave it in French, a language she was not fully confident in, without the assistance of an interpreter.?372 As noted by the Trial Chamber, Witness FAE clarified that she had some knowledge of French but made it clear that it was not her mother tongue and also acknowledged that, although she made some corrections to her prior statement, she may have overlooked others a result of her linguistic inability. 2373 In this context, Nyiramasuhuko's assertion that Witness FAE's explanation is not credible on the basis that the information sheet of her prior statement stated that the interview was conducted in French and that she corrected some errors in her prior statement does not show that the Trial Chamber erred in its acceptance thereof.

1021. For the same reasons, the Appeals Chamber rejects Nyiramasuhuko's contention that it was unreasonable for the Trial Chamber to dismiss the inconsistencies between Witness FAE's prior statement and her testimony in relation to whether she carried a gun and the seating arrangements of her companions based on her explanation that her statement was given in French.2374 Besides being minor issues, the Appeals Chamber observes that the Trial Chamber also noted and accepted Witness FAE's explanation that she did not mention Nyiramasuhuko's gun in her prior statement because she only responded to the questions she was asked by the Prosecution at the time, and that the discrepancy between her original description of Nyiramasuhuko as sitting in the "front" of the vehicle and her testimony that she sat in the "back" occurred because Nyiramasuhuko was sitting in the "back seat of the front cabin of the vehicle" 2375 Nyiramasuhuko fails to demonstrate any error in the Trial Chamber's analysis in this regard. 2371 Witness FAE, T. 17 March 2004 pp. 73 (closed session), 75-80, and 81, 82 (closed session), 83, 84; Witness FAE's Statement, p. K0128360 (Registry pagination). 2372 Trial Judgement, para. 4969. 2373 See Witness FAE, T. 18 March 2004 pp. 27, 28, 42, 43. 2374 Trial Judgement, para. 4969. 2375 Trial Judgement, para. 4968. 360 Case No. ICTR-98-42-A 14 December 2015 SuL

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20005/H 1022. In addition, the Appeals Chamber emphasises that the Trial Chamber recognised that Witness FAE was the only Prosecution witness to implicate Nyiramasuhuko in the events at Cyarwa-Sumo Sector.2376 It performed an in-depth assessment of Witness FAE's evidence, which it described as "extensive", "coherent", and "detailed", and ultimately found Witness FAE to be a "reliable witness who provided credible testimony" despite the "slight inconsistencies" in her testimony based on her knowledge of Nyiramasuhuko and her "proximity to the location where the incident occurred [which] placed her in a strong position to have witnessed the distribution of condoms" 2377 Considering that a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony,2378 and that Nyiramasuhuko fails to demonstrate that the Trial Chamber abused its discretion in dismissing the inconsistencies between Witness FAE's prior statement and her testimony, the Appeals Chamber rejects Nyiramasuhuko's contention that no reasonable trier of fact could have relied on her testimony without corroboration.

1023. The Appeals Chamber also rejects Nyiramasuhuko's contention that the Trial Chamber reversed the burden of proof when assessing the evidence of Witnesses WZNA, WNMN, and MNW. The Trial Chamber stated that these witnesses provided hearsay accounts as to why it was "implausible" that Nyiramasuhuko distributed condoms "without any convincing or detailed analyses."2379 It also determined that "Witness WNMN's assertions about Witness FAE were not sufficiently credible or convincing to undermine the veracity of Witness FAE's testimony under oath."2380 In the opinion of the Appeals Chamber, a plain reading of the Trial Judgement reflects that the Trial Chamber was not stating that the evidence of these witnesses did not convince it that Witness FAE's testimony was false, but that their testimonies were unconvincing in the sense of lacking plausibility.238l 1024. Nyiramasuhuko's assertion that the Trial Chamber unreasonably concluded that it could not rely on Witnesses WZNA, WNMN, and MNW because there were inconsistencies in their testimonies as to whether Witness FAE was at home during "the events", despite also acknowledging that they saw her in "separate contexts", is also premised on a misreading of the Trial Judgement. First, Witness FAE testified that she was in hiding between April and June 1994,2382 which was contradicted by Witnesses WZNA and WNMN who said that they

saw 2376 Trial Judgement, paras. 4966, 4983. 2377 Trial Judgement, paras. 4966, 4967, 4983. 2378 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimungu Appeal Judgement, para. 241; Hate gekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 2379 Trial Judgement, para. 4979. 2380 Trial Judgement, para. 4982. 2381 The Oxford English Dictionary defines "unconvincing" as "not persuasive, unconvincing; lacking the power to per Witess FAE, T. 17 March 2004 pp. 72, 73 (closcd scsion). See also Trial Judgement, paras. 4931, 4977. 361 Case No. ICTR-98-42-A 14 December 2015

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20004/H her at her home and a neighbour's house during that time 2383 The Trial Chamber noted that these witnesses were inconsistent as to when and where they saw Witness FAE but acknowledged that they may have seen her at different times and on different occasions, and ultimately rejected their evidence on this issue on the basis that it was "unbelievable" that during that time Witness FAE, a Tutsi, would have been at home or visiting a Hutu neighbour's home.2384 Second, Witness FAE testified that she returned to her home at the beginning of June 1994, after which she saw Nyiramasuhuko distribute the condoms. 2385 This was challenged by Witness MNW's testimony that she did not see Witness FAE in June 19942386 However, as noted by the Trial Chamber, both Witnesses WZNA and WNMN testified to seeing Witness FAE in June 1994.2387 The Trial Chamber took this into account in concluding that it considered it "impossible to rely on these witnesses to establish that Witness FAE was not in the area in June 1994.*2388 1025. The Appeals Chamber considers that when the Trial Judgement is read in its context, it is evident that the excerpts of the Trial Judgement relied on by Nyiramasuhuko to substantiate her argument refer to two distinct determinations of the Trial Chamber. Nyiramasuhuko therefore conflates separate issues concerning these witnesses' testimony as to Witness FAE's presence

at her home between April and June 1994 and fails to demonstrate any contradiction in the Trial Chamber's analysis of their evidence 2389 1026. Based on the foregoing, the Appeals Chamber dismisses Nyiramasuhuko's contention that the Trial Chamber erred in its assessment of, and reliance on, Witness FAE's evidence to find that she distributed condoms in Cyarwa-Sumo Sector in June 1994 to be used by the Interahamwe to rape Tutsi women before killing them. 2383 Witness WZNA, T. 4 April 2005 pp. 33, 34; Witness WNMN, T. 14 June 2005 pp. 41-43 (closed session). See also Trial Judgement, paras. 4953, 4960, 4977. 2384 See Trial Judgement, para. 4977. 2385 Witness FAE, T. 17 March 2004 pp. 72, 73 (closed session). See also Trial Judgement, paras. 4932, 4977. 2386 Witness MNW, T. 10 February 2005 p.

77. See also ibid., pp. 72, 73 (closed session); Trial Judgement, paras. 4945, 4979. 2387 Witness WZNA, T. 4 April 2005 p. 34; Witness WNMN, T. 14 June 2005 pp. 44, 45 (closed session). See also Trial Judgement, paras. 4953, 4960, 4979. 2388 Trial Judgement, para. 4979 (internal references omitted): The Chamber notes that Defence Witnesses MNW, WZNA and WNMN all provided hearsay accounts as to why the allegation is implausible, without any convincing and detailed analyses. Indeed, among the Defence witnesses there are inconsistencies as to when they saw Witness FAE. Witness MNW testified that she did not see Witness FAE in June 1994, whereas Witnesses WZNA and WNMN both testified as to seeing Witness FAE in June 1994. The Chamber considers it impossible to rely on these witnesses to establish that Witness FAE was not in the area in June 1994 or that Nyiramasuhuko did not visit the area at that time. 2389 Nyiramasuhuko's contentions also ignore the detailed assessment of Witnesses WZNA's, WNMN's, and MNW's evidence undertaken by the Trial Chamber before rejecting it as not credible. See Trial Judgement, paras. 4971-4977, 362 Case No. ICTR-98-42-A 14 December 2015 au

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20003/H 2. Nyiramasuhuko's Genocidal Intent 1027. Nyiramasuhuko submits that the Trial Chamber erred in law and in fact in finding that her genocidal intent was the only reasonable conclusion to be drawn from the evidence relating to the distribution of condoms at the beginning of June 19942390 In particular, she avers that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged. 2391 Thus, in her view, the Trial Chamber erred in using the distribution of condoms at Cyarwa-Sumo Sector to prove her genocidal intent to convict her of genocide committed at the Butare Prefecture Office.2392 Nyiramasuhuko also contends that her alleged order to rape Tutsi women "because they take away our husbands" could also be reasonably explained by a "willingness to revenge on those women" rather than by the specific intent to destroy, in whole or in part, the Tutsi group. 2393 1028. The Prosecution responds that the only reasonable conclusion from the totality of the evidence is that Nyiramasuhuko had the specific intent to commit genocide and that Nyiramasuhuko's explicit order to rape Tutsi women before killing them during the distribution of condoms at the beginning of June 1994 unequivocally reveals her genocidal intent.2394 It also responds that

Nyiramasuhuko's argument that the distribution of condoms could not be taken into account in the assessment of her genocidal intent for the crimes committed at different locations and different times is undeveloped and unsupported, and should be summarily dismissed. 2395 The Prosecution adds that there is no evidence to support the alleged other possible inference presented by Nyiramasuhuko and that her argument is based on an isolated and discrete piece of evidence rather than on the totality of the evidence. 2396 1029. With respect to Nyiramasuhuko's argument that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged, the Appeals Chamber recalls that genocidal intent may be inferred, inter alia, from evidence of other culpable acts systematically 2390 Nyiramasuhuko Notice of Appeal, heading "Ground 27" at p. 43; Nyiramasuhuko Appeal Brief, paras. 896-900. 2391 Nyiramasuhuko Appeal Brief, para. 899.

2392. Nyiramasuhuko Appeal Brief, para.

899. Nyiramasuhuko also reiterates that the Trial Chamber erred in contravening its finding that it will not enter a conviction for genocide on the basis of any rapes that occurred and will only assess the alleged order to rape Tutsi women with respect to the count of rape as a crime against humanity, and 2393 Nyiramasuhuko Appeal Brief, para. 900. 2394 Prosecution Response Brief, paras. 556, 558, 561, 562, 570, 571, 610. 2395 Prosecution Response Brief, para. 582. 2396 Prosecution Response Brief, para. 562. 363 Case No. ICTR-98-42-A 14 December 2015

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20002/H directed against the same group. 2397 The Appeals Chamber recalls that the Trial Chamber convicted Nyiramasuhuko of genocide for ordering killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks 2398 With respect to Nyiramasuhuko's mens rea in relation to the crime of genocide, the Trial Chamber stated the following: Moving to the mens rea of genocide, it was clear that those staying at the [Butare Prefecture Office] were Tutsis and this fact was widely known throughout the préfecture. The Interahamwe were armed and forced the defenceless Tutsi refugees to board a Toyota Hilux. Those who refused were killed on the spot. Furthermore, there was a pattern of killing at the [Butare Prefecture Office] itself. There were pits dug which contained those killed at the [Butare Prefecture Office]. The Interahamwe were armed with traditional weapons. Ntahobali instructed them to spare no one. Likewise, Nyiramasuhuko issued instructions to rape the women. In evaluating Nyiramasuhuko's mens rea at the [Butare Prefecture Office], the Chamber also considers Nyiramasuhuko's conduct at Nsabimana's swearing-in ceremony on 19 April 1994 [...], where she tacitly approved of the inflammatory speeches of President Sindikubwabo and Prime Minister Kambanda, and also her distribution of condoms in June 1994 [....], where

she urged Hutus to rape Tutsi women. These actions can only be understood as intending to eliminate this group of persons. By attacking this group of wounded and sick Tutsi refugees, and in light of the evidence as a whole, the only reasonable conclusion is that Ntahobali, Nyiramasuhuko and the other Interahamwe assailants possessed the intent to destroy, in whole or in substantial part, the Tutsi group.

1030. The Appeals Chamber notes that Nyiramasuhuko's distribution of condoms and statement evincing her intent to target Tutsi women occurred in the beginning of June 1994. In light of the time elapsed between the Mid-May Attack and this incident, this incident alone could not effectively demonstrate Nyiramasuhuko's specific intent when ordering killings of Tutsis at the prefectoral office during the Mid-May Attack2400 However, as highlighted previously, the Trial Judgement reflects that the finding of Nyiramasuhuko's genocidal intent when ordering killings at the prefectoral office during the Mid-May Attack - and the Night of Three Attacks - was predicated on her role in the attack that occurred then and there 2401 In addition, the Trial Chamber also relied on additional circumstantial evidence that Nyiramasuhuko possessed the specific intent to commit genocide from 19 April 1994, when she tacitly approved Kambanda's and Sindikubwabo's Speeches during Nsabimana's Swearing-In Ceremony. Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this regard. To the extent that the Trial Chamber relied on Nyiramasuhuko's distribution of condoms and statement evincing her intent to target Tutsi women as additional circumstantial evidence of Nyiramasuhuko's genocidal intent, the Appeals Chamber finds no error in this approach. 2398 See supra, para. 749. 2399 Trial Judgement, paras. 5870, 5871 (internal references omitted). 2400 Cf. Sainovié et al. Appeal Judgement, para. 1035. 2401 See supra, para. 985. 364 Case No. ICTR-98-42-A 14 December 2015

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20001/H 1031. Turning to Nyiramasuhuko's submission that her order to rape Tutsi women could also be reasonably explained by a willingness to take revenge on these women rather than by the specific intent to destroy, in whole or in part, the Tutsi group, the Appeals Chamber finds that Nyiramasuhuko fails to demonstrate that the Trial Chamber erred. Indeed, the Appeals Chamber finds that a reasonable trier of fact could have concluded on the basis of the totality of the circumstantial evidence that the only reasonable inference was that Nyiramasuhuko possessed genocidal intent, especially in light of the fact that, during the distribution of condoms, she also uttered that, "after having raped [the Tutsi women,] they should kill all of them" and stated "Let no Tutsi woman survive" 2402 Her submission regarding another possible inference is therefore also dismissed.

3. Conclusion 1032. For the foregoing reasons, the Appeals Chamber dismisses the remaining part of Ground 26 and Ground 27 of Nyiramasuhuko's appeal. 2402 Trial Judgement, paras. 4985, 5938, 6014. 365 Case No. ICTR-98-42-A 14 December 2015

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20000/H V. APPEAL OF ARSÈNE SHALOM NTAHOBALI 1033. The Trial Chamber found Ntahobali guilty of committing, ordering, and aiding and abetting genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute in relation to killings perpetrated between April and June 1994 at or near the IRST and the Hotel Ihuliro roadblock, of Tutsis who had sought refuge at the Butare Prefecture Office and the EER as well as for the killing of the Rwamukwaya family2403 The Trial Chamber also found Ntahobali guilty of rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for committing, ordering, and aiding and abetting the rapes of Tutsi women at the Hotel Ihuliro roadblock and the Butare Prefecture Office. 2404 1034. Ntahobali raises challenges related to the fairness of the proceedings, his indictment, the status of Expert Witness Guichaoua, the admission and assessment of his co-accused's evidence, and the assessment of his alibis. He also submits that the Trial Chamber erred in its assessment of the evidence and his

responsibility in relation to the crimes perpetrated against Tutsis at the IRST and the Hotel Ihuliro roadblock, to the killing of the Rwamukwaya family, and to the crimes perpetrated against Tutsis who had sought refuge at the Butare Prefecture Office and the EER. Ntahobali further alleges errors regarding the Trial Chamber's findings pertaining to the nexus between the crimes and the armed conflict, the crime of extermination as a crime against humanity, and the crime of persecution as a crime against humanity. The Appeals Chamber will address these contentions in turn. 2403 Trial Judgement, paras. 5845, 5855, 5876, 5916, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. See also supra, para.

14. The Trial Chamber also determined that Ntahobali bore superior responsibility unde Article 6(3) of the Statute for the killing of Ruvurajabo at the Hotel Ihuliro roadblock, the killings and rapes that ho ordered at the Butare Prefecture Office as well as the killings that he aided and abetted at or near the BER and took this into account as an aggravating factor in sentencing. See Trial Judgement, paras. 5849, 5886, 5917, 5971, 6056, 6086, 6220. 2404 Trial Judgement, paras. 6080, 6086, 6094, 6185, 6186. See also supra, para. 14. 366 Case No. ICTR-98-42-A 14 December 2015 que

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19999/H A. Fairness of the Proceedings 1035. Ntahobali raises challenges related to the amendment of Rule 90(G) of the Rules, the admissibility of documentary evidence, and the suspension of his lead investigator.2405 He also submits that the cumulative effect of the violations of his right to a fair trial irreparably undermined his ability to fully defend himself.2406 The Appeals Chamber will examine these contentions in turn.

1. Amendment of the Rules (Ground 1.7) 1036. At the 13t plenary session held on 26 and 27 May 2003, Rule 90(G) of the Rules, which addresses the scope of the cross-examination of witnesses, was amended to provide as follows: (G) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of the case. (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters. 2407 1037. On 24 November 2008, Ntahobali requested the Trial Chamber to exclude the evidence of 14 Prosecution witnesses heard before the amendment or, alternatively, to recall the said witnesses for further cross-examination on the basis, inter alia, that the amendment of Rule 90(G) of the Rules rendered his trial unfair.2408 On 19 January 2009, the Trial Chamber denied both requests, holding that Ntahobali had not demonstrated how the amendment of Rule 90(G) of the Rules prejudiced him and how he

was prevented from putting his case to Prosecution witnesses during their cross-examination.2409 The Trial Chamber concluded that the "Defence's right to a full defence 2405 Ntahobali Notice of Appeal, paras. 49-52, 64-68, 72-76; Ntahobali Appeal Brief, paras. 119-127, 130, 141-151. 240 Ntahobali Notice of Appeal, paras. 77-81; Ntahobali Appeal Brief, paras. 151-157. 2407 See Amendments Adopted at the Thirteenth Plenary (26-27 May 2003), p.

24. Rule 90(G) of the Rules prior to the 2003 amendment read as follows: Rule 90: Testimony of Witnesses [...] (G) Cross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness. The Trial Chamber may, if it deems it advisable, permit enquiry into additional matters, as if on direct examination. Rule 90(G) of the Rules was amended again on 21 May 2005 but this amendment concerned the French version only. See ICTR 15" Plenary Session, 21 May 2005 - Amendments Adopted at the Plenary Session of the Judges, p. 9. 2408 Ntahobali 24 November 2008 Motion to Recall Witnesses, paras. 18-24, 60-67, 90-106, p.

26. Ntahobali refers to 105, p.

26. See also supra, para. 143. 2409 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses, paras. 23, 25-27, p. 6. 367 Case No. ICTR-98-42-A 14 December 2015 1

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19998/H ha[d] been safeguarded throughout the proceedings in conformity with the Statute and the Rules, irrespective of amendments which may have taken place.*2410 1038. Ntahobali submits that the Trial Chamber failed to acknowledge that the application of the amended version of Rule 90(G) of the Rules resulted in prejudice and erred in denying his motion to recall witnesses heard before the said amendment or to exclude their evidence241 Specifically, Ntahobali contends that the Trial Chamber violated his right to a fair trial by applying different procedural rules to the conduct of the cross-examination of witnesses in the course of the trial. 2412 He avers that, until the amendment of Rule 90(G) of the Rules, he was prevented from cross-examining two-thirds of the Prosecution witnesses in an effective and fair manner due to the deficiencies of the rule prior to its amendment.413 He contends that, on the other hand, the Prosecution derived a considerable advantage from the provisions of the amended Rule 90(G) of the Rules, as it was permitted under the amended rule to cross-examine fully witnesses called by the Defence?414 1039. In support of his contentions, Ntahobali argues that he was prevented from confronting witnesses with the statements of other witnesses in the case, questioning certain witnesses about their family ties or knowledge of other Prosecution witnesses, and

attacking the credibility of Prosecution Witness QCB.2415 As specific examples, Ntahobali refers to three instances in which he claims the Trial Chamber prevented him from: (i) confronting Prosecution Witness RE with the account given by her sister about Ntahobali's presence at the EER and at the Butare Prefecture Office even though, eventually, the Trial Chamber relied on the evidence of Witness RE to convict him:2416 (ii) attacking the credibility of Prosecution Witness QCB about the location of roadblocks;2417 and (iji) cross-examining Prosecution Witness FAM about Ruvurajabo. 2418 He adds 2410 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses, para.

23. The Trial Chamber also noted that the request was filed over five years after the entry into force of the amended rule, although it should have een raised at the earliest opportunity pursuant to Rule 5 of the Rules. See ibid., para.

21. Ntahobali Notice of Appeal, para. 51; Ntahobali Appeal Brief, paras. 124-126. 2412 Ntahobali Notice of Appeal, para. 49; Ntahobali Appeal Brief, paras. 119, 124. 2413 Ntahobali Notice of Appeal, paras. 49, 50; Ntahobali Appeal Brief, paras. 119, 120. 2414 Ntahobali Notice of Appeal, para. 49; Ntahobali Appeal Brief, para. 124. 2415 Ntahobali Appeal Brief, para.

122. The Appeals Chamber notes that Ntahobali refers to Grounds 1.3 and 3.12 of his appeal in this respect. However, the Appeals Chamber observes that at no point under these grounds does Ntahobali allege that he was prevented from cross-examining Prosecution witnesses about their knowledge of other Prosecution witnesses on the basis of the previous version of Rule 90(G) of the Rules. 2416 Ntahobali Appeal Brief, para. 122, referring to Witness RE, T. 24 February 2003 pp. 52, 53 (closed session), T. 6 February 2003 pp. 35-37, Trial Judgement, paras. 2660, 2673, 2680-2682, 2707, 3943-3951, 3953, 3956-3958. 2417 Ntahobali Appeal Brief, para. 122, referring to Witness QCB, T. 25 March 2002 pp. 10-15. 2418 Ntahobali Appeal Brief, para. 122, referring to Ntahobali 24 November 2008 Motion to Recall Witnesses, paras. 68-89. 368 Case No. ICTR-98-42-A 14 December 2015

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19997/H that, in other instances, his counsel clearly had to confine cross-examination to abide by the boundaries set by the Trial Chamber. 2419 1040. Ntahobali further alleges that, in the Trial Judgement, the Trial Chamber reproached him for not confronting Prosecution witnesses with his alibi during cross-examination, whereas the limitations imposed by the Trial Chamber on cross-examinations at the time prevented him from doing so.?420 Ntahobali submits that the appropriate remedy is a stay of the proceedings or, alternatively, the exclusion of the evidence that he was prevented from testing during cross-examination or the application of caution towards this evidence by the Appeals Chamber or, in a further alternative, a reduction of his sentence. 2421 1041. The Prosecution responds that Ntahobali's arguments should be dismissed as untimely and unsupported. 2422 It argues that Ntahobali only refers to two instances where he was disallowed to put questions in cross-examination and does not demonstrate how either of these involves the application of Rule 90(G) of the Rules 2423 The Prosecution argues that Ntahobali merely repeats on appeal arguments previously raised at trial and fails to demonstrate any discernible error in the 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses warranting the intervention of the Appeals Chamber.2424 1042. Ntahobali

replies that the question is not whether he could cross-examine the witnesses but whether he suffered prejudice?425 He contends that, contrary to the Prosecution's allegation, he listed three examples in his appeal brief, referred to other incidents developed in his motion, and specified that his counsels had to limit their cross-examinations. 2426 1043. The Appeals Chamber observes that Rule 6(C) of the Rules provides that an amendment of the Rules shall enter into force immediately, but shall not operate to prejudice the rights of the 2419 Ntahobali Appeal Brief, para. 123. 2420 Ntahobali Appeal Brief, para. 123, referring to Trial Judgement, para. 2584. 2421 Ntahobali Appeal Brief, para.

127. Ntahobali did not reiterate in his appeal brief his requests for a re-trial or a significant reduction of his sentence. See Ntahobali Notice of Appeal, para. 52. 2 Prosecution Response Brief, paras. 748, 752. The Prosecution asserts that Ntahobali did not raise contemporaneous objections to the alleged curtailing of his cross-examination of certain witnesses when they allegedly occurred and waited five years after the amendment of Rule 90(G) of the Rules to object. See idem. 2423 Prosecution Response Brief, paras. 749-751. 2424 Prosecution Response Brief, para. 752. 2425 Ntahobali Reply Brief, para.

28. Ntahobali further takes issue with the Prosecution's contention that he failed to raise contemporaneous objections stating that, once a decision was taken by the Trial Chamber, his counsel was no longer in a position to challenge that decision and that, after having his arguments rejected by the Trial Chamber, the appropriate remedy was an appeal against judgement, given the absence of a right to interlocutory appeal at the time. See ibid., para. 29. 2426 Ntahobali Reply Brief, paras. 31, 32. 369 Case No. ICTR-98-42-A 14 December 2015

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19996/H accused in any pending case.?427 Accordingly, the pertinent question to be addressed when an amended rule becomes operative in on-going proceedings is whether the amendment will operate to prejudice the rights of the accused 2428 The Trial Chamber rejected the Ntahobali 24 November 2008 Motion to Recall Witnesses on the merits, noting that Ntahobali had failed to demonstrate how the amendment of Rule 90(G) of the Rules prejudiced him and how he was prevented from putting his case to Prosecution witnesses. 2429 1044. Ntahobali points to three examples to show that he was prejudiced because the Trial Chamber disallowed questions in the application of Rule 90(G) of the Rules prior to its amendment. In relation to Witness RE, the Appeals Chamber notes that counsel for Ntahobali was not permitted to question the witness on a statement allegedly made by her sister-in-law to an investigator of the Tribunal. 2430 The presiding judge held that counsel could not refer to a statement of another witness not made in testimony before the Trial Chamber as such a statement was untested by cross-examination and could not be verified by the Trial Chamber.243l As regards Witness QCB's testimony, the presiding judge intervened in the course of cross-examination by Ntahobali's counsel to ask counsel to explain the relevance of his question suggesting to Witness QCB that he had incorrectly

placed the roadblock on a sketch of Butare Town drawn up by the witness in relation to counsel's intended line of questioning, while explicitly stating that the right to cross-examine on the sketch was, as such, not in question2432 In the view of the Appeals Chamber, neither of these two examples is premised on an application of an earlier version of Rule 90(G) of the Rules or demonstrates that the proposed line of questioning would have been allowed under the amended version of the rule. These examples do not therefore support Ntahobali's claim that he was prejudiced by the application of the previous version of the rule.

1045. With respect to Witness FAM's testimony, the Appeals Chamber observes that Ntahobali does not put forward his argument with any specific references but merely refers to the 24 November 2008 Motion to Recall Witnesses in general terms2433 The Appeals Chamber recalls that an appellant is required to substantiate his arguments in his appeal brief and not by reference to 2427 The Appeals Chamber notes that it has previously stated that every amendment enters into force immediately and, "whether substantive or procedural, [...] applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not 'operate to prejudice the rights of the accused in any pending case'." See Appeal Decision on Continuation of Trial, para. 14. 2428 See Appeal Decision on Continuation of Trial, para. 14. 2429 19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses, para. 23. 2430 Witness RE, T. 26 February 2003 pp. 35-37. 2431 Witness RE. T. 26 February 2003 pp. 36, 37. 2432 Witness QCB, T. 25 March 2002 pp. 10-15. The Appeals Chamber observes that Ntahobali's counsel questioned Witness QCB at length about the sketch of Butare Town drawn up by the witness and was not, as Ntahobali suggests, prevented from questioning Witness QCB in relation to the locations of the roadblocks in Butare Town. See Witness QCB, T. 21 March 2002 pp. 107-138, T. 25 March 2002 pp. 9-36. 2433 See Ntahobali Appeal Brief, para. 122, fn. 212. 370 Case No. ICTR-98-42-A 14 December 2015

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19995/H submissions made elsewhere.2434 Ntahobali also does not substantiate his argument that counsel had to restrict their cross-examination of Prosecution witnesses by virtue of the Trial Chamber's application of Rule 90(G) of the Rules prior to its amendment.

1046. The Appeals Chamber observes that under this ground of appeal, Ntahobali largely repeats the arguments he raised before the Trial Chamber in his motion of 24 November 2008.2435 A party cannot simply repeat arguments on appeal that did not succeed at trial in the hope that the Appeals Chamber will consider them afresh. 2436 Ntahobali does not demonstrate that the Trial Chamber's rejection of his arguments constituted an error warranting the intervention of the Appeals Chamber. Furthermore, the Appeals Chamber considers that none of Ntahobali's arguments supports his claim that the Prosecution was advantaged by the amendment of Rule 90(G) of the Rules.

1047. As for Ntahobali's argument that the Trial Chamber reproached him for not having raised his alibi with Prosecution witnesses in cross-examination, the Appeals Chamber recalls that the Trial Chamber found that: "Ntahobali made no mention of [his] alibi [for the period 26 or 27 May to 5 June 1994] prior to 29 September 2005. The Ntahobali Defence did not mention the alibi in its Pre-Trial Brief, opening statement or in its cross-examination of any of the Prosecution witnesses."2437 The Appeals Chamber considers that this evaluation by the Trial Chamber concerns Ntahobali's failure to put forth timely notice of his alibi and does not concern, as Ntahobali claims, his alleged failure to address his alibi with Prosecution witnesses as such.

1048. Accordingly, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in denying the Ntahobali 24 November 2008 Motion to Recall Witnesses and dismisses Ground 1.7 of Ntahobali's appeal.

2. Admissibility of Documentary Evidence (Ground 1.10) 1049. Ntahobali submits that the Trial Chamber imposed a set of rules on the admissibility of documentary evidence which contravened the Rules and the Appeals Chamber's directions, and denied him the opportunity to produce documentary evidence in support of his defence.2438 He further contends that the Trial Chamber erred in law in applying the rules of admissibility of 2434 See Practice Direction on Formal Requirements on Appeal, para. 4; Prosecutor v. Radovan Karadäic, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber's Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009 ("Karadzi Appeal Decision"), para. 13 and references cited therein; Nshogoza Appeal Judgement, para. 18. 2435 See Ntahobali Appeal Brief, paras. 119, 122, 123, referring to Ntahobali 24 November 2008 Motion to Recall Witnesses, paras. 68-92. 2436 See Karera Appeal Judgement, para. 86; Semanza Appeal Judgement, para. 9. 2437 Trial Judgement, para. 2584. 2438 Ntahobali Notice of Appeal, para. 64. 371 Case No. ICTR-98-42-A 14 December 2015

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19994/H documentary evidence in a manner contrary to the rules established by the Appeals Chamber, which prevented him from mounting a full defence and caused him prejudice.2439 1050. The Prosecution did not respond to these submissions. 2440 1051. In the absence of identification of the specific findings challenged and considering that Ntahobali's submissions are not substantiated, the Appeals Chamber dismisses Ground 1.10 of Ntahobali's appeal without further consideration.

3. Suspension of Lead Investigator (Ground 1.12) 1052. On 16 July 2001, the Registrar suspended Thaddée Kwitonda, Ntahobali's lead investigator, on the basis that he was under investigation by the Prosecution 2441 On 22 October 2001, Ntahobali orally moved for an adjournment of the proceedings.2442 His request for adjournment was denied.2443 The same day, Ntahobali moved the Trial Chamber to reinstate Thaddée Kwitonda as investigator on his Defence team.244 On 14 December 2001, the Trial Chamber found that the issue of reinstatement of a suspended investigator was an administrative matter resting with the Registry and accordingly declared Ntahobali's motion inadmissible 2445 Thereafter, Ntahobali successively presented two candidates for Thaddée Kwitonda's replacement to the Registrar2416 The Registrar declined to appoint cither of these two candidates?447 On 21 October 2002, Ntahobali sought judicial review of the Registrar's decisions by the President of the Tribunal and requested the 2439 Ntahobali Notice of Appeal, paras. 65, 66. Ntahobali explained that he could not develop Ground 1.10 in his appeal brief due to the word limit. See Ntahobali Appeal Brief, para. 130. 2440 The Prosecution explained that it considers that, by not presenting arguments in his appeal brief, Ntahobali had abandoned Ground 1.10 of his appeal. See Prosecution Response Brief, para.

753. Annex A 2442 T. 22 October 2001 pp. 23-27. 2443 T. 22 October 2001 pp. 31, 32 ("22 October 2001 Oral Decision"). 2444 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Extremely Urgent Motion for the Reinstatement of Suspended Investigator-Mr. Thaddée K witonda, 22 October 2001. The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr. Thaddée K witonda, 14 December 2001 ("14 December 2001 Decision"), para. 17. 2446 See Ntahobali Notice of Appeal, para.

74. See also The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Extremely Urgent Motion from Arsène Shalom to Review Decisions of the Registrar and Obtain the Appointment of an Investigator, 21 October 2002 ("Ntahobali Motion for Appointment of Investigator"), Annexes R-7, R-13. 2447 See The Prosecutor v. Pauline Nviramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, The President's Decision on the Application by Arsène Shalom Ntahobali for Review of the Registrar's Decision Pertaining to the Assignment of an Investigator, signed on 13 November 2002, filed on 14 November 2002 ("President Review Decision"), para. 11. 372 Case No. ICTR-98-42-A 14 December 2015

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19993/H President to order the assignment of one of his proposed candidates as investigator.448 On 13 November 2002, the President dismissed Ntahobali's request on the merits.449 1053. Ntahobali submits that the Trial Chamber erred in fact and in law in denying his oral motion for an adjournment in violation of his right to have adequate time and facilities for the preparation of his defence as enshrined in Article 20(4)(b) of the Statute and in refusing to exercise jurisdiction when he moved for the reinstatement of his investigator in October 2001.2450 He argues that investigators play a critical role during the trial proceedings and that the Registrar's decision to suspend his lead investigator impaired his ability to conduct meaningful cross-examinations, which encroached upon his fair trial rights. 2451 1054. Ntahobali further submits that the Registrar's subsequent refusal to appoint either of the two candidates he proposed was arbitrary, unfounded, affected the fairness of the proceedings, and caused him serious prejudice as he was left without an investigator for more than 18 months.2452 He also contends that the President erred in refusing to review the Registrar's decisions and in failing to acknowledge the violation of his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him as enshrined

in Article 20(4)(e) of the Statute2453 1055. According to Ntahobali, the decisions of the Registrar, the Trial Chamber, and the President affected the equality of arms and paralysed the work of his Defence team until an advanced stage of the proceedings.2454 Ntahobali submits that the Prosecution witnesses whom he could not fully cross-examine as a result of the absence of his investigator should not be relied upon against him.2455 In the alternative, he requests that the Appeals Chamber take all measures it deems necessary to remedy the prejudice he suffered. 2456 1056. The Prosecution responds that Ntahobali's request for an adjournment was not premised on the fact that his investigator had been suspended, and that Ntahobali's vague claim that the Trial Chamber's decision breached his rights under Article 20(4)(b) of the Statute does not meet the burden of demonstrating that the Trial Chamber erred. 2457 It argues that Ntahobali fails to explain 2448 Ntahobali Motion for Appointment of Investigator, paras. 2, 88, p. 15. 2449 President Review Decision, paras. 13, 14, p. 6. 2450 Ntahobali Notice of Appeal, para. 73; Ntahobali Appeal Brief, paras. 142, 143, referring to 22 October 2001 Oral Decision, 14 December 2001 Decision. 2451 Ntahobali Appeal Brief, para.

143. See also ibid., paras. 148, 149. 2452 Ntahobali Notice of Appeal, paras. 74, 75; Ntahobali Appeal Brief, paras. 144, 145, 147-149. 2453 Ntahobali Notice of Appeal, paras. 74, 75; Ntahobali Appeal Brief, para. 146. 2454 Ntahobali Appeal Brief, para. 147. 2455 Ntahobali Appeal Brief, para. 150. 2456 Ntahobali Appeal Brief, para. 150. 2457 Prosecution Response Brief, para. 763. 373 Case No. ICTR-98-42-A 14 December 2015

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19992/H how the Trial Chamber erred in the 14 December 2001 Decision and that this ground of his appeal should be summarily dismissed. 2458 1057. Ntahobali replies that it was clear from the record that the adjournment was requested on the basis, in part, of the absence of an investigator.2459 1058. As Ntahobali submits, his oral request for adjournment of 22 October 2001 was partly based on the suspension of his lead investigator2460 The Appeals Chamber acknowledges the critical role investigators play to Defence investigations. However, it considers that Ntahobali fails to substantiate his claim that the Trial Chamber erred in denying his request. Nahobali generally emphasises the important role played by investigators and the fact that, without an investigator at his disposal, he could not conduct meaningful cross-examinations, without showing that the Trial Chamber erred in its reasoning and addressing the particular circumstances that led to the 22 October 2001 Oral Decision. The Appeals Chamber therefore declines to consider this part of Ntahobali's challenge any further.

1059. Similarly, Ntahobali does not substantiate his contention that the Trial Chamber erred in its 14 December 2001 Decision in declining to exercise jurisdiction to review the Registrar's decision to suspend Thaddée Kwitonda. The Appeals Chamber is mindful that, pursuant to its statutory obligation to ensure the fairness of the proceedings before it, any chamber has the inherent power to review administrative decisions where such decisions are closely related to issues involving the fairness of the proceedings2461 Ntahobali, however, only makes general submissions with regard to the alleged resulting prejudice without developing any argument to demonstrate that the Trial Chamber erred in declining to exercise its inherent power in this particular instance.

1060. Turning to Ntahobali's challenges against the Registrar's refusal to appoint the investigators he proposed and the President Review Decision, the Appeals Chamber notes that Ntahobali fails to 2458 Prosecution Response Brief, para. 764. 2459 Ntahobali Reply Brief, para. 40. 2460 Ntahobali requested an adjoumment of the trial in order for his newly appointed counsel to prepare his defence. Ntahobali's counsel submitted that following his appointment in late July 2001 and the remission of parts of the trial record by Ntahobali's former counsel, large parts of the case file were in the custody of Ntahobali at the detention unit and thus inaccessible to him for some time. Counsel submitted that this fact, coupled with the suspension of Ntahobali's lead investigator, warranted an adjournment so as to enable him to familiarise himself with the trial record and prepare Ntahobali's defence. See T. 22 October 2001 pp. 20-26. 2461 See, e.g., In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President's Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze's Motions of 17 June 2008 and 10 July 2008, 24 July 2008, p. 3, fn. 5; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision

on Appellant Jean-Bosco Barayagwiza's Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006 ("Nahimana et al. 23 November 2006 Decision"), para. 9; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze's Motion to Set Aside President Mose's Decision and Request to Consummate his Marriage, 6 December 2005, p. 6139/H (Registry pagination). 374 Case No. ICTR-98-42-A 14 December 2015

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19991/H specify any instance on the trial record or the efforts he made, if any, to bring the matter of the Registrar's alleged arbitrary decisions and the President's alleged erroncous decision to the attention of the Trial Chamber. The Appeals Chamber recalls that it is settled jurisprudence that if a party raises no objection to a particular issue before the trial chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal. 2462 1061. Nevertheless, the Appeals Chamber considers that, in stating in its 14 December 2001 Decision that it could not legally be seised of the matter regarding the reinstatement of the suspended investigator, 2463 the Trial Chamber may have given Ntahobali the impression that it would not entertain a motion for the review of decisions regarding the appointment of defence investigators per se. The Appeals Chamber is of the view that these circumstances justify its examination of the merits of Ntahobali's challenges against the Registrar's decisions and the President Review Decision despite Ntahobali's failure to raise his challenges before the Trial Chamber.

1062. In relation to the President Review Decision, the Appeals Chamber observes that Ntahobali simply asserts that the decision was erroneous and caused him prejudice without identifying the alleged error. The Appeals Chamber therefore dismisses Ntahobali's contention without further consideration.

1063. With respect to the Registrar's decisions, the Appeals Chamber recalls that in the absence of established unreasonableness, there can be no interference with the margin of appreciation of the facts or merits underlying the administrative decision to which the maker of such an administrative decision is entitled.2464 The onus of persuasion rests with the party contesting the administrative decision.2465 In the instant case, Ntahobali takes issue with the outcome of the Registrar's assessment of his candidates, but fails to identify the alleged error in the Registrar's exercise of his discretionary power to appoint investigators at the expense of the Tribunal. His claim is therefore dismissed. 2462 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 31; Musema Appeal Judgement, paras. 127, 341; Kambanda Appeal Judgement, para. 25. 2463 14 December 2001 Decision, para. 17 ("in view of the administrative powers and responsibilities of the Registry in organising and appointing Defence investigators, the Chamber finds that the issue of re-instatement of a suspended Investigator is an administrative matter resting with the Registry. The Chamber finds that it cannot be legally seized of the matter raised by the Defence and declares the Motion inadmissible."). 7 February 2003 ("Kvocka et al. Appeal Decision"), para. 13. 2465 Kvocka et al. Appeal Decision, para. 14. 375 Case No. ICTR-98-42-A 14 December 2015 qu

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19990/H 1064. As Ntahobali has failed to substantiate any of his challenges under Ground 1.12 of his appeal, the Appeals Chamber dismisses this ground of his appeal in its entirety.

4. Cumulative Effect of the Violations (Ground 1.13) 1065. Ntahobali submits that the cumulative effect of the violations of his right to a fair trial irreparably undermined his ability to rebut Prosecution evidence and fully and fairly defend himself 2466 Specifically, he argues that even if the Appeals Chamber were to consider that the violations did not individually warrant a remedy, the cumulative effect of the delays incurred, the multiple violations of the Prosecution's disclosure obligations, the impossibility of conducting effective investigations in the absence of investigators, the refusal to recall witnesses, the Prosecution's instructions to witnesses to lie, the impossibility of effectively cross-examining Prosecution witnesses in view of the strict application of Rule 90(G) of the Rules, the fact that Judge Bossa could not observe several key witnesses, and the addition of a witness at the close of the Prosecution case, warrant a stay of proceedings or a significant reduction in sentence 2467 In the alternative, Ntahobali argues that all evidence relating to these violations should be excluded. 2468 1066. The Prosecution responds that, as Ntahobali provides no references for most of his contentions under this ground or fails to show how his contentions are relevant and essentially repeats "the meritless fair trial allegations" discussed in his other grounds, this

ground of appeal should be summarily dismissed 469 The Prosecution argues that Ntahobali also fails to demonstrate any error on the Trial Chamber's part that occasioned a miscarriage of justice. 2470 1067. The Appeals Chamber recalls that it has found no violation of Ntahobali's fair trial rights in relation to his allegations regarding: (i) the suspension of his lead investigator and the Registrar's refusal to appoint the investigators he proposed; (ii) the refusal to recall witnesses; (iii) the scope of cross-examination under former Rule 90(G) of the Rules; (iv) the fact that Judge Bossa could not observe several key witnesses; and (v) the addition of Witness FA at the close of the Prosecution case.2471 2466 Ntahobali Appeal Brief, paras, 152, 153. In his notice of appeal, Ntahobali also argued that the Trial Chamber was aware of many irregularities raised in this case but erred in failing or refusing to find that they individually o collectively prejudiced him. See Ntahobali Notice of Appeal, paras. 77, 78. As Ntahobali has failed to reiterate an‹ substantiate this allegation in his appeal brief, the Appeals Chamber declines to consider it. 2467 Ntahobali Notice of Appeal, paras. 79, 80; Ntahobali Appeal Brief, paras. 151, 153, 154. 2468 Ntahobali Appeal Brief, paras. 155, 156. In his notice of appeal, Ntahobali also submitted that the Appeals Chambe should award him compensation for the violation of his fair trial rights in conjunction with the other violations raised i 2469 Prosecution Response Brief, para. 765. 2470 Prosecution Response Brief, para. 765. 2471 See supra, Sections III.C, III.D, III.G, V.A.1, V.A.3. 376 Case No. ICTR-98-42-A 14 December 2015

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19989/H 1068. In addition, although the Appeals Chamber found that the Trial Chamber erred in failing to disclose the Amici Curiae Reports related to the allegations of false testimony to Ntahobali in a timely manner, the Appeals Chamber concluded that this violation did not cause him prejudice and did not find that Ntahobali's fair trial right had been violated as the result of the Prosecution's alleged "instructions to witnesses to lie."2472 While the Appeals Chamber also found that the Trial Chamber erred in its 24 October 2001 Oral Decision which denied Ntahobali's request to postpone the cross-examination of Witness TA based on the Prosecution's failure to comply with its disclosure obligations, it concluded that Ntahobali had not demonstrated that the error resulted in any prejudice.2473 1069. With respect to the alleged delays incurred, the Appeals Chamber considered that a remedy for Ntahobali's violation of his right to initial appearance without delay had been granted by the Trial Chamber and that Ntahobali had not demonstrated that this remedy was not proportionate to the gravity of the harm he suffered.2474 The Appeals Chamber will determine below in Section XII the appropriate remedy for the prejudice resulting from the violation of Ntahobali's right to be tried without undue delay. 2475 1070. In light of the foregoing, the Appeals Chamber considers that there is

no cumulative prejudice to assess as a result of Ntahobali's allegations of violation of his fair trial rights and that no further remedy is warranted. Moreover, the Appeals Chamber is not persuaded that the cumulative effect of the violations of his fair trial rights recognised by the Trial Chamber and the Appeals Chamber warrant further remedy than the remedies granted by the Trial Chamber and the Appeals Chamber. Accordingly, the Appeals Chamber dismisses Ground 1.13 of Ntahobali's appeal. 2472 See supra, paras. 317, 318, 339. 2473 See supra, Section II.F. 2474 See supra, Section III.A. 2. 2475 See supra, Section III.K. Case No. ICTR-98-42-A 377 14 December 2015 Tuy

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19988/H B. Indictment (Grounds 2.1 to 2.7) 1071. Ntahobali submits that the Trial Chamber erred in authorising the Prosecution to amend his indictment to add charges of superior responsibility, that he was not charged with the criminal conduct on the basis of which he was convicted or lacked notice thereof, and that he was materially prejudiced in the preparation of his defence2476 Ntahobali requests that the Appeals Chamber overturn all his convictions. 2477 1072. The Appeals Chamber will first examine Ntahobali's contention related to the amendment of the indictment, before turning to his submissions related to notice of the allegations pertaining to the IRST, the Hotel Ihuliro roadblock, the killing of the Rwamukwaya family, the Butare Prefecture Office, the EER, and to his superior responsibility. The Appeals Chamber will conclude this section by discussing Ntahobali's allegation of prejudice resulting from the cumulative effects of the defects in the Indictment.

1. Amendment of the Indictment (Ground 2.6) 1073. As noted in relation to Ground 3 of Nyiramasuhuko's appeal,478 the Prosecution was granted leave on 10 August 1999 to amend the indictment against Nyiramasuhuko and Ntahobali, which included adding six new counts, consolidating two existing ones in a single count, and adding in relevant counts the allegation that Nyiramasuhuko and Ntahobali were responsible pursuant to Article 6(3) of the Statute2479 In deciding to grant the Prosecution leave to amend the indictment as requested, the Trial Chamber held that there was no need to inquire whether or not a prima facie case had been established in support of the new counts since it had only been seised of a motion to amend the indictment pursuant to Rule 50 of the Rules 2480 The Trial Chamber only satisfied itself that the Prosecution "provided sufficient grounds both in fact and in law" 2481 2476 Ntahobali Notice of Appeal, paras. 82-151; Ntahobali Appeal Brief, paras. 158-356. To facilitate readibility, the Appeals Chamber will use the term "Indictment" in the body text of the present section when referring to the Vyiramasuhuko and Ntahobali Indictment. 477 Ntahobali Notice of Appeal, paras. 86, 100, 105, 112, 118, 122, 131, 137, 142, 145, 146, 151; Ntahobali Appea Brief, paras. 197, 202, 219, 246, 271, 277, 293, 299, 300, 303, 310, 318, 324, 330. See also Ntahobali Appeal Brief, Bar See supra, Section IV. B. 1(a). 2479 See 10 August 1999 Oral Decision, pp. 5, 6; 10 August 1999 Decision, p.

6. See also Trial Judgement, para. 6302. 2480 10 August 1999 Decision, para. 17. 2481 10 August 1999 Oral Decision, p.

4. See also ibid., p. 3; 10 August 1999 Decision, paras. 16-18. In the Trial Judgement, the Trial Chamber reiterated that it "was not required to make a prima facie determination in considering the Prosecution's Motion to add a count of rape against Nyiramasuhuko in 1999" since this requirement was added to Rule 50 in 2004. See Trial Judgement, para. 2157. 378 Case No. ICTR-98-42-A 14 December 2015

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19987/H 1074. Ntahobali submits that the Trial Chamber erred in granting the Prosecution leave to amend the indictment to add new counts and to charge him pursuant to Article 6(3) of the Statute. 2482 Specifically, he contends that the Trial Chamber erred in law in considering that there was no need to inquire whether or not a prima facie case had been established prior to authorising the addition of the charge of superior responsibility. He argues that, although at the time Rule 50 of the Rules did not textually require the verification of the existence of prima facie evidence, the Trial Chamber was nonetheless obliged to proceed with some analysis in order to authorise the addition of new charges and that, holding otherwise, would render the objective of Rule 50 of the Rules meaningless and violate the principle of presumption of innocence?483 He posits that, in the absence of any evidence to justify the Prosecution's request to amend the indictment, it was erroneous for the Trial Chamber to grant it. 2484 1075. Ntahobali further submits that the Trial Chamber violated its obligation to provide a reasoned opinion by failing to consider his arguments regarding the addition of the charge of superior responsibility and by failing to mention how the amendment sought met the relevant requirements.2485 He argues that, by merely referring to the Prosecution's submissions, which

did not provide any explanation as to the reason why the addition of superior responsibility was justified, the Trial Chamber could not have validly justified its decision2486 For these reasons, he requests that the findings of superior responsibility be reversed and that his sentence be revised. 2487 1076. The Prosecution responds that, at the time the indictment was amended to include allegations of Ntahobali's superior responsibility, Rule 50 of the Rules did not require that a trial chamber make a determination whether prima facie evidence supported the requested amendment and that the Trial Chamber consequently did not err in law in following the rule as it was at that 2482 Ntahobali Notice of Appeal, para. 146; Ntahobali Appeal Brief, para.

319. See also Ntahobali Appeal Brief, para. 324; Ntahobali Reply Brief, para.

163. Ntahobali adds that the addition of his responsibility under Article 6(3) of the Statute amounted to a new charge. See Ntahobali Appeal Brief, para.

322. In his notice of appeal, Ntahobali primarily argued that the Trial Chamber erred in failing to recognise the principle that the Prosecution should know its case before trial. See Ntahobali Notice of Appeal, paras. 143-145. Ntahobali, however, has failed to reiterate and substantiate this allegation in his appeal brief. Therefore, the Appeals Chamber considers that Ntahobali has abandoned 2483 Ntahobali Appeal Brief, paras. 321, 322 (French), referring to Kabiligi 8 October 1999 Decision, Separate and Concurring Opinion of Judge Dolenc. See also Ntahobali Reply Brief, para. 161, referring to Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar, paras. 1-6. Ntahobali also argues that the Prosecution acknowledged that it had to demonstrate that the proposed amendments were justified in light of the evidence. See Ntahobali Appeal Brief, para. 323, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Brief in Support of Prosecutor's Request for Leave to File an Amended Indictment, 18 August 1998, para. 3(b). 2484 Ntahobali Appeal Brief, paras. 320, 324 (French). See also ibid., para.

329. Ntahobali Appeal Brief, paras. 326, 327, referring to 10 August 1999 Decision, para. 14, Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011 ("Uwinkindi Appeal Decision"), para. 20. 2486 Ntahobali Appeal Brief, paras. 328, 329. 2487 Ntahobali Appeal Brief, paras. 324, 330. See also Ntahobali Notice of Appeal, paras. 145, 146. 379 Case No. ICTR-98-42-A 14 December 2015

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19986/H time.2488 It contends that Ntahobali's arguments are in any event irrelevant because he does not show how he was prejudiced by the Trial Chamber observing the applicable law or by the alleged lack of reasoned opinion.2489 1077. In the section addressing Ground 3 of Nyiramasuhuko's appeal, the Appeals Chamber has already addressed and rejected similar arguments raised by Nyiramasuhuko.2490 There, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, concluded that the allegation that the Trial Chamber erred in law by not requiring, at the time, the Prosecution to present a prima facie case in support of the new counts was without merit.2491 Ntahobali's submissions in this regard do not raise any additional arguments in this respect and the Appeals Chamber, Judge Pocar and Judge Liu dissenting, likewise dismissed them.

1078. As regards Ntahobali's contention that the Trial Chamber violated its obligation to provide a reasoned opinion, the Appeals Chamber notes that the Trial Chamber's decision to authorise the amendment of the indictment clearly reflects consideration of Ntahobali's submissions.2492 Recalling that, when an appellant alleges on appeal that his right to a fair trial has been infringed, he must not only prove that the trial chamber violated a provision of the Statute or the Rules but also that this violation caused prejudice, 493 the Appeals Chamber finds that Ntahobali also fails to show how the alleged lack of explanation of the Trial Chamber for its decision to reject his submissions has any impact on the outcome of the decision. Similarly, the Appeals Chamber fails to see how any error regarding the Trial Chamber's articulation of its reasoning for concluding that it was satisfied that there was a "sufficient factual and legal basis" for granting the requested amendments2494 would have caused prejudice to Ntahobali. In the absence of any demonstrated prejudice, the Appeals Chamber dismisses Ntahobali's contentions pertaining to the violation of his right to a reasoned opinion.

1079. For the foregoing reasons, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, dismisses Ntahobali's contention related to the amendment of the indictment. 2488 Prosecution Response Brief, paras. 842, 843. The Prosecution adds that the Appeals Chamber upheld convictions for charges added to indictment pursuant to Rule 50 of the Rules where the trial chamber made no finding that prima facie evidence existed. See idem, referring to Nahimana et al. Appeal Judgement, paras. 390-393. 489 Prosecution Response Brief, para.

843. In his reply brief, Ntahobali argues that his prejudice is evident since the Trial Chamber took into account his superior responsibility in sentencing. See Ntahobali Reply Brief, para. 162. 2490 See supra, Section IV.B.1(a). 2491 See supra, para. 450. 2492 10 August 1999 Oral Decision, pp. 2, 3; 10 August 1999 Decision, paras. 14, 16. 2493 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 43; Sainovié et al. Appeal Judgement, para. 29; Gatete Appeal Judgement, para. 18; Galié Appeal Judgement, para. 21; Kordié and Cerkez Appeal Judgement, para. 119. 10 August 1999 Decision, paras. 1, 3, 18, 23. See also 10 August 1999 Oral Decision, pp. 2-4. 380 Case No. ICTR-98-42-A 14 December 2015

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19985/H 2. Institut de Recherche Scientifique et Technique (Ground 2.1) 1080. Based on Prosecution Witness QCB's testimony, the Trial Chamber found that, on 21 April 1994, Ntahobali participated in the abduction of approximately 40 Tutsis at the Rugira roadblock and ordered the Interahamwe present at the roadblock to take them to a location in Butare Town between the IRST and the Laboratory2495 to join other Tutsis who had been arrested and transported there. 496 The Trial Chamber found that, at that location, Ntahobali issued orders to the Interahamwe to kill the Tutsis, that his orders were followed, and that approximately 200 Tutsis were killed.2497 The Trial Chamber convicted Ntahobali of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 10) pursuant to Article 6(1) of the Statute for ordering these killings.2498 1081. In summarising the Prosecution case against Ntahobali with respect to this allegation, the Trial Chamber referred to paragraphs 6.15 and 6.35 of the Indictment.2499 It found that the allegation concerning Ntahobali's responsibility for crimes committed at the IRST was not specifically pleaded in the Indictment and

that the Indictment was therefore defective in this regard2500 However, the Trial Chamber determined that this defect was cured through post-indictment communications2501 It concluded that "Ntahobali was reasonably able to understand the nature of the charges against him" and that he suffered no prejudice in the preparation of his defence 2502 2495 For the purposes of clarity, the Appeals Chamber will, as the Trial Chamber did in the Trial Judgement, generally refer to the location "between the IRST and the Laboratory" as the "IRST". 2496 Trial Judgement, paras. 1475, 1480. See also ibid., para. 5782. 2497 Trial Judgement, para.

1480. See also ibid., para. 5782. 2498 Trial Judgement, paras. 5786, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. During the appeals hearing, Ntahobali argued that, according to paragraph 1480 of the Trial Judgement, he was convicted of two incidents in relation to the IRST, namely: (i) his participation in the abduction of approximately 40 Tutsis at the Rugira roadblock and their transfer to the IRST to be killed; and (ii) his orders to take the Tutsis stopped at the roadblock to the IRST and kill them. See AT. 15 April 2015 pp. 28-30. The Appeals Chamber finds that, read as a whole, the Trial Judgement clearly reflects that Ntahobali was convicted on the basis of the orders he gave at the IRST, which resulted in the killing of approximately 200 Tutsis and that the events at the Rugira roadblock did not serve as a separate basis for conviction. 2499 Trial Judgement, para. 1457, fns. 3495, 3496. Paragraphs 6.15 and 6.35 of the Nyiramasuhuko and Ntahobali Indictment read as follows: On 27 April 1994, the Interim Government ordered roadblocks to be set up, knowing that the roadblocks were being used to identify the Tutsi and their "accomplices" for the purpose of eliminating them. 6.35 From April to July 1994, Arsène Shalom Ntahobali also travelled throughout Butare préfecture in the search for the Tutsi. When the victims were located, Arsène Shalom Ntahobali abducted them and took them to various locations, where they were executed. 2500 Trial Judgement, para. 1460. 2501 Trial Judgement, paras. 1461-1464. 2502 Trial Judgement, para.

1464. See also ibid., para. 5787. 381 Case No. ICTR-98-42-A 14 December 2015 qu

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19984/H 1082. Ntahobali submits that his responsibility for the abductions of Tutsis at the Rugira roadblock and the killings perpetrated at the IRST was not pleaded in the Indictment and that such defect was neither curable nor cured. 2503 The Prosecution responds that Ntahobali had sufficient notice that he was charged with ordering the killings of Tutsis perpetrated at the IRST.2504 1083. As noted by the Trial Chamber, paragraph 6.15 of the Indictment was not relied upon in support of any counts in the charging section of the Indictment.2505 Paragraph 6.35 of the Indictment, conversely, was relied upon in support of, inter alia, Counts 2, 6, 8, and 10 pursuant to Articles 6(1) and 6(3) of the Statute?506 However, in the context of the killings at the IRST, the Appeals Chamber is of the view that paragraph 6.35 is overly broad given the expansive date range and the Prosecution's failure to specify therein the location and the circumstances of this event, Ntahobali's role in the killings, and the identity of the physical perpetrators of the killings. This information was not provided anywhere else in the Indictment. While the Indictment clearly indicates that Ntahobali was alleged to have led a group of Interahamwe, exercised authority over Interahamwe militiamen in Butare Prefecture during the relevant events, and "organized, ordered, and participated" in massacres, 2507 it

is vague as to which form or forms of responsibility under Article 6(1) of the Statute Ntahobali was specifically charged with in relation to paragraph 6.35. The Appeals Chamber therefore concurs with the Trial Chamber that the Indictment was defective in relation to the allegation concerning the IRST. The question before the Appeals Chamber is whether the Trial Chamber erred in finding that the defects were curable and, if not, whether the Trial Chamber erred in finding that the defects were cured. (a) Whether the Defects Were Curable 1084. Ntahobali submits that the defects in the Indictment in relation to the allegation concerning the IRST could not be cured as this allegation constituted a separate charge which should have been pleaded in the Indictment, 2508 In particular, he contends that the Trial Chamber erroneously relied on paragraph 6.35 of the Indictment as the basis of his convictions for the crimes committed at the IRST as: (i) reading the Indictment as a whole, paragraph 6.35 could only be understood as relating to the Butare University Hospital; (ii) the Trial Chamber never mentioned that the events at the IRST were related to paragraph 6.35 when denying his request for acquittal under Rule 98bis of the 2503 Ntahobali Notice of Appeal, paras. 83-86; Ntahobali Appeal Brief, paras. 158-179. See also AT. 15 April 2015 Bp. 28-30; AT. 16 April 2015 pp. 23-26. Prosecution Response Brief, paras. 766-776. See also AT. 15 April 2015 pp. 63-69. 2505 Trial Judgement, fn. 3495; Nyiramasuhuko and Ntahobali Indictment, pp. 39-44. 250 Nyiramasuhuko and Ntahobali Indictment, pp. 39-44. 2507 Nyiramasuhuko and Ntahobali Indictment, paras. 4.4, 4.5, 5.1. 2508 Ntahobali Notice of Appeal, para. 85; Ntahobali Appeal Brief, para.

159. See also Ntahobali Appeal Brief, para. 165. 382 Case No. ICTR-98-42-A 14 December 2015

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19983/H Rules but, instead, concluded that this paragraph only concerned events taking place outside Butare Town; and (iii) the Prosecution itself did not indicate that Witness QCB's evidence was related to paragraph 6.35 when responding to Ntahobali's request for acquittal.2509 In the alternative, Ntahobali submits that the addition of an entire massacre site through material facts subsequently disclosed led to a radical transformation of the case against him which caused him prejudice. 2510 In his view, the omission of the IRST allegation from the Indictment, the body of the Prosecution Pre- Trial Brief, and the Prosecution's opening statement demonstrates that the Prosecution never intended to charge him in relation to the crimes perpetrated at the IRST.2511 1085. The Prosecution responds that paragraph 6.35 of the Indictment is not limited to incidents at the Butare University Hospital but applies to locations "throughout" Butare Prefecture, which necessarily includes Butare Town 2512 According to it, the fact that the Trial Chamber referred to an incident outside Butare Town as an example of conduct that could fall under paragraph 6.35 cannot be interpreted to mean that the paragraph only concerned events outside Butare Town. 2513 The Prosecution also emphasises that, although it did not refer to Witness QCB as supporting paragraph 6.35 in its Rule 98bis Response, it was

clear that the list of witnesses it identified was not exhaustive.2514 1086. Ntahobali replies, in contrast with his contention in his appeal brief that paragraph 6.35 of the Indictment could only have been understood as referring to the Butare University Hospital, that it could also have been understood as relating to crimes committed outside Butare Town. 2515 He highlights that this was the interpretation he relied on in his Rule 98bis motion and contends that, if the Trial Chamber considered that paragraph 6.35 also concerned crimes committed inside Butare Town, such as at the IRST, it had the duty to alert him that his understanding that the paragraph solely related to events outside Butare Town was erroneous 2516 In the same vein, 509 Ntahobali Appeal Brief, paras. 162, 164, referring to The Prosecutor v. Pauline Nyiramasuhuko et al. Case No. ICTR-98-42-T, Decision on Defence Motions for Acquittal Under Rule 98bis, 16 December 2004 ("Rule 98bis Decision"), para. 151, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Prosecutor's Response to the Motions of Ntahobali and Nyiramasuhuko for Partial Acquittal - Rule 98 bis of the Rules of Procedure and Evidence, 1 November 2004 ("Rule 98bis Response"), paras. 127, 128. See also Ntahobali Reply Brief, para. 43; AT. 15 April 2015 pp. 29, 30. Ntahobali also submits that paragraph 6.35 of the Nyiramasuhuko and Ntahobali Indictment refers to the searching of Tutsis throughout Butare Prefecture, which is not the case for the IRST events. See Ntahobali Appeal Brief, para. 163; Ntahobali Reply Brief, para. 52; AT. 15 April 2015 pp. 29, 30. 2510 Ntahobali Appeal Brief, para.

166. See also Ntahobali Notice of Appeal, para. 84. 2511 Ntahobali Appeal Brief, para.

178. See also AT. 15 April 2015 pp. 28, 29. 2512 Prosecution Response Brief, paras. 767, 768. 2513 Prosecution Response Brief, para. 768. 2514 Prosecution Response Brief, para. 768, referring to the use of the words "and so on" in paragraph 128 of its 2516 Ntahobali Reply Brief, paras. 44-46, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR- 98-42-T, Requête de Arsène Shalom Ntahobali aux fins d'acquittement en application de l'article 98 bis du Règlement de procédure et de preuve, 25 October 2004 ("Ntahobali Rule 98bis Motion"). Ntahobali argues that, instead, the Trial Chamber only referred to a witness's evidence regarding events committed outside Butare Town in its Rule 98bis 383 Case No. ICTR-98-42-A 14 December 2015

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19982/H Ntahobali contends that it would be unreasonable to believe that the Prosecution would not have listed Witness QCB as testifying in support of paragraph 6.35 in its Rule 98bis Response had it considered that the witness's evidence related to the allegations set out in this paragraph.2517 1087. As discussed earlier, the Appeals Chamber finds that the heading "Butare University Hospital" on page 32 of the Indictment preceding paragraphs 6.34 to 6.39 of the Indictment is misleading as to the location of the crimes mentioned in the paragraphs following this headline.2518 However, a plain reading of paragraph 6.35 of the Indictment and the Indictment as a whole nonetheless unambiguously reveals that this heading is only relevant to paragraph 6.34 and that the allegation set out in paragraph 6.35 relates to the Butare Prefecture as a whole, including Butare Town. Considering the very contents of paragraph 6.35, it would be unreasonable to conclude that the paragraph was limited to events at the Butare University Hospital or crimes committed outside Butare town. 2519 1088. Further, a review of the Rule 98bis Decision does not support Ntahobali's contention that the Trial Chamber concluded that paragraph 6.35 of the Indictment only concerned events taking place outside Butare Town. It is apparent that, in this decision, the Trial Chamber's reference to events near the border

with Burundi outside Butare Town was not aimed at limiting the geographical scope of this paragraph to events taking place outside Butare Town, but was merely used to dismiss the Defence's contention that no evidence supporting paragraph 6.35 was presented to support the allegation that Ntahobali travelled throughout Butare Prefecture in search of Tutsis.2520 Ntahobali's Rule 98bis Motion appears to reflect his understanding that paragraph 6.35 Decision, failing to discuss the killing of approximately 200 victims at the IRST, in Butare Town. He also points out that the Witness Summaries Grid referred only to crimes committed outside Butare Town. See ibid., paras. 46, 47. 2517 Ntahobali Reply Brief, para.

48. Indictment are presented under different headings referring to specific locations. Ntahobali Indictment with events relating to the Butare University Hospital in a prior filing. See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Arsène Shalom Ntahobali's Motion to Recall Witnesses, 31 May 2004, para. 25. 2520 See Rule 98bis Decision, para. 151 (internal references omitted), which reads as follows: The Chamber recalls that Paragragh 6.35 of the Amended Indictment alleges that from April to July 1994, Arsène Shalom Ntahobali travelled throughout the Butare Préfecture in search of Tutsi, abducted them and took them to various locations where they were killed. The Defence submits that the evidence adduced by the Prosecution relates to the city of Butare only and that no evidence was adduced that Arsène Shalom Ntahobali travelled throughout the Préfecture in search of Tutsi. The Chamber notes that Prosecution Witness TQ testified that Arsène Shalom Ntahobali travelled as far as the Burundian border to stop the evacuation of Tutsi children. The Chamber finds that the evidence led by this witness, if believed, could be sufficient to satisfy a reasonable trier of fact beyond reasonable doubt of Arsène Shalom Ntahobali's responsibility under this paragraph. Acquittal under Rule 98bis is therefore denied regarding Paragragh 6.35 See also Ntahobali Rule 98bis Motion, paras. 82, 83. 384 Case No. ICTR-98-42-A 14 December 2015

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19981/H only concerned events taking place outside Butare Town252) In these circumstances, the Appeals Chamber considers that it would have been preferable for the Trial Chamber to clarify its understanding that the broad allegation pleaded in paragraph 6.35 was not limited to crimes committed outside Butare Town as suggested by Ntahobali. That being said, the Appeals Chamber docs not find that the Trial Chamber erred in its decision to limit its analysis to addressing Ntahobali's incorrect assertion that no evidence of his involvement in acts outside Butare Town had been presented by the Prosecution and to dismiss Ntahobali's motion for acquittal on this basis.

1089. Similarly, the Appeals Chamber does not consider that the fact that the Prosecution did not list Witness QCB's evidence as supporting paragraph 6.35 of the Indictment in its Rule 98bis Response was indicative that the witness's testimony did not fall within this paragraph. The Prosecution's use of the expression "and so on" following its enumeration of the Prosecution witnesses who gave evidence in relation to paragraph 6.35 clearly indicated that this list was not exhaustive.* 2522 1090. The Appeals Chamber finds that the allegation concerning the IRST did not constitute a new charge but fell within the broader allegation relating to the abduction and killing of Tutsis throughout Butare Prefecture pleaded in paragraph 6.35 of the Indictment. Likewise, the Appeals Chamber does not consider that the material facts on which the Trial Chamber entered its conviction led to a radical transformation of the Prosecution case against Ntahobali, nor that these facts could have, on their own, supported a separate charge. 2523 As vague as the charge set out in paragraph 6.35 was, it nonetheless clearly pleaded the involvement of Ntahobali in the abduction and killings of Tutsis in Butare Prefecture from April to July 1994.

1091. Furthermore, the Appeals Chamber is not persuaded by Ntahobali's argument that the material facts on which the Trial Chamber entered its conviction were not part of the Prosecution case against him. It is true that, despite being in possession of information about Ntahobali's involvement in the killings at the IRST from Witness QCB since 1999, the Prosecution did not expressly refer to the killings perpetrated at the IRST in the Indictment, the text of its pre-trial brief, or its opening statement. However, in the view of the Appeals Chamber, the disclosure to Ntahobali in December 1999, and again in November 2000, prior to the filing of the operative indictment, of 2521 Ntahobali Rule 98bis Motion, paras. 81-83. 2522 Rule 98bis Response, para. 128. 2523 The Appeals Chamber recalls that the possibility of curing the omission of material facts from the indictment is not unlimited. It is settled jurisprudence that the "new material facts" should not lead to a "radical transformation" of the Prosecution case against the accused. If the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the trial chamber to amend the indictment and the trial chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence. See Bagosora et al. Appeal Decision on Exclusion of Evidence, para. 30; Muvunyi Appeal Judgement of 29 August 2008, para. 20; Nahimana et al. Appeal Judgement, para. 406. 385 Case No. ICTR-98-42-A 14 December 2015

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19980/H Witness QCB's prior statement concerning Ntahobali's involvement in the events at the Rugira roadblock and the IRST on 21 April 1994 shows that the IRST killings formed part of the Prosecution case at the time the Indictment was issued 2524 That Ntahobali's participation in the IRST killings continued to be part of the Prosecution case after the Indictment was issued is further reflected by the summary of Witness QCB's anticipated testimony appended to the Prosecution Pre-Trial Brief. 2525 1092. Accordingly, the Appeals Chamber considers that the defects in the Indictment regarding Ntahobali's responsibility for the killings perpetrated at the IRST were curable. The Appeals Chamber now turns to consider whether the Trial Chamber erred in finding that the defects were cured by the provision of clear, consistent, and timely information detailing the factual basis underpinning the charge. (b) Whether the Defects Were Cured 1093. The Trial Chamber determined that the Indictment was cured through the disclosure of Witness QCB's Summary and Statement 2526 1094. Ntahobali submits that the Trial Chamber erred in finding that the defects in the Indictment concerning the IRST events had been cured and that he was put on notice that the Prosecution intended to prove that he was criminally responsible for ordering the killings perpetrated by Interahamwe at the IRST2527 In support

of his claim, Ntahobali argues that neither the Indictment nor any subsequent information provided him notice that he was alleged to have "ordered" Interahamwe to kill Tutsis at the IRST or identified the perpetrators.2528 He generally contends that the summaries of the witnesses' anticipated evidence appended to the Prosecution Pre-Trial Brief relied upon by the Trial Chamber could not put him on notice of the allegations against him as the Prosecution failed to specify to which paragraphs of the Indictment the summaries referred, in violation of Rule 73bis(B)(iv)(c) of the Rules2529 Ntahobali further points out that Witness QCB's 10 December 1999, 15 November 2000, and 18 September 2001. See 10 December 1999 Disclosure; Memorandum "Butare Group of Cases ICTR-98-42-T - Disclosure", 18 September 2001. The unredacted version of Witness QCB's 7 April 1999 statement was disclosed on 1 October 2001 and admitted into evidence on 27 March 2002 as Exhibit D29 (confidential) ("Witness QCB's Statement"). The Nyiramasuhuko and Ntahobali Indictment was filed on 1 March 2001. 2525 Witness Summaries Grid, item 52, Witness QCB ("Witness QCB's Summary"). 2526 Trial Judgement, paras. 1461-1464, referring to Witness QCB's Summary and Witness QCB's Statement (collectively, "Witness QCB's Summary and Statement"). 27 Ntahobali Notice of Appeal, para. 83; Ntahobali Appeal Brief, paras. 167-179;

Ntahobali Reply Brief, paras. 53-62 2528 Ntahobali Appeal Brief, paras. 167-171. See also ibid., para. 177; Ntahobali Reply Brief, paras. 59, 60. 2529 Ntahobali Notice of Appeal, para. 150; Ntahobali Appeal Brief, para. 353; Ntahobali Reply Brief, paras. 168, 169, referring to The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Defence Motions of 386 Case No. ICTR-98-42-A 14 December 2015

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19979/H Summary and Statement: (i) are silent or ambiguous with regard to whether crimes were committed at the IRST and as to Ntahobali's conduct or even presence at the IRST; and (ii) refer to the "EER" or "ESO" roadblock and not to the "Rugira roadblock" 2530 1095. The Prosecution responds that Witness QCB's Summary and Statement sufficiently notified Ntahobali of his involvement in the killing of Tutsis at the IRST2531 It argues that its pre-trial brief complied with Rule 73bis(B)(iv)(c) of the Rules as it referred to the counts that each witness's anticipated testimony would support. 2532 It also highlights that paragraph 5.1 of the Indictment, which is included in all relevant charges, expressly pleaded that Ntahobali "ordered" massacres.2533 In its view, the identity of the physical perpetrators and the information as to which roadblock Tutsis were arrested or kept at were not material facts that had to be pleaded in the Indictment. 2534 The Prosecution adds that, in any event, Witness QCB's Summary indicated that Ntahobali supervised Interahamwe and Ntahobali's claim that he was informed about the wrong roadblock has no basis 2535 It also contends that the conduct of Ntahobali's defence shows that he fully understood the case against him with respect to the IRST events and did not suffer prejudice 2536 In this respect, the Prosecution points out that the Trial Chamber

discussed lack of notice proprio motu, that Ntahobali never claimed at trial that his ability to defend himself in relation to this event had been impaired because of lack of notice, and that Ntahobali thoroughly cross-examined Witness QCB on the matter. 2537 1096. Ntahobali replies that paragraph 5.1 of the Indictment could not serve as a basis to put him on notice that he was charged with "ordering" killings at the IRST as this paragraph was too general Nsengiyumva, Kabiligi, and Ntabakuze Challenging the Prosecutor's Pre-Trial Brief and on the Prosecutor's Counter-Motion, 23 May 2002, para. 12. 2530 Ntahobali Appeal Brief, paras. 173-177. Ntahobali emphasises that the Trial Chamber accepted that Witness QCB's Statement had not been properly reported by the Prosecution investigators as, instead of saying "I continued towards Mukoni when I heard screams", the witness meant that he had left the Rugira roadblock and then had gone to the IRST where he witnessed people crying and getting killed. Ntahobali argues that this demonstrates that he could not have understood that Witness QCB was expected to testify about killings committed at the IRST. See ibid., para. 177, 2532 Prosecution Response Brief, paras. 849, 850. Prosecution Response Brief, para.

769. See also AT. 15 April 2015 p.

66. During the appeals hearing, the Prosecution also argued that an order need not be explicit in relation of the consequences that it will have and that the Nyiramasuhuko and Ntahobali Indictment put Ntahobali on notice that his order to abduct the Tutsis from the roadblock and transport them to the IRST "gave rise to a substantial likelihood that those Tutsis would be killed." See AT. 15 April 2015 p. 65. 2534 Prosecution Response Brief, paras. 770, 771. 2535 Prosecution Response Brief, paras. 770, 771. The Prosecution points out that Witness QCB's Summary does not state whether the gathered Tutsis came from the roadblock close to Ntahobali's parents' house or from the close-by Rugira roadblock. It also argues that the reference to Mukoni in Witness QCB's Statement did not provide inconsistent information as Mukoni is very close to the IRST. See ibid., paras. 771, 772. The Prosecution further adds that Witness OCB's Statement supplied a precise date for the incident. See AT. 15 April 2015 p. 66. 2536 Prosecution Response Brief, paras. 766, 773-775. See also AT. 15 April 2015 pp. 66-69. 2537 Prosecution Response Brief, paras. 766, 773-775. See also AT. 15 April 2015 pp. 66-69. 387 Case No. ICTR-98-42-A 14 December 2015

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19978/H to be interpreted as comprising this form of responsibility??" He also asserts that the identity of the physical perpetrators and the abduction of the Tutsis at the Rugira roadblock were material facts and emphasises that the Trial Chamber expressly concluded that Witness QCB's Summary did not give him notice that he supervised Interahamwe in relation to the events at the IRST. 2539 He maintains that Witness QCB's Summary and Statement did not give clear notice that crimes were committed at the IRST and that he was alleged to have been present. 2540 1097. In addition, Ntahobali claims that he did not understand that he was accused of having ordered the kidnapping of 40 Tutsis at the Rugira roadblock and the killing of 200 Tutsis at the IRST prior to the testimony of Witness QCB and, consequently, was seriously prejudiced in the preparation of his defence 34' He argues that the burden rests on the Prosecution to demonstrate on appeal that his ability to prepare a defence was not materially impaired by the lack of notice on the grounds that: (i) he had objected to the vagueness of paragraph 6.35 of the Indictment and the lack of notice concerning the modes of liability at trial, although he unfortunately omitted to list the allegation concerning the IRST among the ones falling outside the Indictment in his closing brief;2542 and (ji) the Trial Chamber was clear that

objections related to the Indictment would not be granted and should be addressed in closing briefs?543 According to Ntahobali, the fact that the Trial Chamber raised this issue proprio motu further demonstrates that the Prosecution bears the burden of establishing the absence of prejudice, which it fails to do. 254* In any event, he develops his allegation of prejudice by submitting that: (i) he was not able to conduct any meaningful investigation to prepare for the cross-examination of Witness QCB; (ii) the cross-examination of Witness QCB demonstrates that he was not adequately prepared to refute the allegations made by the witness; (iii) he did not call any witness to challenge Witness QCB's evidence; (iv) his motion to recall Witness QCB reflects that he had not understood that he was alleged to have ordered the killings at the IRST; and (v) the Trial Chamber's reliance on the absence of cross-examination of 2538 Ntahobali Reply Brief, paras. 54-56. Ntahobali also argues that the Trial Chamber did not rely on paragraph 5.1 of the Nyiramasuhuko and Ntahobali Indictment to find that the defect was cured. See ibid., para. 58. 2539 Ntahobali Reply Brief, paras. 59, 61, referring to Trial Judgement, para. 5788. 2540 Ntahobali Reply Brief, para. 62. 2541 Ntahobali Reply Brief, paras. 63-67. 2542 Ntahobali Reply Brief, para. 65, referring to T. 10 July 2000 pp. 49, 50, The

Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Amended Preliminary Motion Objecting to Defects in the Form and Substance of the Indictment, 26 May 2000 (originally filed in French, English translation filed on 12 June 2000) ("Ntahobali 26 May 2000 Motion"), paras. 76, 77, Ntahobali Closing Brief, paras. 73, 74. 2543 Ntahobali Reply Brief, para. 66, referring, inter alia, to Witness TO, T. 6 March 2002 pp. 83, 84, 88-105, 122, 123, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ndayambaje's Motion for Exclusion of Evidence, 1 September 2006 ("1 September 2006 Decision"), paras. 24, 25, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Alphonse Nteziryayo's Motion for Exclusion of Evidence, 25 February 2009 ("25 February 2009 Decision"), paras. 27-29, Trial Judgement, paras. 97, 98. Ntahobali argues that this approach was found to be prejudicial by the Appeals Chamber in other cases. See Ntahobali Reply Brief, para. 66, referring to Ntakirutimana Appeal Judgement, para. 28, Prosecutor v. Jadranko Prlié et al., Case No. IT-04-74- AR72.3, Decision on Petkovic's Appeal on Jurisdiction, 23 April 2008, para.

20. See also AT. 16 April 2015 pp. 25, 26. 2544 Ntahobali Reply Brief, para. 67. 388 Case No. ICTR-98-42-A 14 December 2015

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19977/H Witness QCB to deny the witness's recall demonstrates that he was not able to effectively cross-examine the witness. 2545 1098. The Appeals Chamber finds no merit in Ntahobali's general argument that the summaries of the Prosecution witnesses' anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegations against him because they were not explicitly linked to any paragraph in the Indictment 2546 While it would have been preferable for the Prosecution to provide greater specificity given the vagueness of the Indictment and its pre-trial brief regarding many allegations, the contents of Witness QCB's Summary?547 and the fact that it was expressly marked relevant to Ntahobali and to the relevant counts of his Indictment2548 - which, in turn, were linked to paragraph 6.35 of the Indictment - provided notice to Ntahobali that the Prosecution intended to rely on the evidence of Witness QCB in support of the broad allegation set forth in paragraph 6.35.

1099. Witness QCB's Summary specifically refers to Tutsis being stopped at roadblocks and led by Ntahobali to the École des sous-officiers ("ESO") roadblock and the IRST. Contrary to Ntahobali's contention, it is clear from the reading of Witness QCB's Summary that killings were committed at the IRST.2549 The summary, however, does not mention the location "Rugira 2545 Ntahobali Reply Brief, paras. 69, 71, 72, 75, referring to Trial Judgement, para. 1459, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Requ[ê ]te de Arsène Shalom Ntahobali en rappel du témoin QCB, 1 October 2008 (confidential) ("Ntahobali 1 October 2008 Motion to Recall Witness QCB"), paras. 45-53, 20 November 2008 Decision, paras. 39, 41. See also AT. 15 April 2015 p.

29. Ntahobali also refers to his submissions related to the absence of investigators for a long period of time (Ground 1.12), the limitations imposed on cross-examinations (Ground 1.7), and the Prosecution's violation of its disclosure obligations (Ground 1.5). See Ntahobali Reply Brief, para.

73. He adds that it is speculative to allege that he would have presented the same defence had he been put on adequate notice of the allegation. See ibid., para. 68. 2546 The Appeals Chamber observes that neither the Rules nor the jurisprudence require that the summaries appended to a Prosecution's pre-trial brief be linked to the relevant paragraphs of an indictment in order to provide timely, clear, and consistent information detailing the factual basis underpinning the charge. In this regard, the Appeals Chamber notes that Rule 73bis(B)(iv)(c) of the Rules relied upon by Ntahobali only states that, at the pre-trial conference, the trial chamber may order the Prosecutor to file "[the points in the indictment on which each witness will testify". Ntahobali's reliance on a trial chamber's decision in the Bagosora et al. case also fails to appreciate that decisions of trial chambers have no binding force on each other. See Lukié and Lukié Appeal Judgement, para. 260; Rutaganda Appeal Judgement, bara. 188; Aleksovski Appeal Judgement, para. 114 547 In relevant part. Witness OCB's Summary reads as follows: QCB went to Butare with a Tutsi acquaintance. They went through two roadblocks with many people around, guarded by gendarmes, Interahamwe and civilians. Then they came to a third roadblock supervised by Ntahobali. The roadblock was opposite Ntahobali's parents' house. The

Interahamwe and civilians wearing military vests were checking ID cards allowing Hutu through and segregating Tutsi and putting them by the roadside. QCB's acquaintance] refused to join the Tutsi group and Ntabobali ordered his killing and he was immediately killed. Ntahobali led the gathered Tutsis to ESO roadblock and Institut de Recherche Scientifique et Technique. QCB saw people being struck to death. 2548 Witness QCB's Summary was marked relevant to Ntahobali and was linked, inter alia, to Counts 2, 6, 8, and 10 of 2549 The Appeals Chamber sees no merit in Ntahobali's argument regarding the alleged confusion created by Witness QCB's reference to "continu[ing] towards Mukoni" in his prior statement. See supra, fn.

2530. The Appeals Chamber considers that it was clear from Witness QCB's Summary and Witness QCB's Statement that killings were alleged to have occurred at the IRST. 389 Case No. ICTR-98-42-A 14 December 2015 1

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19976/H roadblock'? nor does it specify the date of the killings. It is also unclear as to the conduct of Ntahobali at the IRST and the identity of the perpetrators of the killings. The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged 2551 The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders2552 and all detail it possesses regarding the location of the incidents.

1100. Only when Witness QCB's Summary is read together with Witness QCB's Statement it is clear that the witness was expected to testify that, on 21 April 1994, Ntahobali took Tutsis from the roadblock near Amandin Rugira's home to lead them towards the IRST and that the killings were alleged to have occurred. 2553 1101. The Appeals Chamber finds that, by reading the Indictment in conjunction with Witness QCB's Summary and Statement, Ntahobali was put on notice that the Prosecution intended to hold him responsible for abduction of Tutsis at the Rugira roadblock and killings at the IRST on 21 April 1994. Since Witness QCB's Summary contained clear allegations against Ntahobali and was expressly linked to his Indictment, the Appeals Chamber considers that Ntahobali should have been prompted to examine the contents of Witness QCB's Statement upon reading Witness QCB's Summary.

1102. Nevertheless, the Appeals Chamber observes that neither Witness QCB's Summary nor Witness QCB's Statement gave clear notice to Ntahobali that he was alleged to have ordered Interahamwe to kill Tutsis at the IRST. While the summary and statement unambiguously indicate that Ntahobali was alleged to have exercised a supervisory role at the roadblocks and authority over 2550 The Appeals Chamber notes that Witness QCB indicated that the Rugira roadblock, which he referred to as "roadblock 5", was located further down Ntahobali's parents' house. See Exhibit P54 (Sketch map of Butare town by Witness QCB). 2551 Bagosora and Nsengiyumva Appeal Judgement, para: 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreskié et al. Appeal Judgement, para. 89. 2552 Cf. Uwinkindi Appeal Decision, para. 36 ("When the Prosecution pleads a case of 'instigation', it must precisely describe the instigating acts and the instigated persons or groups of persons"), referring to Blaskit Appeal Judgement, para.

226. See also Ndindilivimana et al. Appeal Judgement, para. 174. 2553 In relevant part. Witness OCB's Statement reads as follows: [...] on 21 April 1994 [...] [we encountered a second roadblock this time manned by Interahamwe and civilians with military-type vests as well as grenades and Kalashnikov rifles. It was located near the road leading to the Institut de Recherche Scientifique et Technique (IRST), near the home of the late Amandin RUGIRA. There were many people around [the roadblock]. [...] SHALOM found me at the second roadblock. He was leading away the Tutsis who were gathered at the ESO roadblock. He also took the ones who were gathered at this second roadblock and led them all towards the IRST. I continued towards Mukoni when I heard the screams. I was afraid and guessed that these were screams from people who were being killed. [.] I looked from the roadside and saw people being struck to death with traditional weapons. [...] 390 Case No. ICTR-98-42-A 14 December 2015

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19975/H the Interahamwe present at the roadblocks, the only express discussion of Ntahobali's conduct in relation to this event provided in these documents was that Ntahobali led the Tutsis away before they were killed. In this context, the Appeals Chamber notes the Trial Chamber's analysis that Witness QCB's Summary "does not provide that Ntahobali supervised Interahamwe with relation to the events at the IRST."2554 The Appeals Chamber finds that neither Witness QCB's Summary nor Witness QCB's Statement provided sufficient information to put Ntahobali on notice that he ordered Interahamwe to kill the Tutsis he led towards the IRST. The Appeals Chamber therefore concludes that the Trial Chamber erred in finding that the vagueness of the Indictment concerning the allegation related to the IRST was remedied by the disclosure of Witness QCB's Summary and Statement.

1103. The Appeals Chamber also rejects the Prosecution's argument that paragraph 5.1 of the Indictment put Ntahobali on notice that he was charged with ordering the relevant killings given the broad nature of paragraph 5.1, the fact that it is not clearly linked to paragraph 6.35 of the Indictment, and the fact that it refers to several forms of responsibility 25S The relevant question is not whether Ntahobali was given notice that he was charged with ordering crimes - which he clearly was - but whether he was given notice that he was charged with ordering the killings perpetrated at the IRST on 21 April 1994.

1104. The Appeals Chamber finds that it is only when Witness QCB testified at trial that Ntahobali was put on unambiguous notice that the Prosecution intended to prove that he was responsible for ordering Interahamwe to kill Tutsis at the IRST. 2556 While this information was clear and consistent with the general information concerning Ntahobali's supervisory role and authority over the Interahamwe previously disclosed, the Appeals Chamber considers that it was provided too late in the proceedings to constitute "timely" notice.

1105. The Appeals Chamber recalls that a vague or ambiguous indictment which is not cured of its defect by the provision of timely, clear, and consistent information causes prejudice to the accused 2557 The defect may only be deemed harmless through demonstrating that the accused's 2554 Trial Judgement, para. 5788. 2555 See Nyiramasuhuko and Ntahobali Indictment, para. 5.1 ("[...] In executing the plan, they organized, ordered and 2357 See, e.g., Sainovié et al. Appeal Judgement, para, 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para.

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19974/H ability to prepare his defence was not materially impaired. 258 When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his ability to prepare his defence was materially impaired. 2559 When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his defence was not materially impaired. 2560 1106. While Ntahobali objected to the vagueness of paragraph 6.35 of the Indictment as regards the identity of the alleged victims and the location of the killings in 2000,2561 he did not object to the vagueness of this paragraph with respect to his particular course of conduct and alleged form of responsibility. In addition, Ntahobali did not raise the vagueness of the allegations pleaded in paragraph 6.35 after he was provided with the particulars appended to the Prosecution Pre-Trial Brief filed in April 2001. The Appeals Chamber considers that the indication that Witness QCB's Summary was expressly linked to his Indictment should have prompted Ntahobali to object to the lack of information he had regarding the incidents about which the witness was expected to testify.

1107. The Appeals Chamber further observes that Ntahobali did not take issue with Witness QCB's testimony regarding his responsibility for ordering Interahamwe to kill the Tutsis he led from the Rugira roadblock to the IRST on 21 April 1994 on the ground that he lacked sufficient notice of this allegation. 2562 The Appeals Chamber finds Ntahobali's explanation for his failure to contemporaneously object to Witness QCB's testimony in this respect unpersuasive. Having reviewed the Trial Chamber's oral rulings and decisions pointed out by Ntahobali, the Appeals Chamber considers that none of them could have reasonably been understood as suggesting to the Defence to refrain from making objections related to the indictments because they would not be granted and had rather to be addressed in closing submissions. 2563 2558 See, e.g., Sainovié et al. Appeal Judgement, para. 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para. 58; Kupreskié et al. Appeal Judgement, para.

122. See, e.g., Nzabonimana Appeal Judgement, para. 30; Sainovié et al. Appeal Judgement, para. 224; Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para.

200. See, e.g., Nzabonimana Appeal Judgement, para. 30; Ntabakuze Appeal Judgement, fn. 189; Niyitegeka Appeal Judgement, para. 200; Kupreskic et al. Appeal Judgement, paras. 122, 123. See Ntahobali 26 May 2000 Motion, paras. 76, 77; T. 10 July 2000 pp. 49, 50. 2562 Witness QCB, T. 20 March 2002 pp. 85-91. 2563 The Trial Chamber's oral statements and decisions pointed out by Ntahobali informed the parties that requests to exclude evidence based on defects in the form of the indictments would be ruled upon at a later stage of the proceedings did not necessarily preclude admission of the impugned evidence. See Witness TO, T. 6 March 2002 pp. 83, 84, 88-105, 122, 123; 25 February 2009 Decision, paras. 27-29; 1 September 2006 Decision, , paras. 24, 25. The Appeals Chamber also notes that the decisions cited by Ntahobali are subsequent to the testimony of Witness QCB and that, in one of the decisions cited by Ntahobali, the Trial Chamber expressly recalled that "the appropriate time to object to the admissibility of evidence is when the evidence is introduced." See 1 September 2006 Decision, para. 22 (internal reference omitted). 392 Case No. ICTR-98-42-A 14 December 2015

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19973/H 1108. Finally, the Appeals Chamber notes that Ntahobali, as he acknowledges, failed to raise the defects in the Indictment regarding the killings at the IRST in his closing submissions. 2564 The matter was addressed proprio motu by the Trial Chamber in the Trial Judgement 2565 Against this background, the Appeals Chamber considers that Ntahobali is raising the defect in the Indictment concerning his responsibility for ordering the IRST killings for the first time on appeal. The burden, as a consequence, rests on Ntahobali to show that his ability to prepare his defence was materially impaired by the Prosecution's failure to provide him with adequate notice that he was alleged to have ordered Interahamwe to perpetrate the killings at the IRST.

1109. The Appeals Chamber finds that Ntahobali has failed to make such a demonstration. Both Witness QCB's Summary and Statement were disclosed well before the witness testified before the Trial Chamber 2566 While Ntahobali was not put on clear notice of his specific conduct and form of responsibility as regards the IRST events until the testimony of Witness QCB at trial, he was put on notice months before the commencement of the trial that he was alleged to have exercised a supervisory role and authority over the Interahamwe present at the roadblocks and to have been responsible for the killings of Tutsis at the IRST on 21 April 1994. The Appeals Chamber is of the opinion that this information allowed him to conduct meaningful investigations.

1110. The Appeals Chamber also considers that the cross-examination of Witness QCB by his counsel does not reflect a lack of preparation. While Ntahobali's counsel did not question Witness QCB on Ntahobali's participation in the killings perpetrated at the IRST, it is worth stressing that, in fact, his counsel did not raise a single question to the witness regarding Nahobali's acts or conduct during the relevant events whether in respect of the supervision of roadblocks, the killing of Ruvurajabo, the stopping and abductions of Tutsis from the roadblocks, the move to the IRST, or the killings committed there, although Witness QCB was clearly expected to testify about these events and testified at length about them.2567 Moreover, apart from questioning Witness QCB on how he was able to estimate the number of victims killed at the IRST,2568 Ntahobali's counsel did not put any questions to the witness regarding the circumstances of the abductions and killings perpetrated on 21 April 1994. Ntahobali's counsel's cross-examination was primarily focused on the witness's knowledge of his client,269 the location and dates of setting up 2564 See Ntahobali Reply Brief, para. 65; Ntahobali Closing Arguments, T. 23 April 2009 pp. 3-60; Ntahobali Closing Brief, para. 78. 2565 See Trial Judgement, para. 1460. 2566 Witness CB's Statement was disclosed for the first time on 10 December 1999,

the Prosecution Pre-Trial Brief was filed on 11 April 2001, and Witness QCB started to testify on 20 March 2002. 2567 See Witness QCB's Summary; Witness QCB's Statement; Witness QCB, T. 21 March 2002, T. 25 March 2002 T. 26 March 2002. 2568 Witness QCB, T. 25 March 2002 pp. 131, 132. 2569 See Witness QCB, T. 25 March 2002 pp. 39-41 and 45-68 (closed session). 393 Case No. ICTR-98-42-A 14 December 2015

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19972/H of the roadblocks, 2570 the categories of individuals manning the roadblocks,? the geography of the relevant locations and roads,2572 and the discrepancies within Witness QCB's evidence.?573 1111. Likewise, the Appeals Chamber finds that Ntahobali's decision not to call any witness to specifically counter Witness QCB's allegations does not demonstrate prejudice. Ntahobali acknowledged that he understood that he was accused of having ordered killings at the IRST when Witness QCB testified.?574 His decision not to call witnesses to challenge Witness QCB's evidence adduced at trial was therefore an informed decision. It is also noteworthy that, in his closing brief, Nahobali expressly challenged the credibility of Witness QCB regarding these events2575 and that, on appeal, he explains that his failure to raise the lack of notice regarding the IRST incident in his closing submissions was "a significant and unfortunate oversight" 2576 1112. As to the Trial Chamber's refusal to recall Witness QCB, the Appeals Chamber observes that Ntahobali's justification for requesting the recall of Witness QCB was to highlight alleged inconsistencies and contradictions between the witness's testimony before the Trial Chamber and his statements and testimony before Canadian authorities in order to challenge his credibility, and not to remedy an alleged prejudice resulting from Ntahobali's

inability to effectively cross-examine the witness.' 2577 Contrary to Ntahobali's contention, his motion to recall Witness QCB is not indicative of his confusion regarding whether he was alleged to have ordered the killings at the IRST.2578 The decision denying the recall of Witness QCB also does not reflect, as alleged by Ntahobali, that he was not able to effectively cross-examine the witness.2579 Of significance in this decision, the Trial Chamber expressly noted that Witness QCB's statement to Canadian authorities 2570 See Witness QCB, T. 25 March 2002 pp. 15-36, 122-152. 2571 See Witness QCB, T. 25 March 2002 pp. 37-39, 116-122, 156-161. 2572 See Witness OCB, T. 21 March 2002 pp. 110-120, 128-143, T. 25 March 2002 pp. 7-10. 2573 See Witness OCB, T. 26 March 2002 pp. 33-48, 54. 2574 Ntahobali Reply Brief, para. 63 (French) ("Jamais l'Appelant n'a compris avant le témoignage de CB que ce dernier l'accusait d'avoir ordonné l'enlèvement de 40 personnes au 'Rugira roadblock' ou d'avoir ordonné 200 meurtres à l'IRST."). The Appeals Chamber notes that Ntahobali makes a contradictory statement in another context in his submissions in reply. See ibid., para. 75. 2575 See Ntahobali Closing Brief, paras. 139-142, 276. 2576 Ntahobali Reply Brief, para. 65. 2577 See Ntahobali i October 2008 Motion to Recall Witness QCB, paras. 8, 28, 39, 43, 71, 72. See also The Prosecutor v. Pauline

Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Requête de Arsène Shalom Ntahobali en certification d'appel de la Décision du 20 novembre 2008 concernant le témoin QCB, 27 November 2008 (confidential), paras. 5-8, 30. 2578 See Ntahobali Reply Brief, para. 75: In his motion to recall Witness QCB, Ntahobali expressly refers to Witness QCB's testimony before the Trial Chamber that he was the leader of the killers at the IRST and points to the fact that Witness QCB was inconsistent as regards whether he physically committed killings in subsequent statements to Canadian authorities. See Ntahobali 1 October 2008 Motion to Recall Witness QCB, paras. 45-53. 2579 20 November 2008 Decision, paras. 37-41. 394 Case No. ICTR-98-42-A 14 December 2015

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19971/H that he saw Ntahobali issuing orders to kill at the IRST was consistent with his testimony in this case. 2580 1113. In these circumstances, the Appeals Chamber finds that Ntahobali has not discharged his burden to demonstrate that his defence was materially impaired by the lack of adequate notice regarding his responsibility for ordering Interahamwe to kill Tutsis at the IRST. (c) Conclusion 1114. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in concluding that the defect in the Indictment concerning Ntahobali's responsibility for the killings perpetrated at the IRST on 21 April 1994 was cured. However, the Appeals Chamber concludes that, because he did not effectively show that his defence was materially impaired by the lack of adequate notice in this respect, Ntahobali has failed to demonstrate that the Trial Chamber's error invalidates its decision to convict him for ordering the killing of approximately 200 Tutsis at the IRST on 21 April 1994.

3. Hotel Ihuliro Roadblock (Ground 2.2 in part) 1115. The Trial Chamber noted that it was not contested that, at the time of the relevant events, the Ntahobali family resided in Hotel Ihuliro in Butare Town. 2581 The Trial Chamber determined that a roadblock was erected near Hotel Ihuliro in late April 19942582 It also determined that Ntahobali manned the roadblock in April 1994, which was used to abduct and kill members of the Tutsi population. 2583 In particular, the Trial Chamber found that Ntahobali ordered the killing of a man named Ruvurajabo at this roadblock on 21 April 1994 and that he raped and murdered a Tutsi girl at the same roadblock around the end of April 1994.2584 The Trial Judgement also reflects that Ntahobali was found responsible for having physically perpetrated the killing of multiple Tutsis at the roadblock, including but not limited to the killing of the "Tutsi girl" 2585 2580 20 November 2008 Decision, para. 40. 2581 Trial Judgement, para. 3107. 2582 Trial Judgement, para.

3113. The Appeals Chamber recalls that it has elected to refer to the roadblock which the close to Hotel Ihuliro as the "Hotel Thuliro roadblock" throughout this Judgement. See supra, fn. 51. 2583 Trial Judgement, paras. 3128, 5842. 2584 Trial Judgement, paras. 3135, 3140, 5842, 5845, 5971, 6053-6055, 6077-6080, 6094, 6100, 6101, 6168, 6169, 6184. See also ibid., paras. 6071, 6072. roadblock, including a Tutsi girl who he had first raped".), 6054, 6055, 6100 ("The Chamber has found that Ntahobali killed Tutsis at the Hotel Ihuliro roadblock, including a Tutsi girl who he had first raped".), 6101, 6168 ("Ntahobali killed Tutsis at the Hotel Ihuliro roadblocks, including a Tutsi girl who he had first raped".), 6169 (emphasis added in all). The Appeals Chamber discusses Ntahobali's challenges to the imprecision of the Trial Judgement regarding his 395 Case No. ICTR-98-42-A 14 December 2015

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19970/H 1116. On this basis, the Trial Chamber convicted Ntahobali of genocide (Count 2), extermination, rape, and persecution as crimes against humanity (Counts 6, 7, and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons and outrages upon personal dignity as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Counts 10 and 11, respectively) pursuant to Article 6(1) of the Statute for committing rape and killings and ordering the killing of Ruvurajabo at the Hotel Thuliro roadblock. 2586 1117. These findings of guilt were entered pursuant to paragraphs 6.27, 6.37, and 6.53 of the Indictment. 2587 The Indictment indicates that the allegation in paragraph 6.27 was being pursued under Counts 2, 3, 5, 6, 8, 9, and 10, the allegation in paragraph 6.37 under Counts 7 and 11, and the allegation in paragraph 6.53 under Counts 2, 3, and 5 through 11 pursuant to Articles 6(1) and 6(3) of the Statute2588 Prior to discussing the evidence related to crimes committed at the Hotel Ihuliro roadblock, the Trial Chamber considered Ntahobali's assertion that he was not reasonably informed of the charges concerning these crimes?589 It held that, although the Indictment was defective in certain respects in relation to these charges, the defects were cured and Ntahobali did not suffer prejudice in the

preparation of his defence. 2590 1118. Ntahobali submits that the Indictment was defective with respect to the allegation that he committed killings at the Hotel Thuliro roadblock and that the Trial Chamber erred in finding that the defect was cured and that he was not prejudiced. 259' He also contends that his responsibility for convictions for crimes committed at the Hotel Ihuliro roadblock in detail below in Section V.G.1. See Ntahobali Appeal Brief, paras. 180, 209. 2586 Trial Judgement, paras. 5842, 5845, 5971, 6053-6055, 6077-6080, 6094, 6100, 6101, 6121, 6168, 6169, 6184-6186. The Trial Chamber considered that Ntahobali had not received sufficient notice that the charge of genocide would be supported by rapes committed at the Hotel Ihuliro roadblock and, consequently, did not enter a genocide conviction on the basis of the rape of the Tutsi girl in late April 1994. See ibid., paras. 5828-5836, 5843. The Trial Chamber also found-that Ntahobali bore superior responsibility pursuant to Article 6(3) of the Statute for the killing of Ruvurajabo perpetrated by Interahamwe and considered this as an aggravating factor when determining his sentence. See ibid., paras. 5847-5849, 5971, 6056, 6220. The Appeals Chamber will address Ntahobali's contentions regarding the lack of notice that he was charged as a superior for this killing in Section V.B.7 below. Trial Judgement, paras.

2913, 2915, 2928, 2934, fns. 8076, 8082, 8083. Paragraph 6.27 of the Nyiramasuhuko and Ntahobali Indictment reads as follows: Between April and July 1994, a roadblock was set up near the residence of Minister Pauline Nyiramasuhuko and Arsène Shalom Ntahobali in Butare town. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali manned this roadblock. During this entire period, Pauline Nyiramasuhuko and Arsène Shalom Ntahobali made use of the roadblock, with the assistance of soldiers, identities of whom are unknown and other unknown persons, to identify, abduct and kill members of the Tutsi population. For paragraphs 6.37 and 6.53 of the Nyiramasuhuko and Ntahobali Indictment, see supra, fn. 1123. 2588 Nyiramasuhuko and Ntahobali Indictment, pp. 39-45. 2589 Trial Judgement, paras. 2921, 2923-2942. 2590 Trial Judgement, paras. 2928, 2932, 2942. 2591 Ntahobali Notice of Appeal, paras. 114-117; Ntahobali Appeal Brief, paras. 203-210. 396 Case No. ICTR-98-42-A 14 December 2015

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19969/H ordering the killing of Ruvurajabo at the roadblock and raping a Tutsi girl near the roadblock was not pleaded in the Indictment and that the defects in this regard were neither curable nor cured. 2592 (a) Committing Killings 1119. As noted above and discussed in further detail below in Section V.G.1 related to the Hotel Ihuliro roadblock, the Trial Chamber found that Ntahobali physically perpetrated the killing of multiple Tutsis at the Hotel Ihuliro roadblock in April 1994, including the killing of a "Tutsi girl" who arrived at the roadblock around the end of April 1994.259 In making factual findings regarding the killing of the "Tutsi girl", the Trial Chamber relied on Prosecution evidence that the victim was dragged by Ntahobali from her vehicle into the woods near the roadblock and the EER where she was raped and killed 2594 The Trial Chamber convicted Ntahobali under Counts 2, 6, 8, and 10 pursuant to Article 6(1) of the Statute on this basis.

1120. The Trial Chamber determined that paragraph 6.27 of the Indictment provided the location of the roadblock, gave an adequate description of the timeframe involved, and alleged that Ntahobali made use of the roadblock with the assistance of others to identify, abduct, and kill Tutsis and that it was therefore not defective concerning the allegation that Ntahobali made use of a roadblock near his home to identify, abduct, and kill Tutsis.2595 It considered that it was not necessary for the Indictment to provide the exact identity of the alleged co-perpetrators.2596 1121. Ntahobali submits that the Trial Chamber erred in finding that the allegation that he committed killings at the Hotel Ihuliro roadblock, including the murder of a Tutsi girl, was pleaded in paragraph 6.27 of the Indictment?597 With respect to the murder of the Tutsi girl specifically, Ntahobali contends that: (i) the dates in paragraph 6.27 were too vague to put him on adequate notice that this crime occurred "around the end of April 1994", in particular in light of the fact that the Prosecution failed to indicate the date of establishment of the roadblock, 2598 (ii) the site of the murder, namely the BER woods, was not specified in this paragraph;2599 and (ii) the Trial Chamber erred in finding that paragraph G.27 was not defective in failing to mention the co-perpetrators 2592 Ntahobali Notice of Appeal, paras. 114, 116, 117; Ntahobali Appeal Brief, paras. 181-202. 2597 Ntahobali Notice of Appeal, para. 91; Ntahobali Appeal Brief, para. 203. 2598 Ntahobali Appeal Brief, para. 205. 397 Case No. ICTR-98-42-A 14 December 2015

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19968/H whom the Prosecution had identified, such as "Jean-Pierre", in contradiction with the order it had given to the Prosecution in 2000 to identify them in the Indictment.2600 1122. As regards the other killings he was found to have committed at the Hotel Ihuliro roadblock, Ntahobali reiterates that paragraph 6.27 of the Indictment was impermissibly vague concerning the dates of the killings and the identity of his accomplices as well as concerning the identity of the victims and the means by which the crimes were committed.2601 Ntahobali contends that none of these defects was subsequently cured. 2602 1123. The Prosecution responds that the summaries of the anticipated evidence of Witnesses TB and SX appended to the Prosecution Pre-Trial Brief and their relevant prior statements cured the vagueness in paragraph 6.27 of the Indictment regarding the allegation that he killed a Tutsi girl after raping her at the Hotel Ihuliro roadblock as they provided the approximate date and location of the murder.2603 The Prosecution also argues that since the Trial Chamber did not find that Jean-Pierre was involved in this murder, no notice was required in that regard 2604 It further contends that Ntahobali was put on notice that he was charged with other abductions and killings at this roadblock through the disclosure of the summaries of the anticipated evidence of Witnesses SX, SR, and

TF.2605 1124. Ntahobali replies that the post-indictment information provided by the Prosecution was too contradictory to be considered clear and coherent. 2606 1125. The Appeals Chamber recalls that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, "the 2600 Ntahobali Notice of Appeal, paras. 90, 99; Ntahobali Appeal Brief, para. 207, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Arsène Shalom Ntahobali's Preliminary Motion Objecting to Defects in the Form and Substance of the Indictment, 1 November 2000 ("1 November 2000 Ntahobali Decision"), paras. 30, 35(a)(ii). See also Ntahobali Reply Brief, para. 86. 2601 Ntahobali Appeal Brief, para.

209. In particular, Ntahobali contends that names such as "Kazungu", "Jean-Pierre", "Leonard", "Padiri", "Emmanuel", or "Lambert" should have been specified in the Nyiramasuhuko and Ntahobali Indictment as the Prosecution questioned its witnesses in that regard. See idem. In his reply brief, Ntahobali argues that, because he was convicted for committing crimes, the material facts had to be pleaded with even more specificity. See Ntahobali Reply Brief, para. 87. 2602 Ntahobali Notice of Appeal, para. 92; Ntahobali Appeal Brief, paras. 208, 210. 2603 Prosecution Response Brief, para. 787, referring to Trial Judgement, paras. 2941, 2942, referring in turn to Witness Summaries Grid, item 88, Witness SX ("Witness SX's Summary"), item 90, Witness TB ("Witness TB's Summary"), statement of Witness SX of 2 December 1997, signed on 4 December 1997, disclosed on 25 May 1998, 4 November 1998, 10 December 1999, and admitted into evidence as Exhibit D145 (confidential) on 9 February 2004 ("Witness SX's Statement"), statement of Witness TB of 5 December 1997, disclosed on 4 November 1998 and admitted into evidence Exhibit D151 (confidential) on 12 February 2004 ("Witness TB's Statement"). See 25 May 1998 Disclosure; 4 November 1998 Disclosure; 10 December 1999 Disclosure. 2604 Prosecution Response Brief, paras. 787, 788. 2605 Prosecution Response Brief, para. 788. 2606 Ntahobali Reply Brief, para.

85. Ntahobali also replies that the Prosecution's failure to specify that he was alleged to have committed crimes against a Tutsi girl with the complicity of "Jean-Pierre" although it had the information indicated that he was not charged with any crimes committed with Jean-Pierre. See ibid., para. 86. 398 Case No. ICTR-98-42-A 14 December 2015

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19967/H identity of the victim, the time and place of the events and the means by which the acts were committed.*2607 1126. The Appeals Chamber observes that paragraph 6.27 of the Indictment refers to "[b]etween April and July 1994" as the period of time during which Ntahobali was alleged to have used the Hotel Ihuliro roadblock to kill members of the Tutsi population. The Appeals Chamber recalls that a broad date range, in and of itself, does not invalidate a paragraph of an indictment2608 In the case at hand, the Indictment reflects that the Prosecution intended to prove that abductions and killings were recurring at the roadblock and spanned over several months. The Appeals Chamber considers that the sheer scale of these alleged crimes made it impracticable to require a high degree of specificity in the dates for the commission of each crime. 2609 In these circumstances, the Appeals Chamber finds that the Trial Chamber did not err in considering that the allegation concerning the killing of the "Tutsi girl" in late April 1994 was encompassed in paragraph 6.27.

1127. Nevertheless, the Prosecution does not dispute that it was in possession of information regarding the date of establishment of the roadblock in the second half of April 1994,2610 which would have allowed it to particularise the broad date range in paragraph 6.27 of the Indictment. As the Prosecution was in a position at the time to provide higher specificity regarding Ntahobali's alleged responsibility for committing abductions and killings at the Hotel Ihuliro roadblock, the Appeals Chamber finds that the Trial Chamber erred in considering that the date range "[bletween April and July 1994" in paragraph 6.27 of the Indictment gave "an adequate description of the time frame involved" 2611 1128. The Appeals Chamber, however, is not persuaded by Ntahobali's argument that the exact location where the "Tutsi girl" was dragged from the Hotel Ihuliro roadblock to be killed was a material fact that needed to be pleaded in the Indictment. Similarly, as far as Ntahobali was alleged to have personally committed the crimes, the Appeals Chamber finds no merit in Ntahobali's 2607 Munyakazi Appeal Judgement, para. 36; Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreskié et al. Appeal Judgement, para.

89. See also Ndindabahizi Appeal Judgement, para. 16. 2608 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 594; Bagosora and Nsengiyumva Appeal Judgement, para. 150; Muvunyi Appeal Judgement of 29 August 2008, para. 58. 2609 See Bagosora and Nsengiyumva Appeal Judgement, para. 150 ("Obviously, there may be instances where the sheer ocale vicial and the tae to ti omission of the ce hi en piedi inse mate au the dents, parase supra, para.

1123. The al peaes Chamber asso refers to its analysis of Ntahobal s argument on the information provided in the Nyiramasuhuko and Ntahobali Indictment on the date of the establishment of the roadblock ir ara. 1140 below. and to its discussion of the evidence in this respect in Section V.G.2 below. 611 Trial Judgement, para. 2928 399 Case No. ICTR-98-42-A 14 December 2015

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19966/H argument that the Trial Chamber erred in finding that the exact identity of his co-perpetrators did not have to be provided in the Indictment. 2612 1129. As for Ntahobali's argument regarding the identity of the victims killed at the Hotel Ihuliro roadblock and the means by which the crimes were committed, the Appeals Chamber finds that, in light of the nature of the allegation, which concerns recurring crimes and a large number of victims, often unidentified, it was impracticable or impossible for the Prosecution to identify the victims by name 2613 and to specify Ntahobali's conduct in further detail in the Indictment.

1130. Turning to whether the defect in the Indictment regarding the date range was cured, the Appeals Chamber observes that the Prosecution informed Ntahobali through Witnesses QCB's and SX's summaries and statements that the Hotel Ihuliro roadblock was being alleged to have been established approximately around 21 April 1994 and that killings took place there from the very same day. 2614 Ntahobali does not substantiate his argument that the information provided in the Prosecution's post-indictment submissions was contradictory on this point. The Appeals Chamber therefore finds that the Prosecution's failure to particularise the broad date range pleaded in paragraph 6.27 of the Indictment by not specifying the date of establishment of the Hotel Ihuliro roadblock was adequately remedied.

1131. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber's error in not considering that the Indictment was overly broad regarding the timeframe of the alleged abductions and killings committed at the Hotel Ihuliro roadblock did not invalidate its decision to convict Ntahobali on this basis as the defect was subsequently cured. The Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in any other respect regarding notice of the allegation that he committed killings at the roadblock. 2612 The Appeals Chamber understands that the Trial Chamber's order to the Prosecution to provide the "identity of at least some of the 'unknown persons' in paragraph 6.27 [of the Nyiramasuhuko and Ntahobali Indictment]" with whom he was alleged to have worked, if known, was related to the charges brought under Article 6(3) of the Statute and the modes of accessory liability under Article 6(1) of the Statute. See 1 November 2000 Ntahobali Decision, para. 35(a)(ii). See also ibid., para. 30. 2613 See supra, fn. 2609. 2614 See Witness QCB's Summary ("On 21 April 1994 [...] QCB went to Butare with a Tutsi acquaintance. [...] Then they came to a third roadblock supervised by Ntahobali. [...] QCB's acquaintance] refused to join the Tutsi group and Ntahobali ordered his killing and he was immediately killed."); Witness SX's Summary ("SX saw a

roadblock erected about 100 meters from the EER |...]. [...] people were allowed to pass or were killed. [...] SX estimates that approximately 500 Tutsi were killed at that roadblock."); Witness SX's Statement, pp. K146646, K146647 (Registry pagination) ("The barrier was erected [..] approximately two weeks after I heard of the death of the President on Radio Rwanda. [...] On the morning that they erected the barrier, people would be coming [...]. [...] the individual would be killed or let to pass. [...] On this first day I estimated approximately 500 people killed at the barrier."). Witnesses OCB's and SX's summaries were marked relevant to Ntahobali and were linked to Counts 2, 3, 5, 6 and 8 through 11 of his indictment. The Appeals Chamber considers that Ntahobali should have been prompted to re-examine Witness SX's Statement upon reading Witness SX's Summary. 400 Case No. ICTR-98-42-A 14 December 2015

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19965/H (b) Ordering the Killing of Léopold Ruvurajabo 1132. As noted above, the Trial Chamber found that Ntahobali ordered the killing of a man named Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994 and convicted him on this basis under Counts 2, 6, 8, and 10 pursuant to Article 6(1) of the Statute.

1133. The Trial Chamber held that the Prosecution was aware of the identity of the alleged victim Ruvurajabo months before the filing of the Indictment but failed to include this information in the Indictment 2615 It found that the Indictment was thus defective with respect to this allegation 2616 However, the Trial Chamber determined that the defect in the Indictment as to the murder of Ruvurajabo was cured through the disclosure of Witness QCB's Summary and Statement, which made clear that Ntahobali was alleged to have ordered the killing of Ruvurajabo2617 It concluded that the lack of notice in the Indictment did not prejudice Ntahobali in the preparation of his case with regard to this allegation.' 2618 1134. Ntahobali submits that the defect in the Indictment related to the allegation concerning the killing of Ruvurajabo could not be cured through any subsequent information as this allegation constituted a separate charge which should have been pleaded in the Indictment 619 In particular, he contends that the Trial Chamber erred in refusing to apply a trial chamber's decision in the Kalimanzira case, in which it was held that the failure to mention particular killings capable of supporting a separate charge could not be cured 2620 Ntahobali also argues that the Trial Chamber erred by not applying the same reasoning it followed concerning the pleading of the names

of victims at the Butare Prefecture Office 2621 1135. Ntahobali adds that, because the Prosecution did not specify that the Interahamwe were his "accomplices" in paragraph 6.27 of the Indictment unlike in other paragraphs, even though it was in possession of such information and was required to provide the identity of his accomplices by the Trial Chamber, he could only understand that he was not charged with ordering Interahamwe at the Hotel Thuliro roadblock2622 In his view, the addition of the allegation concerning the murder of 2615 Trial Judgement, para. 2930, referring to Witness QCB's Statement. 2616 Trial Judgement, para. 2930. 2617 Trial Judgement, paras. 2931, 2932. 2618 Trial Judgement, para. 2932. 2619 Ntahobali Notice of Appeal, paras. 93, 94, 96; Ntahobali Appeal Brief, paras. 198, 202. 2620 Ntahobali Appeal Brief, para. 198, referring to Trial Judgement, fn. 5749, The Prosecutor v. Callixte Kalimanzira Case No. ICTR-05-88-T, Decision on Defence Motion to Exclude Prosecution Witnesses BWM, BWN, BXB, BXC BXD and BXL, 24 June 2008, para. 10.

262) Ntahobali Appeal Brief, para. 199, referring to Trial Judgement, paras. 2167-2172, 2795. 2622 Ntahobali Notice of Appeal, paras. 90, 99; Ntahobali Appeal Brief, para. 201, referring to Nyiramasuhuko and Ntahobali Indictment, paras. 6.30, 6.34, 6.48, 6.50, 6.51, 1 November 2000 Decision, para.

18. See also Ntahobali Reply Brief, para. 81. 401 Case No. ICTR-98-42-A 14 December 2015

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19964/H Ruvurajabo led to a radical transformation of the case against him.2623 Ntahobali further submits that reading paragraph 6.27 together with paragraph 6.15 of the Indictment - which refers to the Interim Government's decision of 27 April 1994 to establish roadblocks - he could only understand that the Hotel Ihuliro roadblock was alleged to have been established after 27 April 1994 and argues that, consequently, the murder of Ruvurajabo on 21 April 1994 fell beyond the scope of the Indictment. 624 Finally, Ntahobali contends that the Trial Chamber erred in finding that Witness QCB's Summary and Statement cured the defect in the Indictment, notably given the absence of details concerning the orders to kill Ruvurajabo he allegedly gave. 2625 1136. The Prosecution responds that Witness QCB's Summary and Statement provided Ntahobali with the missing material facts of Ruvurajabo's murder, including that he was alleged to have ordered Interahamwe to kill Ruvurajabo, and did not create new charge or radically transform its case. 2626 It submits that the Trial Chamber's finding regarding notice of the victims' names at the Butare Prefecture Office is distinguishable and that the allegation in paragraph 6.15 of the Indictment did not preclude that roadblocks were set up prior to the Interim Government's decision, nor did it negate the information in Witness QCB's Statement that

Ruvurajabo was killed on 21 April 1994.2627 1137. Ntahobali replies that the subsequent information provided through Witness QCB's Summary and Statement mentioned Interahamwe but also civilians wearing military vests.2628 He also develops arguments pertaining to the prejudice he allegedly suffered from the lack of notice regarding this specific allegation. 629 1138. The Appeals Chamber notes that there is no dispute that the Indictment was defective with respect to the pleading of Ntahobali's responsibility for ordering the killing of Ruvurajabo, whose identity was not specified in the Indictment even though the Prosecution was in possession of the 2623 Ntahobali Appeal Brief, para. 200. 2624 Ntahobali Appeal Brief, para. 201. 2625 Ntahobali Notice of Appeal, paras. 93, 95, 96. 2626 Prosecution Response Brief, paras. 782-786. See also AT. 15 April 2015 pp. 77, 78. The Prosecution also points out that Ntahobali extensively cross-examined Witness QCB on the murder of Ruvurajabo. See Prosecution Response Brief, Bar Prosecution Response Brief, paras, 784, 786, The Prosecution also argues that this discrepancy of approximately six days is minor and that Ntahobali has not established how he was prejudiced by it. See ibid., para, 786. Ntahobali Reply Brief, para. 80. 2629 Ntahobali submits that: (i) because he did not know before Witness QCB's testimony at trial that this witness

would allege that he ordered Interahamwe to kill Ruvurajabo, he was unable to conduct any investigation in that regard; (ii) it was unreasonable for the Trial Chamber to require him to cross-examine witnesses on aspects falling outside the indictment and then rely on that to establish the absence of prejudice; and (iii) the prejudice is apparent from the contradictions in Witness QCB's accounts revealed by the witness's subsequent statements given to Canadian authorities and aggravated by the Trial Chamber's refusal to recall the witness on these contradictions. See Ntahobali Reply Brief, para. 81, referring, inter alia, to Ntahobali 1 October 2008 Motion to Recall Witness QCB, paras. 32-36, 48, 20 November 2008 Decision, paras. 38, 40. See also ibid., para. 82 (arguing that the Prosecution bears the burden of showing that he was not prejudiced). 402 Case No. ICTR-98-42-A 14 December 2015

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19963/H information. 2630 To demonstrate that the defect could not be cured by the provision of subsequent information, Ntahobali relies on a trial chamber's decision in the Kalimanzira case and on the Trial Chamber's reasoning concerning the pleading of victims' names at the Butare Prefecture Office. 2631 Ntahobali, however, fails to appreciate that decisions of trial chambers have no binding force on each other 632 and that the Trial Chamber did not conclude that the Prosecution's failure to identify by names victims at the Butare Prefecture Office could not be remedied by the provision of subsequent information but, instead, found that the defects were not cured. 2633 1139. The Appeals Chamber is also not persuaded by Ntahobali's argument that the Prosecution's failure to specify in the Indictment that he was alleged to have ordered "Interahamwe" to commit crimes at the Hotel Ihuliro roadblock indicated that he was not charged on the basis of ordering "Interahamwe". Ntahobali is correct in his submission that the Prosecution failed to comply with the Trial Chamber's order to provide the "identity of at least some of the 'unknown persons' in paragraph 6.27 [of the Indictment]" with whom he was alleged to have worked since it knew that Interahamwe were alleged to be among them. 2634 However, the fact that the Prosecution repeatedly disclosed Witness QCB's Statement containing

this allegation prior to and after the filing of the operative indictment,2635 together with the Prosecution's express reliance on this aspect of Witness QCB's anticipated evidence in its pre-trial brief in support of its case against Ntahobali, 2636 put Ntahobali on notice that his orders to Interahamwe at the Hotel Thuliro roadblock formed part of the Prosecution case of Ntahobali's "use of the roadblock, with the assistance of [...] unknown persons, to identify, abduct and kill members of the Tutsi population" set forth in paragraph 6.27 of the Indictment.

1140. Likewise, the Appeals Chamber rejects Ntahobali's contention that the allegation of the killing of Ruvurajabo on 21 April 1994 fell outside the scope of the Indictment because, in paragraph 6.15 of the Indictment, it was alleged that the Interim Government ordered roadblocks to be set up on 27 April 1994. In the view of the Appeals Chamber, the latter allegation does not materially contradict the former as there is no indication in the Indictment that roadblocks were only set up after the government's order and that paragraph 6.27 of the Indictment generally pleaded that the crimes at roadblocks were committed between April and July 1994. 2630 See Trial Judgement, para. 2930. 285 See supra, in 254134. 2633 Trial Judgement, paras. 2167-2172, 2795 Witness QCB's Statement, p. K0119775 (Registry pagination); 1 November 2000 Ntahobali Decision, ara. 35(a)(ii). See also ibid., para. 30 635 Witness QCB's Statement was disclosed on 10 December 1999, 15 November 2000, 18 September 2001, an 1 October 2001. See supra, fn. 2524. 403 Case No. ICTR-98-42-A 14 December 2015

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19962/H 1141. The Appeals Chamber finds that the allegation concerning the murder of Ruvurajabo fell within the broader allegation relating to Ntahobali's use of the Hotel Ihuliro roadblock to identify, abduct, and kill Tutsis pleaded in paragraph 6.27 of the Indictment and that the Trial Chamber did not err in considering that the defect of the Indictment in this respect was therefore curable.

1142. With respect to Ntahobali's challenges to the Trial Chamber's finding that the defect in the Indictment was cured through the information provided in Witness QCB's Summary and Statement, the Appeals Chamber finds that the reference in these materials to the fact that Ntahobali ordered Interahamwe and civilians wearing military vests manning the Hotel Ihuliro roadblock to kill Ruvurajabo - who was immediately killed - provided sufficient detail to Ntahobali as to his alleged responsibility for this killing to allow him to prepare a meaningful defence. The Appeals Chamber does not consider that the reference to the implication of "civilians wearing military vests" or "military-type vests" together with Interahamwe in the killing ordered by Ntahobali at the roadblock rendered unclear the information concerning the involvement of Interahamwe. Ntahobali fails to develop any other argument to demonstrate that the Trial Chamber erred in finding that the defect in the Indictment concerning his responsibility in the murder of Ruvurajabo was cured and that he was on notice that he was alleged to have ordered Interahamwe to commit this crime.

1143. For these reasons, the Appeals Chamber concludes that the Trial Chamber did not err in finding that the vagueness of paragraph 6.27 of the Indictment concerning the killing of Ruvurajabo by Interahamwe at the Hotel Ihuliro roadblock on 21 April 1994 following Ntahobali's order was cured by the provision of timely, clear, and consistent information. As Ntahobali has failed to demonstrate error in the conclusion that he was put on adequate notice, the Appeals Chamber considers that his submissions pertaining to the prejudice he allegedly suffered from the lack of notice are without merit and dismisses them without further consideration. (c) Committing the Rape of a Tutsi Girl 1144. As noted above, the Trial Chamber convicted Ntahobali under Counts 7 and 11 pursuant to Article 6(1) of the Statute for raping a Tutsi girl who arrived at the Hotel Ihuliro roadblock around the end of April 1994 and whom he also killed. In reaching its factual findings, the Trial Chamber relied on Prosecution evidence that the victim was dragged by Ntahobali from her vehicle into the woods near the roadblock and the EER, where she was raped and killed 2637 2636 Witness CB's Summary was marked relevant to Ntahobali and was linked to Counts 2, 6, 8, and 10 of his indictment. 2637 Trial Judgement, para. 3133. 404 Case No. ICTR-98-42-A 14 December 2015

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19961/H 1145. The Trial Chamber noted that paragraph 6.27 of the Indictment did not allege that rapes were perpetrated at the Hotel Ihuliro roadblock and that this paragraph was not listed in support of Counts 7 and 11 in the Indictment. 2638 It also found that paragraphs 6.37 and 6.53 of the Indictment, listed in support of Counts 7 and 11, were unduly vague and insufficient to put Ntahobali on notice of the Prosecution's intention to prove that Ntahobali was responsible for abducting and then raping a Tutsi girl at the roadblock. 2639 The Trial Chamber found that the Indictment was defective in this respect. 640 However, the Trial Chamber considered that this defect was cured through the disclosure of Witnesses SX's and TB's summaries appended to the Prosecution Pre-Trial Brief, together with their prior statements.641 The Trial Chamber concluded that Ntahobali was sufficiently put "on notice with respect to the allegation that [he] abducted a Tutsi girl at the roadblock and raped her near the EER" pursued under Counts 7 and 11 and that he suffered no prejudice in the preparation of his defence.?642 1146. Ntahobali submits that the defect in the Indictment in relation to the rape of a Tutsi girl at the Hotel Ihuliro roadblock could not be cured as the Indictment was completely silent on this allegation.2643 He argues that: (i) paragraph 6.27 of the Indictment which

specifically relates to the Hotel Ihuliro roadblock does not mention any rapes and is not listed as relevant to Counts 7 and 11; (ii) paragraph 6.37 of the Indictment could only be understood as relating to the "mid-June 1994" period; and (iii) paragraph 6.53 of the Indictment does not mention him and, therefore, could not serve as the basis for his conviction.2644 Ntahobali further submits that the Trial Chamber should have adopted the same reasoning as that applied for the allegations of rapes at Nyange 2645 In his view, the addition of this allegation of rape at the Hotel Ihuliro roadblock led to a radical transformation of the case against him, which caused him prejudice.2646 2638 Trial Judgement, paras. 2934, 5828, 5831. 2639 Trial Judgement, paras. 2934, 5829, 5830. 2640 Trial Judgement, para. 2934. 2641 Trial Judgement, paras. 2941, 2942, referring to Witness SX's Summary, Witness TB's Summary, Witness SX's Statement, Witness TB's Statement. 642 Trial Judgement, para.

2942. By contrast, the Trial Chamber concluded that Ntahobali had not received sufficient notice that the charge of genocide would be supported by rapes committed at the Hotel Ihuliro roadblock and did not enter a genocide conviction on the basis of the rape of the Tutsi girl in late April 1994. See ibid., paras. 5828-5837, 5843, 5971. 2643 Ntahobali Notice of Appeal, para. 98; Ntahobali Appeal Brief, paras. 181-187. 2614 Ntahobali Appeal Brief, paras. 182-186, 188, referring to Karera Appeal Judgement, para.

365. Ntahobali points out that the rape of which he was convicted related to a different location and a different date than the ones referred to in paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment, leading to a de facto amendment of the Nyiramasuhuko and Ntahobali Indictment. See ibid., para.

185. He also argues that paragraph 6.37 could only be understood as relating to the Butare University Hospital, an argument that was addressed and dismissed in Section IV.B.3(b) above. 2645 Ntahobali Appeal Brief, para. 183, referring to Trial Judgement, para.

4057. See also Ntahobali Reply Brief, Bar Nahobali Appal Bricf, para, 188, referring to Murvyi Appal Judgemcnt of 29 August 2008, paras. 160-169. 405 Case No. ICTR-98-42-A 14 December 2015

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19960/H 1147. In the alternative, Ntahobali submits that the Trial Chamber erred in finding that the defects of paragraph 6.37 of the Indictment were cured by the information provided by Witnesses SX's and TB's summaries and statements as this information was so contradictory, ambiguous, and inconsistent that it could not be considered clear and coherent. 647 In support of this contention, Ntahobali points out inconsistencies and ambiguities in these materials with respect to the date of the rape, the arrival and presence of the victim at the roadblock, what happened to her prior to being raped, the specific words that she uttered, the time spent in the woods, the location where the victim was undressed and the persons who undressed her, and when she was buried 2648 He argues that he was greatly prejudiced by the lack of notice regarding this allegation 2649 1148. The Prosecution responds that the Trial Chamber did not err in considering that the vagueness of paragraphs 6.37 and 6.53 of the Indictment with regard to the impugned allegation was curable and cured.2650 It submits that paragraph 6.53 was expressly pleaded in support of Counts 7 and 11 and that the Trial Chamber's finding with regard to the allegation concerning Nyange only relates to the Nsabimana and Nteziryayo Indictment and the Kanyabashi Indictment.2651 The Prosecution further responds that Ntahobali's

arguments regarding the lack of curing are undeveloped as well as lack references and evidential support and that: (i) the alleged discrepancy regarding the date of the rape is minor; (ii) the consistency of notice is not determined on the basis of the viva voce evidence subsequently given by the witnesses; and (iii) the purported inconsistencies are matters of evidence. 2652 1149. Ntahobali replies that paragraph 6.53 of the Indictment relates to an indefinite period of time and to the whole territory of Rwanda and that he had repeatedly argued that this paragraph did not allege that he committed any crime2653 As regards the lack of curing, Ntahobali replies, inter alia, that the difference of eight days is not minor and shows that he could not understand that Witnesses SX and TB were talking about the same incident. 2654 2647 Ntahobali Appeal Brief, paras. 189-197. 2648 Ntahobali Appeal Brief, para.

196. Ntahobali did not provide any references in support of these arguments. 2649 Ntahobali Notice of Appeal, paras. 97, 98; Ntahobali Appeal Brief, paras. 189, 197. See also Ntahobali Reply Brief, Bar Prosecution Response Brief, paras, 777-781. 2651 Prosecution Response Brief, paras. 778, 779. The Prosecution argues that the situation in the present case differs from the situation discussed in the Karera case upon which Ntahobali relies. See ibid., para. 778. 2652 Prosecution Response Brief, para. 781. 2653 Ntahobali Reply Brief, para.

77. Ntahobali also points out that the Trial Chamber considered that a similar paragraph in the Kanyabashi Indictment was defective. See idem, referring to The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, signed 11 May 2000, dated 31 May 2000, filed 7 June 2000 (originally filed in French, English translation filed on the same ay) ("31 May 2000 Decision*), paras. 5.16, 5.21(e). Ntahobali Reply Brief, para. 78. 406 Case No. ICTR-98-42-A 14 December 2015

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19959/H 1150. The Appeals Chamber finds that Ntahobali does not show that the Trial Chamber erred in determining that the defect of the Indictment with respect to this allegation was curable. While paragraph 6.27 of the Indictment was not relied upon in support of Counts 7 and 11 and did not refer to rapes committed at roadblocks, paragraph 6.37 of the Indictment specifically pleaded Ntahobali's participation in the kidnapping and raping of Tutsis women and was relied upon in support of the relevant counts. 2655 It is also apparent that the allegation in paragraph 6.37 was meant to relate to the period "[between April and July 1994" invoked in paragraph 6.27 of the Indictment and not, as argued by Ntahobali, to the period "mid-June 1994" referred to in the previous paragraph of the Indictment.

1151. In claiming that paragraph 6.53 of the Indictment could not serve as the basis for his conviction for the rape of the "Tutsi girl" because he was not mentioned in the paragraph, Ntahobali also overlooks that an indictment must be considered as a whole and that paragraph 6.53 was expressly relied upon in support of Counts 7 and 11 against him 2656 Ntahobali's argument in reply concerning the vagueness of this paragraph regarding the timeframe and the location of the allegation of rapes perpetrated throughout Rwanda by militiamen, among others, does not demonstrate that the vagueness could not be remedied by the provision of subsequent information.2657 1152. The Appeals Chamber further rejects Ntahobali's contention that the Trial Chamber erred by not applying the same reasoning it adopted in relation to the allegations of rapes at Nyange raised against Nsabimana and Kanyabashi. The Trial Chamber determined that the allegations of rapes at Nyange fell outside the scope of the Nsabimana and Nteziryayo Indictment and the Kanyabashi Indictment as the relevant paragraphs of these indictments did not mention rape as one of the acts perpetrated against refugees at Nyange and that, consequently, "the matter of rapes [fell] outside the scope of the Indictments", 2658 The situation related to the allegation of rape committed by Ntahobali at the Hotel Ihuliro roadblock is clearly

distinguishable since, unlike the Nsabimana and Nteziryayo Indictment and the Kanyabashi Indictment, the Indictment against Ntahobali alleged that Ntahobali was involved in rapes and, on this basis, charged him with rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Appeals Chamber, therefore, finds that Ntahobali does not demonstrate that the "new material facts" concerning the specific rape of the "Tutsi girl" led to a transformation of the Prosecution case. 2655 Nyiramasuhuko and Ntahobali Indictment, pp. 42, 45. 2856 Nyiramasuhuko and Ntahobali Indictment, pp. 42, 45. 407 Case No. ICTR-98-42-A 14 December 2015

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19958/H 1153. Turning to Ntahobali's alternative challenge to the Trial Chamber's finding that the defect in the Indictment regarding this allegation was cured, the Appeals Chamber observes that it is not clear from the reading of the summaries of their anticipated evidence that Witnesses TB and SX were expected to testify about the same incident of rape. However, although details differ, their accounts in their prior statements of the rape of a girl dragged from her vehicle stopped at the Hotel Ihuliro roadblock to be raped and killed by Ntahobali nearby reflect that both witnesses were describing the same incident. 2659 1154. As to the date of the incident in particular, the Appeals Chamber observes that Witness TB's Summary indicates that the incident occurred "about 28 April 1994" and her prior statement "around the 28th of April, 1994", 2660 while Witness SX's Summary indicates that the rape occurred on the first day the Hotel Ihuliro roadblock was established, which, according to Witness SX's Statement, corresponds to "approximately two weeks" after the death of President Habyarimana was announced on the radio, that is around 21 April 1994.2661 Given that it was clear from their statements that both witnesses gave estimates and that both witnesses approximately referred to the same period of time in April 1994, the Appeals Chamber considers that it was reasonable on the part of the Trial Chamber to deem that the information that their summaries and statements provided with regard to the date of the rape was sufficiently clear and consistent.

1155. In the same vein, the Appeals Chamber does not consider that the other variations in Witnesses TB's and SX's summaries and statements concerning the specifics of the victim's arrival at the Hotel Thuliro roadblock, her rape, and of what happened to her corpse were such as to prevent Ntahobali from understanding that the Prosecution intended to prove that he was responsible for personally raping a Tutsi girl near the Hotel Ihuliro roadblock in the second half of April 1994. In the view of the Appeals Chamber, these variations were not relevant to the material facts required to be pleaded but were matters of evidence relevant to the Prosecution's ability to prove its case.

1156. Accordingly, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that the defect in the Indictment concerning his responsibility for 2657 The Appeals Chamber considers that the fact that a similarly vague paragraph in the Kanyabashi Indictment was found defective in one of the Trial Chamber's decisions likewise does not suggest that the defect could not be cured 2659 See Witness TB's Statement; Witness SX's Statement. 2660 Witness TB's Statement, p. K046653 (Registry pagination). 2661 Witness SX's Statement, p. K0146646 (Registry pagination) ("The barrier was erected on the day I came back from my home in Runyinya which was approximately two weeks after I heard of the death of the President on Radio Rwanda."). 408 Case No. ICTR-98-42-A 14 December 2015

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19957/H raping a Tutsi girl near the Hotel Ihuliro roadblock around the end of April 1994 was curable and cured by timely, clear, and consistent information.

4. Killing of the Rwamukwaya Family (Ground 2.3) 1157. The Trial Chamber found that the Prosecution established beyond reasonable doubt that an individual named Rwamukwaya and his family, who were of Tutsi ethnicity, were killed on or about 29 or 30 April 1994, after Ntahobali had threatened to kill them.2662 The Trial Chamber held that "[gliven the narrow time frames involved between Ntahobali's threat pronounced against the Rwamukwaya family, the sighting of their bodies, and the first sightings of Ntahobali in a vehicle known to have belonged to Rwamukwaya, [...] the inference drawn as to Ntahobali's responsibility in the killing of the Rwamukwaya family is the only reasonable conclusion based on the totality of the evidence.*2663 The Trial Chamber convicted Ntahobali of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 10) pursuant to Article 6(1) of the Statute for aiding and abetting the killing of the Rwamukwaya family. 2664 1158. In summarising the Prosecution case against Ntahobali for the killing of the Rwamukwaya family, the Trial Chamber referred to paragraph 6.35 of the Indictment.2665 When addressing Ntahobali's contention

that the specific allegation concerning his responsibility in the killing of the Rwamukwaya family was not pleaded in the Indictment, the Trial Chamber considered paragraph 6.39 of the Indictment2666 The Indictment indicates that the allegations in paragraphs 6.35 and 6.39 of the Indictment were being pursued under, inter alia, Counts 2, 6, 8, and 10 pursuant to Articles 6(1) and 6(3) of the Statute 2667 1159. The Trial Chamber found that the allegation relating to the killing of the Rwamukwaya family was not specifically pleaded in the Indictment 2668 In particular, it noted that the Indictment did not provide information with respect to the identity of the victims, the place and approximate date of the alleged criminal acts, and the means by which they were committed, although the 2662 Trial Judgement, paras. 3207, 3219, 5852. 2663 See Trial Judgement, para.

3219. See also ibid., para. 5852. 2664 Trial Judgement, paras. 5855, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. 2665 Trial Judgement, para. 3151, fn.

8689. For paragraph 6.35 of the Nyiramasuhuko and Ntahobali Indictment, see supra, fn. 2499. 2666 Trial Judgement, para.

3154. Paragraph 6.39 of the Nyiramasuhuko and Ntahobali Indictment reads as follows: 6.39 The entire préfecture of Butare was the scene of massacres of the Tutsi population involving Elie Ndayambaje, André Rwamakuba, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Ladislas Ntaganzwa, as well as Pauline Nyiramasuhuko and Shalom Arsène Ntahobali. 2667 Nyiramasuhuko and Ntahobali Indictment, pp. 39-44. 409 Case No. ICTR-98-42-A 14 December 2015

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19956/H Prosecution was aware of these details well before the filing of the Indictment, 2669 The Trial Chamber held that the Indictment was therefore defective in this regard?670 However, the Trial Chamber determined that this defect was cured through Prosecution post-indictment disclosures and that Ntahobali suffered no prejudice in the preparation of his defence. 2671 1160. Ntahobali submits that his responsibility in the killing of the Rwamukwaya family was not pleaded in the Indictment, and that such defect was neither curable nor cured 2672 The Prosecution responds that Ntahobali had sufficient notice that he was charged with aiding and abetting the killing of the Rwamukwaya family. 2673 1161. As noted by the Trial Chamber, the Indictment was impermissibly vague in relation to the allegation concerning the killing of the Rwamukwaya family. The date, location, name of the victims, perpetrators of the killing, and Ntahobali's specific role in the crime are not specified in paragraphs 6.35 and 6.39 of the Indictment or anywhere else in the Indictment. Whereas paragraph 6.54 of the Indictment referred to by the Prosecution pleads that Ntahobali "aided and abetted [his] subordinates and others in carrying out the massacres of the Tutsi population", which indicates that Ntahobali was charged under this form of responsibility for some of the killings alleged in the Indictment,

this paragraph is not expressly linked to paragraphs 6.35 or 6.39 and did not clarify that the allegations in these paragraphs were specifically charged under this form of responsibility2674 The Appeals Chamber will now examine whether the Trial Chamber erred in finding that the defects were curable and, if not, whether it erred in finding that the defects were cured. (a) Whether the Defects Were Curable 1162. Ntahobali submits that the defects in the Indictment in relation to the allegation concerning the killing of the Rwamukwaya family could not be cured as this allegation constituted a separate charge which should have been pleaded in the Indictment 2675 He contends that the Trial Chamber erroneously relied on paragraphs 6.35 and 6.39 of the Indictment as the basis of his conviction for the killing of the Rwamukwaya family on the grounds that: (i) paragraph 6.35 is totally unrelated to the allegation according to which Ntahobali announced his intention to have the Rwamukwaya 2668 Trial Judgement, paras. 3154, 3155. 2669 Trial Judgement, para. 3155, fn. 8696. 2670 Trial Judgement, para. 3155. 2671 Trial Judgement, paras. 3156-3161. 2672 Ntahobali Notice of Appeal, paras. 107-112; Ntahobali Appeal Brief, paras. 220-246; Ntahobali Reply Brief, 410 Case No. ICTR-98-42-A 14 December 2015

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19955/H family killed; 2676 and (ii) the Prosecution itself considered Prosecution Witness FA's evidence with regard to this crime as related to paragraphs 4.4 and 6.27 of the Indictment, not paragraph 6.35 or 6.39.2677 1163. In the alternative, Ntahobali contends that the addition of this allegation led to a radical transformation of the case against him. 78 In his view, the omission of the allegation concerning the killing of the Rwamukwaya family from the Indictment, the body of the Prosecution Pre-Trial Brief, and the Prosecution's opening statement, demonstrates that the Prosecution did not intend to charge him in relation to the killing of the Rwamukwaya family. 2679 1164. The Prosecution responds that the Trial Chamber's reliance on paragraphs 6.35 and 6.39 of the Indictment was not erroneous and that the allegation concerning the killing of the Rwamukwaya family did not constitute a distinct charge or radically transform the case.2680 It adds that Ntahobali's arguments regarding Witness FA's evidence are mistaken.2681 1165. The Appeals Chamber accepts Ntahobali's argument that paragraph 6.35 of the Indictment is unrelated to the killing of the Rwamukwaya family; it alleges Ntahobali's responsibility for traveling throughout the prefecture in the search for Tutsis and for abducting and transporting Tutsis to locations within the prefecture where they were executed, whereas Ntahobali's 2675 Ntahobali Appeal Brief, paras. 221, 226. See also Ntahobali Notice of Appeal, para. 108; AT. 15 April 2015 Bio Jabobati Appeal Brief, para, 224; Nahobali Reply Brief, para.

92. Nahobali also argues that the Trial Chamber considered in its Rule 98bis Decision that paragraph 6.35 of the Nyiramasuhuko and Ntahobali Indictment was solely related to the orphans convoy and could therefore not be relied upon. See Ntahobali Appeal Brief, para. 225, referring to Rule 98bis Decision, para. 151. 2677 Ntahobali Appeal Brief, para. 224, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR- 98-42-T, Prosecutor's Response to "Requête d'Arsène Ntahobali aux fins d'exclusion de certains éléments du futur ] témoi(g]nage du témoin D-2-13-0 de la D[é]fense de Joseph Kanyabashi", 28 May 2007 (confidential) ("Prosecution 28 May 2007 Response"), paras. 1, 2, fns. 1, 2. Ntahobali adds that the Trial Chamber "seems to endorse this". See ibid., para. 224, referring to The Prosecution v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Arsène Shalom Ntahobali's Motion to Exclude Certain Evidence from the Expected Testimony of Kanyabashi's Witness D-2-13-0, 29 June 2007 ("29 June 2007 Decision"), paras. 6, 10. In addition, Ntahobali argues that the fact that paragraphs 6.35 and 6.39 of the Nyiramasuhuko and Ntahobali Indictment were listed under the heading "Butare University Hospital" necessarily linked them to this location. See ibid., paras. 223, 224; Ntahobali Reply Brief, para. 92 The Appeals Chamber reiterates that, while the

heading "Butare University Hospital" at page 32 of the Nyiramasuhuko and Ntahobali Indictment is misleading as to the location of the crimes mentioned in the paragraphs following this headline, it would be unreasonable to conclude that paragraphs 6.35 and 6.39 of the Nyiramasuhuko and Ntahobali Indictment were limited to events at the Butare University Hospital given the very contents of these two paragraphs, which expressly refer to the "entire préfecture of Butare" and "various locations". See supra, paras. 512, 1087. 2678 Ntahobali Appeal Brief, para. 228. 2679 Ntahobali Notice of Appeal, para. 109; Ntahobali Appeal Brief, paras. 231, 243; AT. 15 April 2015 p. 46 (French); AT. 15 April 2015 p. 46 (French). Ntahobali further highlights that no reference to this specific killing was made in the summaries of the anticipated evidence of Witnesses QF, ST, TF, and TG, which, he argues, indicates that the Prosecution did not intend to prove this allegation through these witnesses. See Ntahobali Appeal Brief, para. 231; AT. 15 April 2015 p. 45 (French). Ntahobali also notes that Witnesses QF, ST, and TF were withdrawn from the witness list and did not testify and that the Prosecution had not included Witness FA in its original witness list. See idem. 2680 Prosecution Response Brief, para. 793. 2681 Prosecution Response Brief, para. 794. 411 Case No. ICTR-98-42-A 14 December 2015

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19954/H responsibility for the killing of the Rwamukwaya family does not imply any traveling or abduction and transporting of victims. As a result, the Appeals Chamber does not consider that Ntahobali's responsibility for the killing of the Rwamukwaya family fell within the scope of paragraph 6.35.2682 1166. By contrast, the allegation concerning the killing of the Rwamukwaya family fell within the broader allegation relating to Ntahobali being involved in massacres of Tutsis within the entire Butare Prefecture pleaded in paragraph 6.39 of the Indictment. In this respect, the Appeals Chamber does not consider that the fact that the Prosecution and the Trial Chamber solely referred to paragraphs 4.4 and 6.27 of the Indictment when referring to the evidence of Witness FA about the killing of the Rwamukwaya family necessarily means that the allegation concerning the killing of the Rwamukwaya family was not encompassed within the broad allegation set out in paragraph 6.39.2683 1167. The Appeals Chamber therefore does not find that the allegation constituted a new charge. Likewise, the Appeals Chamber does not consider that the material facts on which the Trial Chamber entered its conviction led to a radical transformation of the Prosecution case against Ntahobali, nor that these facts could have, on their own, supported a separate charge. As vague as the charge set out in paragraph 6.39 of the Indictment was, it nonetheless clearly pleaded the involvement of Ntahobali in the massacre of the Tutsi population in Butare Prefecture.

1168. The Prosecution did not expressly refer to the killing of the Rwamukwaya family and his responsibility in this crime in its pre-trial brief or opening statement. As the Prosecution obtained information about Ntahobali's involvement in the killing of Rwamukwaya and his family from a number of witnesses which it disclosed in 1998 and 1999,684 the Prosecution should have pleaded this allegation with greater specificity in the Indictment and expressly referred to it in the main text of its pre-trial brief. However, the Appeals Chamber is not persuaded by Ntahobali's argument that the Prosecution's failure to specifically refer to the killing of the Rwamukwaya family demonstrates that it did not intend to charge him in relation to these killings. In the view of the Appeals Chamber, the fact that the prior written statements of six witnesses concerning Ntahobali's involvement in the killing of Rwamukwaya and his family were disclosed to Ntahobali in November 1998 and March 1999, and again in November 2000,2685 prior to the filing of the operative indictment, shows that these killings formed part of the Prosecution case at the time the Indictment was issued 2682 The Appeals Chamber therefore considers that Ntahobali's contention with regard to the Rule 98bis Decision has become moot and need not be addressed. 2683 See Prosecution 28 May 2007 Response, para. 2, fn. 2; 29 June 2007 Decision, para. 10, fn. 6. 2684 Trial Judgement, paras. 3155, 3157-3159, fns. 8696, 8699, 8701, 8702. 2685 See Trial Judgement, paras. 3155, 3157-3159, fns. 8696, 8699, 8701, 8702. 412 Case No. ICTR-98-42-A 14 December 2015

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19953/H 1169. Consequently, the Appeals Chamber considers that the defects in the Indictment regarding Ntahobali's responsibility for the killing of the Rwamukwaya family were curable. The Appeals Chamber now turns to consider whether the Trial Chamber erred in finding that the defects were cured. (b) Whether the Defects Were Cured 1170. The Trial Chamber determined that the defects in the Indictment concerning the killing of the Rwamukwaya family were cured through the disclosure of the summaries of the anticipated evidence of Witnesses RN and TE,686 along with Witnesses QF's, ST's, TF's, and TG's prior statements to Tribunal investigators2687 The Trial Chamber also noted that the information contained in the statements of Witnesses TE and RN was consistent with the information contained in the summaries of their anticipated evidence2688 It further found that the information contained in the summary of Witness FA's anticipated testimony attached to the Prosecution's motion to vary its witness list of 12 January 2004 was consistent with the witness's prior statement and provided additional notice to Ntahobali concerning this allegation.2689 1171. Ntahobali submits that the Trial Chamber erred in finding that the defects in the Indictment had been cured by the provision of clear and consistent information and that he was put on notice that the Prosecution intended to prove that

he was criminally responsible for aiding and abetting the killing of the entire Rwamukwaya family2690 He contends that neither the Indictment nor any subsequent information gave him notice of when the killing allegedly took place, the identity of the principal perpetrator(s), and the fact that he was alleged to have "aided and abetted" the killing of 2686 Trial Judgement, paras. 3156-3161, referring to Witness Summaries Grid, Witness RN's Summary, item 91, Witness TE ("Witness TE's Summary") 2687 Trial Judgement, paras. 3156-3161, referring to Statement of Witness QF of 17 December 1996, signed on 18 December 1996, disclosed in redacted version on 4 November 1998 (confidential) ("Witness QF's Statement"), Statement of Witness ST of 14 November 1996, signed on 15 April 1997, disclosed in redacted versions on 4 November 1998 and 15 November 2000 (confidential) ("Witness ST's Statement"), Statement of Witness TF of 13 November 1996, disclosed in redacted versions on 4 November 1998 and 15 November 2000 (confidential) ("Witness TF's Statement"), Statement of Witness TG of 4 December 1996 disclosed in redacted versions on 4 November 1998 and 15 November 2000. The unredacted version of Witness TG's 4 December 1996 statement was admitted into evidence on April 2004 as Exhibit D210 (confidential) ("Witness TG's Statement"). See 4 November 1998 Disclosure; 15 November 2000

Disclosure. 2688 Trial Judgement, paras. 3157, 3158 referring to Statement of Witness TE of 21 November 1996, disclosed in redacted versions on 4 November 1998 and 15 November 2000 ("Witness TE's Statement"), Statement of Witness RN of 20 November 1996, disclosed in redacted version on 30 March 1999 ("Witness RN's Statement"). See 4 November 1998 Disclosure; 15 November 2000 Disclosure. 2689 Trial Judgement, para. 3162, referring to Prosecution Motion to Vary Witness List, para. 4, Statement of Witness FA of 26 November 1996, disclosed in redacted version on 12 January 2004 (confidential) ("Witness FA's Statement"). See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Interoffice Memorandum "Butare Group of Cases ICTR-98-42-T - Disclosure", 12 January 2004. The unredacted version of Witness FA's 26 November 1996 statement was admitted into evidence on 14 September 2004 as Exhibit D251 (confidential). 2690 Ntahobali Notice of Appeal, paras. 107-110; Ntahobali Appeal Brief, paras. 229-242. Nahobali contends that he never understood that he was charged with aiding and abetting the killing of the entire Rwamukwaya family until the issuance of the Trial Judgement. See Ntahobali Appeal Brief, para.

245. See also Ntahobali Reply Brief, para.

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19952/H the family by announcing his intention to see this family dead. 2» He argues that Witnesses RN's and TE's summaries, together with Witnesses QF's, ST's, TF's, and TG's statements are silent, contradictory, or ambiguous with regard to his specific conduct, the identity of the perpetrators, the dates of his announcement of his intention to kill the family, and the date of the killing itself. 2692 Ntahobali also points out inconsistencies between the statements and summaries of Prosecution witnesses as to whether only Rwamukwaya or his entire family were killed, and as to whether or not Ntahobali was alleged to have personally perpetrated the killings.2693 Ntahobali adds that the Trial Chamber erred in finding that the addition of Witness FA to the Prosecution's witness list and the disclosure of Witness FA's Statement provided additional notice of this allegation. 2694 1172. Furthermore, Ntahobali submits that the withdrawal from the Prosecution's witness list in March 2002 of Witnesses RN and TE - the only two witnesses expected to testify about this particular killing - indicates that the Prosecution no longer intended to present evidence regarding the killing of the Rwamukwaya family and that the killing was therefore no longer part of the Prosecution case. 2695 1173. The Prosecution responds that the Trial Chamber correctly found that the defects in the Indictment

regarding the killing of Rwamukwaya and his family were cured. 2696 In particular, the Prosecution argues that: (i) Witnesses RN's and TE's summaries and statements informed Ntahobali of the victims' identity, the approximate date and place of the killing, and that he aided and abetted the killing; (ii) the other relevant witnesses' statements did not present significant inconsistencies; and (iii) it was clear throughout the trial that it intended to prove that Ntahobali was responsible for these killings 2697 The Prosecution further submits that, even if the defects concerning this incident were not found to be cured, Ntahobali did not suffer prejudice as "he amply defended against these charges. *2698 2691 Ntahobali Notice of Appeal, para. 108; Ntahobali Appeal Brief, paras. 229-237. See also Ntahobali Reply Brief, paras. 93, 94. 96, 97 692 Ntahobali Appeal Brief, paras. 229-242 2693 Ntahobali Appeal Brief, paras. 230, 231, 234, 239-241; Ntahobali Reply Brief, para. 99. 2694 Ntahobali Notice of Appeal, paras. 110, 111; Ntahobali Appeal Brief, paras. 233, 234. Ntahobali argues that this information was provided too late to constitute timely notice and that nothing in Witness FA's Statement gave him notice that the family was alleged to be dead or that Ntahobali was alleged to have aided and abetted its killing. 2695 Ntahobali Notice of Appeal, para. 109; Ntahobali Appeal Brief, paras. 243, 246, referring to Niyitegeka Appeal Judgement, para.

221. See also Ntahobali Reply Brief, paras. 95, 106. In Ntahobali's view, the Trial Chamber also erred in finding that the Prosecution specifically alleged in its closing brief that Ntahobali was responsible for killing the family. See Ntahobali Appeal Brief, para. 244. 2696 Prosecution Response Brief, paras. 794-803. 2697 Prosecution Response Brief, paras. 795, 796, 800, 801. The Prosecution specifies that while the Rwamukwayas' killing was mentioned in the specific intent section, it was also mentioned as evidence for the murder charge. See ibid., para. 801, referring to Prosecution Closing Brief, paras. 36, 66, 98 at pp. 168, 169, 182, 193, 194. 2698 Prosecution Response Brief, para. 802, referring to Witness FA, T. 1 July 2004 pp. 45, 46, Ntahobali Closing Brief, paras. 9, 31, 49, 78, 98, 405-412, 706, 710. 414 Case No. ICTR-98-42-A 14 December 2015

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19951/H 1174. Ntahobali replies that the Prosecution had the burden of proof to establish the absence of prejudice but failed to do so.2» He contends that he was prejudiced as: (i) it is speculative to assert that the cross-examination of Witness FA would have been conducted the same way had he been properly put on notice of all relevant material facts; (ii) the references to the killing of Rwamukwaya and the use of his car in his closing brief do not demonstrate that he understood the allegation; (iii) he could not cross-examine Witness FA and develop arguments in his closing submissions in relation to his responsibility for aiding and abetting as he did not know that he could be held responsible under this form of responsibility; and (iv) he was deprived of the possibility to cross-examine Witness FA in light of Witness D-2-13-O's testimony on the date of the killing of the Rwamukwaya family. 2700 1175. In relevant part, Witness RN's Summary indicates that "Ntahobali killed a certain Mr. Rwanukwaya [sic], and then confiscated his white Peugeot." Witness TE's Summary indicates that: "Ntahobali went to the Rwamukwaya house. TE heard that the dead bodies of the Rwamukwaya family were found not far from Nyiramasuhuko's house, near the laboratory. TE heard that Ntahobali drove around in Rwamukwaya's car." The Appeals Chamber considers that upon reading these summaries which were

indicated as being relevant to his Indictment, 2701 Ntahobali should reasonably have understood that he was alleged to be responsible under Counts 1 through 3 and 5 through 11 for the killing of Rwamukwaya.2702 These summaries, however, are silent as to the date, circumstances, and location of the killings and, read together, are unclear regarding Ntahobali's specific course of conduct and whether he was alleged to be responsible for the killing of the entire family or only that of Rwamukwaya himself.

1176. Information as to the approximate timeframe of the killing, that is "during the early part of the genocide in Butare" and "after 18 April 1994" 2703 was provided in Witness RN's Statement, which Ntahobali should have been prompted to examine upon reading the summary of the witness's anticipated evidence. However, Witnesses TE's and RN's statements did not provide any further information or clarity as to any other relevant material facts underpinning the allegation against Ntahobali. 2699 Ntahobali Reply Brief, para. 105. 2700 Ntahobali Reply Brief, paras. 100-106. 2701 Witness RN's Summary was specifically linked to Counts 1 through 3 and 5 through 11 of the Nyiramasuhuko and Ntahobali Indictment, and Witness TE's Summary was linked to Counts 1 through 3. 2702 The Appeals Chamber considers that the fact that Witness TE's Summary was only linked to Counts 1 through 3 of the Nyiramasuhuko and Ntahobali Indictment could not reasonably be understood as limiting the allegation to these counts in light of the fact that Witness RN's Summary referring to the same allegation was clearly linked to Counts 5 through 11 in addition to Counts 1 through 3. The Appeals Chamber dismisses Ntahobali's argument in this respect. See Ntahobali Appeal Brief, para. 227. -703 Witness RN's Statement, p. 3 415 Case No. ICTR-98-42-A 14 December 2015

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19950/H 1177. In their prior statements disclosed in November 1998 and November 2000, Witnesses QF, ST, TF, and TG referred to Ntahobali driving Rwamukwaya's car and being responsible for his killing or the killing of members of his family. Even assuming that these witnesses' prior statements could be considered as providing adequate notice despite the fact that the Prosecution failed to indicate that it intended to rely on this aspect of their evidence in its Witness Summaries Grid, 2704 the Appeals Chamber observes that the statements are not consistent as to whether Ntahobali directly participated in the killing himself or instructed or encouraged the killing, whether he was present during the killing, and whether other members of Rwamukwaya's family were killed.

1178. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in holding that Witnesses RN's and TE's summaries, along with the statements of Witnesses QF, ST, TF, and TG, provided clear and consistent information to put Ntahobali on sufficient notice of the allegation against him concerning the killing of the Rwamukwaya family.

1179. As noted above, the Trial Chamber further relied on the summary of Witness FA's testimony attached to the Prosecution Motion to Vary Witness List as providing additional notice to Ntahobali concerning this allegation?705 The summary of Witness FA's evidence indicated that the witness "heard [Ntahobali] say to an Interahamwe named Kazungu, 'Get up Kazungu. Let's go. Today we will start with killing [a Tutsi named] Rwamukwaya."2706 The Prosecution argued that Witness FA's evidence was material to its case.2707 Witness FA's Statement, referred to in the Prosecution's motion, also made reference to Ntahobali driving a white van a few days later.2708 Despite Ntahobali's objection to the addition of this witness, the Trial Chamber granted the Prosecution's request2709 At the time, Ntahobali did not object to Witness FA's evidence as falling outside the scope of the Indictment2710 Rather, Ntahobali argued that Witness FA would testify on facts already addressed by other witnesses.2711 vara.

162. See also Ntagerura et al. Appeal Judgement, para. 139; Ntakirutimana Appeal Judgement, para. 27. 2705 Trial Judgement, para. 3162 2706 Prosecution Motion to Vary Witness List, para. 19. 2707 Prosecution Motion to Vary Witness List, para. 20. 2708 See Witness FA's Statement, p. 7660 (Registry pagination): After a week Shalom (REDACTED] called KAZUNGU. He said as follows, "Get up KAZUNGU, lets go today we will start with killing the RWAMUKWAYAs'." After a couple of days I saw Shalom driving a white Van covered with mud. I saw Shalom and KAZUNGU qua[r]relling about that Van because each one of them wanted it to be his. [...] I saw Shalom many many times driving the Van carrying the Tutsis who were to be killed. 2709 30 March 2004 Decision, paras. 32, 33, 37, p.

8. See also supra, Section III.D. 2710 See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali., Case No. ICTR-97-21-T, Réponse de Arsène Shalomi Ntahobali à la Requête du Procureur pour retirer de sa liste de témoins trente témoins et y ajouter trois nouveaux témoins, 23 February 2004 ("23 February 2004 Ntahobali Response"), paras. 29-35. 2711 See 23 February 2004 Ntahobali Response, paras. 31, 33. See also ibid., para. 34. 416 Case No. ICTR-98-42-A 14 December 2015

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19949/H 1180. The Appeals Chamber considers that the Prosecution Motion to Vary Witness List, along with Witness FA's Statement as disclosed on 12 January 2004 with the motion, put Ntahobali on clear notice that he was alleged to have announced his intention to kill Rwamukwaya and confirmed the allegation that he was driving Rwamukwaya's car at one point. The summary and statement, however, did not clarify whether the Prosecution case was that Ntahobali physically participated in the killing of Rwamukwaya or was solely alleged to be responsible for instigating or encouraging the killing of Rwamukwaya and, indirectly, that of his family. These materials also cannot be said to constitute "timely" notice. The Appeals Chamber thus concludes that the Trial Chamber erred in finding that the defects in the Indictment concerning Ntahobali's responsibility for the killing of Rwamukwaya and his family were cured through Prosecution post-indictment disclosures.2712 1181. However, the Appeals Chamber is of the view that, by expressly stating in the Prosecution Motion to Vary Witness List that Witness FA's evidence relating to the killing of Rwamukwaya was "material" to its case and went "to prove counts" of the Indictment,2713 the Prosecution made it clear that it still intended to prove Ntahobali's responsibility in respect of this killing despite the deletion of Witnesses RN and TE from

its witness list ordered by the Trial Chamber in March 2002.2714 1182. Turning to the question whether the defects in the Indictment materially impaired Ntahobali's ability to prepare his defence in relation to the allegation concerning the killing of the Rwamukwaya family,2715 the Appeals Chamber observes that, since Ntahobali raised the issue of lack of notice concerning this allegation in his closing brief and the Trial Chamber examined his claim without considering it untimely, 2716 the burden rests on the Prosecution to prove that Ntahobali's ability to prepare his defence was not materially impaired. 2717 1183. The Appeals Chamber finds that the Prosecution has met its burden, as it effectively demonstrates that the conduct of Ntahobali's defence reveals that the vagueness of the notice 2712 See Trial Judgement, paras. 3161, 3162. 2713 Prosecution Motion to Vary Witness List, para. 20. 2714 See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Prosecutor's Motion to Stay Disclosure Until Protection Measures Are Put in Place, 27 March 2002, p.

4. This decision reflects that the Prosecution intended to call Witnesses RN and TE and did not wish to withdraw them from its witness list. The deletion of these witnesses from the Prosecution's witness list was ordered by the Trial Chamber as a result of the non-disclosure of their unredacted statements. See ibid., paras. 9, 11. Ntahobali's argument that their withdrawal signaled that the Prosecution no longer intended to prove this allegation in 2002 is therefore without merit. The Appeals Chamber also considers that the fact that Witnesses QF, ST, and TF were ultimately not called to testify is irrelevant to the question of whether Ntahobali was provided sufficient notice of the allegation. See supra, fn.

2679. Contrary to Ntahobali's contention, the Appeals Chamber further observes that the Prosecution Closing Brief was clear that the allegation that Ntahobali was responsible for the killing of the Rwamukwaya family formed part of the Prosecution case. See Prosecution Closing Brief, paras. 36, 66, 98, 181, 199 at pp. 169, 182, 193, 194, 220, 221, 227. 2715 See supra, para. 1105. 2716 See Ntahobali Closing Brief, paras. 78(xv), 80, 81; Trial Chamber, paras. 3156-3161. 2717 See supra, para. 1105. 417 Case No. ICTR-98-42-A 14 December 2015

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19948/H provided by the Prosecution regarding the nature of his participation in the crime and the number of victims was harmless. Specifically, a review of the transcripts of Witness FA's testimony reflects that Ntahobali was able to conduct an effective cross-examination of Witness FA on the aspects of the witness's evidence on the basis of which he was ultimately-convicted.2718 The Appeals Chamber also notes that Ntahobali did not object to Witness FA's evidence on the killing of the Rwamukwaya family during the course of the witness's testimony for lack of notice2719 and that he had objected to the addition of this witness in 2004 on the basis that the witness would testify on facts already addressed by other witnesses2720 Ntahobali's closing submissions also show that he understood and defended himself against the allegations that he announced his intention to kill Rwamukwaya and participated in the killing of Rwamukwaya and his family2721 The Appeals Chamber considers that the fact that Ntahobali challenged the allegation that he directly participated in the killing of the Rwamukwaya family did not prevent him from also defending against the allegation that he had announced his intention to kill Rwamukwaya, the primary basis on which the Trial Chamber relied to find him criminally responsible.

1184. In addition, the Appeals Chamber notes that Ntahobali himself testified as to the use of Rwamukwaya's vehicle,272z that he questioned one of his witnesses on the use of the vehicle, 773 and that he called a witness to specifically rebut the allegations of his responsibility in the killing of Rwamukwaya and his family 2724 The Appeals Chamber also observes that, contrary to Ntahobali's suggestion, his counsel's cross-examination of Witness D-2-13-O reflects that he was prepared to rebut the witness's testimony as regards his responsibility for aiding and abetting the killing of the Rwamukwaya family in the second half of April 1994.2725 2718 See Witness FA, T. 1 July 2004 pp. 14-16 (closed session), 25, 45-49. 2719 The Appeals Chamber reiterates that none of the Trial Chamber's oral statements and decisions pointed out by Ntahobali could have reasonably been understood as suggesting to the Defence to refrain from making objections related to the indictment because they would not be granted at this stage and had rather to be addressed in closing submissions. See supra, para. 1107. 2720 See 23 February 2004 Ntahobali Response, paras. 31, 33. See also ibid., para. 34. 2721 Ntahobali Closing Brief, paras. 706, 710; Ntahobali Closing Arguments, T. 23 April 2009 pp. 37, 38. 2722 See Ntahobali, T. 26 April 2006 pp. 47, 48. See also Ntahobali Closing Brief, Appendix 3, para. 96. 2723 Béatrice Munyenyezi, T. 27 February 2006 p.

18. See also Ntahobali Closing Brief, Appendix 3, para. 49. 2724 Witness WQMJP, T. 25 January 2006 pp. 14-16, 23, 24, 28, 29 (closed session). See also Ntahobali Closing Brief, Appendix 3, para.

9. Ntahobali indicated in the will-say statement he disclosed in November 2005 that Witness WQMJP would testify, inter alia, that Rwamukwaya was alive in May 1994 and that his son was abducted while going around Butare. See The Prosecutor v. Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Will Say Statement - Witness WQMJP, 24 November 2005 (confidential), p. 2117 (Registry pagination). See Witness D-2-13-0, T. 7 November 2007 pp. 21-42 (closed session); T. 8 November 2007 pp. 11-72 (closed session). The Appeals Chamber notes that Ntahobali did not request the recall of Witness FA on the basis that he could not cross-examine her in light of the additional evidence provided by Witness D-2-13-0 during his testimony See The Prosecutor y. Pauline Nviramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Motion by Arsène Shalom Ntahobali for Exclusion of Testimonial Evidence and for Recall of Witnesses, 8 October 2008 (originally filed in French, English translation filed on 9 March 2009) (confidential). Case No. ICTR-98-42-A 14 December 2015

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19947/H 1185. In these circumstances, the Appeals Chamber is persuaded that, despite the vagueness of the Indictment and the Prosecution's failure to provide Ntahobali with clear and timely information on his responsibility for aiding and abetting the killing of the Rwamukwaya family, Ntahobali's ability to prepare a meaningful defence against the material facts on the basis of which he was ultimately convicted was not materially impaired. (c) Conclusion 1186. For the foregoing reasons, the Appeals Chamber finds that, although the Trial Chamber erred in concluding that the defects in the Indictment concerning Ntahobali's responsibility for the killing of the Rwamukwaya family were cured, this error does not invalidate its decision to convict him for aiding and abetting the killing of the Rwamukwaya family as the Prosecution proved on appeal that Ntahobali's ability to prepare his defence in this respect was not materially impaired.

5. Butare Prefecture Office (Ground 2.5 in part) 1187. The Trial Chamber convicted Ntahobali of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 10) pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis who were abducted from the Butare Prefecture Office where they had sought refuge?726 The Trial Chamber also convicted Ntahobali of committing, ordering, and aiding and abetting rapes perpetrated at the Butare Prefecture Office as a crime against humanity (Count 7) and as outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 11). 2727 1188. In summarising the Prosecution case against Ntahobali with respect to these allegations, the Trial Chamber referred to paragraphs 4.5, 6.30, 6.31, 6.37, and 6.53 of the Indictment. 2728 2726 Trial Judgement, paras. 5876, 5971, 6053-6055, 6100, 6101, 6168, 6169, 6186. The Trial Chamber also found that Ntahobali bore superior responsibility for the acts of the Interahamwe at the prefectoral office, "including their abductions, rapes, and killings" pursuant to Article 6(3) of the Statute and considered this as an aggravating factor when determining his sentence. See ibid., paras. 5886, 5971. See also ibid., paras. 5652, 5884, 5885, 6056, 6086, 6220. The Appeals Chamber discusses Ntahobali's challenges to the imprecision of the Trial Judgement regarding his convictions for crimes committed at the Butare Prefecture Office in detail below in Section V.I.1. See Ntahobali Appeal Brief, para.

284. See also ibid., para.

289. The Appeals Chamber will address Ntahobali's contentions regarding the lack of notice that he was charged as a superior for crimes perpetrated at the prefectoral office in Section V.B.7 below. 2727 Trial Judgement, paras. 6085, 6086, 6094, 6184-6186. While the Trial Chamber considered that the rapes that occurred at the Butare Prefecture Office could establish Ntahobali's responsibility for genocide, it concluded that Ntahobali was not given sufficient notice that rapes committed there would be used in support of this count and did not convict him of genocide on this basis. See ibid., paras. 5857-5865, 5868, 5872, 5874, 5875, 5877. 2728 Trial Judgement, paras. 2149, 2150, 2162, 2163, fns. 5720-5723, 5751. See also ibid., paras. 5857-5859. Paragraph 4.5 of the Nyiramasuhuko and Ntahobali Indictment reads as follows: 419 Case No. ICTR-98-42-A 14 December 2015

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19946/H The Indictment indicates that the allegations in paragraph 6.30 were being pursued against Ntahobali under Counts 2, 3, 5, 6, and 8 through 10, those in paragraph 6.31 under Counts 2, 3, 5, 6, and 8 through 11, and those in paragraph 6.37 under Counts 7 and 11, pursuant to Articles 6(1) and 6(3) of the Statute2729 The allegations in paragraph 6.53 were being pursued against him under Counts 2, 3, 5 through 11 pursuant to Articles 6(1) and 6(3) of the Statute 2730 Paragraph 4.5 was not specifically relied upon in support of any count.

1189. In response to Ntahobali's assertion that he was not reasonably informed of the charges concerning the crimes committed at the Butare Prefecture Office, the Trial Chamber determined that "the crimes of abduction and killing at the [Butare Prefecture Office] were clearly pleaded in the Indictment."2731 It further found that, although the Indictment was defective with respect to the charges of rape, the defects were cured and Ntahobali did not suffer prejudice in the preparation of his defence.2732 As regards the pleading of victims in particular, the Trial Chamber held that, "in view of the sheer scale of the attacks, rapes and killings alleged to have taken place at the [Butare Prefecture Office], it [was] impractical to require the Prosecution to name each of the alleged victims of this course of conduct" and that the Indictment was therefore not defective for failing to name each of the alleged victims at the prefectoral office.2733 1190. Ntahobali submits that his responsibility in the abductions and killings of Tutsis at the Butare Prefecture Office was not adequately pleaded in the Indictment and that the vagueness of the Indictment was never cured. 2734 He also contends that the Trial Chamber erred in finding that he was provided sufficient notice of the charges of rape at the prefectoral office. 73s (a) Killings 1191. As discussed in detail below in Section V.I

addressing Ntahobali's challenges to the assessment of the evidence and his responsibility in relation to the Butare Prefecture Office, the Trial Chamber found that Ntahobali ordered Interahamwe to kill numerous Tutsis who were abducted from the prefectoral office where they had sought refuge during an attack conducted in 4.5 Arsène Shalom (or Shalome) Ntahobali exercised authority over Interahamwe militiamen in Butare préfecture. For paragraphs 6.30, 6.31, 6.37, and 6.53 of the Nyiramasuhuko and Ntahobali Indictment, see supra, fn. 1123. 2729 Nyiramasuhuko and Ntahobali Indictment, pp. 39-45. 2730 Nyiramasuhuko and Ntahobali Indictment, pp. 39-45. 2731 Trial Judgement, para.

2162. See ibid., para. 2172. 2731 Ntahobali Notice of Appeal, paras. 125, 127, 128, 130, 131; Ntahobali Appeal Brief, paras. 294-299. 420 Case No. ICTR-98-42-A 14 December 2015

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19945/H mid-May 1994. The Trial Chamber convicted Ntahobali under Counts 2, 6, 8, and 10 pursuant to Article 6(1) of the Statute for ordering killing on this basis.2736 Although the Appeals Chamber, Judge Khan dissenting, has clarified that Ntahobali was ultimately only convicted in relation to one specific attack conducted in mid-May 1994, the Trial Judgement reflects that the evidence adduced by the Prosecution covered a longer period of time spanning additional attacks. 2737 1192. In the Trial Judgement, the Trial Chamber determined that "the crimes of abduction and killing at the [Butare Prefecture Office] were clearly pleaded in the Indictment?"2738 1193. Ntahobali submits that the Trial Chamber erred in finding that the Indictment was not defective concerning the crimes of abduction and killing at the prefectoral office 273 Specifically, he argues that the identity of his alleged accomplices was not sufficiently pleaded. He points out that, following the Trial Chamber's order in 2000 to identify his accomplices in paragraph 6.30 of the Indictment, the Prosecution only specified the names of two Interahamwe - who were not subsequently mentioned by the witnesses - and failed to provide the names of all the other Interahamwe it mentioned at trial.2740 In his view, the fact that the Prosecution and its witnesses mentioned those names at trial demonstrates that the Prosecution

could and should have specified them in the Indictment.2741 1194. Ntahobali also argues that the dates provided in paragraph 6.30 of the Indictment were too vague.2742 He contends that, in the circumstances of this case, given that the refugees were transferred from the prefectoral office to the EER from 15 to 31 May 1994 and to Nyange in the end of May or early-June 1994, and that they left for Rango in June 1994, there could have been no attacks against them during these periods.2743 According to Ntahobali, the fact that his co-accused's indictments contain dates that were more precise with respect to the absence of refugees from the prefectoral office and the fact that the Trial Chamber split the attacks into several identified times show that the Prosecution was in a position to provide more precise dates. 2744 Ntahobali claims that 2735 Ntahobali Notice of Appeal, paras. 126, 127, 129-131; Ntahobali Appeal Brief, paras. 272-293. 2736 See infra, Section V.I.Ï. See also infra, Section V.I.3. 2737 Trial Judgement, paras. 2149-2782. 2738 Trial Judgement, para. 2162. 2739 Ntahobali Notice of Appeal, para, 125; Ntahobali Appeal Brief, paras. 294-299. Decision, para. 35(a) (ii). See also Ntahobali Reply Brief, paras. 147-149. 2741 Ntahobali Appeal Brief, para. 295. 2742 Ntahobali Appeal Brief, para. 297 (French). 2743 Ntahobali Appeal Brief, para. 297 (French), referring to Ndindabahizi Appeal Judgement, para. 20, Naletilic and Martinovié Appeal Judgement, para. 59. 2744 Ntahobali Appeal Brief, paras. 297, 298 (French), referring to Kanyabashi Indictment, paras. 6.41, 6.42, Nsabimana and Nteziryayo Indictment, paras. 6.38-6.40. 421 Case No. ICTR-98-42-A 14 December 2015

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19944/H he was never provided notice through the Indictment or any subsequent materials of the approximate dates of the attacks in relation of which he was convicted.2745 1195. Ntahobali further submits that the form of responsibility of "ordering" was not pleaded in the Indictment. In his opinion, paragraph 6.30 of the Indictment cannot be considered as including "ordering", 2746 He adds that it is of significance that the names of Jumapili and Nsengiyumva mentioned in the Indictment as his accomplices were only mentioned in the summary of Witness QBM's anticipated evidence, which clearly specified that the orders to kill at the prefectoral office were not given by him.?747 1196. The Prosecution responds that Ntahobali does not demonstrate that the Trial Chamber erred in finding that paragraph 6.30 of the Indictment pleaded Ntahobali's responsibility for abductions and killings at the prefectoral office.2748 It contends that, by identifying that Interahamwe militiamen accompanied him to abduct Tutsi refugees, paragraph 6.30 identified his alleged accomplices, and argues that the exact names of the Interahamwe were evidence and not material facts that needed to be pleaded in the Indictment. 2749 The Prosecution also responds that the form of responsibility of "ordering" was properly pleaded through paragraph 5.1 of the Indictment, which was listed under all counts, and that the

date range provided was not too vague.?750 1197. Ntahobali was convicted of ordering "Interahamwe" to kill Tutsis who had sought refuge at the prefectoral office and were abducted during an attack perpetrated in mid-May 1994.2751 In paragraph 6.30 of the Indictment, the Prosecution clearly pleaded that Ntahobali went to the prefectoral office to abduct Tutsi refugees with "Interahamwe militiamen such as one JUMAPILI and another NSENGIYUMVA among others". The fact that the Prosecution, or the witnesses it called, referred to specific Interahamwe by names in the course of the trial other than those mentioned in the Indictment does not establish that the Prosecution was in possession of this information when the operative indictment was issued or its pre-trial brief was filed. As such, Ntahobali fails to demonstrate that the Prosecution was in possession of additional information regarding the names of the Interahamwe who participated in abductions and killings with him at the prefectoral office. In the view of the Appeals Chamber, the fact that the Prosecution and its 2745 Ntahobali Appeal Brief, para. 297 (French). See also Ntahobali Reply Brief, para. 151. 2746 Ntahobali Appeal Brief, para.

296. See also Ntahobali Notice of Appeal, para. 128. 2747 Ntahobali Appeal Brief, para. 296, referring to Witness Summaries Grid, item 43, Witness QBM ("Witness QBM's Summary"). 2748 Prosecution Response Brief, para.

830. See also AT. 15 April 2015 pp. 73, 74. 2749 Prosecution Response Brief, paras. 830, 831. The Prosecution adds that the sheer scale of the crimes charged it paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment made it impracticable to require a high degree of specificity. See ibid., para. 830 750 Prosecution Response Brief, paras. 832, 833 2751 See infra, Section V.I.3. 422 Case No. ICTR-98-42-A 14 December 2015

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19943/H witnesses did not eventually mention "Jumapili" and "Nsengiyumva" at trial is not relevant to whether Ntahobali was provided sufficient notice of the identity of his alleged "accomplices".

1198. Paragraph 6.30 of the Indictment specifies the relevant date range as "[b]etween 19 April and late June 1994". In the specific circumstances of the allegation pertaining to the crimes at the prefectoral office, the Appeals Chamber is unconvinced by Ntahobali's argument that the Trial Chamber erred in finding that this broad date range was sufficient to provide him notice. Although the Appeals Chamber, Judge Khan dissenting, has clarified that Ntahobali was ultimately only convicted in relation to one specific attack conducted in mid-May 1994, the Trial Judgement reflects that the evidence adduced by the Prosecution covered a longer period of time spanning additional attacks.2752 Ntahobali's submission that the Indictment should have pleaded the different transfers of the refugees from the prefectoral office to the EER, Nyange, or Rango - as it did in the Kanyabashi Indictment and the Nsabimana and Nteziryayo Indictment2753 - fails to appreciate that the Prosecution case, as presented at trial, was not that crimes were not committed after or between those transfers but that attacks were ongoing at the prefectoral office from the end of April to the end of June 1994. Given the sheer scale of the alleged crimes ranging over a period of nearly three months, Ntahobali does not demonstrate that the Prosecution was in a position to provide further specificity as regards the

dates of the commission of the crimes. 2754 1199. With respect to the pleading of the form of responsibility, the Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged.?75s When it is alleged that the accused planned, instigated, ordered, or aided and abetted the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the "particular acts" or the "particular course of conduct" on the part of the accused which forms the basis for the charges in question. 2756 1200. The Appeals Chamber observes that paragraph 6.30 of the Indictment, which refers to Ntahobali's responsibility for abductions and killings at the prefectoral office, does not specifically refer to Ntahobali giving orders to the Interahamwe who accompanied him to abduct refugees, who 2752 Trial Judgement, paras. 2149-2782. 2753 See Kanyabashi Indictment, paras. 6.41, 6.42; Nsabimana and Nteziryayo Indictment, paras. 6.38-6.40. 2754 The Appeals Chamber finds no merit in Ntahobali's reliance on the Naletilié and Martinovié Appeal Judgement, in which the Appeals Chamber found that the indications "in the days following the 9 May 1993 attack" and "during the first days of July 1993" in the indictment did not sufficiently plead the incident on 13 and 14 June and 29 September 1993 in relation to which Vinko Martinovié was convicted. See Ntahobali Appeal Brief, para. 297 (French), referring to Naletilié and Martinovié Appeal Judgement, para. 59. 2755 Uwinkindi Appeal Decision, para.

48. See also Blaskié Appeal Judgement, para. 215. 2756 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 172; Ntawukulilyayo Appeal Judgement, para. 188; Blaskic Appeal Judgement, para. 213. 423 • Case No. ICTR-98-42-A 14 December 2015

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19942/H were later killed. Paragraph 6.31 of the Indictment which the Trial Chamber took into consideration is not relevant in this respect. The Appeals Chamber is not persuaded by the Prosecution's argument that paragraph 5.1 of the Indictment put Ntahobali on sufficient notice that he was charged with ordering crimes at the prefectoral office given the broad nature of the allegation set forth in this paragraph, the fact that it is not clearly linked to paragraph 6.30, and the fact that it refers to several forms of responsibility.2757 The Appeals Chamber considers that, by failing to specify that Ntahobali was alleged to have ordered killings at the prefectoral office in particular or sufficiently specify his particular acts or course of conduct in this regard, the Indictment failed to provide adequate notice to Ntahobali that he was charged on this basis. As a result, the Appeals Chamber finds that the Trial Chamber erred in failing to conclude that the Indictment was vague as regards the pleading of the form of responsibility of ordering.

1201. The Appeals Chamber, however, finds that the Trial Chamber's error does not invalidate its decision to convict Ntahobali for ordering Interahamwe to kill Tutsis who were abducted from the prefectoral office because the vagueness of the Indictment was remedied by the provision of timely, clear, and consistent information. Specifically, the Appeals Chamber notes that it is clear from the summary of Witness RJ's anticipated evidence attached to the Prosecution Pre-Trial Brief that the Prosecution intended to prove through this witness that Ntahobali exercised authority over the Interahamwe involved in crimes at the prefectoral office and issued instructions and orders to kill refugees. 2758 Witnesses RE's and TA's summaries also showed that these witnesses were expected to testify that Ntahobali exercised authority at the prefectoral office and issued orders and instructions to Interahamwe while there.2759 These summaries were expressly marked relevant to Ntahobali and, inter alia, to Counts 2, 6, and 8 of his Indictment. The Appeals Chamber considers that the fact that some of these summaries, together with the summaries of the anticipated evidence 2757 See Nyiramasuhuko and Ntahobali Indictment, para. 5.1 ("[...] In executing the plan, they organized, ordered and participated in the massacres perpetrated against the Tutsi population and of moderate Hutu. [...] Shalom

Arsène Ntahobali elaborated, adhered to and executed this plan."). 2758 In relevant part, Witness RJ's Summary reads as follows: Later Ntahobali came with soldiers and Interahamwe [...]. Ntahobali said, "these people must be killed." Ntahobali selected young women and girls and left with them. Next day Nyiramasuhuko and Ntahobali came in a mud-camouflaged car and took away women and girls. Girls asked for mercy but Nyiramasuhuko and Ntahobali refused instead they ordered beatings. 2759 In relevant part, Witness RE's Summary reads as follows: During the night, RE saw Ntahobali [...]. He arrived at the Prefecture office with Nyiramasuhuko and some terahamwe. [...] RE heard Ntahobali give orders to the Interahamwe to force people into cars. [- tahobali drove the car and returned in an empty car. RE learned from one survivor that the refugees we brought to a place called Rwabayanga to be killed. In relevant part, Witness TA's Summary reads as follows: Nyiramasuhuko and Ntahobali came to the Prefecture office often. They stated: "Let's get rid of this dirt." People were taken away. [...) TA regarded Ntahobali as the leader of the attackers. He issued commands to the attackers. 424 Case No. ICTR-98-42-A 14 December 2015

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19941/H of other witnesses, including Witness QBM's Summary, also referred to Nyiramasuhuko or others issuing orders and exercising authority during attacks at the prefectoral office is not inconsistent with the fact that Ntahobali was also alleged to have issued orders.

1202. The Appeals Chamber concludes that, although the Indictment was defective regarding the pleading of his responsibility for ordering killings at the prefectoral office, Ntahobali was subsequently put on adequate notice that he was charged with ordering Interahamwe to commit killings at the Butare Prefecture Office between 19 April and late June 1994. (b) Rapes 1203. As discussed in detail below in Section V.I.1(b), the Trial Chamber found that, at the Butare Prefecture Office, Ntahobali: (i) raped Witness TA during an attack conducted in mid-May 1994; (ii) raped and ordered rapes of Witness TA and six other women during attacks that occurred in the last half of May 1994; and (iii) raped women and aided and abetted the rapes of Witness TA during attacks in the first half of June 1994.2760 The Trial Chamber convicted Ntahobali of committing, ordering, and aiding and abetting rapes under Counts 7 and 11 on this basis.

1204. The Trial Chamber made the following determinations regarding the pleading of Nyiramasuhuko's and Ntahobali's responsibility for rapes at the prefectoral office in the Indictment: As to the crime of rape, Paragraph 6.37 of the Nyiramasuhuko and Ntahobali indictment states that aside from the attacks on Tutsis, Ntahobali was assisted by accomplices in kidnapping and raping Tutsi women. The Chamber recalls that an indictment paragraph should be read in conjunction with the entire indictment as a whole. Read in this way, the crimes of kidnapping and rape were separately pled to the attacks occurring throughout the rest of the préfecture, including the attacks and abductions at the [Butare Prefecture Office]. Nonetheless, the information in Paragraph 6.37 lacked necessary details, including specific dates, locations and the names of victims, to put Ntahobali and Nyiramasuhuko on notice that they were being charged with raping women or were responsible as a superior for rapes occurring at the [Butare Prefecture Office). The Indictment was therefore defective in this regard. 2761 The Trial Chamber determined that the defect in the Indictment was cured through the Prosecution Pre-Trial Brief and the summaries of the anticipated evidence of Witnesses TA, FAP, QBP, QBQ, QZ, RE, RF, RG, RJ, and SW appended to the Prosecution Pre-Trial Brief, which clearly indicated that Ntahobali

and Nyiramasuhuko participated in rapes at the prefectoral office.2762 2760 See also infra, Section V.I.1(c). 2761 Trial Judgement, para. 2163. 2762 Trial Judgement, paras. 2164, 2166, fns. 5752, 5753, referring to Prosecution Pre-Trial Brief, para. 29, Witness TA's Summary, Witness FAP's Summary, Witness QBP's Summary, Witness QBQ's Summary, Witness QZ's Summary, Witness RE's Summary, Witness RF's Summary, Witness RG's Summary, Witness RJ's Summary, Witness SW's Summary. 425 Case No. ICTR-98-42-A 14 December 2015

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19940/H 1205. Ntahobali submits that the Trial Chamber erred in convicting him on the basis of rapes committed at the Butare Prefecture Office as this allegation was not pleaded in the Indictment and its addition radically transformed the case against him.2763 In support of his contention; he asserts that it was unreasonable for the Trial Chamber to consider that the rapes pleaded in paragraph 6.37 of the Indictment could relate to crime scenes discussed in other paragraphs of the Indictment, given: (i) the substitution of the phrase "as part of his attack" in paragraph 3.12 of the Nyiramasuhuko and Ntahobali Second Amended Indictment with the phrase "aside from his attacks" in paragraph 6.37; and (ii) the fact that none of the paragraphs of the Indictment related to the prefectoral office alleged rapes. 2764 1206. Alternatively, Ntahobali contends that the Trial Chamber erred in finding that the defects concerning his responsibility for rapes at the prefectoral office were cured. 2765 He argues that the Trial Chamber erred in not examining whether he received sufficient notice of all material facts "in respect of each rape of which he was found guilty" 276 He also submits that the Trial Chamber could not consider the summaries which were not marked relevant to him in the Witness Summaries Grid as providing him the requisite notice. 2767 Ntahobali further posits that the ten

summaries relied upon by the Trial Chamber were too ambiguous and contradictory to constitute clear and consistent notice that he participated in rapes at the prefectoral office.2768 Specifically, he highlights that: (i) Witnesses QBP, QBQ, and RG were not expected to testify against him; (ii) the summaries of Witnesses RE, RJ, RF, and RG do not mention rapes at the prefectoral office; (iii) the summaries of Witnesses FAP, QBQ, QBP, and SW refer to rapes at the prefectoral office without implicating him; (iv) the summaries of Witnesses FAP, RJ, and QBQ mention orders to rapes which were not issued by him; and (v) Witness RF's Summary and the prior statement of Witness SW name other 2763 Ntahobali Notice of Appeal, para. 129; Ntahobali Appeal Brief, paras. 273, 277. See also AT. 15 April 2015 pp. 30-33. Ntahobali refers to his arguments related to paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment set forth under Ground 2.2 of his appeal, which the Appeals Chamber dismissed in Section V.B.3 above. 2764 Ntahobali Appeal Brief, para. 275, referring to Nyiramasuhuko and Ntahobali Second Amended Indictment, para. 3.12; AT. 15 April 2015 pp. 30-33. Ntahobali also argues that: (i) paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment relating to the prefectoral office does not mention any rapes and is not relied upon in support of Counts 7 and 11: (ii) the allegations

in paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment relate to the Butare University Hospital and the period of mid-June 1994 specifically, not the prefectoral office and the crimes committed there between April and June 1994. See Ntahobali Appeal Brief, paras. 273, 274. The Appeals Chamber emphasises that the Trial Chamber did not rely on paragraph 6.30 to find Ntahobali guilty under Counts 7 and 11 for his involvement in rapes and recalls that it has already addressed and rejected Ntahobali's contention regarding the geographical and temporal scope of the allegations set forth in paragraph 6.37. See Trial Judgement, para. 2163; supra, paras. 509, 511, 1150, 1188. 2765 Ntahobali Appeal Brief, paras. 278-293 2766 Ntahobali Appeal Brief, para. 280 (emphasis omitted), referring to Muhimana Appeal Judgement, para. 78. 2767 Ntahobali Appeal Brief, para. 272, referring to Trial Judgement, para, 2869 and the summaries of the anticipated evidence of Witnesses QBP, QBQ, SD, SS, SU, and QJ. It is unclear in his appeal brief whether Ntahobali refers to notice of the evidence or notice of the charges. However, read in context of the entirety of his submissions and his reply brief, the Appeals Chamber understands that Ntahobali intended to limit his contention to notice of the charges. See ibid., paras. 272, 281; Ntahobali Reply Brief, paras. 124, 128, 131, 134. See also Ntahobali Appeal Brief, para. 669. 2768 Ntahobali Appeal Brief, paras. 281, 282, referring to Trial Judgement, para.

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19939/H individuals responsible for the selection of victims to rape. 2769 Ntahobali argues that, considered in light of the confusion and ambiguity of the Prosecution case as demonstrated by the above, the summaries of Witnesses TA's and QZ's anticipated evidence - the only summaries referring to his responsibility for rapes at the prefectoral office - did not cure all the defects of paragraph 6.37 of the Indictment. 2770 1207. With respect to the timing of the rapes, Ntahobali contends that he was never provided notice of rapes at the prefectoral office in June 1994.27' Moreover, he submits that the Prosecution failed to give him adequate notice of the forms of responsibility under which he was charged in relation to rapes committed there.2772 In particular, he argues that, by generally pleading his responsibility for committing, ordering, and aiding and abetting rapes without specifying the locations, dates, co-perpetrators, or victims, the Prosecution Pre-Trial Brief did not provide him with sufficient information curing the defect in the Indictment. 2773 He adds that he did not receive any information regarding his alleged responsibility for aiding and abetting the rapes of Witness TA or ordering rapes at the prefectoral office and that he was never informed of the identity of victims, the location, and the time of the rapes2774 According to Ntahobali, the Trial Chamber

erred in finding that it was impracticable for the Prosecution to name all the victims because of the sheer scale of the attacks given that he was alleged to have personally committed these rapes 2775 1208. Ntahobali further contends that the Prosecution demonstrated through its questions to witnesses that it knew that Interahamwe were involved in attacks at the prefectoral office and had information regarding the names of some of the individuals involved which should have been mentioned in the Indictment, but that it never cured the defect in paragraph 6.37 of the Indictment concerning the identity of his alleged accomplices.2776 1209. The Prosecution responds that paragraph 6.37 of the Indictment clearly charges rape and is applicable to the Butare Prefecture Office.2777 It also argues that Ntahobali's contention that the 2769 Ntahobali Appeal Brief, para.

281. See also Ntahobali Reply Brief, paras. 125-131. 2770 Ntahobali Appeal Brief, para.

283. Ntahobali notes that Witness QZ was not called to testify. See idem. 2771 Ntahobali Appeal Brief, para.

291. Ntahobali underlines that Witness TA's Summary clearly indicated that the refugees had left the prefectoral office for Rango around the end of May 1994 and that Witnesses QBP's and TK's summaries did not implicate him in any rape at the prefectoral office. He also submits that, to the extent that the Trial Chamber convicted him in relation to the rapes of four victims designated by name by Witness QBP during attacks in the first half of June 1994, the Trial Chamber erred as these specific names were not specified in the Nyiramasuhuko and Ntahobali Indictment or in any subsequent disclosures. See ibid., paras. 291, 292. As discussed in Sections V.I.1(b), V.I.2(a)(ii) below, the Appeals Chamber understands that Ntahobali was not convicted on the basis of any of the rapes testified to by Witness QBP during attacks in the first half of June 1994. Ntahobali's contention is therefore moot. 2772 Ntahobali Appeal Brief, paras. 286-289. 2773 Ntahobali Appeal Brief, para. 286, referring to Prosecution Pre-Trial Brief, para. 29. 2774 Ntahobali Appeal Brief, para.

289. See also Ntahobali Reply Brief, paras. 141-143. 2775 Ntahobali Notice of Appeal, para. 127; Ntahobali Appeal Brief, para. 289. 2776 Ntahobali Appeal Brief, para. 290. 2777 Prosecution Response Brief, para. 820. 427 Case No. ICTR-98-42-A 14 December 2015

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19938/H vagueness of this paragraph was not remedied should be dismissed. It contends that: (i) given their contents and the fact that they were all listed as relevant to Nyiramasuhuko and Counts 1 through 11 of the same Indictment, the summaries of Witnesses QBQ, QBP, SS, QJ, SD, and SU provided Ntahobali notice that they would testify about his participation in crimes at the prefectoral office; (ii) the summaries of Witnesses QZ, TA, RF, and RJ implicated Ntahobali in rapes at the prefectoral office; and (iii) the differences in the summaries do not render them inconsistent. 2778 The Prosecution further responds that Ntahobali was informed that he was charged with committing, aiding and abetting, and ordering rapes at the prefectoral office through paragraph 29 of its pre-trial brief, Witnesses RF's and TA's summaries, and its opening statement and that notice of Ntahobali's accomplices in the rapes was provided through paragraph 6.53 of the Indictment. 2779 1210. Ntahobali replies, inter alia, that he could not understand that the witnesses who were only marked relevant to Nyiramasuhuko in the Witness Summaries Grid would testify against him and that he suffered considerable prejudice from this lack of notice because he did not investigate them as a result. 2780 He also argues that Witness QZ's Summary was not useful as he was ultimately not convicted for the rape mentioned

therein 2781 1211. The Appeals Chamber notes that there is no dispute that the Indictment was defective regarding the pleading of Ntahobali's responsibility for rapes at the prefectoral office. There is no mention of any rape in paragraph 6.30 of the Indictment, which relates to the prefectoral office in particular, and paragraph 6.37 of the Indictment, which refers to Ntahobali's participation in raping Tutsi women, is excessively broad as regards the dates, locations, identity of his accomplices, and the nature of Ntahobali's participation in the rapes.

1212. The Appeals Chamber, however, finds no merit in Ntahobali's contentions that the allegation was not pleaded in the Indictment or that the addition of material facts underpinning this allegation radically transformed the case against him. In the opinion of the Appeals Chamber, the 2778 Prosecution Response Brief, paras. 818, 819, 821-823, referring to Ntabakuze Appeal Judgement, paras. 54, 94 See also ibid., para. 1039; AT. 15 April 2015 pp. 74-77. The Prosecution further argues that Witnesses QBP, SS, SU, QJ, and QBQ "were all mentioned in [its pre-trial brief] as testifying against Ntahobali for killings, abductions, and rapes at the préfecture office." However, the references provided by the Prosecution do not correspond to the Prosecution Pre-Trial Brief and the Appeals Chamber has been unable to identify the document to which the Prosecution intended to refer. See Prosecution Response Brief, para. 819, fn. 2051. 2779 Prosecution Response Brief, paras. 825-827. See also AT. 15 April 2015 pp. 74-77. The Prosecution did not provide references to any specific parts of its opening statement. 2780 Ntahobali Reply Brief, paras. 124, 134. See also ibid., para.

146. Ntahobali notes that he did not cross-examine Witnesses QBP, QJ, SS, and SU and was not prepared when he cross-examined Witnesses SD and QBQ. See ibid., Bara tatobali Reply Brief, para, 136. Nahobali also replies that notice of rapes not commitied at the prefectoral office was not relevant as he was only convicted for crimes committed there and that paragraph 6.53 of the Nyiramasuhuko and Ntahobali Indictment was too vague and did not plead that he committed any crimes. See ibid., paras. 137, 140, 145. The Appeals Chamber considers that these arguments are moot in light of the analysis developed below and the fact that the Trial Chamber did not ultimately rely on paragraph 6.53 regarding these allegations. 428 Case No. ICTR-98-42-A 14 December 2015

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19937/H allegation of Ntahobali's responsibility for committing, ordering, and aiding and abetting rapes of Tutsi women at the prefectoral office is clearly encompassed in paragraph 6.37 of the Indictment. Ntahobali's argument regarding the amendment of the phrasing of the allegation set out in paragraph 6.37 from "as part of his attack" to "aside from his attacks" lacks merit as the import of this change, read in context of both indictments, is not clear. More importantly, Ntahobali's interpretation of this amendment is refuted by the fact that the Prosecution supported paragraph 6.37 of the Nyiramasuhuko and Ntahobali Third Amendment Indictment, in which the phrasing "aside from his attacks" was first introduced, by an excerpt of Witness QZ's statement recounting how Ntahobali and Interahamwe raped her and other women at the prefectoral office.2782 1213. As regards Ntahobali's alternative challenges to the Trial Chamber's finding that the defects in the Indictment regarding this allegation were cured, the Appeals Chamber rejects Ntahobali's argument that the Trial Chamber should have examined whether he received sufficient notice of all material facts "in respect of each rape of which he was found guilty" at the prefectoral office. It is manifest that the Prosecution case in relation to the prefectoral office was that Ntahobali was implicated in multiple rapes spanning over a

period of nearly three months. The Appeals Chamber considers that, in these circumstances, it was impractical to require a high degree of specificity from the Prosecution regarding each incident of rape given the sheer scale of the alleged rapes at the prefectoral office. 2783 1214. The Appeals Chamber, however, accepts Ntahobali's argument that the summaries of anticipated evidence which were not marked relevant to him in the Witness Summaries Grid could not be considered as providing him notice. In this respect, the Appeals Chamber finds that, where the Prosecution indicated that specific summaries were solely relevant to Nyiramashuko, the fact that they were linked to Ntahobali because he and Nyiramasuhuko were charged under the same indictment is insufficient to show that Ntahobali should have understood that the Prosecution intended to rely on the information contained therein against him 2784 1215. A review of the Witness Summaries Grid reveals that the summaries of the anticipated evidence of Witnesses RG, QBP, and QBQ which the Trial Chamber took into consideration were 2782 Nyiramasuhuko and Ntahobali Third Amended Indictment, para. 6.37; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Supporting Material, 18 August 1999 (confidential), p. 118. 2783 See, e.g., Muvunyi Appeal Judgement of 29 August 2008, para. 58; Muhimana Appeal Judgement, para. 79; Kupreskié et al. Appeal Judgement, para.

89. The Appeals Chamber considers that the present case differs from the circumstances considered in the Muhimana Appeal Judgement relied upon by Ntahobali, which concerned an attack occurring over the course of three days and Mikaeli Muhimana's responsibility for the killing of three specific 2784 Trial Judgement, para. 2164 ("The Appendix to the [Prosecution] Pre-Trial Brief included the summaries of numerous witnesses who were to testify as to rape allegations against Ntahobali and Nyiramasuhuko occurring at the 429 Case No. ICTR-98-42-A 14 December 2015

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19936/H not marked relevant to Ntahobali but only to Nyiramasuhuko and Kanyabashi 2785 It is not clear, however, whether the Trial Chamber considered these summaries as relevant to remedying Ntahobali's lack of notice in particular as its analysis and conclusions concerned the notice provided to both Nyiramasuhuko and Ntahobali 2786 Nevertheless, as far as the Prosecution relies on the summaries of the anticipated evidence of Witnesses QJ, SD, SS, and SU in support of its claim that Ntahobali was provided notice, its argument lacks merit because these summaries were not marked relevant to Ntahobali. 2787 1216. Conversely, the summaries of the anticipated evidence of Witnesses TA, FAP, QZ, RE, RF, RJ, and SW which the Trial Chamber took into account were marked relevant to Ntahobali. Ntahobali is correct in his submission that Witness RE's Summary does not refer to rapes at the prefectoral office and did not provide him notice in this regard. Having reviewed Witnesses FAP's and SW's summaries, the Appeals Chamber is also not persuaded that they could be said to have provided notice to Ntahobali of his responsibility for rapes as found by the Trial Chamber given that they do not refer to his participation in the rapes perpetrated at the prefectoral office.

1217. Ntahobali, however, erroneously submits that Witnesses RJ's and RF's summaries do not mention rapes being committed at the prefectoral office. Witness RJ's Summary clearly refers to Nyiramasuhuko ordering Ntahobali and Interahamwe to commit rapes there2788 and Witness RF's Summary implicates Ntahobali in selecting girls to rape at the prefectoral office.?789 Witness TA's Summary also mentions that Ntahobali raped Witness TA and other women at the prefectoral office, that he was implicated in the rapes committed by Interahamwe who accompanied him, and that he issued commands to the attackers, who committed multiple rapes.2790 Similarly, [Butare Prefecture Office], including Witnesses TA, FAP, QBP, QBQ, QZ, RE, RF, RJ and SW.") (internal reference omitted). 2785 See Trial Judgement, para. 2164, fn. 5753; Witness Summaries Grid, items 44, 45, 67. 2786 The Appeals Chamber finds that the Prosecution's reliance on the Ntabakuze Appeal Judgement is ill-founded and should be rejected. See Prosecution Response Brief, para.

818. Indeed, in the Ntabakuze case, the Appeals Chamber found that the defect in the indictment was cured since, although the Prosecution failed to indicate that the summaries of the witnesses' anticipated evidence were cited in support of the relevant counts, the Prosecution specified in its supplement to its pre-trial brief that the evidence of these witnesses was relevant to a paragraph of the indictment that was cited in support of these counts. In the present case, no subsequent information put Ntahobali on notice that the Prosecution intended to rely on these witnesses against him. See Ntabakuze Appeal Judgement, para. 54. 2787 See Witness Summaries Grid, items 4, 76, 84, 86. 2788 In relevant part, Witness RJ's Summary reads as follows: Later, RJ heard Nyiramasuhuko order soldiers, Interahamwe, and Ntahobali to select girls and young women and rape them, and kill the older women. 2789 In relevant part, Witness RF's Summary reads as follows: Ntahobali selected girls to rape, and RF learned this from girls who returned after being raped. The Appeals Chamber considers that Witness RF's reference to the girls who "returned" did not necessarily mean that the girls were not raped at the prefectoral office as suggested by Ntahobali, but could reasonably be interpreted as referring to another location within the prefectoral office itself. 2790 In relevant part, Witness TA's Summary reads as follows: 430 Case No. ICTR-98-42-A 14 December 2015

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19935/H Witness QZ's Summary refers to Ntahobali and Interahamwe raping women at the prefectoral office.?791 Ntahobali's argument in reply that Witness QZ's Summary could not be effectively relied upon as providing notice because he was ultimately not convicted on the basis of the evidence that the witness provided fails to appreciate that whether the testimonies adduced at trial support the allegations are matters of evidence, not notice of the charges. 2792 1218. The Appeals Chamber considers that Ntahobali was unambiguously put on notice by those summaries that, as part of its broad allegation of his participation in the raping of Tutsi women set forth in the Indictment, the Prosecution's intention was to prove that he participated in the rape of Tutsi women at the prefectoral office specifically. In the view of the Appeals Chamber, the information provided in some of these summaries,2793 as well as others,2794 that Nyiramasuhuko and others issued orders to rape at the prefectoral office was not inconsistent with the information that Ntahobali also issued orders.

1219. With respect to the timing of the rapes, the Appeals Chamber reiterates that it is apparent that the allegation in paragraph 6.37 of the Indictment was meant to relate to the period "[between 19 April and late June 1994" invoked in paragraph 6.30 of the Indictment.2795 Moreover, while Witness RF's Summary does not provide any date for the rapes committed at the prefectoral office, the witness's 1996 prior statement indicates that Ntahobali and Interahamwe raped girls at the prefectoral office from 1 June 19942796 When reading Witness RF's Summary in conjunction with In May 1994, Ntahobali raped TA, under force and threat of force by machete and hammer. TA also witnessed other rapes by men who accompanied Ntahobali. [...] Following Ntahobali, eight other men, who accompanied Ntahobali, took turns raping TA. [...] On a second occasion, about one week later, Ntahobali again raped TA under force and threat of force by hammer. TA witnessed six other women being raped on the same occasion by men, who accompanied Ntahobali. On a third occasion, about four days later, Ntahobali dragged TA, placed her on the ground, lifted up herf] skirt, called his friends to come over, and said: "Do it quickly." Seven men who accompanied Ntahobali raped TA. TA also witnessed Ntahobali four meters another rape. On another occasion, TA witnessed her friend being raped by Niahobali. [...] On two

other occasions, men who accompanied Niahobali raped TA. TA witnessed these same men rape other women. TA knows three other girls that Ntahobali raped. TA regarded Ntahobali as the leader of the attackers. He issued commands to the attackers. 2791 In relevant part, Witness QZ's Summary reads as follows: OZ saw Ntahobali and four Interahamwe rape a girl. Ntahobali stood on the victim's legs after the rape and said: "You the Tutsis are very proud. You have beautiful legs. Could any Hutu have married you in the past?" OZ was raped by Ntahobali and the Interahamwe, and Nyiramasuhuko witnessed the rape. 2792 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 123; Ntagerura et al. Appeal Judgement, para. 21. 2793 See Witness RF's Summary; Witness RJ's Summary; Witness TA's Summary. 2794 See Witness FAP's Summary; Witness SW's Summary; Witness QBQ's Summary. Cf. supra, para.

1150. See Statement of Witness RF of 19 November 1996, disclosed in redacted versions on 25 May and 4 November 1998 ("Witness RF's Statement"). See 25 May 1998 Disclosure; 4 November 1998 Disclosure. In relevant part, Witness RF's Statement reads as follows: On the Ist of June 1994 Pauline came in a van driven by her son Shalom. [...] I always saw Shalom standing by the [vJan whilst it was being filled with people to be killed. It was Shalom who drove the [v]an. He also selected girls to go and rape them. Some of the girls who came back came to confirm the rape. They took 431 Case No. ICTR-98-42-A 14 December 2015

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19934/H Witness RF's Statement first disclosed in 1998, it should have been clear to Ntahobali that he was alleged to have been involved in rapes at the prefectoral office also in June 1994.2797 1220. Concerning notice of the forms of responsibility, the Appeals Chamber observes that, although the Prosecution only vaguely pleaded Ntahobali's participation in the raping of Tutsi women in paragraph 6.37 of the Indictment and pursued Counts 7 and 11 under all forms of responsibility under Article 6(1) of the Statute, Witnesses TA's, QZ's, RF's, and RJ's summaries informed Ntahobali of the particular acts and course of conduct which formed the basis for his responsibility for committing, aiding and abetting, and ordering under which he was convicted. As discussed above, the Appeals Chamber considers that the Trial Chamber did not ert in finding that it was impractical to require a high degree of specificity from the Prosecution regarding each incident of rape given the sheer scale of the alleged rapes at the prefectoral office. 798 1221. The Appeals Chamber also dismisses Ntahobali's contention regarding the identification of his alleged accomplices as the relevant summaries made it clear that he was alleged to have ordered and aided and abetted Interahamwe in the commission of rapes at the prefectoral office. The Appeals Chamber reiterates that the fact that the Prosecution, or

the witnesses it called, referred to specific Interahamwe by names in the course of the trial does not establish that the Prosecution was in possession of this information when the operative indictment was issued or its pre-trial brief was filed.2799 1222. Consequently, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that the defects in the Indictment concerning his responsibility for rapes at the prefectoral office were curable and cured by timely, clear, and consistent information. 6. École Évangéliste du Rwanda (Ground 2.4 in part) 1223. The Trial Chamber found that, between mid-May and the beginning of June 1994: (i) Ntahobali led Interahamwe in carrying out attacks against Tutsis who had sought refuge at the EER; (ii) Ntahobali, soldiers, and Interahamwe abducted refugees from the EER; (iii) soldiers raped women and young girls at or near the EER; and (iv) Ntahobali, Interahamwe, and soldiers killed the away girls selected in advance by the Interahamwe who controlled the refugees at the Prefecture and went away to rape them. 2791 The Appeals Chamber considers that Ntahobali should have been prompted to re-examine Witness RF's Statement 432 Case No. ICTR-98-42-A 14 December 2015

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19933/H abducted refugees in the woods near the EER school complex.2800 The Trial Chamber, however, stated that there was no direct evidence that Ntahobali was personally responsible for killing any of the abducted refugees.?^ Nevertheless, it held that Ntahobali's presence alongside Interahamwe and soldiers at the EER amounted to tacit approval and encouragement of the killings perpetrated by Interahamwe and soldiers near the EER.2802 On this basis, the Trial Chamber convicted Ntahobali of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 8, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il (Count 10) pursuant to Article 6(1) of the Statute for aiding and abetting these killings.2803 1224. In summarising the Prosecution case against Ntahobali with respect to this allegation, the Trial Chamber referred to paragraph 6.30 of the Indictment 2804 The Indictment indicates that the allegations in paragraph 6.30 were being pursued under Counts 2, 3, 5, 6, and 8 through 10 pursuant to Articles 6(1) and 6(3) of the Statute.2805 The Trial Chamber noted Ntahobali's assertion that the allegation that he abducted, raped, and killed Tutsi refugees on unspecified dates at or near the EER with soldiers and/or

Interahamwe was not pleaded in the Indictment2806 It appears to have found that Ntahobali did not have sufficient notice that he was alleged to be responsible for rapes committed at or near the EER and did not convict Ntahobali in relation to the rapes committed at or near the EER. 2807 1225. Ntahobali submits that the Trial Chamber erred in law in failing to address his contention at trial that his responsibility in the abductions and the killings of Tutsis at or near the EER was not 2800 Trial Judgement, paras. 3965, 5910. 2801 Trial Judgement, para. 5912. 2802 Trial Judgement, para.

5912. See also ibid., paras. 5913, 5916. 2803 Trial Judgement, paras. 5916, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. The Trial Chamber also found that Ntahobali was responsible for these killings as a superior pursuant to Article 6(3) of the Statute and considered this as an aggravating circumstance when determining his sentence. See ibid., paras. 5917, 5971, 6056, 6220. The Appeals Chamber will address Ntahobali's contentions regarding the lack of notice that he was charged as a superior for the EER killings in Section V.B.7 below. 2804 Trial Judgement, para. 3834, fn. 10355. For paragraph 6.30 of the Nyiramasuhuko and Ntahobali Indictment, see supra, fn. 1123. 2805 Nyiramasuhuko and Ntahobali Indictment, pp. 39-44. 2806 Trial Judgement, para. 3842. 2807 Trial Judgement, paras. 3843-3845, 5916, 5971, 6089, 6090, 6100, 6121, 6168, 6184, 6185. The Appeals Chamber notes some contradiction in the Trial Chamber's analysis of the defect of the Nyiramasuhuko and Ntahobali Indictment regarding the rape allegation in the "Factual Findings" and "Legal Findings" sections of the Trial Judgement but considers it unnecessary to discuss the matter in light of the fact that Ntahobali was ultimately not convicted in relation to the rapes committed at or near the EER. Compare Trial Judgement, paras. 3842-3845 with ibid., paras. 5857-5865, 5911, 6089, 6090. 433 Case No. ICTR-98-42-A 14 December 2015

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19932/H pleaded in the Indictment and in convicting him on this basis since the defect in the Indictment was neither curable nor cured. 2808 1226. The Appeals Chamber observes that, despite expressly noting it in the Trial Judgement, the Trial Chamber failed to address Ntahobali's contention that the allegation that he participated in the abduction and killing of Tutsi refugees on unspecified dates at or near the EER with soldiers and/or Interahamwe was not pleaded in the Indictment, limiting its examination to the question of whether Ntahobali was put on notice of his alleged responsibility for rapes at or near the EER. 2810 The Appeals Chamber recalls that a trial chamber is not obliged to respond to each and every submission made at trial and has discretion to decide which argument to address.28l1 However, the Appeals Chamber considers that the Trial Chamber should have explained its reasons for disregarding such a serious contention and deciding to enter convictions against Ntahobali for crimes which he claimed he was not charged with. The Appeals Chamber finds that the Trial Chamber's failure to address Ntahobali's contention regarding the pleading of his responsibility for abductions and killings at or near the EER infringed Ntahobali's right to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules. The Appeals Chamber will determine whether this

error of law invalidates the Trial Chamber's decision to convict Ntahobali in relation to crimes committed at or near the EER in examining whether Ntahobali was charged on this basis and, if so, whether he was provided with sufficient information on the material facts underpinning the charge against him. (a) Whether the Indictment Was Defective 1227. Ntahobali argues that the allegation concerning the abduction of the refugees from the BER and their killing in the woods nearby was not pleaded in the Indictment 2812 He points out that paragraph 6.30 of the Indictment only refers to refugees abducted from the Butare Prefecture Office without pleading that refugees stayed at the EER or that he was alleged to have been present during abductions from the EER. 813 Highlighting that the Prosecution did not refer to crimes at the EER in its opening statement and that, in contrast with his Indictment, the Nsabimana and Nteziryayo Indictment specifically refers to crimes committed against refugees staying at the EER, Ntahobali 2808 Ntahobali Notice of Appeal, paras. 114-118 (French); Ntahobali Appeal Brief, paras. 247-260. 2809 Trial Judgement, para. 3842, referring to Ntahobali Closing Brief, para. 78(x). 2810 Trial Judgement, paras. 3842-3845. 2811 See, e.g., Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para. 165; KrajiSnik Appeal Judgement, para. 139; Kvocka et al. Appeal Judgement, para. 23. 2a2. Nabli Aper Arical paras, 250, 23h) Se disi Aid, l Bre 2357; Niahobali Reply Brief, para. 108: AT. 15 April 2015 pp. 34, 35; AT. 16 April 2015 p. 26. 434 Case No. ICTR-98-42-A 14 December 2015

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19931/H submits that it was reasonable for him to understand that the Prosecution did not intend to prosecute him in relation to abductions and killings at the EER.2814 1228. In the alternative, Ntahobali contends that the Trial Chamber erred in failing to consider that paragraph 6.30 of the Indictment did not contain all the required material facts for this allegation.2815 In particular, he argues that paragraph 6.30 is too vague as regards the dates of the crimes, the location of the abductions, and the identity of the perpetrators of the crimes committed near the EER, and does not plead his alleged role in the crimes and the form of his responsibility 2816 Ntahobali submits that the Prosecution was in possession of some of these material facts when filing the Indictment and should have specified them when the Trial Chamber ordered it to do so in 2000.2817 1229. The Prosecution responds that, read as a whole, the Indictment provided Ntahobali with adequate notice that he was charged with abducting and killing Tutsi refugees who had been forced away the prefectoral office and made to stay at the EER. 2818 In its view, the fact that Tutsis were forcibly transferred by Interahamwe and soldiers to the EER before being taken away to nearby woods for execution and Ntahobali's presence during abductions at the EER were not material facts but evidence which was not to be pleaded in

the Indictment2819 The Prosecution argues that paragraph 6.30 of the Indictment appropriately identified the victims, the location, and the time period of the crimes, and that paragraph 6.54 of the Indictment pleaded aiding and abetting 2820 It also contends that the content of the Nsabimana and Nteziryayo Indictment is irrelevant to the question whether Ntahobali was provided with adequate notice.2821 1230. Ntahobali replies that the presence of refugees at and their abduction from a crime scene distinct from the prefectoral office are material facts that should have been pleaded in the Indictment. 2822 He also argues that paragraph 6.54 of the Indictment could not serve as a basis to put 2814 Ntahobali Appeal Brief, para. 251, referring to Nsabimana and Nteziryayo Indictment, para. 6.39. See also Ntahobali Reply Brief, paras. 109, 111; AT. 15 April 2015 p. 34; AT. 16 April 2015 p. 26. 2815 Ntahobali Appeal Brief, paras. 252-258. 2816 Ntahobali Notice of Appeal, para. 116; Ntahobali Appeal Brief, paras. 254-258. Ntahobali Appeal Brief, paras. 256, 258, referring to Nsabimana and Nteziryayo Indictment, para. 6.39, 1 November 2000 Ntahobali Decision, para. 35(a) (ii). 2818 Prosecution Response Brief, paras. 804-806. The Appeals Chamber notes that the Prosecution argues at length that Ntahobali had notice of rapes committed at the BER. See ibid., paras. 804, 808, 810. However,

given that the Trial Chamber entered no conviction against Ntahobali for rapes committed at the EER, the Appeals Chamber disregards the Prosecution's contentions in that regard. See supra, fn. 2807. 2819 Prosecution Response Brief, paras. 805, 806. 2820 Prosecution Response Brief, paras. 806, 815. See also AT. 15 April 2015 p. 72. 2821 Prosecution Response Brief, para. 807. 2822 Ntahobali Reply Brief, para. 109. 435 Case No. ICTR-98-42-A 14 December 2015

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19930/H him on notice that he was charged with "aiding and abetting" killings by tacit approval and encouragement. 2823 1231. The Appeals Chamber rejects Ntahobali's argument that the abduction of Tutsi refugees from the EER amounted to a new charge not pleaded in the Indictment. While paragraph 6.30 of the Indictment only referred to refugees abducted from the "préfecture officell", it nonetheless unambiguously pleaded Ntahobali's criminal responsibility related to killings perpetrated next to the EER. The Appeals Chamber finds that the fact that the allegation that Tutsi refugees - regardless of where they were abducted from - were killed next to the EER put Ntahobali on notice that he was charged in relation to these killings. Moreover, the Appeals Chamber notes that the allegation concerning the abduction of the refugees from the BER and their killing in the woods nearby was also encompassed within the broader allegation relating to the abduction and killing of Tutsis throughout Butare Prefecture pleaded in paragraph 6.35 of the Indictment. That the Prosecution provided more particulars regarding the circumstances of the crimes committed near the EER in the Nsabimana and Nteziryayo Indictment is irrelevant for the interpretation of Ntahobali's Indictment.

1232. Turning to Ntahobali's alternative contention that the charge relating to the crimes committed at or near the EER was not adequately pleaded, in particular regarding the timeframe of the crimes, the Appeals Chamber recalls that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.2824 The Appeals Chamber observes that, through paragraph 6.30 of the Indictment, the Prosecution appeared to have intended to prove the existence of a series of killings spanning over a certain period of time, potentially making it impracticable to provide a high degree of specificity. However, the Appeals Chamber also notes that the Prosecution was in possession of information prior to the start of the trial that indicated that the killings near the EER were committed in May and June 19942825 In these circumstances, the Appeals Chamber considers that the Prosecution was required to provide greater specificity in the Indictment regarding the date of the killings that took place in the woods near the EER. The Appeals Chamber therefore concludes that the date range "[b]etween 19 April and late June 1994" pleaded in paragraph 6.30 of the Indictment was unreasonably broad in this context and that the Indictment was defective on this point. 2823 Ntahobali Reply Brief, para. 114. 2824 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para, 594; Bagosora and Nsengiyumva Appeal Judgement, para. 150; Muvunyi Appeal Judgement of 29 August 2008, para.

58. The Appeals Chamber reiterates that, in certain circumstances, the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the dates for the commission of the crimes. See Bagosora and Nsengiyumva Appeal Judgement, para. 150; Muvunyi Appeal Judgement of 29 August 2008, para. 58; Kupreskié et al. Appeal Judgement, para. 89 :825 See infra, paras. 1240. 1241 436 Case No. ICTR-98-42-A 14 December 2015

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19929/H 1233. Similarly, the Appeals Chamber finds that, since paragraph 6.30 of the Indictment only refers to abductions from the prefectoral office, the Indictment was defective as regards the pleading of the fact that refugees killed in the woods near the EER were also alleged to have been abducted from the EER.

1234. With respect to the pleading of the identity of the perpetrators, the Appeals Chamber notes that, in paragraph 6.30 of the Indictment, the Prosecution alleged that "[the survivors were taken to various locations in the préfecture to be executed, notably in the woods next to the [EER]" without specifying who the perpetrators of the executions were. However, the Appeals Chamber considers that, reading the sentence in context, it is manifest that "Nyiramasuhuko", "Ntahobali", the "Interahamwe militiamen such as one JUMAPILI and another NSENGIYUMVA" and the "soldiers" referred to in the first sentence of paragraph 6.30 were alleged to be the perpetrators of the killings committed near the EER. In light of the identification by names of some of the perpetrators2826 and recalling that physical perpetrators of the crimes can be identified by category in relation to a particular crime site,2827 the Appeals Chamber finds that the identity of the perpetrators was sufficiently specified in paragraph 6.30 and that the Indictment was not defective in this respect.

1235. As for Ntahobali's submission related to the pleading of his alleged role and form of responsibility, the Appeals Chamber observes that, while the Indictment generally indicates that Ntahobali was alleged to have "organized, ordered and participated" in massacres,2828 "aided and abetted [his] subordinates and others in carrying out" massacres,2829 and that the "crimes were committed by [him] personally, by persons [he] assisted or by [his] subordinates", 283 it is vague as to which form or forms of responsibility under Article 6(1) of the Statute Ntahobali was specifically charged with in relation to paragraph 6.30 of the Indictment. The Appeals Chamber also notes that the Prosecution failed to indicate the particular acts or course of conduct on the part of Ntahobali with respect to the killings near the EER which formed the basis for the charge against him.

1236. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to the allegation concerning the abduction of the refugees from the EER and their killing in the woods nearby insofar as the Prosecution failed to set forth 2826 The Appeals Chamber notes that, on 1 November 2000, the Trial Chamber had ordered the Prosecution to provide the identity of at least some of the "soldiers and militiamen" mentioned in paragraph 6.30 of the first version of the 2827 Bagosora and Nsengiyumva Appeal Judgement, para. 196. 2828 Nyiramasuhuko and Ntahobali Indictment, para. 5.1. 2829 Nyiramasuhuko and Ntahobali Indictment, para. 6.54. 2830 Nyiramasuhuko and Ntahobali Indictment, para. 6.56. 437 Case No. ICTR-98-42-A 14 December 2015

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19928/H therein the dates of the killings with sufficient specificity, specify that refugees killed nearby were alleged to have been abducted from the EER, and identify the specific form of responsibility and particular course of conduct of Ntahobali. Having concluded that this allegation did not constitute a separate charge and that Ntahobali was put on notice that he was charged in relation to the killings perpetrated near the EER, the Appeals Chamber will now turn to consider whether the defects in the Indictment were cured. (b) Whether the Defects Were Cured 1237. Ntahobali contends that the defects in the Indictment relating to his responsibility in relation to the abductions and the killings of Tutsis at the EER were not cured and that he suffered prejudice from his inability to adequately prepare his defence against this allegation 2831 1238. The Prosecution responds that, to the extent that there was any ambiguity in the Indictment, the summaries of the anticipated evidence of Prosecution Witnesses RE, SX, and QY attached to the Prosecution Pre-Trial Brief and these witnesses' statements "clarified any remaining ambiguity" as to Ntahobali's responsibility in the abductions and killings at the EER. 2832 The Prosecution adds that the conduct of Ntahobali's defence demonstrates that he had notice of the charges relating to the EER. 2833 1239. Ntahobali replies that the

subsequent information related to the evidence of Witnesses RE, SX, and QY was neither clear nor consistent as to whether he aided and abetted by tacit approval the killing of refugees in the woods near the EER from mid-May 1994 until the beginning of June 19942834 In particular, he contends that in the material cited by the Prosecution: (i) Witness RE indicated that Ntahobali was absent during the abductions by members of the Presidential Guard; (ii) Witness SX only mentioned abductions and not killings, did not mention the woods near the EER but unknown destinations, and referred to Ntahobali's direct participation rather than to aiding and abetting by his presence; and (iii) Witness QY only mentioned Tutsis being beaten without referring to Ntahobali aiding and abetting killings in the woods by his 2831 Ntahobali Notice of Appeal, para. 117; Ntahobali Appeal Brief, paras. 248, 251, 255, 256, 259, 260. 2832 Prosecution Response Brief, paras. 808-810, 815 referring to Witness Summaries Grid, item 61, Witness QY ("Witness QY's Summary"), Witness SX's Summary, Witness RE's Summary, Witness RE's Statement, disclosed in redacted versions on 25 May 1998 and 4 November 1998, Witness SX's Statement, Statement of Witness QY of 15 January 1997, disclosed in redacted version on 4 November 1998. See 25 May 1998 Disclosure; 4 November 1998 Disclosure. The unredacted version of Witness

RE's Statement was admitted into evidence on 28 February 2003 as Exhibit D87 (confidential). The unredacted version of Witness QY's 15 January 1997 statement was admitted into evidence on 26 March 2003 as Exhibit D112 (confidential) ("Witness QY's 1997 Statement"). See also Prosecution Response Brief, para. 815. 2833 The Prosecution points out that Ntahobali: (i) did not object when the Prosecution witnesses testified about his presence with Interahamwe and soldiers at the EER; (ii) put specific questions to the witnesses about his presence and actions at the EER; and (iii) discussed in-depth the evidence on the matter in the Ntahobali Closing Brief. See Prosecution Response Brief, paras. 811-814. See also ibid., para. 804; AT. 15 April 2015 pp. 72, 73. 438 Case No. ICTR-98-42-A 14 December 2015

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19927/H presence. 2835 Ntahobali also replies that the Prosecution has failed to demonstrate that his ability to prepare his defence was not materially impaired by these defects in the Indictment. 2836 1240. The Appeals Chamber notes that the summaries of the anticipated evidence of Witnesses RE, SX, and QY referred to by the Prosecution were marked relevant to Ntahobali and were linked, inter alia, to Counts 2, 6, 8, and 10 of his Indictment. None of these summaries, however, provided clear notice to Ntahobali of the dates of the alleged killings near the EER or that he was alleged to have aided and abetted the killings by tacit approval and encouragement. 2837 1241. When reading the summaries together with these witnesses' relevant prior statements, 2838 it nonetheless becomes manifest that the events at the EER were alleged to have taken place in May and June 1994.2839 Given the sheer scale of the alleged crimes and the Prosecution's intention to prove the existence of a series of killings, the Appeals Chamber considers that this information regarding the timeframe was sufficient to allow Ntahobali to prepare a meaningful defence. Contrary to Ntahobali's submissions, the Appeals Chamber also considers that it was clear from the relevant summaries and statements read in context that the Prosecution intended to prove that the refugees "selected" or "taken away" from the EER were killed. The information provided therein was also consistent with the allegation in paragraph 6.30 of the Indictment that the killings took place in the woods next to the EER.

1242. The Appeals Chamber further finds that, by reading the Indictment in conjunction with Witnesses RE's, SX's, and QY's summaries and statements, Ntahobali was put on notice that the Prosecution alleged that: (i) the refugees killed were taken from the EER; (ii) he aided and abetted the abductions and killings through his visits to the EER alongside Interahamwe and soldiers and the influence and authority he exercised on the soldiers and the men present with him; and (iii) crimes were committed in his absence following his visits to the EER. While the information provided through Witnesses RE's, SX's, and QY's summaries and statements also indicates that Ntahobali directly participated in, if not instigated or ordered, beatings, rapes, and abductions at or near the EER, this was not inconsistent with the fact that Ntahobali may also have been responsible 2834 Ntahobali Reply Brief, para. 112. 2835 Ntahobali Reply Brief, paras. 113, 118. 2836 Ntahobali Reply Brief, para.

122. In particular, Ntahobali reiterates that the fact that he did not object at trial could not be held against him as the Trial Chamber was clear that objections related to the indictments would not be granted. See ibid., paras. 115, 116, referring to ibid., para.

66. He also contends that the questions he put to the witnesses during cross-examination and his closing submissions do not demonstrate that he knew that he was charged with aiding and betting the killings at the EER by tacit approval. He points out that he only challenged the witnesses' credibility an ever addressed major contradictions as to his presence, his authority over the perpetrators, or crimes committed whi he was absent. See ibid., paras. 117, 119, 120. 25 See Wines RE& Saime; Wines SYs Statement, Wines PY: i Starement. 2839 See Witness QY's 1997 Statement, p. 4; Witness SX's Statement, p. K146648 (Registry pagination). 439 Case No. ICTR-98-42-A 14 December 2015

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19926/H for aiding and abetting the crimes by providing moral support and encouragement. The Appeals Chamber concludes that the subsequent information provided to Ntahobali through Witnesses RE's, SX's, and QY's summaries and statements sufficiently informed him of the course of conduct on his part which formed the basis of the charge, thereby curing the defects in the Indictment. 2840 1243. This conclusion is bolstered by a review of the conduct of Ntahobali's defence at trial which reflects that he was provided with sufficient information to conduct meaningful investigations and prepare an effective defence against the allegation that his presence alongside Interahamwe and soldiers at the EER encouraged the killings perpetrated near the EER. Specifically, the Appeals Chamber observes that Ntahobali's counsel questioned Witnesses RE, SX, and QY at length on the events at and near the EER. Notably, Ntahobali's counsel questioned the witnesses on the Tutsi refugees at the EER, the premises of the EER, the time and weather conditions, the presence and acts of Interahamwe and soldiers at or near the EER, the abductions and killings committed at or near the EER, and Niahobali's role in the attacks at the EER.

84) The Appeals Chamber notes that, contrary to what Ntahobali asserts, his counsel specifically questioned the witnesses as to his authority over the Interahamwe2842 and his presence at the EER. 843 Of further significance, Ntahobali challenged the evidence led by the Prosecution that he was present at the EER in his closing brief.844 While Nahobali did not challenge that his conduct at the EER met the legal requirements for a finding of responsibility for aiding and abetting by tacit approval and encouragement in his closing brief, it bears noting that Ntahobali did not in fact discuss any of the legal requirements for any of the forms of responsibility he was charged with pursuant to Article 6(1) of the Statute.

1244. The Appeals Chamber therefore finds that Ntahobali was provided with sufficient information detailing the factual basis on which he was convicted in relation to the crimes committed near the EER to prepare a meaningful defence. (c) Conclusion 1245. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in law by failing to address Ntahobali's contention regarding the pleading of his responsibility in relation 2840 The Appeals Chamber observes that the Prosecution confirmed in its closing brief that Ntahobali's course of conduct and presence at the EER were constitutive of aiding and abetting by moral support and encouragement. See Prosecution Closing Brief, para. 75 at pp. 185, 186. 2841 Witness RE, T. 26 February 2003 pp. 8-15, 17, 18; Witness SX, T. 30 January 2004 pp. 27, 40, and 49, 50 (closed session), 52, 53, 55-57; Witness QY, T. 24 March 2003 pp. 34-38. 2842 Witness RE, T. 26 February 2003 p. 10. 2843 Witness RE, T. 26 February 2003 pp. 12-14; Witness SX, T. 30 January 2004 pp. 27, 55-57; Witness QY, T. 24 March 2003 pp. 36, 37. 2844 See Ntahobali Closing Brief, paras. 746, 751. 440 Case No. ICTR-98-42-A 14 December 2015

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19925/H to the crimes committed at or near the EER. However, the Appeals Chamber concludes that Ntahobali has not demonstrated that he lacked sufficient notice of the allegation that he aided and abetted by tacit approval and encouragement the killing of Tutsi refugees near the EER between mid-May and the beginning of June 1994 and, as a result, concludes that the Trial Chamber's error does not invalidate its decision to convict him on this basis.

7. Superior Responsibility (Grounds 2.2, 2.4 and 2.5 in part) 1246. The Trial Chamber found that tahobali bore superior responsibility under Article 6(3) of the Statute under Counts 2, 6, and 7 of the Indictment for the killing of Ruvurajabo at the Hotel Ihuliro roadblock, the killings and rapes that he ordered at the Butare Prefecture Office as well as the killings that he aided and abetted at or near the EER but, having found him guilty under Article 6(1) of the Statute, did not convict him of these crimes as a superior. 845 The Trial Chamber did, however, consider his role as a superior in these crimes as an aggravating factor in sentencing. 2846 1247. Ntahobali submits that the Trial Chamber erred in finding him responsible as a superior for these crimes as the material facts underpinning the elements of superior responsibility were insufficiently pleaded in the Indictment and that these defects were not cured. 847 Consequently, he 2845 Trial Judgement, paras. 5847-5849, 5886, 5917, 5971, 6056, 6086. The Appeals Chamber notes that the Trial Chamber did not examine whether Ntahobali bore superior responsibility under Counts 8 (persecution as a crime against humanity) and 10 (violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II) of the Nyiramasuhuko and

Ntahobali Indictment in relation to the killing of Ruvurajabo at the Hotel Ihuliro roadblock, the killings that he ordered at the Butare Prefecture Office, and the killings that he aided and abetted at or near the EER although he was charged on this basis. See Nyiramasuhuko and Ntahobali Indictment, pp. 43, 44 (relying on paragraphs 6.27 and 6.30 of the Nyiramasuhuko and Ntahobali Indictment pursuant to Article 6(3) of the Statute). Similarly, the Trial Chamber did not examine whether Ntahobali bore superior responsibility under Count 11 (outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il) of the Nyiramasuhuko and Ntahobali Indictment in relation to the rapes that he ordered at the Butare Prefecture Office. See ibid., p. 45 (relying on paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment pursuant to Article 6(3) of the Statute). The Appeals Chamber finds that, since the Prosecution charged Ntahobali cumulatively under Articles 6(1) and 6(3) of the Statute under Counts 8, 10, and 11 on these bases, the Trial Chamber was required to make findings as to whether Ntahobali incurred superior responsibility under these counts for the purpose of sentencing. See Setako Appeal Judgement, para.

268. The Appeals Chamber finds that the Trial Chamber's failure to make such findings constitutes an error of law. However, given that the Prosecution did not appeal this issue, the Appeals Chamber declines to make findings as to the consequences of this error of law. 2846 Trial Judgement, para.

6220. See also ibid., paras. 5847-5849, 5886, 5917, 5971, 6056, 6086. 2847 Ntahobali Notice of Appeal, paras. 101-105, 119-122, 132-142; Ntahobali Appeal Brief, paras. 211-219, 261-271, 300-318. The Appeals Chamber notes that Ntahobali also specifically contends that the Trial Chamber erred in finding him responsible for genocide under Article 6(3) of the Statute for the rapes committed by Interahamwe at the Butare Prefecture Office whereas the Trial Chamber had acknowledged that the Indictment did not plead rapes in support of the count of genocide. See Ntahobali Notice of Appeal, para. 133; Ntahobali Appeal Brief, para. 300, referring to Trial Judgement, paras. 5861-5864, 5886. See also AT. 15 April 2015 p.

34. The Appeals Chamber observes that, contrary to Ntahobali's submission, the Trial Judgement clearly reflects that he was not found responsible as a superior for rapes under the count of genocide. See Trial Judgement, paras. 5826-5836, 5843, 5857-5864, 5911, 5971. The Trial Chamber made it clear that it mentioned Ntahobali's responsibility for rapes in the course of its legal findings on genocide "to convey the entire set of facts in a coherent fashion". See ibid., paras. 5837, 5865. Ntahobali's contention in this respect 441 Case No. ICTR-98-42-A 14 December 2015

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19924/H requests that his responsibility under Article 6(3) of the Statute be reversed and his sentence reviewed.?848 1248. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead the following material facts: (i) the accused is the superior of sufficiently identified subordinates over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct - and for whose acts he is alleged to be responsible; (ii) the criminal conduct of those others for whom the accused is alleged to be responsible; (iii) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and (iv) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them. 2849 (a) Identification of Subordinates 1249. The Trial Chamber discussed whether Ntahobali was put on sufficient notice that he was alleged to be responsible as a superior for the criminal conduct of Interahamwe at the Hotel Ihuliro roadblock, the Butare Prefecture Office, and the EER in the "Legal Findings" section of the Trial Judgement. The Trial Chamber concluded that: (i) the defect

in paragraph 6.27 of the Indictment concerning the identification of the Interahamwe involved in the crimes committed at the Hotel Ihuliro roadblock as Ntahobali's alleged subordinates was cured through Witness QCB's Summary and Statement;2850 (ii) Ntahobali received notice that he was being charged as a superior of Interahamwe at the prefectoral office pursuant to paragraph 6.30 of the Indictment, read along with paragraphs 6.31, 6.53, 6.55, and 6.56 of the Indictment:2851 and (iii) Ntahobali had sufficient notice of his alleged responsibility pursuant to Article 6(3) of the Statute over Interahamwe for the events at the EER. 2852 As for Ntahobali's notice of the allegation of rapes at the prefectoral office in particular, the Trial Chamber held in the "Factual Findings" section of the Trial Judgement that paragraph 6.37 of the Indictment lacked necessary details to put Ntahobali on notice that he was alleged to be responsible as a superior for rapes at the prefectoral office but that post-indictment communications cured the defect. 2853 1250. Ntahobali submits that the Indictment or any subsequent information failed to provide him sufficient notice regarding the identity of his subordinates at the Hotel Ihuliro roadblock, the 2848 Ntahobali Notice of Appeal, paras. 105, 122, 137, 142; Ntahobali Appeal Brief, paras. 219, 271, 303, 310, 318 2849 See, e.g., Ntabakuze Appeal Judgement, para. 100; Nahimana et al. Appeal Judgement, para. 323; Blaskic Appea Judgement, para. 218. 2850 Trial Judgement, paras. 5839-5841. 2851 Trial Judgement, paras. 5617-5620, 5878. 2852 Trial Judgement, fn. 14777, referring to Nyiramasuhuko and Ntahobali Indictment, paras. 6.30, 6.55. 2853 Trial Judgement, paras. 2163-2166. 442 Case No. ICTR-98-42-A 14 December 2015 que

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19923/H prefectoral office, and the EER.2854 First, he argues that he was not put on notice through paragraph 6.27 of the Indictment or Witness QCB's Summary and Statement that Interahamwe were alleged to be involved in killings at the Hotel Ihuliro roadblock. 2835 In the same vein, he highlights that paragraphs 6.30 and 6.37 of the Indictment failed to specify that Interahamwe were alleged to be present at the EER or involved in crimes at the prefectoral office 2856 Ntahobali also contends that paragraphs 6.27, 6.30, and 6.37 of the Indictment as well as paragraph 21 of the Prosecution Pre-Trial Brief did not plead a subordinate-superior relationship with his alleged accomplices but could rather be interpreted as referring to a "horizontal" relationship. 2857 1251. Ntahobali further argues that he never received notice that he was charged as a superior of Interahamwe in general, since paragraphs 4.4 and 4.5 of the Indictment only indicated that he was the alleged superior of a group of Interahamwe from the MRND coming from Butare Prefecture, whereas there was no evidence that the Interahamwe involved in crimes at the Hotel Ihuliro roadblock, the prefectoral office, or the EER were members of the MRND and that they were from Butare Prefecture. 2858 1252. The Prosecution responds that Ntahobali's submissions should be dismissed as he was not convicted under Article 6(3) of the

Statute2859 In the alternative, it submits that Ntahobali fails to demonstrate that he was not put on notice of the identity of his subordinates involved in the crimes 2854 Ntahobali Notice of Appeal, paras. 121, 136, 140; Ntahobali Appeal Brief, paras. 212, 261-268, 301, 305, 312 See also AT. 15 April 2015 pp. 31, 33, 34. 2855 Ntahobali Appeal Brief, paras. 213, 214, 218; Ntahobali Reply Brief, para.

91. See also AT. 15 April 2015 p. 34 Ntahobali also argues that the Nyiramasuhuko and Ntahobali Indictment failed to specify that the Interahamwe involved in the crimes at the Hotel Thuliro roadblock were from Kigali and were subordinated to Robert Kajuga. See Ntahobali Appeal Brief, para.

216. In addition, Ntahobali contends that the Trial Chamber erred in failing to find that the Prosecution did not comply with its order to provide the identity of Ntahobali's accomplices mentioned at paragraphs 6.27 and 6.30 of the Nyiramasuhuko and Ntahobali Indictment. See Ntahobali Notice of Appeal, paras. 104, 141; Ntahobali Appeal Brief, para. 213, referring to 1 November 2000 Ntahobali Decision, para. 35(a)(ii). 2856 Ntahobali Appeal Brief, paras. 262, 305, 312; Ntahobali Reply Brief, para.

156. Ntahobali also argues that the Trial Chamber erred in finding that the defects in paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment were cured without considering whether the defect regarding the pleading of superior responsibility was in fact cured. See Ntahobali Notice of Appeal, para. 138; Ntahobali Appeal Brief, para. 303, referring to Trial Judgement, paras. 2164-2166; Ntahobali Reply Brief, para.

158. With regard to the Butare Prefecture Office, Ntahobali further submits that the Trial Chamber erred in relying on paragraphs 6.30, 6.31, and 6.55 of the Nyiramasuhuko and Ntahobali Indictment to consider that he had sufficient notice of his responsibility as a superior for rapes committed at the prefectoral office given that these paragraphs were not pleaded under Count 7 and did not mention any rapes. See Ntahobali Appeal Brief, para. 302; Ntahobali Reply Brief, para.

152. The Appeals Chamber has clarified in Section V.B.5(b) above that Ntahobali was convicted under Count 7 of the Nyiramasuhuko and Ntahobali Indictment for rapes at the prefectoral office pursuant to paragraph 6.37. See supra, para.

1212. Ntahobali's argument relying on paragraphs 6.30, 6.31, and 6.55 is therefore rejected as moot. Ntahobali Appeal Brief, paras. 215, 305, 312, 313. 2858 Ntahobali Appeal Brief, paras. 217, 263-268, 306, 314. Ntahobali posits that the Interahamwe who committed crimes at the Hotel Ihuliro roadblock were from Kigali and were subordinated to Robert Kajuga. See ibid., para.

216. He further contends that both the Trial Chamber and the Prosecution acknowledged that Ntahobali's subordinates were only official Interahamwe from the MRND. See ibid., para. 263, referring to Rule 98bis Decision, para. 144, Prosecution Closing Brief, para. 1 at p. 156. 2859 Prosecution Response Brief, paras. 816, 834. Case No. ICTR-98-42-A 14 December 2015

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19922/H committed at the Hotel Ihuliro roadblock, the prefectoral office, and at or near the EER. 2860 The Prosecution argues that the Indictment should be read as a whole with paragraphs 4.4 and 4.5 of the Indictment which pleaded that Ntahobali exercised authority over Interahamwe militiamen in Butare Prefecture 286 In its view, where the Interahamwe came from was a matter of evidence 2862 1253. Ntahobali replies that the provenance of the Interahamwe is not a matter of evidence since paragraph 4.5 of the Indictment, in its French version, is clear that only the Interahamwe from Butare Prefecture were alleged to be his subordinates2863 With respect to the rapes committed by Interahamwe at the prefectoral office, Ntahobali replies that paragraphs 6.53 and 6.56 of the Indictment are too broad to constitute adequate notice of his responsibility under Article 6(3) of the Statute. 2864 He further contends that it was impossible to understand, when reading Witness TA's Summary together with paragraph 6.53 of the Indictment and paragraph 29 of the Prosecution Pre-Trial Brief, that Interahamwe were among the "unknown accomplices" mentioned in paragraph 6.37 of the Indictment. 2865 1254. The Appeals Chamber rejects the Prosecution's contention that Ntahobali's submissions should be dismissed on the basis that he was not convicted pursuant to Article 6(3) of the Statute, given that,

when the accused's responsibility is pleaded under both Articles 6(1) and 6(3) of the Statute for the same count and the same set of fact and the accused is found to be responsible under both, the trial chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating factor in sentencing 2866 1255. With regard to Ntahobali's argument that the Prosecution failed to plead the involvement of Interahamwe in crimes at the Hotel Ihuliro roadblock, the prefectoral office, and the EER, the Appeals Chamber recalls that it has already determined in prior sections of this Judgement that while paragraphs 6.27 and 6.37 of the Indictment were defective in that respect, Ntahobali nonetheless received notice that Interahamwe were alleged to have participated in these crimes. 2867 The Appeals Chamber also finds that the identification of his subordinates by category, the 2860 Prosecution Response Brief, paras. 789-791, 817, 834-841. See also AT. 15 April 2015 pp. 77, 78. 2861 Prosecution Response Brief, paras. 789, 838. 2862 Prosecution Response Brief, para. 791. 2863 Ntahobali Reply Brief, para. 90. 2864 Ntahobali Reply Brief, para.

153. Ntahobali further points out that paragraph 6.53 of the Nyiramasuhuko and Ntahobali Indictment is only a "background paragraph" and that paragraph 6.56 of the Nyiramasuhuko and Ntahobali Indictment only relates to the count of conspiracy. See ibid., paras. 154, 155. 2865 Ntahobali Reply Brief, para.

157. See also ibid., para. 156. 2866 Setako Appeal Judgement, para.

266. See also Renzaho Appeal Judgement, para. 564; Simba Appeal Judgement, Bor S82, supra, Sections V.B.3, V.B.S, V.B.6. The Appeals Chamber finds that Nahobali's argument that the Trial Chamber's examination of whether the defects in paragraph 6.37 of the Nyiramasuhuko and Ntahobali Indictment were cured was conducted in relation to Article 6(1) responsibility is without merit. 414 Case No. ICTR-98-42-A 14 December 2015 que

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19921/H "Interahamwe", was sufficient to provide him with adequate notice of the identity of his subordinates in the circumstances of this case. 2868 1256. The Appeals Chamber also finds no merit in Ntahobali's argument that paragraphs 6.27, 6.30, and 6.37 of the Indictment appeared to plead a "horizontal" relationship between him and those others involved in the crimes. The Appeals Chamber notes that these paragraphs were specifically relied upon in support of Ntahobali's superior responsibility under the relevant counts.2869 Reading these paragraphs and the curing material in light of paragraphs 4.4 and 4.5 of the Indictment which alleged that Ntahobali "led a group of MRND militiamen, the Interahamwe" and that he "exercised authority over Interahamwe militiamen in Butare préfecture" 2870 the Appeals Chamber is of the view that they informed Ntahobali of his alleged superior-subordinate relationship with the Interahamwe involved in the crimes. The Appeals Chamber is not convinced by Ntahobali's argument that the fact that the Indictment mentions that Ntahobali was "accompanied" or "assisted" by his accomplices could have reasonably been interpreted as an indication of a horizontal relationship. 2871 1257. Ntahobali's argument concerning the provenance of the Interahamwe is similarly unpersuasive as, contrary to what he contends, a plain reading of paragraphs 4.4 and 4.5 of

the Indictment reflects that the authority he was alleged to exercise was not limited to the militiamen who were official members of the MRND youth wing coming from Butare Prefecture, but concerned all Interahamwe militiamen present in Butare Prefecture. The pleading of Ntahobali's superior responsibility over Interahamwe in Butare Prefecture as alleged in paragraphs 4.4 and 4.5 is therefore not irreconcilable with the fact that Interahamwe from Kigali Prefecture committed crimes in Butare Prefecture. 2872 2868 The Appeals Chamber recalls that a superior need not necessarily know the exact identity of his subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute, and that physical perpetrators of the crimes can be identified by category in relation to a particular crime site. See Bagosora and Nsengiyumva, para.

196. See also Renzaho Appeal Judgement, para. 64; Muvunyi Appeal Judgement of 29 August 2008, para. 55, referring to Blagojevié and Jokié Appeal Judgement, para. 287. 2869 See Nyiramasuhuko and Ntahobali Indictment, pp. 39-45. 2870 While paragraphs 4.4 and 4.5 of the Nyiramasuhuko and Ntahobali Indictment were not specifically referred to in support of any count, they do not plead allegations that may be separately charged as a crime. As a result, the Appeals Chamber considers that it was not necessary to plead these paragraphs under each of the counts in the charging section of the Nyiramasuhuko and Ntahobali Indictment and they unambiguously applied to all counts charged pursuant to Article 6(3) of the Statute. 2871 See Nyiramasuhuko and Ntahobali Indictment, paras. 6.30, 6.37. However, the Appeals Chamber rejects the Prosecution's argument that paragraph 5.1 of the Nyiramasuhuko and Ntahobali Indictment was sufficient to put Ntahobali on notice that he was charged with ordering killings committed by his subordinates given the broad nature of this paragraph, the fact that it is not linked with paragraphs 6.30 or 6.56 of the Nyiramasuhuko and Ntahobali Indictment, and the fact that this paragraph was only invoked pursuant to Article 6(1) of the Statute. 2872 The Appeals Chamber recalls that effective control need not be exclusive and can be exercised by more than one superior, whose criminal responsibility is not excluded by the coexisting responsibility of others. See Bagosora and 445 Case No. ICTR-98-42-A 14 December 2015

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19920/H 1258. For these reasons, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that he was not put on sufficient notice of the identity of the subordinates for whose acts he was found to be responsible as a superior. (b) Criminal Conduct of Subordinates 1259. The issue of notice of the crimes allegedly committed by Interahamwe at the Hotel Ihuliro roadblock and against Tutsis who had sought refuge at the prefectoral office and the EER has been dealt with in the sections of this Judgement addressing the alleged lack of notice of the material facts underpinning each of the specific incidents. In those sections, the Appeals Chamber has found that Ntahobali was put on notice through the Indictment and other communications that Interahamwe under his control were alleged to have killed Ruvurajabo at the Hotel Ihuliro roadblock, killed and raped Tutsis who had sought refuge at the prefectoral office in May and June 1994, and perpetrated killings at or near the EER in May and June 1994.2873 Ntahobali's arguments alleging lack of notice of the criminal conduct of his subordinates are therefore rejected. 2874 (c) Knowledge of the Subordinates' Criminal Conduct 1260. The Trial Chamber found that Ntahobali had actual knowledge that his subordinates had committed or were about to commit crimes, which it inferred from his presence at the Hotel Ihuliro roadblock when

Ruvurajabo was being killed and from his orders to Interahamwe at the prefectoral office.?875 1261. Ntahobali submits that the Trial Chamber erred in finding that he received sufficient notice of his knowledge of the crimes of his alleged subordinates at the Hotel Thuliro roadblock and the prefectoral office. 2876 He further contends that the Trial Chamber erred in failing to address whether he had the requisite knowledge with respect to the events at the EER.2877 He argues that paragraph 6.55 of the Indictment failed to set forth the criminal conduct by which he knew or had reason to know that the crimes were about to be committed. 2878 1262. In relation to the crimes committed at the prefectoral office, the Prosecution responds that Ntahobali's orders to commit rapes coupled with Witness TA's Summary put Ntahobali on notice Nsengiyumva Appeal Judgement, para.

495. See also Nizeyimana Appeal Judgement, para. 346; Celebici Appeal Judgement, paras. 197, 198. 2873 See supra, Sections V.B.3, V.B.5, V.B.6. 2874 See Ntahobali Notice of Appeal, paras. 103, 121, 136; Ntahobali Appeal Brief, paras. 212, 301. 446 Case No. ICTR-98-42-A 14 December 2015 qu

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19919/H of his knowledge that these rapes were occurring 2879 It also contends that Ntahobali was charged with ordering massacres and thus was put on notice of his conduct as regards his knowledge of the crimes. 2880 1263. Recalling that in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole,2881 the Appeals Chamber notes that, in paragraph 6.55 of the Indictment - upon which the Trial Chamber specifically relied when making findings on Ntahobali's superior responsibility under the relevant counts2882 - the Prosecution explicitly alleged that massacres of the civilian population were being committed with Ntahobali's knowledge?883 In paragraph 6.56 of the Indictment, the Prosecution further alleged that Ntahobali knew of and consented to the crimes perpetrated by his subordinates. The Appeals Chamber further notes that paragraphs 6.27 and 6.30 of the Indictment refer to the role and frequent participation of Interahamwe or militiamen in abductions and killings, in the presence of Ntahobali, at the Hotel Ihuliro roadblock and the prefectoral office. 2884 These paragraphs were specifically relied upon in support of Ntahobali's superior responsibility under the relevant counts.2885 In addition, the Appeals Chamber recalls that, while it found that paragraph 6.30 of

the Indictment failed to plead Ntahobali's presence at the EER with Interahamwe and that the Trial Chamber erred in not conducting the required analysis, the defects were cured. 2886 1264. The Appeals Chamber further recalls that it held that Ntahobali received sufficient notice that he ordered Interahamwe to kill Ruvurajabo at the Hotel Ihuliro roadblock and abductions, killings, and rapes at the prefectoral office, and that he aided and abetted Interahamwe to commit killings at the EER. The Appeals Chamber considers that, as found by the Trial Chamber, this conduct implied his knowledge of the crimes perpetrated by his subordinates. 2878 Ntahobali Appeal Brief, para. 269. 2879 Prosecution Response Brief, para. 839. 2880 Prosecution Response Brief, para. 841. 2881 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 370; Ntabakuze Appeal Judgement, para. 65; Gacumbitsi Appeal Judgement, para. 123. 2882 See Trial Judgement, paras. 5617, 5878. 2883 At the appeals hearing, Ntahobali pointed out that paragraph 6.55 of the Nyiramasuhuko and Ntahobali Indictment was no longer relied upon in support of Count 7 in the operative indictment, which, according to him, indicated that the Prosecution had no longer the intention to charge him with superior responsibility in relation to rape. See AT. 15 April 2015 p.

33. Reading the Nyiramasuhuko and Ntahobali Indictment as a whole and considering that paragraph 6.55 was relied upon in support of all other relevant counts and that Count 7 was expressly pursued pursuant to Article 6(3) of the Statute, the Appeals Chamber is not convinced by Ntahobali's argument. See Nyiramasuhuko and Ntahobali Indictment, pp. 38-45. 2884 The Appeals Chamber finds no merit in Ntahobali's oral argument that paragraph 6.56 of the Nyiramasuhuko and Ntahobali Indictment "had nothing to do with superior responsibility" because it is "a conspiracy-related paragraph". See AT. 15 April 2015 p. 33. 2885 See Nyiramasuhuko and Ntahobali Indictment, pp. 39-45. 2886 See supra, Section V.B.6(b). 447 Case No. ICTR-98-42-A 14 December 2015

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19918/H 1265. The Appeals Chamber considers that, taken together, these paragraphs and the subsequent information provided to Ntahobali clearly pleaded that Ntahobali knew or had reason to know that his subordinates were about to and had committed the crimes alleged in the Indictment as well as the conduct by which he was found to have known of his subordinates' criminal conduct. Accordingly, the Appeals Chamber dismisses Ntahobali's arguments concerning the pleading of his knowledge of his subordinates' criminal conduct. (d) Failure to Prevent or Punish 1266. Ntahobali generally submits that he did not receive notice in the Indictment or through subsequent information of the conduct by which he failed to take the necessary measures to prevent the crimes or to punish the perpetrators thereof. 2887 He argues that paragraph 6.55 of the Indictment could not serve for this purpose.2888 1267. With regard to crimes at the prefectoral office, the Prosecution responds that Ntahobali's orders to commit rapes coupled with Witness TA's Summary put Ntahobali on notice of the conduct by which he failed to prevent or punish them.2889 It also contends that Ntahobali was charged with ordering massacres and thus was put on notice of his conduct as regards his failure to take action in this respect. 2890 1268. The Appeals Chamber stresses that, in respect of this element of superior

responsibility, in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.2891 In this case, the Appeals Chamber notes that paragraph 6.55 of the Indictment expressly pleaded that Ntahobali "took no measures to stop" the massacres of the civilian population that he knew were being committed. Given the vagueness of the Indictment concerning the specific crimes for which Ntahobali was alleged to be responsible, the Appeals Chamber finds that this was insufficient to give Ntahobali adequate notice of the conduct by which he had allegedly failed to take the necessary measures to prevent the crimes or to punish the perpetrators thereof. However, the Appeals Chamber finds that the defect of the Indictment in this respect was subsequently cured, notably through paragraph 30 of the Prosecution Pre-Trial Brief, in which the Prosecution alleged, that "[i]nstead of intervening to control and appeal to the perpetrators, [... Ntahobali] ordered, aided and abetted the acts." 2887 Ntahobali Notice of Appeal, paras. 103, 121, 136; Ntahobali Appeal Brief, paras. 270, 309. Ntahobali argues that the orders relied on by the Trial Chamber are not pleaded in the Nyiramasuhuko and Ntahobali Indictment or in subsequent materials. See Ntahobali Appeal Brief, para. 309. 2888 Ntahobali Appeal Brief, para. 269. 2889 Prosecution Response Brief, para. 839. 2890 Prosecution Response Brief, para. 841. 448 Case No. ICTR-98-42-A 14 December 2015

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19917/H As regards the "acts" in question, the Appeals Chamber recalls its findings that Ntahobali had sufficient notice that he was alleged to have ordered Interahamwe to commit killings and rapes at the Hotel Thuliro roadblock and the prefectoral office, and aided and abetted Interahamwe to commit killings at the EER.2892 1269. In the opinion of the Appeals Chamber, the Indictment read as a whole and in conjunction with the subsequent information communicated to Ntahobali gave him sufficient notice of the conduct by which he was found to have failed to take the necessary measures to prevent and punish the crimes. For these reasons, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that he was not put on adequate notice of this element of superior responsibility. (e) Conclusion 1270. In light of the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding him responsible as a superior under Article 6(3) of the Statute for crimes perpetrated at the Hotel Ihuliro roadblock and against Tutsis who had sought refuge at the prefectoral office and the EER based on lack of notice.

8. Cumulative Effect of the Defects (Ground 2.7) 1271. In its preliminary considerations of notice issues in the Trial Judgement, the Trial Chamber recalled the Appeals Chamber's holding that, even if the Prosecution succeeded in arguing that the defects in the indictments were remedied in each individual instance, the Trial Chamber had still to consider whether the overall effect of the numerous defects rendered the trial unfair in itself.2893 The Trial Chamber noted that it had found specific paragraphs of the Indictment to be unduly vague but underlined that, in many cases, it had determined that these defects were cured 2894 After noting that, throughout the course of the proceedings, it had given the Defence additional time to prepare its case where appropriate and reiterating that the new information that led to factual findings was disclosed through timely, clear, and consistent disclosures, the Trial Chamber found that "the Accused were in a reasonable position to understand the charges against them and had the time and resources available to investigate these charges.*2895 Consequently, the Trial Chamber concluded 2891 Bizimungu Appeal Judgement, para. 104; Ntabakuze Appeal Judgement, para. 123; Nahimana et al. Appeal Judgement, para.

323. See supra, Sections V.B.3, V.B.5, V.B.6. 2893 Trial Judgement, para. 127, referring to Ntagerura et al. Appeal Judgement, para.

114. See also ibid., paras. 128, 130. 2894 Trial Judgement, para. 129. 2895 Trial Judgement, para. 130. 449 Case No. ICTR-98-42-A 14 December 2015

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19916/H that "the trial was not rendered unfair and that the Accused did not suffer any prejudice in the preparation of their respective defences. *2896 1272. Ntahobali submits that the Trial Chamber erred in its assessment of the cumulative effect of the defects in his Indictment by applying the wrong legal criterion as well as in holding that the numerous defects it found did not prejudice his Defence case and did not render his trial unfair. 2897 Specifically, he asserts that the Trial Chamber erred in relying on the test used for curing defects in the Indictment in order to determine whether the cumulative effect of the defects rendered the trial unfair, rendering the principle "entirely meaningless" 2898 After highlighting that the Trial Chamber found that ten of the 17 paragraphs relied upon against him in the charging section of his Indictment were defective, he contends that the Trial Chamber erred in failing to consider that the number of times defects in an indictment can be cured is limited 2899 He avers that the Trial Chamber further erred in considering that the additional time granted rendered his trial fair as mere allowance of time did not provide him with better knowledge as to where to direct his investigations.2900 1273. Ntahobali submits that it was an impossible task to defend himself given the seriousness of the defects in the Indictment and the confusion

of the Prosecution case.2901 In this respect, he contends that he did not know the allegations against which he had to defend himself and was unable to conduct any meaningful investigations before trial.2902 He points out as well that numerous allegations advanced in the Prosecution Pre-Trial Brief were never addressed at trial, adding to the confusion as to what the Prosecution case was?903 According to Ntahobali, the Trial Chamber also created prejudicial uncertainty in deciding to admit all the evidence adduced at trial, where deemed "relevant", including the evidence on allegations not pleaded in the Indictment and for which the accused had not received sufficient notice, holding that its probative value would be determined at the end of the trial.2904 He argues that this situation forced him to investigate and 2896 Trial Judgement, para. 131. 2897 Ntahobali Notice of Appeal, para. 147; Ntahobali Appeal Brief, paras. 331-336; AT. 15 April 2015 p. 27. 2898 Ntahobali Appeal Brief, para. 336. 2899 Ntahobali Notice of Appeal, para. 148; Ntahobali Appeal Brief, paras. 334, 354. See also Ntahobali Reply Brief, B Nahobali Appeal Brief, para, 337. Niahobali argues that the additional time granted to the Defence referred to by the Trial Chamber has nothing to do with allowance of additional time for investigations on allegations not pleaded in the Nyiramasuhuko and Ntahobali

Indictment. See idem, referring to Trial Judgement, fn. 249. 2901 Ntahobali Appeal Brief, para. 355. 2902 Ntahobali Notice of Appeal, para. 148; Ntahobali Appeal Brief, paras. 338-347, 354. In particular, Ntahobali argues that the count of conspiracy necessitated numerous investigations which were difficult to conduct given the lack of clarity of the charge. See Ntahobali Appeal Brief, para. 341. 2903 Ntahobali Appeal Brief, para. 340. 2901 Ntahobali Appeal Brief, para. 342 (French) (emphasis omitted). 450 Case No. ICTR-98-42-A 14 December 2015

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19915/H prepare for the entirety of the allegations made against him whether or not they were pleaded in the Indictment.2905 1274. Furthermore, Ntahobali contends that he was prevented from conducting effective investigations and cross-examinations, and that problems concerning his investigators and the Trial Chamber's refusal to recall witnesses further impacted his ability to defend himself?906 He argues that the Prosecution has been able to mould its case during trial and that its behaviour exacerbated the prejudice suffered, 2907 referring in particular to the Prosecution's significant modifications of its list of witnesses at trial, notably the addition of Prosecution Witness FA, and the violation of its Rule 66 disclosure obligations.29* In Ntahobali's view, his trial was rendered unfair as a result and a stay of proceedings or a significant reduction of his sentence should be ordered. 2909 1275. The Prosecution responds that the Trial Chamber adequately verified whether each defect was cured by timely, clear, and consistent post-indictment communications and did not err in finding that Ntahobali did not suffer prejudice?910 1276. The Appeals Chamber rejects Ntahobali's claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects

of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber's reliance on the additional time allotted to the co-Accused to prepare their case29l' and its findings throughout the Trial Judgement that, where remedicd, the original lack of notice had not caused prejudice 2912 1277. The Appeals Chamber also finds no merit in Ntahobali's argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in 2905 Ntahobali Appeal Brief, para. 342 (French). Ntahobali refers in particular to the murders of "Philippe/Rwabugiri" in Tumba which were found to be outside the Nyiramasuhuko and Ntahobali Indictment and not cured. See idem. 2906 Ntahobali Appeal Brief, paras. 349, 350, 352. In particular, Ntahobali mentions that he was not able to conduct a full cross-examination of Prosecution Witness TA because he did not know to what extent other Prosecution witnesses would testify on the same allegation. See ibid., para.

349. 2907 Ntahobali Notice of Appeal, para. 149; Ntahobali Appeal Brief, paras. 343, 355. 2908 Ntahobali Appeal Brief, paras. 349, 351. Ntahobali points out that the Prosecution's violation of its obligations prevented him from knowing the identity of the Prosecution witnesses and the content of their redacted written statements before the commencement of the trial. See ibid., para. 349. 2909 Ntahobali Notice of Appeal, para. 151; Ntahobali Appeal Brief, paras. 355, 356. 2910 Prosecution Response Brief, paras. 846, 848, 850, referring to Trial Judgement, para.

130. See also ibid., para. 847, referring to Bagosora and Nsengiyumva Appeal Judgement, paras. 210, 217; AT. 15 April 2015 pp. 79, 80. 2971 Trial Judgement, para. 130. 451 Case No. ICTR-98-42-A 14 December 2015

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19914/H instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber's jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence 2913 1278. Furthermore, Ntahobali's contention that the Trial Chamber erred in finding that the allowance of additional time rendered the trial fair because this did not remedy the vagueness of the Prosecution case fails to appreciate that the Trial Chamber considered this factor when determining the additional time needed to investigate all the new material facts; in other terms, to investigate the material facts that were curing the vagueness of the Prosecution case. Apart from claiming that the examples provided by the Trial Chamber are not pertinent,214 Ntahobali does not argue or demonstrate that he was denied additional time to conduct investigations on new material facts and that, overall, he did not have sufficient time to investigate allegations by the Prosecution. Absent such a demonstration, the Appeals Chamber cannot see any error in the Trial Chamber's reliance on the fact that additional time was given to the Defence to remedy any possible prejudice.

1279. Although Ntahobali argues that he could not defend himself given the seriousness of the defects in the Indictment and the confusion in the Prosecution case, his only substantiation in his appeal submissions relates to the incidents in connection with which he was convicted. The Appeals Chamber has found above that Ntahobali failed to demonstrate that his material ability to prepare his defence regarding the allegations related to the IRST, the Hotel Ihuliro roadblock, the prefectoral office, or the EER had been impaired by the Prosecution's failure to provide appropriate notice in the Indictment.2915 The Appeals Chamber has also concluded that the Prosecution successfully demonstrated that Ntahobali was not prejudiced by the lack of notice concerning his responsibility in the killing of the Rwamukwaya family 2916 Therefore, the Appeals Chamber rejects Ntahobali's allegation of prejudice in these respects. 2912 See, e.g., Trial Judgement, paras. 1464, 2166, 2932, 2942, 3161. 2913 See Bagosora et al. Appeal Decision on Exclusion of Evidence, para. 26: [...] Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused's right to a fair trial by hindering the preparation of a proper defence. 2914 Ntahobali Appeal Brief, para.

337. See also Ntahobali Reply Brief, para, 167. A review of the references provided by the Trial Chamber in support of its statement that additional time was granted reveals that the time granted on these occasions was limited and was not specifically granted for the purpose of offering time to the Defence to investigate new material facts. However, it is clear that the Trial Chamber did not intend to list all relevant instances but that it only provided examples. See Trial Judgement, para. 130 See supra, Sections V.B.2, V.B.3, V.B.5, V.B.6. 2916 See supra, Section V.B.4. 452 Case No. ICTR-98-42-A 14 December 2015 quee

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19913/H 1280. The Appeals Chamber is concerned by the practice of trial chambers in the exercise of their discretion, as in this case,2917 to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of their final deliberations on the case. In the view of the Appeals Chamber, leaving the issue of whether facts could be relied upon as a potential basis for liability unresolved until the end of the trial, as the Trial Chamber did, creates uncertainty which can be a source of potential prejudice to the Defence2918 While the Appeals Chamber considers that it would have been preferable for the Trial Chamber to rule on the Defence objections in a timely fashion to ensure clarity on the facts underpinning the charges on the basis of which it considered it could hold the accused responsible, it notes that Ntahobali, again, fails to substantiate his allegation of prejudice.

1281. Ntahobali also points to a number of factors in support of his contention that he suffered prejudice, such as the Prosecution's violation of its disclosure obligation, the issue of the cross-examination of Witness TA, the absence of investigator, the modification of the Prosecution's witness list, and the Trial Chamber's refusal to recall witnesses. The Appeals Chamber recalls that it has already addressed and rejected elsewhere in this Judgement a number of Ntahobali's allegations of prejudice, notably concerning the addition of witnesses, including Witness FA, the cross-examination of Witness TA, the refusal to recall witnesses, and the suspension of his investigator. 2919 In any event, the Appeals Chamber considers that Ntahobali fails to demonstrate how these factors were pertinent to the determination of the prejudice suffered from the accumulation of the defects in the Indictment.

1282. The Appeals Chamber does not minimise the extent of the Prosecution's failure to provide adequate notice in the Indictment in respect of all of the incidents for which Ntahobali was found guilty. However, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in concluding that his trial had not been rendered unfair due to the number of defects in his Indictment.

9. Conclusion 1283. Based on the above, the Appeals Chamber dismisses Ntahobali's contentions that the Trial Chamber erred in authorising the Prosecution to amend the indictment against him to add charges of superior responsibility as well as his contentions that he was not charged with, lacked sufficient notice of, or was materially prejudiced in the preparation of his defence from the lack of notice of a SeT ra, agemen, parA peal Judgement, para, 28, refering to Kipretic el al. Appeal Judgement, paras, 10, 11% see supra, Section IT., I., I.C, V. A 3. 453 Case No. ICTR-98-42-A 14 December 2015 aul

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19912/H his alleged responsibility for the killings at the IRST, the killings and rape at the Hotel Ihuliro roadblock, the killing of the Rwamukwaya family, the rapes committed and the killings ordered at the Butare Prefecture Office, and the killings at or near the EER. The Appeals Chamber also dismisses Ntahobali's claim of prejudice resulting from the accumulation of defects in the Indictment.

1284. Accordingly, the Appeals Chamber dismisses Grounds 2.1 through 2.7 of Ntahobali's appeal. Case No. ICTR-98-42-A 454 14 December 2015

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19911/H C. Expert Witness Guichaoua's Status and Evidence (Ground 3.7) 1285. Ntahobali submits that the Trial Chamber erred in fact and in law in maintaining Prosecution Expert Witness Guichaoua's status as an expert and in finding him and his report credible?920 He argues that Witness Guichaoua's testimony reflected partiality that is incompatible with the expected neutrality of an expert.292) In his appeal brief, Ntahobali merely refers to "Nyiramasuhuko's arguments" 2922 1286. The Prosecution responds that this ground should be dismissed as a party may not dispose of its burden on appeal by merely referring to another party's submission.923 1287. The Appeals Chamber notes that it has addressed and dismissed in its entirety Nyiramasuhuko's arguments pertaining to Witness Guichaoua's neutrality and objectivity as an expert and the assessment of his evidence in Section IV.A.2 above. In the absence of any further substantiation in support of Ntahobali's allegations of error, the Appeals Chamber dismisses Ground 3.7 of Ntahobali's appeal without further consideration. 2920 Ntahobali Notice of Appeal, para. 275. 2921 Ntahobali Notice of Appeal, para. 276. 922 Ntahobali Appeal Brief, para.

770. See also Ntahobali Reply Brief, para. 33( 923 Prosecution Response Brief, para. 1127, referring to ibid., para. 99: 455 Case No. ICTR-98-42-A 14 December 2015

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19910/H D. Admission and Assessment of Co-Accused's Evidence (Ground 3.10) 1288. The Trial Chamber convicted Ntahobali of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute in relation, inter alia, to the killing of members of the Rwamukwaya family as well as crimes committed against Tutsis at the Hotel Ihuliro roadblock and against Tutsis who had sought refuge at the Butare Prefecture Office in May and June 1994.294 The Trial Chamber's findings were, in part, based on the evidence presented by Ntahobali's co-accused 2925 1289. Ntahobali submits that the Trial Chamber erred in law and in fact in finding him guilty in relation to these crimes based in part on its reliance upon evidence presented by his co-accused. 2926 Specifically, Ntahobali argues that the Trial Chamber erred in: (i) admitting the testimony of Kanyabashi Defence Witness D-2-13-0 about the killing of the Rwamukwaya family; and ii) failing to exercise the necessary caution in assessing the evidence presented by his co-accused and to provide a reasoned opinion when relying on this evidence against him in relation to the killing of the Rwamukwaya family, crimes committed at the Hotel Ihuliro roadblock, and attacks at the prefectoral office?*' He contends that, had the Trial Chamber exercised

due caution, it would have acquitted him?928 Ntahobali argues that a new assessment should lead the Appeals Chamber to exclude this evidence.2929 1290. The Prosecution responds that Ntahobali repeats arguments concerning the admission of Witness D-2-13-O's evidence that failed at trial and that they should be summarily dismissed 2930 It further responds that Ntahobali fails to demonstrate why the Trial Chamber should have treated the evidence presented by his co-accused with caution or how it acted outside its discretion. 2931 It also submits that Ntahobali has not identified any error that could invalidate the verdict. 2932 1291. The Appeals Chamber has found below in Section V.H that the Trial Chamber erred in finding that Ntahobali aided and abetted the killing of the Rwamukwaya family and reversed his convictions in this respect. Accordingly, the Appeals Chamber finds that Ntahobali's submissions 2924 Trial Judgement, paras. 5842, 5844, 5845, 5852-5855, 5867, 5870, 5873, 5876, 5971, 6053-6055, 6077-6081, 6094, 6100, 6101, 6121, 6168, 6169, 6184-6186. 2925 Trial Judgement, paras. 2666, 3108, 3109, 3125, 3127, 3142, 3205-3207, 3210-3213, 3216, 3218, 3219. 2926 Ntahobali Notice of Appeal, para. 278; Ntahobali Appeal Brief, para. 784. 2927 Ntahobali Notice of Appeal, paras. 278-281; Ntahobali Appeal Brief, paras. 785-795; Ntahobali Reply Brief, Bar hobali Notice of Appeal, para. 281. 2929 Ntahobali Notice of Appeal, para. 281; Ntahobali Appeal Brief, para. 795. 2930 Prosecution Response Brief, para. 1131. 293l Prosecution Response Brief, para. 1132. 2932 Prosecution Response Brief, para. 1132. 456 Case No. ICTR-98-42-A 14 December 2015

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19909/H related to the admission and assessment of the evidence concerning the killing of the Rwamukwaya family under Ground 3.10 of his appeal have become moot and need not be addressed.

1292. With respect to Ntahobali's remaining submissions, the Appeals Chamber considers that Ntahobali fails to show that the Trial Chamber was required, as a matter of law, to treat all the evidence presented by his co-accused with caution. Ntahobali simply refers to paragraphs in the Nchamihigo Appeal Judgement and Krajisnik Appeal Judgement, which concern the treatment of accomplice witness evidence?933 However, he does not demonstrate that any witness he contends the Trial Chamber failed to treat with caution was an accomplice witness whose evidence warranted a cautious assessment.

1293. Likewise, while Ntahobali generally contends that the Trial Chamber failed to provide a reasoned opinion when relying on evidence presented by his co-accused, his submissions fail to particularise any error.2934 The Appeals Chamber also observes that the Trial Chamber, when reviewing the evidence of witnesses presented by Kanyabashi, expressed its concern that these witnesses may have a motive to deflect liability from Kanyabashi and decided to assess their evidence with caution.2935 Accordingly, when assessing the testimonies from Kanyabashi Defence Witnesses D-13-D, D-2-5-I, and D-2-13-0 concerning events at the Hotel Ihuliro roadblock and the prefectoral office, the Trial Chamber only accepted their evidence when corroborated by other evidence 2936 The Trial Judgement also reflects that the Trial Chamber relied on the testimony of Nsabimana Defence Witnesses Bernadette Kamanzi, Charles Karemano, and Alexandre Bararwandika as corroborative of other evidence.* 2937 Having failed to substantiate why the evidence of these witnesses should have been treated with particular caution, Ntahobali does not demonstrate how the Trial Chamber failed to provide a reasoned opinion when relying on their evidence.

1294. Based on the foregoing, the Appeals Chamber dismisses Ground 3.10 of Ntahobali's appeal. 2933 Ntahobali Appeal Brief, para. 794, referring to Nchamihigo Appeal Judgement, para, 46, Krajisnik Appeal 2935 Trial Judgement, para. 3216. 2936 Trial Judgement, paras. 2666, 3108, 3109, 3125 2937 Trial Judgement, paras. 3108, 3109, 3124, 3125, 3142 457 Case No. ICTR-98-42-A 14 December 2015

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19908/H E. Alibis (Ground 3.11) 1295. At trial, Ntahobali presented alibis according to which: (i) he had malaria and was convalescing at Hotel Ihuliro for an entire week around the end of April and the beginning of May 1994,2938 and (ii) he was in Cyangugu Town from 26 or 27 May 1994 until 5 June 1994.2939 1296. The Trial Chamber noted that Ntahobali provided a notice of his alibis only eight months after the start of the presentation of the Defence evidence and considered that the circumstances of this late disclosure adversely affected the credibility of his alibis, raising the possibility that they were fabricated2940 The Trial Chamber ultimately concluded that Ntahobali's alibis were not reasonably possibly true2941 and that Ntahobali participated in crimes in Butare Town during the relevant periods of time.?942 1297. Ntahobali submits that the Trial Chamber erred in its assessment of the alibi evidence relating to the periods between late April and early May 1994 and between 26 or 27 May and 5 June 1994,2943and requests that the Appeals Chamber overturn his convictions for the crimes committed during these periods of time. 2944 1298. Before turning to Ntahobali's challenges, the Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. 945 Rather, the accused must simply produce evidence tending to show that he was not present at the time of the alleged 2938 Trial Judgement, para.

2580. See also ibid., paras. 2922, 3114, 3153, 3208. 2939 Trial Judgement, para, 2584. See also ibid., paras. 2682, 3941, 4874. The Appeals Chamber also notes that the Trial Chamber found that Ntahobali's alibi that he never left Hotel Ihuliro at night throughout the relevant events as he had the responsibility of ensuring that the generator was turned on and shut off was not believable. See ibid., paras. 2596- 2599. Ntahobali does not challenge the Trial Chamber's finding on this issue. 2940 Trial Judgement, para. 2578. 2941 Trial Judgement, paras. 2583, 2595, 2599, 3117, 3208, 3942. 2942 Specifically, the Trial Chamber found that Ntahobali: (i) utilised the Hotel Thuliro roadblock to abduct and kill Tutsis in late April 1994 and; in particular, raped and killed a Tutsi girl at the roadblock around the end of April 1994; (ii) aided and abetted the killing of Rwamukwaya and his family around 29 or 30 April 1994; (iii) was involved in the killing and rape of Tutsis who had sought refuge in the Butare Prefecture Office from mid-May to June 1994; and (iv) aided and abetted the killings of Tutsi refugees at the EER between mid-May and the beginning of June 1994. See Trial Judgement, paras. 2781, 3113, 3128, 3135, 3140, 3219, 3965. 2943 See Notice of Appeal, paras. 282-288; Ntahobali Appeal Brief, paras. 796-818; Ntahobali Reply Brief, paras. 331-337. In his notice of appeal,

Ntahobali also argued that the Trial Chamber erred in failing to conclude that the Prosecution suffered no prejudice in relation to the alibi evidence and that the Prosecution's failure to provide specific dates for its allegations had prevented him from presenting a specific alibi. See Ntahobali Notice of Appeal, paras. 284, 287. However, the Appeals Chamber notes that Ntahobali did not substantiate these allegations in his notice of appeal or develop them in his appeal brief. The Appeals Chamber further recalls that, elsewhere in this Judgement, it found that the Trial Chamber was not required to consider whether the Prosecution suffered prejudice from the belated disclosure. See supra, para.

664. Consequently, the Appeals Chamber dismisses these contentions. 2944 Ntahobali Notice of Appeal, para. 288; Ntahobali Appeal Brief, paras. 802, 813. 2945 See, e.g., Nizeyimana Appeal Judgement, para. 35; Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 414. 458 Case No. ICTR-98-42-A 14 December 2015

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19907/H crime 2946 If the alibi is reasonably possibly true, it must be accepted. 947 When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.?948 1. Alibi for Late April to Early May 1994 1299. The Trial Chamber found that Ntahobali's alibi that he had malaria and was convalescing at Hotel Ihuliro for an entire week around the end of April and the beginning of May 1994 was not credible and not reasonably possibly true in light of Ntahobali Defence Witness Béatrice Munyenyezi's lack of credibility, the lack of corroboration from other witnesses who should have had knowledge of Ntahobali's illness and testified about it, and the late notice of alibi. 2949 1300. In particular, the Trial Chamber observed that, while Nyiramasuhuko Defence Witnesses Denise Ntahobali, Clarisse Ntahobali, WBUC, and Nyiramasuhuko testified that they were at Hotel Ihuliro for the birthday party of Clarisse Ntahobali's daughter on 28 April 1994, they did not corroborate Ntahobali's testimony that he had malaria from the end of April to the beginning of May and was forced to remain in bed.2950 The Trial Chamber stated that Witness Munyenyezi was the only witness to corroborate Ntahobali's alibi that he was sick with malaria at the end of April 1994, noted aspects of her testimony that undermined her

credibility, and considered that, as Ntahobali's wife, she would have a motive to exculpate him.951 Specifically, the Trial Chamber found not credible Witness Munyenyezi's testimony that, at the time, she was unaware of massive killings in Butare after 19 April 1994, did not see any dead bodies, and did not hear that the killings between April and July 1994 were ethnically motivated. 2952 It also observed that Witness Munyenyezi testified that Ntahobali's illness began two to three days before his niece's birthday, contrary to Ntahobali's testimony that he felt the symptoms the day of the 2946 See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Musema Appeal Judgement, para.

202. See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para.

414. See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 18; Karera Appeal Judgement, para.

330. Trial Judgement, paras. 2583, 3117, 3208. The Appeals Chamber notes that Ntahobali refers to Witness Béatrice Munyenyezi in his appeal submissions by her former pseudonym NMBMB. The witness waived certain protective measures and testified under her own name. See Béatrice Munyenyezi, T. 24 February 2006 pp. 3-6. 2950 Trial Judgement, paras. 2581, 2583, 3115, 3117. 2951 Trial Judgement, paras. 2582, 2583, 3116, 3117. 2952 Trial Judgement, paras. 2582, 3116. 459 Case No. ICTR-98-42-A 14 December 2015

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19906/H birthday.? In addition, the Trial Chamber noted that Ntahobali's aunt from whom he purportedly received treatments was not called to testify to corroborate his account. 2954 1301. Ntahobali submits that the Trial Chamber erred in finding that his alibi for the period between late April and early May 1994 was not credible.?955 He argues that, by drawing a negative inference from the lack of corroboration on the part of witnesses who "should have had knowledge of Ntahobali's illness", the Trial Chamber wrongly blamed him for not cross-examining co-accused's witnesses.' 2956 He contends that the Trial Chamber also wrongly blamed him for not calling his aunt to testify, speculating that she was in a position to do so.2957 Ntahobali posits that, by doing so, the Trial Chamber imposed a burden on him, counter to the Defence's discretion to choose its own strategy and the manner in which it mounts its case 2958 He adds that the Trial Chamber treated Prosecution and Defence evidence differently in this regard. 2959 1302. Ntahobali further submits that the Trial Chamber reversed the burden of proof when concluding that Witness Munyenyezi was not credible for "the sole reason" that it "believed the Prosecution evidence" 2960 1303. Finally, Ntahobali submits that the Trial Chamber completely disregarded Ntahobali Defence Witness NMBMP's evidence which corroborated the testimony of

Witness Munyenyezi that Ntahobali was sick with malaria at the end of April 1994.2961 He argues that, since the alleged lack of corroboration of Witness Munyenyezi's evidence was a decisive factor in the Trial Chamber's finding that the alibi was not credible, this finding cannot stand. 2962 1304. The Prosecution responds that Ntahobali's argument concerning Witness NMBMP is unfounded as the Trial Chamber relied on this witness's evidence several times in the Trial 2953 Trial Judgement, paras. 2580, 2582, 3114. 2954 Trial Judgement, paras. 2580, 3115. 2955 Ntahobali Appeal Brief, para. 796. 2956 Ntahobali Appeal Brief, para. 799 (emphasis omitted), referring to Trial Judgement, paras. 2583, 3117. 2957 Ntahobali Appeal Brief, para. 800. 2958 Ntahobali Appeal Brief, para. 801, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Strictly Confidential Ex-Parte - Under Seal - Motion for Additional Protective Measures for Some Defence Witnesses, 1 March 2005 ("1 March 2005 Decision"), B9 Natobali Appeal Brief, para, 801. alobali refers in particular to the manner in which the Prosecution evidence egarding Semanyenzi, Annonciata, and Fidèle was treated in comparison. See idem ' Ntahobali Appeal Brief, paras. 803-805, referring to Trial Judgement, paras. 2582, 3116. Ntahobali also contends that the Trial Chamber's reasoning ignores that Witness Munyenyezi may not have seen killings or corpses as she only came out of Hotel Ihuliro on two or three occasions during the events. See ibid., para. 805. 2961 Ntahobali Appeal Brief, para. 797. 2962 Ntahobali Appeal Brief, para. 798. 460 Case No. ICTR-98-42-A 14 December 2015

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19905/H Judgement 2963 The Prosecution also submits that Ntahobali does not demonstrate how the Trial Chamber erred in its assessment of the alibi evidence 2964 1305. Ntahobali replies that the parts of the Trial Judgement referred to by the Prosecution do not relate to Witness NMBMP's evidence on his alibi. 2965 1306. The Appeals Chamber finds no merit in Ntahobali's submissions regarding the Trial Chamber's imposition of a burden that improperly interfered with his discretion as to the conduct of his defence? In the view of the Appeals Chamber, a reasonable trier of fact could have relied on the fact that none of the witnesses who would have been in a position to witness Ntahobali's sickness, since they were at Hotel Ihuliro the day he allegedly fell sick, corroborated that he had malaria and was forced to remain in bed. The Appeals Chamber fails to see how this factually accurate observation could be interpreted as "blaming" Ntahobali's counsel for not cross-examining witnesses called by one of his co-accused. Similarly, observing that an eye-witness was not called to testify does not constitute "blaming" the Defence for not calling that witness; rather, it simply indicates that the Trial Chamber did not receive corroboration of Ntahobali's alibi from this particular source.2967 Having reviewed the specific portions of the Trial Judgement cited by Ntahobali, the Appeals Chamber is also not persuaded by his argument that the Trial Chamber treated differently Defence and Prosecution evidence in similar situations.

1307. With respect to the assessment of Witness Munyenyezi's evidence, the Appeals Chamber observes that, contrary to Ntahobali's contentions, the Trial Chamber did not conclude that the witness was not credible for "the sole reason" that it found established beyond reasonable doubt that, as alleged by the Prosecution, killings "were occurring throughout Butare préfecture, including at locations within a very short distance of the Hotel Ihuliro" 2968 As recalled above, the Trial Chamber relied on a number of other factors, including that Witness Munyenyezi contradicted Ntahobali's testimony on when his illness began, that she would have a motive to exculpate him, and that her evidence raised serious credibility issues as she testified that she did not hear that the 2963 Prosecution Response Brief, para.

1138. The Prosecution also argues that Ntahobali's argument concerning Witness NMBMP should be dismissed as it was raised for the first time in his appeal brief. See ibid., para. 1133. account a testimony confirming the alibis."). 2964 Prosecution Response Brief, paras. 1137-1140, 1145. 2965 Ntahobali Reply Brief, para. 332. 2966 The Appeals Chamber notes that Ntahobali's reliance on the 1 March 2005 Decision is misplaced as this decision focuses only on the requirements for the application of witnesses special protective measures. See Ntahobali Appeal Brief, para. 801; 1 March 2005 Decision, para. 23. 2967 Trial Judgement, paras. 2580, 3115. 2968 Trial Judgement, para. 3116. 461 Case No. ICTR-98-42-A 14 December 2015

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19904/H crimes committed between April and July 1994 were ethnically motivated or about any massive killings in Butare after 19 April 19942969 Ntahobali does not demonstrate any error in this respect.

1308. Turning to the Trial Chamber's alleged failure to consider the relevant alibi evidence of Witness NMBMP, the Appeals Chamber recalls that: [The Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial [...]. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber's reasoning [...]. If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber's finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings.

1309. The Appeals Chamber observes that Witness NMBMP testified that Ntahobali had malaria for a week, between 27 or 28 April and early May 19942971 According to Witness NMBMP, Ntahobali woke up and felt sick, was bed-ridden for the first three days, and could not leave the premises of Hotel Ihuliro for the rest of the week. 2972 1310. While the Trial Chamber referred to other parts of Witness NMBMP's testimony in several sections of the Trial Judgement, at no point did it refer to the part of her testimony directly relevant to Ntahobali's alibi.?973 The Appeals Chamber is of the opinion that the Trial Chamber's statement that Witness Munyenyezi was the only witness to corroborate Ntahobali's alibi that he was sick with malaria at the end of April 1994 clearly indicates that the Trial Chamber disregarded this aspect of Witness NMBMP's testimony?97* Given the direct relevance of this evidence, to which Ntahobali expressly referred in his closing brief, and the indication that the Trial Chamber did not assess and weigh it as part of its examination of the alibi evidence, the Appeals Chamber finds that the Trial Chamber erred in failing to consider this aspect of Witness NMBMP's evidence 2975 1311. The Appeals Chamber, however, is not convinced by Ntahobali's submission that the Trial Chamber's error invalidates its conclusion that the alibi was not credible. The Appeals

Chamber 2969 Trial Judgement, paras. 2582, 3116. idgement, para. 195; Nchamihigo Appeal Judgement, para. 166; Ndindabahizi Appeal Judgement, para. 7 71 Witness NMBMP, T. 22 April 2008 pp. 33-35 (closed session). See also T. 23 April 2008 pp. 25, 26 (close session). 2972 Witness NMBMP, T. 22 April 2008 pp. 33-35 (closed session). See also T. 23 April 2008 pp. 25, 26 (closed sessional Judgement, paras, 2919, 2920, 3017, 3018, 3100, 3102, 3112, 3905, 3937, 3955. 2974 Trial Judgement, para. 2582. 2975 See Ntahobali Closing Brief, Appendix 3, para. 58. 462 Case No. ICTR-98-42-A 14 December 2015

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19903/H notes that the Trial Chamber considered that the testimony of Witness NMBMP was to be viewed with appropriate caution given her ties with Ntahobali. 2976 1312. Moreover, the Trial Judgement reflects that the finding that Witness Munyenyezi was the only witness to corroborate Ntahobali's alibi was not a decisive factor in the Trial Chamber's decision to reject the alibi. In finding that Ntahobali's alibi was not credible, the Trial Chamber expressly relied on the lack of credibility of Witness Munyenyezi, the late notice of alibi, and the lack of corroboration from other testifying witnesses who should have had knowledge of Ntahobali's illness.* 2977 In view of the overall findings of the Trial Chamber, the Appeals Chamber is not persuaded that the evidence of Witness NMBMP would have prevented a reasonable trier of fact from reaching the conclusion that his alibi with respect to the period between late April and early May 1994 was not credible. In sum, the Appeals Chamber concludes that the Trial Chamber's error of law of failing to consider the totality of the evidence on the record does not invalidate the Trial Chamber's decision regarding Ntahobali's alibi.

1313. For these reasons, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that his alibi relating to the period between late April and early May 1994 was not credible and reasonably possibly true.

2. Alibi for 26 or 27 May to 5 June 1994 1314. The Trial Chamber found that Ntahobali's alibi that he left for Cyangugu on 26 or 27 May 1994 and returned to Butare on 5 June 1994 was not credible and reasonably possibly true. 278 In reaching its conclusion, the Trial Chamber relied on the late filing of his first notice of alibi, the contradictions as to Ntahobali's alleged return from Cyangugu in his notices of alibis, and the potential bias of the alibi witnesses in favour of Ntahobali 2979 It also noted Ntahobali's failure to mention his trip to Cyangugu during an interview with a Prosecution investigator in 1997 and found unconvincing his explanation for his prior inconsistent statement2980 The Trial Chamber further considered that Witness WBUC directly contradicted Witnesses Munyenyezi, Denise Ntahobali, and Clarisse Ntahobali as to when Ntahobali left Butare for Cyangugu and that the alibi 2976 Trial Judgement, paras. 3100, 3101; Witness NMBMP, T. 22 April 2008 p. 13 (closed session). The Appeals Chamber also observes that the testimony of Witness NMBMP that Ntahobali had malaria for a week was not consistent with aspects of Witness Munyenyezi's evidence since Witness Munyenyezi testified that Ntahobali felt sick two or three days before the birthday of his niece, which was on 28 April 1994, whereas Witness NMBMP clearly remembered that Ntahobali got malaria on the

morning of the same day of the birthday of Ntahobali's niece. Compare Béatrice Munyenyezi, T. 27 February 2008 p. 8 with Witness NMBMP, T. 22 April 2008 pp. 33-35 (closed session). See also Witness NMBMP, T. 23 April 2008 pp. 25, 26 (closed session). Witness NMBMP also contradicted Ntahobali's 2978 Trial Judgement, paras. 2595, 2599, 2682, 2737, 3941, 3942, 4874. 2979 Trial Judgement, paras. 2578, 2584, 2590, 2593-2595. 463 Case No. ICTR-98-42-A 14 December 2015

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19902/H witnesses disagreed as to when he returned to Butare. Moreover, it found that Ntahobali Defence Witness WDUSA was not credible in light of the "ambiguity in the dates given", the fact that he was a friend of Ntahobali, and the contradictions in the name of the hotel where he allegedly met with Ntahobali and Béatrice Munyenyezi. 2982 1315. Ntahobali submits that the Trial Chamber erred in finding that Witness WBUC contradicted the other alibi witnesses on the timing of the alibi as a result of an error in the interpretation into French and English of the witness's testimony.2983 Nahobali asserts that a review of Witness WBUC's original testimony in Kinyarwanda reveals that the witness testified that Ntahobali left four or five days before her birthday on 30 May 1994, rather than four or five days after her birthday as interpreted in English and French and reflected in the official transcripts.2984 Thus, he contends that Witness WBUC corroborated rather than contradicted the evidence of the other alibi witnesses 2985 Ntahobali argues that the purported contradiction was critical to the Trial Chamber's decision to reject his alibi, which should therefore be overturned on appeal. 2986 1316. Furthermore, Ntahobali submits that the Trial Chamber erred in finding that Witness WDUSA was not credible?98 In his view, it was unreasonable for the Trial Chamber to conclude that

Witness WDUSA and Ntahobali were friends on the basis that the witness "lived with him in Nairobi" since the witness was very clear that they only lived in the same complex, in different apartments?988 He also argues that the Trial Chamber erred in finding that Witness WDUSA was imprecise regarding the dates of Ntahobali's stay in Cyangugu as the witness explained that more than ten years had elapsed 2989 1317. Finally, Ntahobali submits that the Trial Chamber erred in completely disregarding the aspect of Witness NMBMP's testimony which corroborated the other alibi witnesses regarding his whereabouts between the end of May and early June 1994, invalidating the Trial Chamber's decision to reject his alibi for this period. 990 2980 Trial Judgement, paras. 2585-2588 2981 Trial Judgement, paras. 2591, 2593, 2595. 2982 Trial Judgement, para.

2592. See also ibid., para. 2593. 2983 Ntahobali Appeal Brief, para. 808. 2981 Ntahobali Appeal Brief, paras. 808, 809, referring to audio-video of Witness WBUC's testimony of 2 June 2005, at 1:48:00-01:49:00. Ntahobali argues that this is consistent with Witness WBUC's account of events provided the previous day. See ibid., para. 810 Ntahobali Appeal Brief, para. 811. 2986 Ntahobali Appeal Brief, para. 813. 2987 Ntahobali Appeal Brief, paras. 814-817. 2988 Ntahobali Appeal Brief, para. 815. 2989 Ntahobali Appeal Brief, para, 816. In Ntahobali's view, the Trial Chamber applied different standards in its treatment of Prosecution and Defence evidence as to the passage of time. See idem. 2990 Ntahobali Appeal Brief, para. 807. 464 Case No. ICTR-98-42-A 14 December 2015

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19901/H 1318. The Prosecution responds that Ntahobali does not demonstrate that the Trial Chamber's conclusion on Witness WDUSA's credibility was unreasonable or that the Trial Chamber failed to consider Witness NMBMP's testimony.?» It also argues that the alleged error in the interpretation of the testimony of Witness WBUC is unfounded and that, if there was such a problem, Ntahobali should have raised it before the Trial Chamber.9» It adds that Ntahobali never gave any reasonable explanation to justify his inconsistent statements concerning his trip to Cyangugu. 2993 1319. Ntahobali replies that he did not realise that there was an interpretation error of Witness WBUC's testimony until the delivery of the Trial Judgement. 2994 He also submits that the Prosecution does not provide any argument to justify the Trial Chamber's omission of Witness NMBMP's evidence 2995 1320. Upon careful review of the audio recording of Witness WBUC's original testimony in Kinyarwanda, the Tribunal's language section confirmed that the official French and English transcripts of the witness's testimony of 2 June 20052996 do not accurately reflect the witness's testimony.2997 It is unclear from the corrected interpretation read in isolation whether Witness WBUC testified that the departure for Cyangugu took place four or five days before or after her birthday on 30 May 1994.2998 However, the Appeals

Chamber is of the view that, considering Witness WBUC's testimony in the context of her statement in examination-in-chief that Béatrice Munyenyezi was not in Butare during her birthday,2999 no reasonable trier of fact could have concluded that the witness meant that her birthday took place about four to five days after Béatrice Munyenyezi left Butare for Cyangugu. The Appeals Chamber therefore finds that the Trial Chamber erred in interpreting the witness's testimony to mean otherwise. 2991 Prosecution Response Brief, paras. 1142, 1147. The Prosecution also submits that Ntahobali's arguments concerning the assessment of Witnesses WDUSA's and NMBMP's evidence should be dismissed as they were raised for the first time in his appeal brief and that Ntahobali failed to identify in his notice of appeal the witness whose testimony was erroneously interpreted. See ibid., para.

1133. The Appeals Chamber rejects these arguments as ill- founded since Ntahobali did raise the relevant allegations of error and identify the witness in his notice of appeal. See Ntahobali Notice of Appeal, paras. 283, 285, 286. 2992 Prosecution Response Brief, para. 1143. 2993 Prosecution Response Brief, para. 1146. 2994 Ntahobali Reply Brief, para. 336. 2995 Ntahobali Reply Brief, para. 334. 2996 Witness WBUC, T. 2 June 2005 p. 44 (closed session). 2997 Registrar's Rule 33(B) Submission Concerning the Verification of Translation of Witness WBUC's Statement, 16 July 2014 (confidential), Annex, Interoffice Memorandum "Verification regarding an alleged interpretation error in the Butare case" ("16 July 2004 Rule 33(B) Submission"), para. 3 (English translation: "My birthday was on the 30'h It was about four or five days later, but I would like you to... I do not remember very clearly, but it was days later."). Compare with Witness WBUC, T. 2 June 2005 p. 44 (closed session) ("My birthday was on the 30*. And I think it was about four or five days later. I do not remember very clearly, but I know it was some days after my birthday when she left.") (emphasis added). 2998 See also 16 July 2004 Rule 33(B) Submission, para. 4 ("[a]s phrased, Witness WBUC's answer is ambiguous as to whether the departure of Beatrice to Cyangugu occurred before or after Witness WBUC's birthday.") (emphasis omitted). 2999 Witness WBUC, T. 1 June 2005 pp. 68, 69, 73 (closed session). 465 Case No. ICTR-98-42-A 14 December 2015

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19900/H 1321. In any event, the Appeals Chamber does not find that the Trial Chamber's reliance on the erroneous interpretation of Witness WBUC's testimony has occasioned a miscarriage of justice. The Appeals Chamber indeed observes that the purported contradiction between the evidence of Witness WBUC - a relative of Ntahobali3000 - and the other alibi witnesses regarding the timing of Ntahobali's departure from Butare was not critical to the Trial Chamber's assessment of the alibi, but was only one of its considerations. As recalled above, the Trial Chamber found that Ntahobali's alibi for this period was not credible based on the contradiction between Witness WBUC and other witnesses, "viewed in conjunction with the late, and incorrect, notice of alibi, and the potential bias of the witnesses in favour of Ntahobali" 3001 The Trial Chamber also referred to Ntahobali's prior inconsistent statement and emphasised that his alibi witnesses disagreed as to when he returned from Cyangugu.3002 The Appeals Chamber considers that the absence of contradiction between Witness WBUC and the other alibi witnesses does not undermine the rest of the considerations upon which the Trial Chamber relied to conclude that Ntahobali's alibi was not reasonably possibly true. 3003 1322. With respect to Ntahobali's arguments concerning the assessment of Witness WDUSA's evidence, the Appeals Chamber is

of the view that the Trial Chamber's statement that "Witness WDUSA was a friend of Ntahobali, having lived with him in Nairobi when both were in exile" does not indicate that the Trial Chamber understood that they both lived in the same apartment. 3004 In summarising the relevant evidence, the Trial Chamber accurately reflected Ntahobali's testimony that, after their meetings in Cyangugu, he and Witness WDUSA met again in Nairobi between 1994 and 1997, where Ntahobali was in exile and where they lived in the same complex. 3005 Witness WDUSA's evidence further reflects that he was present during Ntahobali's engagement ceremony, that he knew his wife since 1992, that he met several times with Ntahobali and his wife in June 1994 in Cyangugu, and that he was in contact with Ntahobali between 1994 and 1996 while in Nairobi. 3006 Ntahobali also testified that Witness WDUSA was a friend of his wife's older sister's family. 3007 Considering Witness WDUSA's evidence that he lived in the same complex as Ntahobali in Nairobi together with the totality of his evidence, the Appeals Chamber considers that the Trial Chamber did not err in concluding that, in light of his relationship with 3000 Trial Judgement, para. 2470. 300l Trial Judgement, para. 2595 3002 Trial Judgement, paras. 2585-2588, 2593. 3003 Trial Judgement, para. 2595. 3004 Trial Judgement, para. 2592. 3005 Trial Judgement, para. 2500, referring to Ntahobali, T. 26 April 2006 p. 10 (closed session), T. 21 June 2006 p. 52 466 Case No. ICTR-98-42-A 14 December 2015

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19899/H Ntahobali, Witness WDUSA "mayhave had an incentive to absolve Ntahobali of responsibility. "3008 1323. As for Ntahobali's challenge to the Trial Chamber's finding that Witness WDUSA was "imprecise as to the exact dates" when he met with him in Cyangugu, the Appeals Chamber notes that the Trial Chamber relied on "the ambiguity in the dates given" by Witness WDUSA when finding that he was not credible.3009 The Appeals Chamber observes that Witness WDUSA testified that he saw Ntahobali three times over the course of one week around 27 May 1994 and the end of the first week of June 1994.3010 In light of the fact that the witness provided multiple temporal references, the short timeframe of the meetings, and the passage of time between the events and his testimony, the Appeals Chamber considers that no reasonable trier of fact could have drawn a negative inference from Witness WDUSA's inability to provide "the exact dates" of his meetings with Ntahobali in May and June 1994301 Nevertheless, the Appeals Chamber is not convinced that the Trial Chamber's determination that Witness WDUSA gave ambiguous dates was decisive for the Trial Chamber's conclusion that the witness was not credible. Considering that the Trial Chamber further relied on his relationship with Ntahobali and the contradictions in the name of the hotel where the witness allegedly met Ntahobali on multiple occasions,3012 the Appeals Chamber finds that the Trial Chamber's improper reliance on Witness WDUSA's inability to provide exact dates has not occasioned a miscarriage of justice.

1324. Regarding the Trial Chamber's alleged failure to consider the relevant alibi evidence of Witness NMBMP, the Appeals Chamber observes that Witness NMBMP testified that Ntahobali came to Cyangugu at the end of May 1994 in the evening of the day when she moved there with her family and Béatrice Munyenyezi and that Ntahobali remained with them for a week, until 5 June 1994.3013 This aspect of Witness NMBMP's testimony is not discussed or referred to in any section of the Trial Judgement. The Appeals Chambers considers that the lack of any reference to Witness NMBMP's directly relevant evidence, viewed in light of the Trial Chamber's complete disregard of the part of her testimony on Ntahobali's alibi for late April to early May 1994,3014 indicates that the Trial Chamber also disregarded this particular aspect of Witness NMBMP's evidence. Given the direct relevance of this evidence, to which Ntahobali expressly referred in his closing brief, and the absence of any indication in the Trial Judgement that the Trial Chamber 3008 Trial Judgement, para. 2592. 3009 Trial Judgement, para. 2592. 3010 Witness WDUSA, T. 3 April 2006 p. 57 (closed session), T. 4 April 2006 p. 26 (closed session). See also Trial Judgement, para. 2592. 30111 The Appeals Chamber considers that, in light of this finding, Ntahobali's argument that the Trial Chamber applied different standards in its treatment of Prosecution and Defence evidence as to the passage of time need not be discussed. 3012 Trial Judgement, para. 2592. 3013 Witness NMBMP, T. 23 April 2008 pp. 6-10 (closed session). 467 Case No. ICTR-98-42-A 14 December 2015

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19898/H assessed and weighed Witness NMBMP's testimony on Ntahobali's alibi between 26 or 27 May and 5 June 1994, the Appeals Chamber concludes that the Trial Chamber erred in failing to consider this evidence. 3015 1325. However, the Appeals Chamber does not consider that this error invalidates the Trial Chamber's finding that the alibi was not credible. The Appeals Chamber notes that Witness NMBMP's relevant evidence, which was to be viewed with caution,3016 is repetitive of other Defence evidence discussed at length by the Trial Chamber.301 It also notes that aspects of Witness NMBMP's testimony contradict Ntahobali's own testimony 3018 Upon careful review of the relevant evidence and the Trial Chamber's pertinent findings, the Appeals Chamber is not persuaded that the evidence of Witness NMBMP, when considered with the rest of the Trial Chamber's findings on the late filing of his first notice of alibi, the contradictions in his notices of alibis regarding the time period when he was in Cyangugu, his prior inconsistent statement, the potential bias of the witnesses in his favour, and the contradictions on the date of his return to Butare and his meetings with Witness WDUSA,3019 would have prevented a reasonable trier of fact from reaching the conclusion that Ntahobali's alibi for the period between 26 or 27 May and 5 June 1994 was not credible.

1326. Accordingly, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that his alibi relating to the period between 26 or 27 May and 5 June 1994 was not credible and reasonably possibly true.

3. Conclusion 1327. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in rejecting his alibis and, accordingly, dismisses Ground 3.11 of Ntahobali's appeal in its entirety. 3014 See supra, para. 1310. 3015 Ntahobali Closing Brief, Appendix 3, paras. 39, 60. See also ibid., para. 87, fn. 60. 3016 See supra, para. 1311. 3017 Compare Witness NMBMP, T. 23 April 2008 pp. 9-11, 16-18 (closed session), T. 28 April 2008 p. 61 (closed session) with Ntahobali, T. 26 April 2006 pp. 6-9, 12, T. 21 June 2006 pp. 3-6, 8-16, 52, Witness WDUSA, T. 3 April 2006 pp. 57, 58 (closed session), T. 4 April 2006 pp. 24-30, 43 (closed session), Béatrice Munyenyezi, T. 27 February 2006 pp. 10-15, Denise Ntahobali, T. 9 June 2005 p. 29, T. 13 June 2005 p. 14, Clarisse Ntahobali, T. 9 February 2005 pp. 59, 60, T. 10 February 2005 pp. 7, 8, Céline Nyiraneza, T. 24 February 2005 pp. 45, 46, T. 28 February 2005 pp. 13-15. 3018 In particular, the Appeals Chamber notes that Witness NMBMP testified that the meetings between Ntahobali and Witness WDUSA took place at Hotel Ituze, whereas Ntahobali testified that they were held in different hotels. See Witness NMBMP, T. 23 April 2008 p. 18 (closed session); Ntahobali, T. 26 April 2006 p. 10 (closed session). 3019 Trial Judgement, paras. 2584-2595. 468 Case No. ICTR-98-42-A 14 December 2015

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19897/H F. Institut de Recherche Scientifique et Technique (Grounds 3.1 and 4.5) 1328. The Trial Chamber found that, on 21 April 1994, Ntahobali participated in the abduction of approximately 40 Tutsis at the Rugira roadblock and ordered the Interahamwe present at the roadblock to take them to a location in Butare Town between the IRST and the Laboratory to join other Tutsis who had been arrested and transported there. 3020 The Trial Chamber found that, at that location, Ntahobali issued orders to the Interahamwe to kill the Tutsis, that his orders were followed, and that approximately 200 Tutsis were killed.3021 On this basis, the Trial Chamber convicted Ntahobali of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for ordering the killing of approximately 200 Tutsis near the IRST on 21 April 1994.3022 1329. Ntahobali submits that the Trial Chamber erred in law and in fact in its assessment of the evidence. He further argues that the Trial Chamber's findings fail to support his liability for ordering the killings under Article 6(1) of the Statute. The Appeals Chamber will address these contentions in turn.

1. Assessment of Evidence 1330. The Trial Chamber relied exclusively on the evidence of Prosecution Witness QCB to conclude that Ntahobali participated in the abduction of 40 Tutsis at the Rugira roadblock and that he subsequently ordered Interahamwe to kill these and other Tutsis at the IRST. 3023 Ntahobali submits that the Trial Chamber: (i) failed to consider or properly assess inconsistencies in Witness QCB's evidence and failed to exercise sufficient caution; (ii) erred in assessing Witness QCB's identification evidence; and (iii) failed to consider or properly assess exculpatory evidence. The Appeals Chamber will address these contentions in turn.

1331. As a preliminary remark, the Appeals Chamber recalls that, on 14 April 2015, it admitted as additional evidence on appeal a confidential statement given by Witness QCB on 27 May 2004 and a second confidential statement that he gave on 2 June 2004 to Canadian investigators during investigations in Canadian criminal proceedings for the purpose of assessing limited aspects of 023 Trial Judgement, para. 1480 469 Case No. ICTR-98-42-A 14 December 2015

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19896/H these materials as they concerned Witness QCB's testimony.3024 In accordance with the relevant standard, if the Appeals Chamber determines that a reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt on the basis of the trial record alone, the Appeals Chamber will then determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt. 3025 (a) Inconsistencies and Insufficient Caution 1332. Ntahobali argues that, given the inconsistent nature of Witness QCB's evidence and his incarceration at the time of his testimony, the Trial Chamber did not exercise sufficient caution when evaluating his evidence 3026 In support of his contention, Ntahobali argues that the Trial Chamber erred in accepting unreasonable explanations for, or failed to address, material contradictions between Witness QCB's testimony and his prior statement to Tribunal investigators that concerned the killings at the IRST. 3027 1333. Specifically, Ntahobali argues that, in his prior statement, Witness QCB: (i) stated that, upon leaving the Rugira roadblock on 21 April 1994, he went towards Mukoni rather than approaching the killings at the IRST,3028 (ii) failed to explicitly mention Ntahobali's participation in the killings at the IRST and to name two other

perpetrators whom he later named in his testimony;3029 (iii) indicated that he never returned to Butare after he left on 21 April 1994 whereas he later testified that he returned and witnessed Ntahobali abduct Tutsis from the Butare Prefecture Office on 28 April 1994,3030 (iv) indicated that he left the scene of the IRST killings because he was afraid, yet testified that he participated in the killings at Kabakobwa the next day;3031 and (v) stated that "he had never seen that before" in relation to the killings at the IRST - implying he had never seen a killing before - despite testifying to having seen the killings of a woman, Ruvurajabo, and three others in his sector previously. 3032 1334. Ntahobali further submits that, given the confusing and inconsistent nature of Witness QCB's evidence as well as the Trial Chamber's conclusion that he may have a motive to 3021 Decision on Ntahobali's Second and Fourth Motions for Relief for Rule 68 Violations and to Present Additional Evidence, 14 April 2015 (confidential) ("14 April 2015 Appeal Decision"), para. 49. 3025 See supra, para. 33. 3026 Ntahobali Notice of Appeal, paras. 161-166; Ntahobali Appeal Brief, paras. 381, 382, 391-394. See also Ntahobali Reply Brief, paras. 173, 178. Ntahobali Notice of Appeal, para. 153; Ntahobali Appeal Brief, paras. 370-373, 382. See also Ntahobali Reply Brief, para. 173. 3028 Ntahobali Appeal Brief, para. 370. 3029 Ntahobali Appeal Brief, para. 373. 3030 Ntahobali Appeal Brief, para. 377. 3031 Ntahobali Appeal Brief, para. 372. 3032 Ntahobali Appeal Brief, paras. 370, 371 (emphasis omitted). 470 Case No. ICTR-98-42-A 14 December 2015

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19895/H implicate him, the Trial Chamber should have rejected Witness QCB's uncorroborated evidence. 3033 He highlights that the Trial Chamber found Witness QCB's uncorroborated evidence concerning crimes committed at the Butare Prefecture Office in late April 1994 insufficiently reliable and contends that his evidence concerning the IRST killings should not be treated any differently. 3034 1335. The Prosecution responds that the Trial Chamber acted within its discretion in relying on Witness QCB's evidence, which it found reliable and credible. 3035 It argues that the Trial Chamber was not obliged to find corroboration for Witness QCB's testimony and that it was not unreasonable to accept the witness's testimony about the IRST killings and reject it in relation to crimes committed at the prefectoral office. 3036 1336. The Appeals Chamber observes that Witness QCB testified that, after leaving the Rugira roadblock, he went to the IRST and observed the killings.3037 Witness QCB also testified to Ntahobali's participation in the killings as the leader of the assailants, which included Désiré and Pierre Claver. 3038 In summarising his evidence, the Trial Chamber noted that Witness QCB's Statement read that, after leaving the Rugira roadblock on 21 April 1994, the witness "continued towards Mukoni when [he] heard screams."3039 The witness affirmed in his testimony that he saw the

killings at the IRST before he went towards Mukoni. 3040 When confronted with this inconsistency, Witness QCB testified that the Prosecution investigator failed to properly record his statement. 3041 Witness QCB also added that, during his interview, he did not fully understand what was being read to him as there were several documents and the investigator appeared to be in a hurry. 3042 When assessing Witness QCB's evidence, the Trial Chamber accepted the witness's explanation for this variance between his prior statement and his testimony. 3043 Ntahobali merely asserts that the Trial Chamber erred in accepting the witness's "unreasonable" explanation without demonstrating that doing so was unreasonable.

1337. The Appeals Chamber further finds that none of the other alleged inconsistencies between Witness QCB's prior statement and testimony pointed out by Ntahobali were material contradictions that required the Trial Chamber to make adverse findings as to the witness's credibility. In the view of the Appeals Chamber, the fact that Witness QCB's Statement does not 3033 Ntahobali Appeal Brief, paras. 377, 381, 391, 394. See also AT. 15 April 2015 pp. 53, 54 (closed session). 3034 Ntahobali Appeal Brief, paras. 381, 393. See also AT. 15 April 2015 pp. 53, 54 (closed session). 3035 Prosecution Response Brief, paras. 853-855. See also AT. 16 April 2015 pp. 3-5. 3036 Prosecution Response Brief, paras. 858, 859. See also AT. 16 April 2015 pp. 3, 5. 3037 Witness QCB, T. 26 March 2002 pp. 37, 39. See also Trial Judgement, paras. 1471, 1477. 3038 Witness QCB, T. 20 March 2002 pp. 89, 90. See also Trial Judgement, paras. 1470, 1477. 3039 Trial Judgement, para.

1471. See also Witness QCB's Statement, p. 3. 3040 Witness QCB, T. 26 March 2002 p.

89. See also Trial Judgement, para. 1479. 3041 Witness QCB, T. 26 March 2002 pp. 37-39. See also Trial Judgement, para. 1471. 3042 Witness QCB, T. 26 March 2002 p.

38. See also Trial Judgement, para. 1471. 471 Case No. ICTR-98-42-A 14 December 2015

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19894/H expressly include reference to Ntahobali's participation in these killings or identify two individuals as co-perpetrators the witness named while testifying does not render the statement inconsistent with Witness QCB's testimony given the brevity of the statement.30* It is reasonable that Witness QCB's testimony, given in response to the specific questions arising during his examination, would contain more nuance and detail than Witness QCB's Statement 3045 1338. Ntahobali's argument that the Trial Chamber should have rejected Witness QCB's testimony given that his prior statement indicated that he never returned to Butare after 21 April 1994, but that he later testified that he returned and witnessed Ntahobali abduct Tutsis from the prefectoral office on 28 April 1994 is equally unpersuasive. Ntahobali fails to demonstrate the clear relevance of this alleged inconsistency - which pertains to a separate event - to the Trial Chamber's assessment of Witness QCB's evidence about the killings at the IRST. Moreover, the Trial Chamber did assess Witness QCB's evidence concerning Ntahobali's role in the abductions of Tutsis at the prefectoral office on 28 April 1994 elsewhere in the Trial Judgement and rejected it.304 Recalling that it is open to a trial chamber to accept some parts of a witness's testimony and reject others, 3047 the Appeals Chamber finds that tahobali does not demonstrate any error in the Trial Chamber's evaluation of Witness QCB's evidence about the IRST killings.

1339. The Appeals Chamber also considers that the Trial Chamber was under no obligation to expressly assess every conceivable dissonance between Witness QCB's Statement that he left the IRST out of fear after having observed killings there and his testimony that he perpetrated killings at Kabakobwa.3048 Furthermore, while Ntahobali points to Witness QCB's evidence that he had previously observed the killing of a woman, Ruvurajabo, and three others in his sector as contradicting the witness's statement that he "never witnessed that before" in relation to the IRST killings, the Appeals Chamber does not see any material contradiction that the Trial Chamber reasonably should have addressed in the Trial Judgement. Witness QCB's evidence of having observed prior killings concerns the murders of a limited number of individuals rather than the slaughter of approximately 200 persons killed at the IRST 3049 3043 Trial Judgement, para. 1479. 3044 Witness OCB's Statement, p. 3. 3045 Cf. Gatete Appeal Judgement, paras. 208, 212, 213. 3046 See Trial Judgement, para. 2611. 3047 See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 3048 The Appeals Chamber reiterates that a trial chamber is not required to explain every detail of its findings. See Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para.

165. See also Kvocka et al. Appea Judgement, para.

23. The Appeals Chamber notes that Witness QCB's Statement reflects his assertion that if Hutus refused to massacre the Tutsis at Kabakobwa they faced "immediate death". See Witness QCB's Statement, p. 4206 (Registry pagination). 3049 See Witness QCB, T. 20 March 2002 pp. 56, 57, 61, 62, T. 26 March 2005 pp. 40, 41. 472 Case No. ICTR-98-42-A 14 December 2015

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19893/H 1340. As for Ntahobali's argument that the Trial Chamber should have rejected Witness QCB's uncorroborated evidence because of its confusing and inconsistent nature as well as the Trial Chamber's conclusion that this detained witness may have motive to implicate Ntahobali, the Appeals Chamber recalls that nothing in the Statute or the Rules prevents a trial chamber from relying on uncorroborated evidence. A trial chamber has the discretion to decide in the circumstances of each case whether corroboration is necessary and whether to rely on uncorroborated, but otherwise credible, witness testimony. 3050 This discretion applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence. 3051 1341. The Appeals Chamber has already determined that Ntahobali has not demonstrated any error as it relates to the Trial Chamber's assessment of Witness QCB's evidence in light of the alleged inconsistencies.3052 In addition, the Appeals Chamber observes that, in evaluating the witness's evidence in relation to the killings at the IRST, the Trial Chamber expressly noted that, at the time of his testimony, Witness QCB had confessed to participating in killings of certain persons, was detained in Rwanda, and was awaiting sentencing 3053 The Trial Chamber concluded that it would treat Witness QCB's evidence

with appropriate caution as he may have had an incentive to implicate Ntahobali in order to avoid a severe sentence. 3054 1342. The Trial Chamber's approach demonstrates that it was apprised of the fact that it may be necessary to employ a cautious approach towards witnesses who are charged with crimes of a similar nature to that of an accused 3055 Indeed, a comprehensive reading of the Trial Judgement reveals that the Trial Chamber considered in detail Witness QCB's status as a detained witness and as an accomplice witness in relation to other events upon which he testified. 3056 In this context, the Trial Chamber properly considered Witness QCB's possible motivation to implicate Ntahobali as well as other accused 3057 3050 See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimungu Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 305l See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 251; Muvunyi Appeal Judgement of 1 April 2011, paras. 37, 38; Renzaho Appeal Judgement, para. 263. 1052 See supra, paras. 1332-1340, 1345. 3053 Trial Judgement, para. 1474. 3054 Trial Judgement, para. 1474. 3055 Cf. Ntagerura et al. Appeal Judgement, para. 234. 3056 See Trial Judgement, paras. 383, 1553, 1673, 1686, 2611, 3136, 3138. 3057 The Trial Chamber considered evidence that Witness QCB had colluded with other witnesses in prison to fabricate evidence. See Trial Judgement, paras. 250, 295, 296, 339, 340, 367, 369. However, these allegations pertained to evidence implicating Kanyabashi. The Trial Chamber, mindful that the Defence only need to cast reasonable doubt on the Prosecution case, concluded that the Defence evidence did not undermine the evidence of Witness QCB. See ibid., para.

383. The Appeals Chamber also discusses Ntahobali's contention that the Trial Chamber took contradictory positions as to the need to apply caution to Witness QCB's evidence when assessing Ntahobali's challenges concerning 473 Case No. ICTR-98-42-A 14 December 2015

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19892/H 1343. The Trial Chamber's analysis of Witness QCB's evidence concerning the killings at the IRST also reflects that it considered several factors relevant to a cautious assessment of this witness's credibility. Specifically, the Trial Judgement shows that the Trial Chamber was cognisant of and explicitly considered discrepancies within Witness QCB's testimony, possible inconsistencies with his prior statement as well as inconsistencies between his evidence and other evidence on the record before finding "Witness QCB's detailed evidence to be credible" with respect to this event.058 Against this background, the Appeals Chamber finds no merit in Ntahobali's contentions that the Trial Chamber failed to exercise sufficient caution with respect to Witness QCB's evidence and erred in not requiring corroboration.

1344. The Appeals Chamber is mindful that the Trial Chamber did not accept Witness QCB's evidence concerning crimes committed at the prefectoral office in late April 1994 "in the absence of corroboration" 3039 The Appeals Chamber, however, is not persuaded by Ntahobali's argument that there was no reason to treat Witness QCB's evidence concerning the killings at the IRST differently. After careful review of his evidence,3060 the Trial Chamber considered that Witness QCB's testimony was "detailed" and "credible" with respect to his observations concerning the killings at the IRST.3061 The Trial Chamber similarly found that Witness QCB's testimony in relation to the killing of Ruvurajabo perpetrated the same day and upon which it relied was "detailed" and "credible" 3062 By contrast, the Trial Chamber was not satisfied that Witness QCB's testimony about the abduction of Tutsis from the Butare Prefecture Office on 28 April 1994 - which it did not find to be detailed3063 - and hearsay evidence of Ntahobali's participation in killings there was "sufficiently reliable" 3064 Reiterating that it is open to a trial chamber to accept some parts of a witness's testimony and reject others, and that it has discretion to decide whether corroboration of evidence is necessary, the Appeals Chamber finds no error in the Trial Chamber's exercise of its discretionary power in accepting only parts

of Witness QCB's uncorroborated evidence. the killing of Ruvurajabo. See infra, paras. 1434, 1435. The Appeals Chamber is also not persuaded by Ntahobali's contentions that, because the Trial Chamber identified circumstances which could suggest that Witness QCB "may have had an incentive to implicate Ntahobali in order to avoid a severe sentence", it was required to rely on Witness QCB's evidence only where corroborated. See Trial Judgement, para. 1474; AT. 15 April 2015 pp. 53, 54, referring to Muvunyi Appeal Judgement, para, 131, Nchamihigo Appeal Judgement, para. 44. * Trial Judgement, paras. 1476-1480. 3059 Trial Judgement, para. 2611. 3060 See supra, paras. 1341-1343. 3061 Trial Judgement, para. 1480. 3062 Trial Judgement, para. 3139. 3063 Compare Trial Judgement, paras. 1480, 3139 with ibid., para. 2611. 3064 Trial Judgement, para.

2611. The Appeals Chamber notes that, Witness QCB's Statement contains no reference to the abductions of Tutsis from the Butare Prefecture Office on 28 April 1994 - unlike the killings at the IRST and the killing of Ruvurajabo - and, as noted by Ntahobali, gives the impression that he was not in Butare Town at this time. See Witness QCB's Statement, p. 3. 474 Case No. ICTR-98-42-A 14 December 2015

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19891/H 1345. Based on the foregoing, the Appeals Chamber concludes that Ntahobali has not shown that the Trial Chamber erred in assessing Witness QCB's testimony in light of inconsistencies or that it failed to exercise sufficient caution when relying on his uncorroborated evidence in relation to the killings at the IRST. (b) Identification Evidence 1346. Ntahobali submits that the Trial Chamber failed to properly analyse Witness QCB's identification evidence. 3065 Ntahobali contends that, when relying on the witness's evidence that the witness knew Ntahobali for years prior to 1994, the Trial Chamber unreasonably accepted the witness's explanation that due to fears for his safety, the witness initially testified in his open session examination-in-chief that he first saw Ntahobali on 21 April 1994.306 Ntahobali argues that such an explanation is patently unbelievable as the witness later explained his prior knowledge of Ntahobali in open session during his cross-examination. 306 Ntahobali also contends that, while Witness QCB testified that he met Ntahobali at Maurice Ntahobali's house in 1989 when Ntahobali was studying at the National University of Rwanda in Butare, 368 the evidence shows that Ntahobali was in Kigali (and not Butare) in 1989 and that he attended the National University of Rwanda in Butare only in 1992.3069 Ntahobali further submits that the Trial Chamber

failed to consider that the audio recording of Witness QCB's testimony reflects that he referred to him as "Shaloumou", 3070 and that the witness showed a propensity for misidentification because he had previously confused Ntahobali's counsel for someone who visited him in prison in Rwanda.3071 Finally, Ntahobali argues that the Trial Chamber erred by according weight to Witness QCB's in-court identification of him, particularly since the presiding judge had previously identified his counsel in court. 3072 1347. The Prosecution responds that Ntahobali exaggerates and manipulates the inconsistencies in Witness QCB's identification evidence.3073 It disputes that Witness QCB testified that he knew Ntahobali when Ntahobali was at the National University of Rwanda in Butare and submits that the witness said he did not know if Ntahobali was a university student when he first met him. 3074 3065 Ntahobali Notice of Appeal, paras. 155-160; Ntahobali Appeal Brief, paras. 384-390. 3066 Trial Judgement, paras. 1468, 1476. 3067 Ntahobali Appeal Brief, para. 386, referring to Witness QCB, T. 25 March 2002 pp. 39-42, 45-48 (closed session). 3068 Ntahobali Appeal Brief, para. 387. 3069 Ntahobali Appeal Brief, para. 387, referring to Witness QCB, T. 25 March 2002 pp. 40, 47, 57, 58 (closed session). 3070 Ntahobali Appeal Brief, para. 389, referring to Witness QCB, T. 20 March 2002 pp. 65, 66, audio/video recording of Witness QCB's testimony of 20 March 2002, at 2:07:00-2:07:37. 3071 Ntahobali Notice of Appeal, para. 159; Ntahobali Appeal Brief, para.

388. See also Ntahobali Reply Brief, para. 302 Niahobali Notice of Appeal, paras. 156-158; Niahobali Appeal Brief, para. 384, referring a Witness QCB, T. 20 March 2002 pp. 63, 64. See also Ntahobali Reply Brief, para. 174. 3073 Prosecution Response Brief, paras. 853, 861. 3074 Prosecution Response Brief, paras. 861-863. 475 Case No. ICTR-98-42-A 14 December 2015

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19890/H It further points out that the Trial Chamber explicitly recognised that it must consider in-court identification evidence with caution. 3075 1348. Ntahobali replies that the French transcripts of Witness QCB's testimony indicate that Witness QCB stated that he knew Ntahobali when Ntahobali was at the National University of Rwanda in Butare 3076 In Ntahobali's view, Witness QCB's response that he did not know if Ntahobali was a university student when he first met him is insufficient to counter his initial testimony and this modification demonstrates Witness QCB's inability to provide consistent evidence as it relates to his ability to identify Ntahobali. 3077 1349. The Appeals Chamber observes that the Trial Chamber expressly addressed the credibility of Witness QCB's identification evidence. The Trial Chamber noted that, during his open session examination-in-chief, the witness testified that he first saw Ntahobali on 21 April 1994 but during his cross-examination stated that he knew Ntahobali for a while before 1994.3078 It accepted Witness QCB's explanation that he feared for his safety and that is why he had stated that he only first saw Ntahobali on 21 April 1994 in open session. 3079 In this context, the Trial Chamber appears to have accepted Witness QCB's ability to identify Ntahobali from his testimony that he had in fact known Ntahobali since 1989 when Witness

QCB worked at the National University of Rwanda in Butare. 3080 1350. Ntahobali does not show that Witness QCB's explanation as to the reason why he initially said that he first saw Ntahobali on 21 April 1994 was so unbelievable that no reasonable trier of fact could have accepted it 3081 While Witness QCB provided general evidence of his prior knowledge of Ntahobali during his open session cross-examination, 3082 he refused to go into detail before going into closed session 3083 Only then did Witness QCB provide additional information as to how he 3075 Prosecution Response Brief, para. 864. 3076 Ntahobali Reply Brief, para. 174. 3077 Ntahobali Reply Brief, para.

174. Beyond replying to arguments made in the Prosecution Response Brief, Ntahobali further challenges the credibility of Witness QCB's identification evidence by arguing that the witness, as recognised by the Trial Chamber, lied about knowing Major Rusigariye. See idem. The Appeals Chamber recalls that reply briefs shall be limited to arguments in reply to the response brief. See Practice Direction on Formal Requirements on Appeal, para.

6. Ntahobali was expressly made aware of this limitation in these appeal proceedings. See Decision on Motions for Extensions of Time Limit and Word Limit for the Filing of the Reply Briefs, 27 August 2013, p.

4. The Appeals Chamber will therefore not consider this argument further. 3078 Trial Judgement, para. 1476. 3079 Trial Judgement, paras. 1468, 1476. 3080 Trial Judgement, para. 1468. 3081 Cf. Kordié and Cerkez Appeal Judgement, paras. 266, 294 3082 See Witness QCB, T. 25 March 2002 pp. 39, 40. 3083 See Witness QCB, T. 25 March 2002 pp. 40, 45 (closed session). 476 Case No. ICTR-98-42-A 14 December 2015

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19889/H knew Ntahobali,3084 confirming that, contrary to Ntahobali's assertion, the witness did not want to discuss his knowledge of Ntahobali in open session.

1351. Likewise, Ntahobali's submission that Witness QCB testified that he knew Ntahobali when Ntahobali was a student at the National University of Rwanda in Butare in 1989 misinterprets the witness's testimony, 3085 Read in context, it is clear from both the English and French transcripts that Witness QCB did not testify that he knew Ntahobali in 1989 when Ntahobali was a student at the National University of Rwanda. Rather, Witness QCB testified that he was working at the university at that time and that he first met Ntahobali at his father's home during that year. 3086 Witness QCB unambiguously testified that he did not know whether Ntahobali was a university student when he first met him in 1989.3087 Thus, Ntahobali's citation to Witness QCB's evidence that he knew Ntahobali when he was studying "at the university" clearly concerns a different period during which the witness also had contact with Ntahobali 3088 Moreover, the Appeals Chamber notes that Ntahobali testified that his parents returned to Butare in 1988 or 1989 and that, although he was living in Gitarama, he would return to Butare to visit them. 3089 1352. Further, the Appeals Chamber considers that to the extent the audio recording of Witness QCB's testimony would reveal that the witness referred to Ntahobali as "Shaloumou" rather than "Shalom", this would not constitute a material variance requiring express

analysis by the Trial Chamber. A review of the transcripts cited by Ntahobali reflects that Witness QCB referred to Ntahobali as "Shalom" 3090 Of greater significance, moments after Ntahobali alleges that Witness QCB identified Ntahobali as "Shaloumou", the witness provided biographical information about Ntahobali demonstrating his ability to identify Ntahobali and that he was referring to him. 3091 In these circumstances, the Appeals Chamber is of the opinion that Witness QCB's misidentification of Ntahobali's counsel is immaterial to his ability to identify Ntahobali 3092 1353. The Appeals Chamber also finds no merit in Ntahobali's contention that the Trial Chamber erred in according weight to Witness QCB's in-court identification, particularly since the presiding judge had previously identified his counsel in court. Ntahobali's counsel was indeed identified by the presiding judge in the presence of Witness QCB the day before the witness identified Ntahobali 3084 See Witness QCB, T. 25 March 2002 pp. 40, 45 (closed session). 3085 Ntahobali Appeal Brief, paras. 386, 387. 3086 Witness QCB, T. 25 March 2002 p. 46 (closed session); T. 25 March 2002 pp. 52, 53 (closed session) (French). 30 Se We C3, 1. 25 March 2.53 posS. 59 (ClosT sion): 1. 23 Mar 202 p. 60) 9 Celosed session) (French). 3089 Ntahobali, T. 6 April 2006 p. 25. 3090 Witness QCB, T. 20 March 2002 pp. 66, 67. 3091 See Witness QCB, T. 20 March 2002 p. 70; T. 20 March 2002 p. 81 (French) (identifying Ntahobali's parents as Maurice Ntahobali and Pauline Nyiramasuhuko). 477 Case No. ICTR-98-42-A 14 December 2015

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19888/H in court. 3093 However, the Appeals Chamber is not persuaded that these circumstances necessarily made Witness QCB's in-court confirmation that Ntahobali was the person he was referring to in his testimony unreliable.3094 The Trial Chamber's analysis reflects that it found Witness QCB's identification of Ntahobali reliable in light of the witness's testimony that he had known him since 1989 and not because he identified him in court. 3095 1354. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate any error on the part of the Trial Chamber in accepting Witness QCB's identification evidence. (c) Exculpatory Evidence 1355. Ntahobali submits that the Trial Chamber failed to consider or properly assess evidence that contradicted Witness QCB's testimony of Ntahobali's participation in the killings at the IRST on 21 April 1994, and its negative impact on Witness QCB's credibility.3096 Specifically, he points to his own evidence and that of Witness D-2-13-O, arguing that it materially contradicts Witness QCB's testimony that a Daihatsu carrying Tutsis could go to the IRST without first stopping at the Rugira roadblock 3097 Ntahobali also argues that Witness QCB's evidence reflects that the Daihatsu avoided the roadblock by taking a route which, in light of the evidence of Ntahobali and Witness D-2-13-0, did not exist. 3098 1356. Ntahobali

further submits that the Trial Chamber reversed the burden of proof in its consideration of Prosecution Witness TN's testimony and erred in concluding that it was not inconsistent with Witness QCB's evidence.3099 In particular, he contends that the Trial Chamber mischaracterised Witness QCB's evidence by concluding that the killings at the IRST occurred between 9.00 and 9.30 a.m., given that Witness QCB only testified to having left the scene at 9.30 a.m.3100 He argues that it is pure speculation for the Trial Chamber to have found that Ntahobali left the scene around 9.30 a.m.3101 and that the Trial Chamber erred in concluding that Witness QCB's testimony was not incompatible with Witness TN's evidence, which reasonably indicates that Ntahobali was present at killings in the Tumba Sector from 9.00 to 10.00 a.m. 3102 3092 Trial Judgement, paras. 1468, 1476. See Witness QCB, T. 20 March 2002 p. 63 (presiding judge identifying Ntahobali's counsel); T. 21 March 2002 30, 81, 82 (Witness QCB's in-court identification of Ntahobali). Notably, Witness QCB also positively identified Joseph Kanyabashi and Sylvain Nsabimana. See Witness QCB, T. 21 March 2002 pp. 79-81. 3095 Trial Judgement, paras. 1468, 1476. 3096 Ntahobali Appeal Brief, paras. 358-368, 379. 3097 Ntahobali Appeal Brief, para. 379. 3098 Ntahobali Appeal Brief, para. 379. 3099 Ntahobali Appeal Brief, paras. 358-368. 3100 Ntahobali Appeal Brief, para. 360. 3101 Ntahobali Appeal Brief, para. 362. 3102 Ntahobali Appeal Brief, paras. 359, 360, 363. 478 Case No. ICTR-98-42-A 14 December 2015

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19887/H Ntahobali also asserts that the Trial Chamber failed to address the contradiction between Witness QCB's testimony that Ntahobali was driving a Peugeot and Witness TN's evidence that Ntahobali was in a Toyota on 21 April 1994.3103 1357. The Prosecution did not respond to these submissions.

1358. The Appeals Chamber notes that the Trial Chamber made no findings as to the route taken by the Daihatsu and only summarised Witness QCB's evidence that the Daihatsu was moving from the EER to the IRST followed by a Peugeot driven by Ntahobali and that the Peugeot stopped at the Rugira roadblock while the Daihatsu continued its journey, 310* Having reviewed all of the relevant aspects of Witness QCB's evidence3105 as well as the allegedly contradictory evidence identified by Ntahobali,3106 the Appeals Chamber is not persuaded that Ntahobali has identified a material contradiction in the record that the Trial Chamber unreasonably disregarded 3107 In the view of the Appeals Chamber, of principal significance was the existence of the Rugira roadblock as identified by Witness QCB, which is not disputed by this evidence.

1359. With respect to Ntahobali's contention that the Trial Chamber shifted the burden of proof when stating that Witness TN's evidence "does not exclude the possibility that Ntahobali may have participated in the [IRST] killings", the Appeals Chamber observes that the Trial Chamber ultimately concluded that the evidence provided by Witness TN did "not cast a doubt on the Prosecution's case"3108 and that the Prosecution had "proven beyond a reasonable doubt" the facts relevant to Ntahobali's liability for the IRST killings.3109 The Trial Chamber had also recalled earlier that the aceused are presumed innocent and that it is the Prosecution's burden to prove every element of the offence charged beyond reasonable doubt.3110 While the Appeals Chamber considers that the specific language identified by Ntahobali may suggest a misapplication of the burden of proof, read in this context, these statements underscore the Trial Chamber's determination that the evidence of Witness TN did not provide another reasonable possibility that was inconsistent with Witness QCB's evidence of Ntahobali's involvement in the killings at the IRST. 3103 Ntahobali Appeal Brief, para. 364. 3104 Trial Judgement, paras. 1469, 1475, referring to Witness QCB, T. 20 March 2002 p. 85, T. 25 March 2002 p. 16. 3105 See Witness QCB, T. 20 March 2002 pp. 78, 84, 85, 88; T. 25 March 2002 pp. 16, 18, 21, 22; Exhibit P54 (Sketch map of Butare Town by Witness QCB). See Ntahobali Appeal Brief, para. 379, referring to Ntahobali, T. 18 April 2006 pp. 72-74, Witness D-2-13-0, T. 7 November 2007 pp. 23, 24 (closed session), Exhibit D402 (Sketch map of Butare Town by Ntahobali), Exhibit D412 (Sketch map of Butare Town). 3107 See Ntahobali Closing Brief, para.

139. See also Ntahobali Closing Arguments, T. 23 April 2009 pp. 4, 5, 7, 8, 23, 108 Trial Judgement, para. 1478. 3109 Trial Judgement, para. 1480. 3110 Trial Judgement, para. 162, referring to Article 20(3) of the Statute, Rule 87(A) of the Rules. 479 Case No. ICTR-98-42-A 14 December 2015

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19886/H 1360. Regarding the assessment of Witness TN's evidence, the Trial Chamber noted that Witness TN testified that Ntahobali killed Rwabugiri and Philippe behind the Tumba sector office between 9.00 and 10.00 a.m. on 21 April 1994 and that "[this would account for a portion of the timeframe during which Witness QCB submits that the killings of Tutsis at the IRST occurred, i.e. between 9.00 and 9.30 a.m."3ll' While Ntahobali contests that Witness TN's evidence could be interpreted as reflecting that the killings of Rwabugiri and Philippe lasted from 9.00 to 10.00 a.m., he does not demonstrate that a reasonable trier of fact could not interpret Witness TN's evidence as only referring to a segment of time during the relevant period. 3112 1361. Similarly, although Witness QCB's evidence reflects that he left the IRST at 9.30 a.m. and does not purport to account for when Ntahobali departed, 3113 the Appeals Chamber sees no error in the Trial Chamber's conclusion that the timing of the events as identified by Witnesses TN and QCB is not necessarily inconsistent with Ntahobali's involvement in both incidents given that the two locations were only approximately one kilometre away and that Ntahobali was in possession of a car at that time. 3114 1362. Furthermore, the Appeals Chamber notes that the Trial Chamber ultimately found that Witness TN's evidence in relation to Ntahobali's

participation in killings in the Tumba Sector on the morning of 21 April 1994 was insufficient to prove the allegation beyond reasonable doubt. 3115 Having rejected this particular aspect of Witness TN's evidence,3116 the Appeals Chamber finds that a reasonable trier of fact could have decided not to expressly consider the differences between the testimonies of Witnesses QCB and TN as to the vehicle Ntahobali was driving on 21 April 1994.

1363. Accordingly, the Appeals Chamber finds no error in the Trial Chamber's assessment of the alleged exculpatory evidence relied upon by Ntahobali in relation to the IRST killings on 21 April 1994. (d) Additional Evidence Admitted on Appeal 1364. On the basis of the trial record alone, the Appeals Chamber has found that the Trial Chamber did not err in: (i) assessing Witness QCB's testimony in light of inconsistencies; 3111 Trial Judgement, para, 1478, referring to Witness QCB, T. 20 March 2002 pp. 78, 95, T. 26 March 2002 p. 39. 3112 See Witness TN, 3 April 2002 p. 133 ("A. Those people were killed on the 21st of April in the morning between 9.00 am and 10.00 am, madam."). 3113 See Witness QCB, T. 20 March 2002 p. 95 ("Q. Let me go back and ask you to estimate the time at which you left the approximate area of IRST? A. It was approximately at 9:30."). 3114 See Trial Judgement, para. 1478. 3115 Trial Judgement, para. 1486. 3116 The Appeals Chamber also notes that the Trial Chamber only relied on Witness QCB's evidence in finding that Nahobali was in possession of a vehicle on 21 April 1994. See Trial Judgement, para. 1478, referring to Witness QCB, T. 20 March 2002 p. 85. 480 Case No. ICTR-98-42-A 14 December 2015

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19885/H (ii) failing to exercise sufficient caution when relying on Witness QCB's uncorroborated evidence in relation to the killings at the IRST; (iii) accepting Witness QCB's identification evidence; or (iv) assessing the alleged exculpatory evidence relied upon by Ntahobali. In accordance with the relevant standard, the Appeals Chamber will therefore determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.

1365. The Appeals Chamber finds Witness QCB's testimony pertaining to the killings at the IRST detailed and coherent.?1'' His explanations given in cross-examination as they concern alleged inconsistencies about this event are clear and convincing 3118 His evidence is first-hand3119 and his identification of Ntahobali is compelling 3120 1366. The Appeals Chamber admitted as additional evidence on appeal Witness QCB's statement given to the Royal Canadian Mounted Police ("RCMP.") on 27 May 2004 and excerpts of Witness QCB's statement given to the RCMP on 2 June 2004 (collectively "Witness QCB's RCMP Statements"), both of which were given confidentially during investigations in Canadian criminal proceedings 3121 When admitting these statements as additional evidence on appeal, the Appeals Chamber stated: [T]he Appeals Chamber observes that the information that Witness QCB provided in relation to the abduction of the children in [Witness QCB's May 2004 Statement] indicates that he observed the event with his "own eyes" and provides details and commentary that would seem to affirm this statement as well as that he also saw the abduction of the pastor. This account of the abductions is inconsistent with Witness QCB's assertions in [Witness QCB's June 2004 Statement], provided less than a week later, that he did not see the abductions but learned about them from another source.

3122 1367. Ntahobali submits that, given the Trial Chamber's stated concerns that Witness QCB may have an incentive to lie, the additional evidence admitted on appeal shows that Witness "QCB is, in fact, a liar."3123 He contends that Witness QCB's evidence cannot be accepted beyond reasonable doubt without corroboration. 3124 Witness QCB, T. 25 March 2002 pp. 15-18, 21, 22, 24-27, 29, 30. 3118 See Witness QCB, T. 25 March 2002 pp. 45, 46, T. 26 March 2002 pp. 37-41. 3119 See Witness QCB, T. 20 March 2002 pp. 78, 84-95. 3120 See Witness QCB, T. 20 March 2002 pp. 65-77, T. 21 March 2002 pp. 81, 82, T. 25 March 2002 pp. 39, 40 and 45-53, 55, 58-61, 65-68 (closed session). 3121 14 April 2015 Appeal Decision, paras. 14, 49, referring to Arsène Shalom Ntahobali's Second Motion for Leave to Present Additional Evidence, 5 November 2013 (originally filed in French, English translation filed on 6 August 2014) (confidential) ("5 November 2013 Motion"), paras. 1, 17, Annexes F (Witness QCB's statement to the RCMP of 27 May 2004) (confidential) ("Witness QCB's May 2004 Statement"), G (Witness QCB's statement to the RCMP of 2 June 2004) (confidential) ("Witness QCB's June 2004 Statement"). 3122 14 April 2015 Appeal Decision, para. 33 (internal references omitted). 3123 AT. 15 April 2015 p. 54 (closed session). In particular Ntahobali submits that the additional evidence "established that [Witness] QCB was able to lie about seeing with his own eyes Mr. Ntahobali's involvement in crimes; was able to 481 Case No. ICTR-98-42-A 14 December 2015

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19884/H 1368. The Appeals Chamber observes that Witness QCB provided contradictory statements to the RCMP as to whether he observed first-hand or learned from another source about abductions that occurred during the genocide in which Ntahobali was implicated as a co-perpetrator.3125 However, the Appeals Chamber has considered and accepts the witness's explanation for the inconsistency 3126 Furthermore, the Appeals Chamber reiterates that the contradictory information arose during statements which were not given as testimonies under oath or under penalty of perjury 3127 Moreover, the abductions recounted in Witness QCB's RCMP Statements were not incidents for which Ntahobali was charged nor has Ntahobali argued that the statements contradict the testimony Witness QCB gave before the Tribunal. 3128 Considering that a reasonable trier of fact has the discretion to rely on uncorroborated, but otherwise credible, witness testimony from an accomplice witness provided that appropriate caution is applied in assessing such evidence, 312) the Appeals Chamber considers that the additional evidence admitted on appeal does not undermine the credibility of Witness QCB. The Appeals Chamber makes this determination in light of the evidence in the trial record, including Witness TN's evidence highlighted by Ntahobali at trial and on appeal, 3130 Witness D-2-13-0's evidence,3131 and the evidence

related to the alleged fabrication of evidence by Witness QCB.3132 1369. In light of the trial evidence and the additional evidence admitted on appeal, and considering its analysis on Ntahobali's responsibility conducted below, the Appeals Chamber is itself convinced beyond reasonable doubt of Ntahobali's guilt concerning the killing of approximately 200 refugees at the IRST on 21 April 1994. give numerous details about events he did not personally witness, although saying he was there; and, three, he was able to lie as to the fact that he had been personally present on the premises to see those crimes when he was not." See idem. AT. 15 April 2015 p. 54 (closed session). Compare Witness QCB's May 2004 Statement, pp. 139781/H, 13979/H, 13978/H, 13976/H, 13975/H, 13968/H-13959/H (Registry pagination) with Witness QCB's June 2004 Statement, pp. 13957/H, 13956/H (Registry pagination). See Witness QCB's June 2004 Statement, pp. 13957/H-13954/H (Registry pagination). 3127 14 April 2015 Appeal Decision, para. 34. 3128 See 5 November 2013 Motion, paras. 39-44; Response to Ntahobali's 2 Rule 115 Motion, 5 December 2013 (confidential), para. 19; Arsène Shalom Ntahobali's Reply to the Prosecution's Response to Ntahobali's 2'* Rule 115 Motion, 20 December 2013 (originally filed in French, English translation filed on 27 August 2014), paras. 19-24. See also 14 April 2015 Appeal Decision,

para. 34. 3129 3130 The Appeals Chamber observes that Ntahobali did not call any witnesses with respect to this specific event but principally challenged Witness QCB's credibility. See Ntahobali Closing Brief, paras. 139-143. See also ibid., paras. 98, 106, 108, 159, 410, 423, 682, 736, 737, Appendix 1, para. 6; Ntahobali Closing Arguments, T. 23 April 2009 pp. 23, 24. As noted by the Trial Chamber, Ntahobali "assert[ed] that Witness QCB's account of the 21 April 1994 events [was incompatible in time with the testimony of Prosecution Witness TN." See Trial Judgement, para.

1459. See also Ntahobali Closing Brief, paras. 276, 277, 287, referring, inter alia, to Witness TN, T. 3 April 2002 pp. 172, 173 (closed session) (French); Ntahobali Closing Arguments, T. 23 April 2009 pp. 7, 8; Ntahobali Appeal Brief, para. 359, referring to Witness TN, T. 3 April 2002 pp. 155, 157 (French). See also supra, Section V.F.1(c). 3131 See. e.... Witness D-2-13-O, T. 7 November 2007 pp. 23, 24. See also supra, Section V.F.1(c). 3132 See Witness D-2-13-D, T. 28 August 2007 pp. 60-62; T. 30 August 2007 pp. 49-51; T. 10 September 2007 pp. 63, 482 Case No. ICTR-98-42-A 14 December 2015

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.. 19883/H (e) Conclusion 1370. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's submissions as they relate to the assessment of the evidence pertaining to the killings perpetrated at the IRST on 21 April 1994.

2. Ordering Responsibility 1371. As noted above, the Trial Chamber found Ntahobali responsible for ordering the killing of approximately 200 Tutsis near the IRST on 21 April 1994.3133 The Trial Chamber determined that "Ntahobali issued orders to the Interahamwe to kill the Tutsis that had been arrested"3134 and that his "instructions in this regard were clear."3135 The Trial Chamber further found that Ntahobali's orders to kill were followed by the Interahamwe and that approximately 200 Tutsis were killed as a result 3136 The Trial Chamber inferred as the only reasonable inference that Ntahobali possessed authority over the Interahamwe. 3137 1372. Ntahobali contends that the Trial Chamber erred in finding him responsible for ordering these killings on the basis of Witness QCB's evidence3138 In particular, he argues that Witness QCB. did not specify the nature or content of the orders he allegedly gave and that his evidence could not reasonably be relied upon to establish that he ordered the Interahamwe to kill the Tutsis at the IRST. 3139 Ntahobali also submits that Witness QCB's general testimony about the orders he issued could reasonably relate to instructions he gave before his arrival at the IRST and therefore have no link to the killings that occurred at the IRST. 3140 He contends that evidence of his mere presence and possible authority over the Interahamwe is

insufficient to establish that he ordered the killings 3141 Moreover, Ntahobali argues that the Trial Chamber erred in finding that he possessed sufficient authority over the Interahamwe required for ordering liability pursuant to Article 6(1) of the Statute, as such a conclusion relied upon the erroneous finding that he ordered the Interahamwe to kill the Tutsis.3142 3133 Trial Judgement, paras. 5782-5786, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169. See also ibid., para. 1480. 3134 Trial Judgement, para.

5782. See also ibid., para. 1480. 3135 Trial Judgement, para. 5784. 3136 Trial Judgement, para.

5782. See also ibid., para. 1480. 3137 Trial Judgement, para. 5785. 3138 Ntahobali Notice of Appeal, paras. 324, 325; Ntahobali Appeal Brief, paras. 962-971. 3139 Ntahobali Notice of Appeal, para. 324; Ntahobali Appeal Brief, paras. 962-968. 3140 Ntahobali Appeal Brief, para. 967, referring to Karera Appeal Judgement, para. 185. 3141 Ntahobali Appeal Brief, para. 969. 3142 Ntahobali Notice of Appeal, para. 325; Ntahobali Appeal Brief, para. 970. 483 Case No. ICTR-98-42-A 14 December 2015

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19882/H 1373. The Prosecution responds that the Trial Chamber acted reasonably in inferring that Ntahobali ordered the killing of the 200 Tutsis at the IRST 3143 It submits that Ntahobali's emphasis on the absence of evidence of a verbatim order to kill is misguided and ignores the relevant factual basis supporting this conclusion. 3144 1374. The Trial Chamber found that, while at the massacre site at the IRST, "Ntahobali issued orders to the Interahamwe to kill the Tutsis."3145 Witness QCB was the only person to testify about this event and the Trial Chamber's factual conclusions rest solely on his testimony.314 A review of the Trial Chamber's summary of his evidence does not, however, reflect that Witness QCB testified that he overheard Ntahobali issue express instructions to the Interahamwe to kill the Tutsis at the IRST.3147 Rather, the Trial Chamber noted that the witness identified Ntahobali as one of the assailants at the IRST and as "the leader of the killers" because he witnessed Ntahobali "issuing orders". 3148 1375. The Appeals Chamber, however, finds that Ntahobali's submissions fail to appreciate the broader context of Witness QCB's evidence and do not demonstrate that the Trial Chamber erred in concluding that Ntahobali ordered the killing of approximately 200 Tutsis at the IRST. Specifically, the Appeals Chamber observes that, in reaching its conclusion, the

Trial Chamber relied upon and accepted Witness QCB's evidence that: (i) Ntahobali participated in the abduction of approximately 40 Tutsis from the Rugira roadblock, where he ordered the Interahamwe present to take the Tutsis who had been arrested to the IRST where they were ultimately killed;3149 (ii) the witness went to this particular location and saw about 200 people being stripped naked before being killed with clubs and knives;3150 and (ili) he observed Ntahobali among the assailants and identified Ntahobali as the leader of the killers, issuing orders3151 The Appeals Chamber notes that all of Witness QCB's observations fell within a time span of approximately 20 minutes. 3152 Given the organised nature of the event, the limited timeframe in which it occurred, and Ntahobali's leadership role during it, the Appeals Chamber finds that a reasonable trier of fact could have considered that the only reasonable conclusion from the evidence was that Ntahobali.ordered the killings at the IRST. 3143 Prosecution Response Brief, paras. 1207, 1215. 3144 Prosecution Response Brief, paras. 1207, 1210-1215. 3145 Trial Judgement, para.

1480. This conclusion is repeated in the "Legal Findings" section. See ibid., para. 5782. 3146 See Trial Judgement, paras. 1465-1471, 1474, 1480. 3147 See Trial Judgement, para. 1470. 3148 See Trial Judgement, paras. 1470, 1477, referring to Witness QCB, T. 20 March 2002 pp. 89, 90. The Appeals Chamber has reviewed the relevant aspects of Witness QCB's testimony and found no express statement that he heard Ntahobali order Interahamwe to kill. See Witness QCB, T. 20 March 2002 pp. 86-93, T. 26 March 2002 p.

39. The Appeals Chamber further observes that the Prosecution does not cite to any testimony from Witness QCB stating that Ntahobali gave explicit orders to Interahamwe to kill. See Prosecution Response, paras. 1207-1215. 3149 Witness QCB, T. 20 March 2002 pp. 86-91. See also Trial Judgement, paras. 1470, 1480. 3150 Witness QCB, T. 20 March 2002 p.

89. See also Trial Judgement, paras. 1470, 1477, 1480. 484 Case No. ICTR-98-42-A 14 December 2015

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19881/H 1376. Ntahobali also does not demonstrate that Witness QCB's evidence could reasonably relate to instructions that have no link to the killings at the IRST. The Trial Chamber understood Witness QCB's evidence as referring to orders he heard while observing the killings at the IRST 3153 The Appeals Chamber finds that a reasonable trier of fact could have come to this conclusion, as Witness QCB's testimony that Ntahobali issued orders was provided while describing the killings at the IRST and in direct response to a question as to why he had previously testified that Ntahobali was the leader of the killers 3154 1377. The Appeals Chamber notes that Nahobali's remaining arguments rely solely on the contention that the Trial Chamber erred in concluding that he possessed sufficient authority because it relied on the allegedly erroneous finding that Ntahobali ordered the Interahamwe to kill the Tutsis at the IRST315S Since the Appeals Chamber has found no error in this conclusion, it dismisses the remainder of Ntahobali's arguments as moot.

1378. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding him responsible for ordering the killings perpetrated at the IRST on the basis of Witness QCB's evidence.

3. Conclusion 1379. The Appeals Chamber finds that Ntahobali has failed to demonstrate any error in the Trial Chamber's finding that he was responsible for ordering the killing of approximately 200 Tutsis at the IRST on 21 April 1994. For the foregoing reasons, the Appeals Chamber dismisses Grounds 3.1 and 4.5 of Ntahobali's appeal in their entirety. 3151 Witness QCB, T. 20 March 2002 p.

90. See also Trial Judgement, paras. 1470, 1477, 1480. 3152 Witness QCB, T. 20 March 2002 pp. 78, 95. See also Trial Judgement, paras. 1469, 1470 3153 See Trial Judgement, para. 1477 ("Roughly 200 people were stabbed or clubbed to death by members of the nterahamwe [...] According to Witness QCB, Ntahobali was issuing orders during this time." 154 Witness QCB, T. 20 March 2002 p.

90. See also Trial Judgement, para. 1470 3155 The Appeals Chamber refers to Ntahobali's contentions that his mere presence and possible authority over Interahamwe would be insufficient to establish that he ordered the killings and that he did not possess sufficient authority over the Interahamwe. See supra, para. 1372. 485 Case No. ICTR-98-42-A 14 December 2015

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19880/H •G. Hotel Thuliro Roadblock (Grounds 3.2, 3.3, and 4.2, 4.3 in part) 1380. The Trial Chamber noted that it was not contested that, at the time of the relevant events, the Ntahobali family resided in Hotel Ihuliro in Butare Town, which was owned by Maurice Ntahobali. 3156 The Trial Chamber found that a roadblock was erected near Hotel Ihuliro in late April 19943157 It also determined that Niahobali manned the roadblock, which was used to abduct and kill members of the Tutsi population 3158 In particular, the Trial Chamber found that Ntahobali ordered the killing of Ruvurajabo at this roadblock on 21 April 1994 and that he raped and murdered a Tutsi girl at the same roadblock around the end of April 1994.3159 The Trial Judgement also reflects that Ntahobali was found responsible for having physically perpetrated the killing of multiple Tutsis at the roadblock, including but not limited to the killing of the "Tutsi girl" 3160 1381. On this basis, the Trial Chamber convicted Ntahobali of genocide, extermination, rape, and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons and outrages upon personal dignity as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol Il for committing rape and killings and ordering the killing of Ruvurajabo pursuant to Article 6(1) of the

Statute3161 The Trial Chamber also found that Ntahobali bore superior responsibility pursuant to Article 6(3) of the Statute for the killing of Ruvurajabo perpetrated by Interahamwe and considered this as an aggravating factor when determining his sentence. 3162 1382. Ntahobali submits that the Trial Chamber erred in: (i) failing to provide sufficiently clear findings with respect to the extent of his liability for crimes committed at the Hotel Thuliro roadblock; (ii) finding that the Hotel Ihuliro roadblock was established in late April 1994; (iji) its assessment of the evidence about the killing of Ruvurajabo as well as in its determination that he was responsible as a superior for this crime; and (iv) its assessment of the evidence relating to the rape and murder of a Tutsi girl at the roadblock. The Appeals Chamber will consider these challenges in turn. 3156 Trial Judgement, para. 3107. 3157 Trial Judgement, para.

3113. The Appeals Chamber recalls that it has decided to refer to the roadblock which the Trial Chamber found was located in the proximity of the EER and the garage known as the "MSM garage" and very close to Hotel Ihuliro as the "Hotel Ihuliro roadblock" throughout this Judgement. See supra, fn. 51. 3158 Trial Judgement, paras. 3128, 5842. 3159 Trial Judgement, paras. 3135, 3140, 5842, 5845, 5971, 6053-6055, 6077-6080, 6094, 6100, 6101, 6168, 6169, 6184. See also ibid., paras. 6071, 6072. 'See infra, Section V.G.1. 3161 Trial Judgement, paras. 5842, 5845, 5971, 6053-6055, 6077-6080, 6094, 6100, 6101, 6121, 6168, 6169, 6184-6186. The Trial Chamber considered that Ntahobali had not received sufficient notice that the charge of genocide would be 486 Case No. ICTR-98-42-A 14 December 2015

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19879/H 1. Imprecise and Unsupported Findings 1383. In the "Factual Findings" section of the Trial Judgement concerning Nahobali's role at the Hotel Ihuliro roadblock, the Trial Chamber recalled the evidence of Prosecution Witnesses FA, QCB, SX, TB, TG, and TQ3163 The Trial Chamber considered the ability of Witnesses QCB, SX, TB, TG, and TQ to identify Ntahobali as well as the corroborative nature of their testimonies 3164 The Trial Chamber found "their accounts credible»3165 and subsequently concluded as follows: Having considered all the evidence before it, the Chamber finds the Prosecution has established beyond a reasonable doubt that during the relevant time period, Ntahobali manned the roadblock in front of his parents' residence and utilised the roadblock with the assistance of soldiers and other unknown persons to abduct and kill members of the Tutsi population. 3166 1384. The Trial Chamber provided its most detailed assessment of Ntahobali's criminal responsibility for killings at the Hotel Ihuliro roadblock in the "Genocide" section of the "Legal Findings" section of the Trial Judgement 3167 In this particular section, the Trial Chamber concluded as follows: In April 1994 Ntahobali manned the roadblock near Hotel Thuliro. With the assistance of soldiers and other unknown persons he utilised the roadblock to abduct and kill members of the Tutsi population. Towards the

end of April 1994, Ntahobali personally raped and murdered one Tutsi girl, and instructed the Interahamwe to kill Léopold Ruvurajabo, who was subsequently killed, at the roadblock near Hotel Ihuliro. It was established that various crimes, in particular beatings, rapes and killings, were carried out mostly against Tutsis at this roadblock during the relevant time period [...].3168 [...] Ntahobali killed Tutsis at the Hotel Ihuliro roadblock [...]. The Chamber therefore finds Ntahobali guilty of genocide, pursuant to Article 6 (1) of the Statute. [...j3169 1385. The Trial Chamber repeated the conclusion that Ntahobali killed "Tutsis" at the Hotel Ihuliro roadblock, "including a Tutsi girl", when finding him responsible for committing extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 3170 supported by rapes committed at the Hotel Ihuliro roadblock and did not enter a genocide conviction on the basis of the sape of the Tutsi girl in late April 1994. See ibid., paras. 5828-5836, 5843. Trial Judgement, paras. 5847-5849, 5971, 6056, 6220. 3163 See Trial Judgement, paras. 3118-3120, 3124. 3164 Trial Judgement, para. 3118-3120, 3122-3124. 3165 Trial Judgement, para. 3124. 3166 Trial Judgement, para. 3128. 3167 Compare Trial Judgement, paras. 5842-5849, 5971 with ibid., paras. 6053-6055, 6100, 6101, 6121, 6168, 6169. 3168 Trial Judgement, para. 5842 (emphasis added). 3169 Trial Judgement, para. 5971 (emphasis added). 3170 Trial Judgement, paras. 6053-6055, 6100, 6101, 6121, 6168, 6169. 487 Case No. ICTR-98-42-A 14 December 2015

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19878/H 1386. Ntahobali submits that the Trial Judgement is unacceptably imprecise regarding his convictions for the killings he allegedly committed at the Hotel Ihuliro roadblock, which violates his right to a reasoned opinion provided for under Article 22(2) of the Statute and Rule 88(C) of the Rules.31" Specifically, he contends that, save for the killing of the "Tutsi girl", the Trial Chamber failed to indicate what other killings of Tutsis he was found to have personally committed. 3172 He argues that the Trial Chamber could not have found him liable based on the extended form of committing as it did not make the conclusions that would have been essential to support this mode of responsibility.3173 Ntahobali submits that the imprecision of the Trial Judgement concerning his responsibility for the killing of multiple Tutsis at the Hotel Ihuliro roadblock prevented him from knowing exactly what he was found responsible for and from mounting an effective appeal. 3174 1387. In addition, Ntahobali argues that the finding that he committed killings at the Hotel Ihuliro roadblock beyond the killing of the Tutsi girl is not supported by the evidence.3175 He points out that, except for Witness FA, none of the witnesses found credible by the Trial Chamber testified to having seen him directly perpetrating such killings at this roadblock.3176 For these reasons, Ntahobali requests

that the Appeals Chamber acquit him of all crimes committed at the Hotel Ihuliro roadblock other than the killing of Ruvurajabo and the "Tutsi girl" 3177 1388. The Prosecution responds that Ntahobali's criminal responsibility for committing killings at the Hotel Ihuliro roadblock is based solely on him having raped and murdered a Tutsi girl. 3178 It contends that the Trial Chamber did not convict Ntahobali under Article 6(1) of the Statute for committing other crimes at the roadblock but "merely found that [other crimes] occurred" 3179 3171 Ntahobali Notice of Appeal, paras. 303, 307-309; Ntahobali Appeal Brief, paras. 861, 862, 864. See also AT. 16 April 2015 pp. 31, 32 Trial Chamber's conclusion in paragraph 3128 of the Trial Judgement is a verbatim restatement of paragraph 6.27 of the Indictment. See Ntahobali Appeal Brief, para. 865. 3173 Ntahobali Appeal Brief, para. 870, referring to the actus reus of extended commission as conduct that "was as much an integral part of the genocide as were the killings which it enabled". Alternatively, Ntahobali contends that if the Trial Chamber did rely on the extended form of committing, the Trial Judgement is unacceptably imprecise. See 3174 Ntahobali Notice of Appeal, paras. 307, 308; Ntahobali Appeal Brief, paras. 864, 869. 3175 Ntahobali Notice of Appeal, para. 303; Ntahobali Appeal Brief, paras, 431, 432, 865. 3176 Ntahobali

Appeal Brief, paras. 431-437. See also ibid., paras. 865-687. Ntahobali also argues that it is unclear whether the Trial Chamber disregarded some or all of Witness FA's evidence concerning Ntahobali's participation in crimes at this roadblock. See ibid., para. 866, referring to Trial Judgement, para. 3123. 3177 Ntahobali Notice of Appeal, para. 309. 3178 Prosecution Response Brief, paras. 1161, 1162. See also ibid., para. 1159. 3179 Prosecution Response Brief, para. 1161. 488 Case No. ICTR-98-42-A 14 December 2015

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19877/H 1389. Ntahobali replies that the Trial Judgement clearly reflects that he was convicted for having committed killings other than that of the Tutsi girl at the Hotel Ihuliro roadblock and reiterates that he should be acquitted of these crimes. 3180 1390. The Appeals Chamber observes that, contrary to the Prosecution's position, the Trial Judgement indicates that Ntahobali's responsibility for committing under Article 6(1) of the Statute is based on him having killed "Tutsis" at the Hotel Ihuliro roadblock, "including a Tutsi girl" 3181 By using the plural "Tutsis", the Trial Chamber's legal findings clearly reflect responsibility for multiple deaths. Furthermore, by utilising the term "killed" or phrase "having killed" when identifying Ntahobali's conduct in the "Legal Findings" section of the Trial Judgement, the Trial Chamber made it clear that Ntahobali's responsibility was based on his physical perpetration of killings3182 and not on the extended form of commission 3183 The Appeals Chamber therefore finds that Ntahobali was convicted for having physically perpetrated the killing of multiple Tutsis at the Hotel Ihuliro roadblock, including but not limited to the killing of the "Tutsi girl".

1391. The Appeals Chamber observes that the Trial Chamber's relevant factual findings in the "Factual Findings" section of the Trial Judgement do not support the Trial Chamber's legal conclusion that Ntahobali physically perpetrated the killing of multiple Tutsis at the roadblock The relevant findings only states that Ntahobali "manned the roadblock in front of his parents' residence and utilised the roadblock with the assistance of soldiers and other unknown persons to abduct and kill members of the Tutsi population" 3184 without specifying that he physically killed multiple Tutsis at the Hotel Ihuliro roadblock, as stated throughout the "Legal Findings" section. 3185 While the Trial Chamber discussed at length Ntahobali's role at the roadblock, at no point did it find that Ntahobali physically killed anybody at that location other than the "Tutsi girl".

1392. Furthermore, the only evidence referred to by the Trial Chamber that Ntahobali personally killed persons at the roadblock in addition to the "Tutsi girl" was Witness FA's "eyewitness testimony that Ntahobali used an axe to kill a girl with long hair" and Witnesses QCB's and SX's testimonies that Ntahobali "participated in the killing of people at this roadblock."3186 However, Witness FA's account of the incidents at the Hotel Ihuliro roadblock was not found credible by the 3180 Ntahobali Reply Brief, paras. 349-351. See also AT. 16 April 2015 p. 32. 3181 See Trial Judgement, paras. 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169. 3182 See Nahimana et al. Appeal Judgement, para. 478 ("The Appeals Chamber recalls that commission covers prior The ephytica or of commiting purswant to Arile Gat) of the Statute, see Munyakazi Appeal Judgement. para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appea Judgement, para. 60. 31841 Trial Judgement, para. 3128. 3185 See Trial Judgement, paras. 5971, 6053, 6100, 6168. 489 Case No. ICTR-98-42-A 14 December 2015

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19876/H Trial Chamber. 3187 As for Witness QCB's evidence, the excerpts of the testimony cited by the Trial Chamber relate to Ntahobali ordering the killing of Ruvurajabo3188 rather than committing that crime 3189 The relevant excerpts of Witness SX's testimony referred to by the Trial Chamber generally reflect the witness stating that "Shalom was one of the killers" of the Hotel Ihuliro roadblock without referring to any particular killing and with no further detail. 3190 The evidence relied upon by the Trial Chamber therefore does not support the conclusion that Ntahobali physically killed more than one individual at the Hotel Ihuliro roadblock.

1393. In light of the above, the Appeals Chamber considers that the Trial Chamber failed to provide a reasoned opinion for its finding that Ntahobali was criminally responsible under Article 6(1) of the Statute for committing multiple killings of Tutsis at the Hotel Ihuliro roadblock The Appeals Chamber further finds that no reasonable trier of fact could have found that Ntahobali physically perpetrated killings of Tutsis at the Hotel Ihuliro roadblock in addition to that of the Tutsi girl based on the Trial Chamber's factual findings or the evidence deemed credible by the Trial Chamber.

1394. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding Ntahobali criminally responsible under Article 6(1) of the Statute for committing killings of Tutsis other than the "Tutsi girl" at the Hotel Thuliro roadblock in April 1994. The Appeals Chamber grants Ground 4.2 of Ntahobali's appeal to the extent that it relates to the Hotel Ihuliro roadblock events and, as a result, reverses Ntahobali's convictions for committing killings of Tutsis at the Hotel Thuliro roadblock in addition to the "Tutsi girl".

1395. As a result, the Appeals Chamber need not consider Ntahobali's remaining arguments developed under Ground 3.3 of his appeal relating to the assessment of the evidence concerning these crimes at the Hotel Ihuliro roadblock. The Appeals Chamber will nevertheless examine Ntahobali's arguments developed under Ground 3.3 which relate to when the Hotel Ihuliro roadblock was established in light of their relevance to Ntahobali's challenges of the evidence with respect to the crimes committed against Ruvurajabo and the "Tutsi girl". 3186 Trial Judgement, para. 3118, referring to Witness FA, T. 30 June 2004 p. 54 (closed session), T. 1 July 2004 p. 27, Witness QCB, T. 20 March 2002 pp. 62-65, Witness SX, T. 27 January 2004 pp. 17, 18. 3187 The Trial Chamber did not refer to any of Witness FA's evidence when identifying what evidence it determined to be credible in this section of the Trial Judgement. See Trial Judgement, paras. 3122, 3124. The Appeals Chamber also lotes that the Trial Chamber found major reliability and credibility issues with regard to Witness FA's testimony i elation to events connected to Hotel Ihuliro. See ibid…, paras. 3103-3106 3188 See Witness QCB, T. 20 March 2002 pp. 62, 65. 3189 The Prosecution acknowledges that Ntahobali was convicted based on his involvement in the killing of Ruvurajabo at the Hotel Ihuliro roadblock but that Ntahobali's responsibility was for ordering this crime. See Prosecution Response Brief, para. 1161. 3190 See Witness SX, T. 27 January 2004 p. 17. 490 Case No. ICTR-98-42-A 14 December 2015

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19875/H 2. Date of Establishment of the Roadblock 1396. The Trial Chamber, referring to the testimonies of Prosecution Witnesses FA, QCB, SX, TB, TG, TQ, Nsabimana Defence Witnesses Karemano and Bararwandika as well as Kanyabashi Defence Witnesses D-2-YYYY, D-2-13-D, D-2-5-I, and D-13-D, noted that "a considerable amount of consistent evidence indicated] that the [Hotel Ihuliro] roadblock was mounted towards the end of April 1994. 3191 It further recalled that Ntahobali Defence Witnesses Maurice Ntahobali, Clarisse Ntahobali, Denise Ntahobali and Nyiramasuhuko Defence Witnesses WBNC, WMKL, H1B6, WUNBJ, WCNMC, WBUC, WCUJM as well as Ntahobali and Nyiramasuhuko provided contradictory evidence, suggesting that the roadblock was not established prior to May 1994.3192 However, the Trial Chamber, noting the family ties between Ntahobali and a number of the Defence witnesses3193 as well as the considerable amount of evidence that the roadblock was mounted at the end of April 1994,3194 concluded that the testimonies of these Defence witnesses failed to raise a reasonable doubt as to the allegation that the "roadblock near Hotel Thuliro was in existence by the end of April 1994.*3195 1397. The Trial Chamber also considered Prosecution Witness QI's evidence that the roadblock was established after UNAMIR soldiers left Hotel Ihuliro in conjunction with the evidence of Ntahobali and other

Defence witnesses indicating that the UNAMIR soldiers had left Hotel Thuliro by the end of April 1994.3196 It found that Witness QI's evidence supported the assertion that the roadblock was set up "during the last days of April 1994" 3197 The Trial Chamber ultimately concluded that the totality of the evidence established beyond reasonable doubt that, "in late April 1994", a roadblock was erected near Hotel Ihuliro. 3198 1398. Finally, elsewhere in the Trial Judgement, the Trial Chamber concluded, relying solely on the testimony of Witness QCB, that Ntahobali ordered the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994,3199 Based on the testimonies of Witnesses SX and TB, it also found that Ntahobali raped and murdered a Tutsi girl who arrived at the Hotel Ihuliro roadblock "around the end of April 1994" 3200 Relying on, inter alia, the testimony of Witness FA that she heard Ntahobali making threats to kill the Rwamukwaya family at the Hotel Thuliro roadblock towards the 3191 Trial Judgement, para. 3109. 3192 Trial Judgement, para. 3110. 3193 Trial Judgement, para. 3110. 3194 Trial Judgement, para. 3111. 3195 Trial Judgement, para. 3111. 3196 Trial Judgement, para. 3112. 3197 Trial Judgement, para. 3112. 3198 Trial Judgement, para. 3113. 3199 See Trial Judgement, paras. 3136-3140. See also ibid., paras. 2957-2959. 3200 Trial Judgement, para. 3135. 491 Case No. ICTR-98-42-A 14 December 2015

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19874/H end of April 1994, the Trial Chamber further found that Ntahobali was responsible for killing members of the Rwamukwaya family on or about 29 or 30 April 1994.3201 1399. Ntahobali submits that the Trial Chamber erred in finding that the Hotel Ihuliro roadblock was established around late April 1994, and not at the end of May or early June 1994. In particular, he argues that the Trial Chamber erred in: (i) assessing Prosecution evidence indicating that the Hotel Ihuliro roadblock was established in late April 1994; (ii) failing to consider Defence evidence contradicting the finding that the roadblock was established in late April 1994; (iii) concluding that evidence of the roadblock's establishment after the departure of UNAMIR soldiers supported the conclusion that the roadblock was set up in late April 1994; and (iv) failing to give sufficient weight to Defence evidence and reversing the burden of proof. The Appeals Chamber will examine these contentions in turn. (a) Evidence Relied Upon by the Trial Chamber 1400. Ntahobali contends that the Trial Chamber erroneously relied on Witnesses FA, QCB, SX, TB, TG, TQ, and QI to conclude that the Hotel Ihuliro roadblock was established in late April 1994 given that their evidence on this point was inconsistent and contradictory,3202 and erred in law in failing to address the inconsistencies and contradictions.3203 Ntahobali

further contends that the Trial Chamber erred in failing to exercise caution when relying on the evidence of witnesses presented by Kanyabashi and Nsabimana, who were co-accused in his proceedings, despite doing so with respect to other crime scenes. 3204 1401. The Prosecution responds that Ntahobali does not demonstrate how any error by the Trial Chamber about when the Hotel Ihuliro roadblock was established would invalidate the Trial Judgement or result in a miscarriage of justice.3205 Nevertheless, it highlights the evidence of several witnesses supporting the Trial Chamber's conclusion that the roadblock was established in 3201 See Trial Judgement, paras. 3210, 3219. See also ibid., paras. 3209, 3212. 3202 Specifically, Ntahobali highlights that the establishment of the Hotel Ihuliro roadblock occurred: (i) between 7 and 14 April 1994 according to Witness FA; (ii) on 21 April 1994 at 8.30 a.m. according to Witness QCB; (iii) about two weeks after the death of Habyarimana according to Witness SX; (iv) on 25 or 28 April 1994 according to Witness TB; (v) after the departure of UNAMIR soldiers according to Witness QI, which necessarily occurred after 25 April 1994 as Witness QI was in Matyazo until that date; (vi) after 26 April 1994 according to Witness TG, who later conceded he did not attend the establishment of the roadblock, while he stated the opposite in his statement; and (vii) after 12 April 1994, then between 19 and 21 April 1994, but then after 21 April 1994 according to Witness TQ See Ntahobali Appeal Brief, para.

409. See also ibid., para. 380; Ntahobali Reply Brief, paras. 186, 187, 191; AT. 16 April 2015 p.

29. The Appeals Chamber observes that Ntahobali also contends that the Trial Chamber failed to consider grave credibility or reliability issues related to the Prosecution witnesses it relied upon. See Ntahobali Appeal Brief, para.

411. However, Ntahobali fails to identify in this specific instance the credibility issues the Trial Chamber was required to address with respect to the Prosecution witnesses. The Appeals Chamber dismisses this unsubstantiated contention without further consideration. 3203 Ntahobali Appeal Brief, para. 410. 3204 Ntahobali Appeal Brief, para. 412, referring to Nchamihigo Appeal Judgement, para. 46. 3205 Prosecution Response Brief, para. 883. 492 Case No. ICTR-98-42-A 14 December 2015

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19873/H late April 1994 and submits that the Trial Chamber exercised caution when assessing the evidence 3206 1402. Ntahobali replies that by providing only a vague conclusion that the roadblock was established in late April 1994, the Trial Chamber ignored that Witnesses FA, QCB, SX, and TB contradicted, rather than corroborated, each other, which would have led to the rejection of some of their evidence which supports his convictions.207 He submits that this error caused a miscarriage of justice and invalidates the verdict.3208 1403. The Appeals Chamber notes that Ntahobali's submissions seek to demonstrate error in the Trial Chamber's assessment of Prosecution evidence concerning the timing of the establishment of the Hotel Thuliro roadblock by suggesting that witnesses offered precise, yet inconsistent and contradictory dates as to when this occurred and that the Trial Chamber erred in not addressing these differences. However, the Appeals Chamber observes that, while Witness QCB specifically testified that he saw the roadblock on 21 April 1994,209 Witnesses FA, SX, TB, and TG emphasised that they could only provide estimates as to when they first saw the roadblock or when it was establishe 3210 and that some of them refused to confirm specific dates that were suggested to them during their examinations.?21' Contrary to Ntahobali's submissions, 212 Witness TQ did not discuss

when the roadblock was established but only testified to an incident occurring there after 21 April 1994,3213 and Witness QI's testimony was ambiguous as to whether the roadblock was 320 Prosecution Response Brief, paras. 884-887. The Prosecution also highlights that witnesses frequently cannot recall exact dates and that it was reasonable for the Trial Chamber to determine the date by examining the evidence as a whole. See ibid., para, 889, referring to Ndindabahizi Appeal Judgement, para. 29. 3207 Ntahobali Reply Brief, paras. 186-188, 191. Ntahobali posits, as an example, that if the Trial Chamber believed Witnesses SX and TB, whose evidence reflects that the Hotel Ihuliro roadblock was established after 21 April 1994, it should have acquitted Ntahobali of the crimes alleged by Witness QCB, who testified that it was established on 21 April 1994 around 8.00 a.m. and that Ntahobali committed crimes there on that day. See ibid., para. 187. 3208 Ntahobali Reply Brief, para. 186. 3209 Witness QCB, T. 20 March 2002 pp. 59-61. 3210 See Witness FA, T. 1 July 2004 pp. 35, 36; Witness TB, T. 4 February 2004 p. 41, T. 5 February 2004 p. 12 (closed session); Witness SX, T. 27 January 2004 p. 15; Witness TG, T. 31 March 2004 pp. 26-28. 3211 Indeed, contrary to Ntahobali's submissions that Witness FA testified that the roadblock was established between 7 and 14 April 1994, the witness

refused to confirm this aspect of her prior statement when questioned. See Witness FA, T. 1 July 2004 pp. 37, 38. Likewise, Witness TB did not testify that the roadblock was established on 28 April 1994 and refused to confirm that this was the precise date upon which an incident she observed at the roadblock occurred because she "did not count the days". See Witness TB, T. 5 February 2004 p. 13 (closed session). 3212 Ntahobali Appeal Brief, para. 409. 3213 The Appeals Chamber observes that Witness TQ provided reasonable explanations for his prior references to the dates of 12 and 19 April 1994. See Witness TQ, T. 7 September 2004 pp. 10 (closed session), 61-63. 493 Case No. ICTR-98-42-A 14 December 2015

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19872/H established before or after 25 April 1994.3214 Furthermore, a review of the witnesses' testimonies reflects that the dates they provided related to several different events at the roadblock. 3215 1404. Consequently, Ntahobali's submissions that the Prosecution witnesses' testimonies were contradictory and that the Trial Chamber was required to expressly resolve these inconsistencies are not persuasive. Bearing in mind that witnesses often may not recall exact date of events 216 and that corroboration may exist even when some details differ between testimonies, 3217 the Appeals Chamber finds that Ntahobali has failed to demonstrate that it was unreasonable for the Trial Chamber to rely on the evidence of Witnesses FA, QCB, SX, TB, TG, TQ, and QI to conclude that the Hotel Ihuliro roadblock was established in late April 1994.

1405. With respect to Ntahobali's argument regarding the lack of caution exercised by the Trial Chamber in assessing his co-accused's evidence, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber was required, as a matter of law, to treat all the evidence presented by his co-accused with caution 218 or that the evidence of the Defence witnesses the Trial Chamber relied upon to establish that the Hotel Ihuliro roadblock was established in late April 1994 warranted a cautious assessment.3219 Ntahobali does not show that the Trial Chamber erred in its assessment of their evidence, and the Appeals Chamber dismisses Ntahobali's argument * without further consideration. (b) Failure to Consider Defence Evidence 1406. Ntahobali submits that, in its deliberations concerning the establishment of the Hotel Ihuliro roadblock, the Trial Chamber failed to discuss the testimonies of 13 Defence witnesses - Witnesses WCMD, WQMJP, WCKJ, WCMNA, WCNJ, WBTT, CEM, WZNA, WKNKI, WEGS, 3214 See Witness QI, T. 25 March 2004 pp. 44-46 (closed session). See also Witness QI, T. 23 March 2004 pp. 42, 43 (closed session), 44, 45, 49, 50, T. 24 March 2004 pp. 32, 33 (closed session). See Witness FA, T. 30 June 2004 pp. 53-59 (closed session); Witness QCB, T. 20 March 2002 pp. 61, 62; Witness SX, T. 27 January 2004 pp. 20-24; Witness TB, T. 4 February 2004 pp. 42, 44, 45, 48, 49; Witness TG, T. 31 March 2004 pp. 70, 71; Witness TQ, T. 7 September 2004 pp. 11-14 (closed session). 3216 Ndindibahizi Appeal Judgement, para. 29. 3210 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Setako Appeal Judgement, para. 31; Hategekimana Appeal Judgement, para. 82; Nahimana et al. Appeal Judgement, para.

428. See also Ndahimana Appeal Judgement, para. 93 ("The Appeals Chamber also recalls that two prima facie credible testimonies need not be identical in all aspects in order to be corroborative and that corroboration may exist even when some details differ."). 3218 Ntahobali again simply refers to a paragraph in the Nchamihigo Appeal Judgement, which concerns the treatment of accomplice witness evidence. However, Ntahobali does not demonstrate that any witness he contends the Trial Chamber failed to treat with caution was an accomplice witness whose evidence required a cautious assessment. See Ntahobali Appeal Brief, para. 412, referring to Nchamihigo Appeal Judgement, para. 46. 3219 The Appeals Chamber observes that the paragraphs of the Trial Judgement to which Ntahobali refers in support of his claim that caution was exercised as regards other crimes scenes: (i) do not concern the witnesses the Trial Chamber relied upon in relation to the establishment of the Hotel Ihuliro roadblock; or (ii) refer to the personal or professional ties of Kanyabashi Witnesses D-13-D, D-2-5-I, and D-2-YYYY with Kanyabashi and the caution to be exercised as a result in assessing their evidence exculpating Kanyabashi. See Ntahobali Appeal Brief, para. 412, fn. 646, referring to 494 Case No. ICTR-98-42-A 14 December 2015

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19871/H WKNNCI, NMBMP, and Béatrice Munyenyezi - who testified that the roadblock was set up in late May or early June 1994.3220 Ntahobali further argues that the Trial Chamber ignored the evidence of four of these 13 witnesses, namely Witnesses WCMD, WQMJP, WFGS, and WKNNCI, to which there is no reference anywhere in the Trial Judgement 3221 In his view, fair consideration of this evidence would have necessarily raised reasonable doubt that the Hotel Ihuliro roadblock was established in late April 1994.3222 1407. The Prosecution responds that the Trial Chamber reasonably excluded the Defence evidence cited, which failed to raise a reasonable doubt as to the date of establishment of the roadblock. 3223 1408. The Appeals Chamber observes that the Trial Chamber expressly referred to the evidence of Defence witnesses as well as the accounts of Ntahobali and Nyiramasuhuko, as contradicting other evidence that the Hotel Ihuliro roadblock was established in late April 1994.3224 Contrary to Ntahobali's claim that the Trial Chamber did not discuss their evidence, the Trial Chamber explicitly rejected the testimonies of Witnesses WCKJ and WCNJ that there was no roadblock in this area at the time3225 While the Trial Chamber did not expressly refer to the evidence of Witnesses WCMD, WQMJP, WCMNA, WBTT, CEM, WZNA, WKNKI, WFGS, WKNNCI, NMBMP, and Munyenyezi in its deliberations on the date

of the establishment of the roadblock, the Appeals Chamber notes that the Trial Chamber mentioned the evidence of Witnesses WCMNA and WBTT concerning the Hotel Ihuliro roadblock elsewhere in its deliberations 3226 In addition, the Trial Chamber referred to the relevant parts of the testimonies of Witnesses CEM, WZNA, and WKNKI concerning the mounting of the roadblock in the summary of the evidence concerning the Hotel Ihuliro roadblock. 227 Therefore, the Appeals Chamber is satisfied that the Trial Chamber considered and assessed the evidence of Witnesses WCMNA, WBTT, CEM, WZNA, and WKNKI and rejects Ntahobali's assertion.

1409. The Trial Chamber did not mention the relevant evidence of Witnesses NMBMP and Munyenyezi in relation to the mounting of the Hotel Ihuliro roadblock when summarising their testimonies even though both witnesses testified that the Hotel Ihuliro roadblock did not exist at the 3220 Ntahobali Appeal Brief, para.

413. See also AT. 16 April 2015 pp. 29, 30. 3221 Ntahobali Appeal Brief, para. 413. 3222 Ntahobali Appeal Brief, para. 413. 3223 Prosecution Response Brief, paras. 887, 890. 322 See Trial Judgement, para. 3110, referring to Witnesses Maurice Ntahobali, Clarisse Ntahobali, Denise Ntahobali, WBNC, WMKL, H1B6, WUNBJ, WCNMC, WBUC, and WCUJM. See also ibid., para. 3109. 3225 Trial Judgement, para. 3107. 3226 See Trial Judgement, para. 3108, fns. 8617, 8618. 3227 See Trial Judgement, paras. 3075, 3077, 3078. 495 Case No. ICTR-98-42-A 14 December 2015

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19870/H end of April 1994.3228 However, given the fact that Witnesses NMBMP and Munyenyezi were mentioned in the Trial Judgement's section concerning the Hotel Ihuliro roadblock,2 the Appeals Chamber is not persuaded that the Trial Chamber failed to consider their evidence.

1410. With regard to Witness WQMJP's evidence, the Appeals Chamber notes that, while the Trial Judgement does not reflect express consideration of the relevant aspects of the witness's testimony concerning the Hotel Ihuliro roadblock, the Trial Judgement shows that the Trial Chamber did not disregard his testimony, as it expressly referred to and assessed it with respect to another event in the Trial Judgement. 3230 The Appeals Chamber finds that Ntahobali is correct in asserting that the Trial Judgement does not refer to the evidence of Witnesses WFGS,3231 WKNNCI, and WCMD. Having reviewed their evidence, the Appeals Chamber observes that Witnesses WCMD, WQMJP, WFGS, and WKNNCI testified that there was no roadblock established in front of Hotel Ihuliro in April 1994 or during the first two weeks of May 1994.3232 The Appeals Chamber notes that this evidence is repetitive of the Defence evidence expressly considered by the Trial Chamber that no "roadblock" existed near Hotel Ihuliro in April 1994 and that it does not contain any fundamental features that would provide additional probative weight to this account.3233 The Appeals Chamber recalls that if a trial chamber did not refer to the evidence given by a witness, it is to be presumed that the trial chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its findings.234 In

the present instance, the Appeals Chamber is not persuaded that the Trial Chamber disregarded the evidence of Witnesses WCMD, WQMJP ,WFGS, and WKNNCI but considers that, given its nature, the Trial Chamber found that this evidence did not prevent it from reaching the conclusion it reached. While it would have been more appropriate for the Trial Chamber to expressly discuss the relevant 3228 Trial Judgement, paras. 3017, 3026, 3027. See also Witness NMBMP, T. 24 April 2008 pp. 19, 20 (closed session); Béatrice Munyenyezi, T. 27 February 2006 p. 9. 3229 See Trial Judgement, paras. 3017, 3026, 3027. 3230 See Trial Judgement, paras. 3183-3188, 3205, 3207. The Appeals Chamber notes that Witness WQMJP's evidence with regard to roadblocks in general was briefly addressed by the Trial Chamber. See ibid., fn. 14133, referring to Witness WQMJP, T. 25 January 2006 pp. 21, 23 (closed session). 3231 The Appeals Chamber notes that Witness WFGS is only mentioned as being Nyiramasuhuko's first witness. See Trial Judgement, para.

6433. See Witness WFGS, T. 31 January 2005 pp. 56, 57, T. 1 February 2005 p. 33 (closed session); Witness WKNNCI, T. 8 March 2005 pp. 13, 14; Witness WCMD, T. 28 November 2005 pp. 16-18; Witness WQMJP, T. 25 January 2006 P, Compare Witness PGS, T. 31 January 2005 p. 56, T. 1 February 2005 p. 33 (closed session), Witness WKNNCT, T. 8 March 2005 pp. 13, 14, Witness WCMD, T. 28 November 2005 pp. 16-18, Witness WQMJP, T. 25 January 2006 pp. 21-23 (closed session) with Witness WBUC, T. 1 June 2005 p. 77, Clarisse Ntahobali, T. 9 February 2005 p. 59, Denise Ntahobali, T. 9 June 2005 pp. 27, 30, T. 13 June 2005 p. 18, Maurice Ntahobali, T. 13 September 2005 p. 25, Witness WUNBJ, T. 8 March 2006 p. 32 and p. 34 (closed session), Witness H1B6, T. 1 December 2005 p. 58 (closed session), Witness WCNMC, T. 29 November 2005 p. 36, Witness WBNC, T. 24 February 2005 p. 45, Witness WMKL, T. 6 April 2005 pp. 60, 61, 69, Witness WCUJM, T. 14 February 2006 p. 20. 3234 Kvocka et al. Appeal Judgement, para.

23. See also, e.g., Dordevié Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para. 127; Ntabakuze Appeal Judgement, para. 161; Kalimanzira Appeal Judgement, para. 195; Nchamihigo Appeal Judgement, para. 166; Ndindabahizi Appeal Judgement, para. 75. 496 Case No. ICTR-98-42-A 14 December 2015

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19869/H evidence of these witnesses,3235 the Appeals Chamber finds that Ntahobali does not demonstrate that the Trial Chamber erred in not doing so.

1411. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contentions concerning the Trial Chamber's alleged failure to consider Defence evidence that the Hotel Ihuliro roadblock was established after late April 1994. (c) Evidence on UNAMIR's Departure 1412. Ntahobali argues that the Trial Chamber erred in finding that the evidence of Witnesses WBTT, WBUC, NMBMP, Munyenyezi, Denise Ntahobali, and Clarisse Ntahobali as well as Nyiramasuhuko and his, taken together with Witness QI's evidence, could support the conclusion that the Hotel Ihuliro roadblock was established in late April 1994 after the departure of UNAMIR soldiers from Hotel Ihuliro. 3236 He emphasises that, although Witness QI testified that the roadblock was established after UNAMIR's departure, the witness did not specify how long after. 3237 In any event, Ntahobali submits that these Defence witnesses as well as Nyiramasuhuko and he testified that the roadblock was established at the end of May or in early June 1994.3238 1413. The Prosecution responds that Witnesses WBUC, NMBMP, Munyenyezi, Denise Ntahobali, Clarisse Ntahobali, and Ntahobali testified that the UNAMIR soldiers left Hotel Ihuliro by the end of April 1994, and that Witness QI testified that after the soldiers left, a roadblock was set up. 3239 1414. Ntahobali replies that the Trial Chamber ignored that Witnesses QI and FA

provided contradictory accounts as to whether the UNAMIR soldiers had left prior to or after the establishment of the Hotel Ihuliro roadblock 3240 1415. The Appeals Chamber observes that the Trial Chamber's finding that the Hotel Ihuliro roadblock was established after the departure of UNAMIR soldiers from Hotel Ihuliro took into account the evidence of Ntahobali and several Defence witnesses, whose evidence reflects that these soldiers left Butare prior to 21 April 1994.3241 While Witness QI did not expressly testify as to how long after their departure the roadblock was mounted, a reasonable trier of fact could have 3235 See also infra, paras. 1424, 1427. 3236 Ntahobali Appeal Brief, para. 418, referring to Trial Judgement, para. 3112. 3237 Ntahobali Appeal Brief, para. 418. 3238 Ntahobali Appeal Brief, para. 418. 3239 Prosecution Response Brief, para. 885, referring to Trial Judgement, paras. 3029, 3064, 3071. 3240 Ntahobali Reply Brief, para. 189. 3241 See Trial Judgement, para. 3112, fn. 8624; Ntahobali, T. 24 April 2006 pp. 34, 35; Witness WBTT, T. 31 May 2005 pp. 47, 48 (closed session); Denise Ntahobali, T. 9 June 2005 pp. 21-23, T. 13 June 2005 p. 17; Witness WBUC, T. 1 June 2005 pp. 54-56. See also Trial Judgement, para. 3029. 497 Case No. ICTR-98-42-A 14 December 2015

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19868/H interpreted the witness's testimony as indicative that the timing of the establishment of the roadblock was tied to the soldiers' departure. 3242 1416. Moreover, the Appeals Chamber observes that the Trial Chamber expressly considered that Witnesses WBUC, Denise Ntahobali, Clarisse Ntahobali, and Ntahobali testified that the roadblock was not established in late April 199432*3 Bearing in mind that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony,324* the Appeals Chamber finds that a reasonable trier of fact could have relied on the testimonies of Defence witnesses to establish that UNAMIR soldiers left Hotel Ihuliro in late April 1994 - an uncontested fact - but nonetheless reject their evidence concerning the highly contested fact of when the Hotel Ihuliro roadblock was established given the Trial Chamber's doubts about their credibility and the considerable contradictory evidence. 3245 1417. As for Ntahobali's contention that the evidence of Witnesses QI and FA was inconsistent as to whether UNAMIR soldiers were present when the Hotel Ihuliro roadblock was established, the Appeals Chamber observes that Witness FA, unlike Witness QI, testified that the soldiers were present when the Hotel Ihuliro roadblock was set up.3246 Nevertheless, the Appeals Chamber finds that the Trial Chamber retained the prerogative to rely on the testimonies of Witnesses QI, WBUC, NMBMP, Munyenyezi, Denise Ntahobali, and Clarisse Ntahobali as well as Ntahobali, who all provided evidence that no UNAMIR soldiers were present at Hotel Ihuliro when the Hotel Ihuliro roadblock was established, and that the Trial Chamber was not required to explicitly address the aspect of Witness FA's evidence in conflict with this when doing so.

1418. Accordingly, the Appeals Chamber dismisses Ntahobali's submissions regarding the assessment of the evidence on the UNAMIR's departure. (d) Defence Evidence and Reversal of Burden of Proof 1419. Ntahobali contends that the Trial Chamber failed to provide a reasoned opinion when rejecting the totality of the Defence evidence contradicting the Prosecution evidence.3247 He contends that, while the Trial Chamber was entitled to treat five Defence witnesses with caution because of their ties with the Accused, this was not the case for the remaining 20 witnesses who 3242 See Witness QI, T. 25 March 2004 p. 46 (closed session) ("But after UNAMIR's departure they set up a roadblock there manned by civilians".). 3 SeT a Nevin, All Out rep, a to Wine Bag Ma MaN enginen A pea a men, para, 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 3245 See supra, paras. 1396, 1397. 3246 See Witness FA, T. 1 July 2004 pp. 48, 49. 3247 Ntahobali Appeal Brief, paras. 413, 415, 416. See also ibid., para. 419. 498 Case No. ICTR-98-42-A 14 December 2015

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19867/H testified that no roadblock had been established before late May or early June 1994.3248 In light of the abundant Defence evidence reflecting that the Hotel Thuliro roadblock was not established prior to the end of May or early June 1994, Ntahobali argues that any reasonable trier of fact would have concluded that reasonable doubt existed as to the date of the establishment of the roadblock in April 1994.3249 He submits that the Trial Chamber misapplied the burden of proof in preferring the Prosecution evidence to the Defence evidence and requests that he be acquitted of all crimes committed at the roadblock prior to the end of May or the beginning of June 1994.3250 1420. The Prosecution responds that the Trial Chamber reasonably excluded the Defence evidence relied upon by Ntahobali because some of the witnesses were Ntahobali's relatives. 3251 1421. The Appeals Chamber notes that the Trial Chamber provided reasons as to why it did not rely on a number of Defence witnesses,25 including that some of those mentioned by Ntahobali were his relatives. 253 The Appeals Chamber also observes that some of the witnesses were his childhood friends 3254 As such, a reasonable trier of fact could have concluded that these witnesses might have had an incentive to minimise Ntahobali's responsibility for crimes committed at the Hotel Ihuliro roadblock and assess their evidence with

caution 3255 In addition, the Trial Chamber addressed the fact that Witnesses WCNJ's and WCKJ's evidence that they had never seen a roadblock in the area could not raise a reasonable doubt as to whether such roadblock existed 3256 The Appeals Chamber finds that a reasonable trier of fact could have concluded that the evidence of these two witnesses did not raise doubt in light of consistent Prosecution evidence, supported by a number of Defence witnesses, reflecting the establishment of the Hotel Ihuliro roadblock in late April 1994.

1422. Furthermore, a review of the evidence of Witnesses WBTT and WCUJM reveals that their testimonies are of limited probative value as to whether the Hotel Ihuliro roadblock was established 3248 Ntahobali Appeal Brief, para. 413, referring to the testimonies of Witnesses WFGS, WKNNCI, WCMD, WQMJP, WCKJ, WCMNA, WCNJ, WBTT, CEM, WZNA, WKNKI, NMBMP, and Munyenyezi and Trial Judgement, para. 3110 (referring to the testimonies of Witnesses Maurice Ntahobali, Clarisse Ntahobali, Denise Ntahobali, WBNC, WMKL, H1B6, WUNBJ, WCNMC, WBUC, WCUJM as well as Ntahobali and Nyiramasuhuko). 3249 Ntahobali Appeal Brief, paras. 413, 417, 419. 3250 Ntahobali Appeal Brief, paras. 415-417, 420. 3251 Prosecution Response Brief, paras. 887, 888. See also ibid., para. 890. 3252 See Trial Judgement, paras. 3107, 3111. 3253 Trial Judgement, para.

3110. See also ibid., paras. 10, 3017, 3026, 3053, 3062, 3067. These are Witnesses Maurice Ntahobali, Denise Ntahobali, Clarisse Ntahobali, Munyenyezi, NMBMP, and Nyiramasuhuko. 3254 See Ntahobali Closing Brief, para.

84. The Appeals Chamber notes that Witnesses WQMJP and WCMD were Ntahobali's childhood friends. 3255 See Trial Judgement, para. 3110. 3256 Trial Judgement, para. 3107, referring to Witness WCNJ, T. 2 February 2006 pp. 7, 8, Witness WCKJ, T. 31 January 2006 p.

70. See also Trial Judgement, paras. 3020, 3025. The Appeals Chamber notes that, contrary to the Trial Chamber's finding, Witness WCNJ testified to having seen a roadblock in the vicinity of the BER mounted towards the end of May 1994. Compare Witness WCNJ, T. 2 February 2006 p. 7 with Trial Judgement, para. 3020. 499 Case No. ICTR-98-42-A 14 December 2015

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19866/H in late April 1994. The Appeals Chamber notes that as Witness WBTT left Butare on 20 April 1994, she could not testify as to the existence of a roadblock in late April 1994.3257 Likewise, the Appeals Chamber notes that Witness WCUJM testified to having made three trips to Butare Town, the first on 7 April 1994, the second one week after, and the third between May and June 1994. While the witness testified to having seen a roadblock near Hotel Ihuliro during his third trip, his evidence reflects that he did not pass by the road in late April 1994.3258 Consequently, the Appeals Chamber finds that a reasonable trier of fact could have considered that this evidence did not raise a reasonable doubt as it is not incompatible with the finding that the Hotel Ihuliro roadblock was established in late April 1994.

1423. Having reviewed Witness H1B6's testimony, the Appeals Chamber is also of the view that a reasonable trier of fact could have decided not to credit this witness in light of the likelihood that he did not use the road between Hotel Ihuliro and the EER during the relevant time period and that, as a result, he would have been unable to provide direct evidence as to the date when the Hotel Ihuliro roadblock was established 3259 With respect to Witness WMKL, the Appeals Chamber notes that the Trial Chamber concluded elsewhere in the Trial Judgement that the witness's account concerning the security of persons seeking refuge at the Butare Prefecture Office was not plausible and did not rely on his account about Ruvurajabo's death 3260 Against this background, the Appeals Chamber is satisfied that a reasonable trier of fact could have relied on Prosecution and Defence evidence reflecting the establishment of the Hotel Ihuliro roadblock in late April 1994 notwithstanding the evidence of Witnesses H1B6 and WMKL to the contrary. Recalling that a trial chamber does not need to set out in detail why it accepted or rejected a particular testimony,3261 the Appeals Chamber finds that the Trial Chamber did not fail to provide a reasoned opinion in not articulating every step of its reasoning for not relying on Witnesses WBTT, WCUJM, H1B6, and WMKL.

1424. The Appeals Chamber further finds that, while Witnesses WBNC, WUNBJ, WCNMC, WBUC, WCMNA, CEM, WZNA, WKNKI, WFGS, WKNNCI, WCMD, and WQMJP provided evidence contrary to the Trial Chamber's finding 3262 a reasonable trier of fact could have 3257 See Witness WBTT, T. 31 May 2005 p. 47 (closed session). See also Trial Judgement, paras. 3051, 3052. 3258 See Witness WCUJM, T. 14 February 2006 pp. 19, 20. 3259 The Trial Chamber noted that the witness's evidence that he used the road between Hotel Ihuliro and the EER was challenged in cross-examination and that the witness conceded that this road was not the shortest itinerary from his residence to the Butare market. See Trial Judgement, para.

3016. See also, Witness H1B6, T. 5 December 2005 pp. 56, 3260 See Trial Judgement, paras. 2814, 3136-3140. 3261 See, e.g., Gatete Appeal Judgement, para. 136; Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269. 3262 See Witness WBNC, T. 24 February 2005 p. 46; Witness WUNBJ, T. 8 March 2006 pp. 29-32 (closed session); Witness WCNMC, T. 29 November 2005 p. 36; Witness WBUC, T. 1 June 2005 p. 77; Witness WCMNA, T. 21 February 2006 pp. 24-28 (closed session); Witness CEM, T. 14 February 2005 p. 48; Witness WZNA, T. 4 April 2005 pp. 48-50, 58; Witness WKNKI, T. 2 March 2005 pp. 4, 5, 8, 9; Witness WFGS, T. 31 January 2005 500 Case No. ICTR-98-42-A 14 December 2015

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19865/H nevertheless relied on the direct and consistent evidence of Witnesses FA, QCB, SX, TB, TG, TQ, Karemano, Bararwandika, D-2-Y-Y-Y, D-2-13-D, D-2-5-I, and D-13-D in finding that the Hotel Ihuliro roadblock was established towards the end of April 19943263 Of particular significance, the Appeals Chamber has affirmed the Trial Chamber's assessment of Prosecution evidence that implicates Ntahobali in criminal conduct at this roadblock in late April 1994.3264 While it would have been more appropriate for the Trial Chamber to expressly refer to all of the relevant evidence when reaching its conclusion on whether Ntahobali's and Nyiramasuhuko's evidence raised a reasonable doubt as to the allegation that the roadblock was in existence by the end of April 19943265 the Appeals Chamber is satisfied that it was within the Trial Chamber's discretion, as it was presented with two competing accounts, to grant more probative weight to one account and to prefer it over the other.

1425. With regard to Ntahobali's contention that the Trial Chamber misapplied the burden of proof, the Appeals Chamber first recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden 3266 In this case, the Appeals Chamber observes that the Trial Chamber took the view that the Defence evidence concerning the establishment of the Hotel Ihuliro roadblock in May or June 1994 did not raise a reasonable doubt as to the existence of this roadblock by the end of April 1994.3267 The Appeals Chamber finds no error in the Trial Chamber's preference for the account presented by the Prosecution and supported by co-accused evidence. In the opinion of the Appeals Chamber, the Trial Judgement does not reflect that the Trial Chamber reversed the burden of proof but that the Prosecution demonstrated beyond a reasonable doubt that the Hotel Ihuliro roadblock was established in late April 1994 notwithstanding other evidence to the contrary. The Appeals Chamber is satisfied that the Trial Chamber properly applied the burden of proof and the presumption of innocence.

1426. Accordingly, the Appeals Chamber dismisses Ntahobali's arguments regarding the weight granted to the exculpatory evidence and the application of the burden of proof. p. 56; T. 1 February 2005 p. 33 (closed session); Witness WKNNCI, T. 8 March 2005 pp. 13, 14; Witness WCMD, T. 28 November 2005 pp. 16-18; Witness WQMJP, T. 25 January 2006 pp. 21-23 (closed session). 3263 See supra, para. 1410 3264 See infra, Sections V.G.3(c), V.G.4(c). 3265 The Appeals Chamber notes that the Trial Chamber did not expressly refer to the evidence of Witnesses WCMNA CEM, WZNA, WKNKI, WFGS, WKNNCI, WCMD, and WQMJP when reaching its conclusion. See Trial Judgement Bar anuk ilyayo Appeal Judgement, para, 103, referring 10 Milosevie Appeal Judgement, para. 231. 3267 See Trial Judgement, para. 3111. 501 Case No. ICTR-98-42-A 14 December 2015

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19864/H (e) Conclusion 1427. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that no reasonable trier of fact could have concluded based on the totality of the evidence before it that the Hotel Thuliro roadblock was established in late April 1994.

3. Killing of Léopold Ruvurajabo 1428. The Trial Chamber relied exclusively on the evidence of Witness QCB in finding that Ntahobali ordered the killing of Ruvurajabo, a Tutsi, at the Hotel Ihuliro roadblock on 21 April 1994.3268 1429. Ntahobali submits that, in assessing the relevant evidence, the Trial Chamber: (i) failed to exercise sufficient caution in assessing Witness QCB's evidence; (ii) erred in assessing Witness QCB's prior inconsistent statement; (iii) erred in assessing Witness QCB's identification evidence; (iv) failed to assess evidence; and (v) made contradictory findings. Ntahobali further contends that the Trial Chamber erred in finding him responsible as a superior under Article 6(3) of the Statute for the killing of Ruvurajabo. The Appeals Chamber will address these contentions in turn.

1430. As noted previously, on 14 April 2015, the Appeals Chamber admitted as additional evidence on appeal a confidential statement given by Witness QCB on 27 May 2004 and a second confidential statement that he gave on 2 June 2004 to Canadian investigators during investigations in Canadian criminal proceedings for the purpose of assessing limited aspects of these materials as they concerned Witness QCB's testimony?26 In accordance with the relevant standard, if the Appeals Chamber determines that a reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt on the basis of the trial record alone, the Appeals Chamber will then determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt. 3270 (a) Assessment of Evidence (i) Insufficient Caution 1431. Ntahobali argues that the Trial Chamber failed to exercise sufficient caution with respect to the uncorroborated evidence of Witness QCB, who was detained in Rwanda and awaiting 3268 See Trial Judgement, paras. 3136-3140. See also ibid., paras. 2957-2959. 359 See supra, para. 1331; 14 April 2015 Appeal Decision, para. 49. 502 Case No. ICTR-98-42-A 14 December 2015

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19863/H sentencing at the time of his testimony327' He contends that the Trial Chamber erred in concluding that, because the witness had no role in the killing of Ruvurajabo, he did not have an interest in inculpating Ntahobali in this incident.272 Ntahobali argues that this conclusion is in direct contradiction with the Trial Chamber's position elsewhere in the Trial Judgement that Witness QCB, who had no role in the IRST killings, had an incentive to implicate Ntahobali with respect to those killings in order to avoid a severe sentence. 3273 He also contends that this position contradicts the Trial Chamber's reasoning concerning Prosecution Witness FAC.327 He argues that no reasonable trier of fact could have made such diametrically opposed conclusions. 3275 1432. Moreover, Ntahobali highlights that the Trial Chamber rejected Witness QCB's evidence concerning crimes committed at the Butare Prefecture Office simply because he was found insufficiently reliable given his status as a detainee and because his evidence was uncorroborated. 3276 He submits that the same conclusion should have been reached with respect to Witness QCB's evidence concerning Ruvurajabo's killing 327 Ntahobali argues that no reasonable trier of fact could have relied upon the uncorroborated evidence of Witness QCB. 3278 1433. The Prosecution responds that Ntahobali does not demonstrate that the Trial

Chamber lacked caution in assessing Witness QCB's evidence regarding the killing of Ruvurajabo. 3279 It submits that the Trial Chamber exercised the same caution when evaluating Witness QCB's testimony with respect to the killing of Ruvurajabo as it did when assessing his testimony concerning the killings near the IRST.3280 The Prosecution also rejects Ntahobali's contention that the Trial Chamber failed to apply caution to Witness QCB's evidence concerning the killing of Ruvurajabo simply because the Trial Chamber required corroboration of Witness QCB's evidence in relation to the Butare Prefecture Office and exercised its discretion not to rely on it in that instance. 3281 1434. The Appeals Chamber observes that, when considering Witness @CB's evidence in relation to the IRST killings, the Trial Chamber noted that, at the time of his testimony, Witness QCB had confessed to participating in unrelated killings, was detained in Rwanda, and was awaiting 3271 Ntahobali Notice of Appeal, para. 174; Ntahobali Appeal Brief, paras. 402-405. 37 Mahobal Appel Bit. a 102,5, erie no To had general, 3138 1474. See also Nahobali Reply Brief, ara. 183; AT. 15 April 2015 p. 53 (closed session) Ntahobali Appeal Brief, para. 403, referring to Trial Judgement, paras. 3343, 3748 3275 Ntahobali Appeal Brief, para. 403. 3276 Ntahobali Appeal Brief, para. 404. 3277 Ntahobali Appeal Brief, paras. 404, 405. 3278 Ntahobali Notice of Appeal, para. 169; Ntahobali Appeal Brief, para.

405. See also AT. 15 April 2015 pp. 53, 54 closed session) * Prosecution Response Brief, paras. 877-880. See also AT. 16 April 2015 p. 5. 3280 Prosecution Response Brief, para.

879. See also AT. 16 April 2015 p. 4. 503 Case No. ICTR-98-42-A 14 December 2015

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19862/H sentencing. 282 The Trial Chamber was of the view that Witness QCB's evidence had to be approached with appropriate caution as he may have had an incentive to implicate Ntahobali in order to avoid a severe sentence. 3283 In assessing Witness QCB's evidence concerning Ruvurajabo's killing, the Trial Chamber recalled that, at the time of his testimony, Witness QCB was a detained witness and that his testimony must be treated with appropriate caution 284 The Trial Chamber concluded, however, that because Witness QCB "played no role in the present incident [and] his evidence [was] that of an eyewitness", it did not consider him to have "any personal interest in lying about the facts or inculpating Ntahobali.*3285 1435. The Appeals Chamber finds that the Trial Chamber reached conflicting conclusions as to whether Witness QCB had an interest in implicating Ntahobali. Notwithstanding these contradictions, the Appeals Chamber is not persuaded that the Trial Chamber's analysis of Witness QCB's evidence in either instance reflects insufficient caution given the circumstances surrounding his testimony. As discussed in detail elsewhere in this Judgement, the Trial Chamber exercised sufficient caution in light of Witness QCB's circumstances at the time of his testimony when assessing his evidence about the IRST killings3286 The Trial Chamber's analysis of Witness QCB's evidence

concerning the killing of Ruvurajabo also reflects that it took into account various factors relevant to a cautious assessment of his credibility. The Trial Chamber recalled that Witness QCB was a detained witness and that it was required to treat his evidence with appropriate caution. 287 It considered discrepancies within Witness QCB's testimony 3288 and inconsistencies with his prior statement to Tribunal investigators 3289 In this context, the Trial Chamber concluded that "Witness QCB's testimony was detailed" and that he was "credible with respect to this incident."3290 Bearing in mind that a trial chamber enjoys broad discretion in assessing the credibility of witnesses and in determining the weight to be accorded to each testimony, 329) the Appeals Chamber is satisfied that the Trial Chamber, notwithstanding its statement that Witness QCB did not have an incentive to lie or implicate Ntahobali, assessed Witness QCB's evidence with sufficient caution. 3281 Prosecution Response Brief, para. 880. 3282 Trial Judgement, para. 1474. 3283 Trial Judgement, para. 1474. 3284 Trial Judgement, para.

3136. See also ibid., para. 2957. 3285 Trial Judgement, para. 3138. 3286 See supra, para. 1345. 3287 Trial Judgement, para.

3136. The Appeals Chamber observes that the Trial Chamber repeatedly considered that Witness QCB had participated in the genocide, was detained, and was awaiting sentencing when considering his evidence. See ibid., paras. 1465, 1474, 1553, 1673, 1686, 2611, 3138. 3288 See Trial Judgement, paras. 2958, 3137. 3289 See Trial Judgement, para.

3139. See also ibid., para. 2959. 3290 Trial Judgement, para. 3139. 3291 See, e.g., Nzabonimana Appeal Judgement, para, 45; Ndindiliyimana et al. Appeal Judgement, para. 331; Ndahimana Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 194. 504 Case No. ICTR-98-42-A 14 December 2015

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19861/H 1436. The Appeals Chamber further finds that Ntahobali's argument that the Trial Chamber took inconsistent approaches with respect to the assessment of Witnesses QCB and FAC lacks merit. The Appeals Chamber observes that the Trial Chamber concluded that Witness FAC may have had an incentive to implicate Kanyabashi in certain crimes in order to exonerate himself 3292 In making this finding, the Trial Chamber not only considered that Witness FAC was "a detained accomplice witness" at the time of his testimony but also specific circumstances pointing to his "willingness to tailor his evidence to serve his interests", including his own acknowledgement that he confessed to certain crimes expecting consideration in return 3293 Ntahobali neither challenges this finding nor suggests that similar factors existed in relation to Witness QCB.

1437. The Appeals Chamber recalls that Ntahobali has failed to demonstrate that the Trial Chamber erred in rejecting Witness QCB's uncorroborated evidence concerning an event at the prefectoral office in late April 1994 while accepting his uncorroborated testimony about killings at the IRST and the killing of Ruvurajabo.29 Contrary to what Ntahobali suggests, the Trial Chamber's refusal to rely on Witness QCB's evidence concerning the event at the prefectoral office does not reflect a finding that the witness was not credible or reliable in general and was not an impediment to the Trial Chamber's reliance on his testimony concerning Ruvurajabo's killing. 3295 1438. For the foregoing reasons, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber failed to exercise sufficient caution when assessing Witness QCB's testimony concerning the killing of Ruvurajabo. (ii) Prior Inconsistent Statement 1439. In summarising Witness QCB's evidence in relation to the killing of Ruvurajabo, the Trial Chamber understood the witness to have testified in cross-examination that "he met Ruvurajabo at the roadblock" 3296 The Trial Chamber also noted that this was contradicted by the witness's prior statement to Tribunal investigators, which it summarised as stating that "[Witness QCB] had left his home together with Ruvurajabo."3297 When assessing Witness QCB's evidence, the Trial Chamber 3292 Trial Judgement, para.

3343. See also ibid., para. 3748. 3293 Trial Judgement, para.

3343. See also ibid., paras. 3345, 3748. 3294 See supra, paras. 1344, 1345. 3295 The Appeals Chamber recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony. See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 55 Trial Judgement, para 2059, See rio to Wita 308, refering to 202 6C's Statement. 505 Case No. ICTR-98-42-A 14 December 2015

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19860/H concluded that the variance between Witness QCB's Statement and his testimony was minor and did not relate to a material fact. 3298 1440. Ntahobali contends that the Trial Chamber erred by unreasonably concluding that the inconsistency between Witness QCB's Statement and his testimony concerning the place he met Ruvurajabo was minor or inconsequential.3299 Niahobali submits that the witness's explanation for the contradiction was incoherent and vague and that, during his re-examination, the witness confirmed the accuracy of his prior statement, thereby contradicting himself again. 3300 According to Ntahobali, this contradiction was relevant to Witness QCB's entire account of Ruvurajabo's murder and, because the witness's testimony was uncorroborated, the Trial Chamber was required to assess that witness's evidence cautiously. 3301 1441. The Prosecution responds that the Trial Chamber did not er in finding that the contradictions in Witness QCB's evidence were minor.3302 1442. Having reviewed the relevant transcripts, including the portions referred to by the Trial Chamber and Ntahobali, as well as Witness QCB's Statement, 303 the Appeals Chamber finds no error in the Trial Chamber's conclusion that the variance was minor. Notably, Witness QCB repeatedly confirmed that he met Ruvurajabo at the roadblock near President Sindikubwabo's home and his testimony on this point

is consistent in all material respects 3304 To the extent his testimony differed from his prior statement, which reflects that the witness left Nkubi Sector with Ruvurajabo, 3305 any incoherence in Witness QCB's explanation stemmed from an absence of questioning: 3306 1443. Furthermore, while Witness QCB confirmed the content of his prior statement during his re-examination,307 the Appeals Chamber is not persuaded by Ntahobali's contention that this reflects a further material discrepancy and that the Trial Chamber did not exercise the necessary caution when assessing it. The Appeals Chamber finds that Ntahobali has not demonstrated that no 3298 Trial Judgement, para.

3139. Ntahobali Appeal Brief, paras. 399, 400. Ntahobali Appeal Brief, para. 400. 3301 Ntahobali Appeal Brief, para. 400. 3302 Prosecution Response Brief, para.

874. See also ibid., para. 870. 3303 See Witness QCB, T. 20 March 2002 p. 61, T. 25 March 2002 pp. 112, 113 (closed session), 115, 122-126, 128-131, 140, 141, T. 26 March 2002 pp. 33-36, T. 3 April 2002 pp. 76-78; Witness QCB's Statement, p. K0112439 (Registry pagination). Witness QCB, T. 25 March 2002 pp. 112, 113 (closed session) 115, 122, 140, T. 26 March 2002 pp. 33, 36, 37. 3305 The Appeals Chamber observes that Witness QCB's Statement does not reflect that the witness had left his home with Ruvurajabo. See Witness QCB's Statement, p. K0112439 (Registry pagination) ("C'est le même jour, au matin que l'ai quitté Nkubi pour aller reprendre mon travail à Butare, en compagnie d'un voisin tutsi nommé RUVURAJABO Léopold."). See also ibid., p. K0119775 (Registry pagination) (English translation). 3306 See Witness QCB, T. 26 March 2002 pp. 36, 37. 3307 Witness QCB, T. 2 April 2002 pp. 76-78. 506 Case No. ICTR-98-42-A 14 December 2015

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19859/H reasonable trier of fact could have concluded that the variance between Witness QCB's Statement and his testimony as to the exact location where he met Ruvurajabo was minor. 3308 1444. The Appeals Chamber therefore finds no error in the Trial Chamber's assessment of Witness QCB's evidence in light of his prior statement. (iti) Identification Evidence 1445. Ntahobali argues that the Trial Chamber erred in concluding that Witness QCB knew Ntahobali "a long time before the alleged crimes occurred", referring to his challenges raised in relation to Witness QCB's evidence about the IRST killings 3309 Ntahobali repeats that the Trial Chamber erred in finding Witness QCB's identification evidence credible 3310 1446. In response, the Prosecution refers to its arguments made in relation to the IRST killings that the Trial Chamber acted within its discretion in accepting Witness QCB's identification evidence. 3311 1447. The Appeals Chamber observes that the Trial Chamber concluded that since "Witness QCB already knew Ntahobali, a long time before the alleged crimes occurred", his identification of Ntahobali as the person that he saw at the roadblock where Ruvurajabo was killed was reliable.3312 The Appeals Chamber notes that this conclusion was based on the evidence of Witness QCB's prior knowledge of Ntahobali, the adequacy of which had been evaluated by the Trial

Chamber elsewhere in the Trial Judgement. 3313 The Appeals Chamber recalls that Ntahobali's challenges of Witness QCB's identification evidence, including the basis for his prior knowledge, have already been addressed and dismissed in a prior section of this Judgement. 3314 1448. Ntahobali's present submissions do not identify a new error in support of his position that the Trial Chamber erred in its assessment of Witness QCB's identification evidence and the Appeals Chamber therefore rejects them. (iv) Failure to Consider Evidence 1449. Ntahobali submits that the Trial Chamber ignored exculpatory evidence from Defence Witness WMKL that Ruvurajabo was alive until mid-May 1994 and that he was killed later that 3308 Trial Judgement, para. 3139. 3309 Ntahobali Appeal Brief, para. 401, referring to Trial Judgement, para. 3137. 3310 Ntahobali Notice of Appeal, paras. 171-173, referring to ibid., paras. 153-158; Niahobali Appeal Brief, para. 401. 3311 Prosecution Response Brief, para. 875 3312 Trial Judgement, para. 3137, referring to Witness QCB, T. 20 March 2002 p. 71, T. 25 March 2002 pp. 46, 47 (closed session). 3313 See Trial Judgement, paras. 1468, 1476. 507 Case No. ICTR-98-42-A 14 December 2015

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19858/H month, thereby undermining Witness QCB's evidence that Ruvurajabo was killed on 21 April 1994.3315 Ntahobali emphasises that the Trial Chamber accepted other aspects of Witness WMKL's evidence and that it failed to provide a reasoned opinion by not assessing Witness WMKL's testimony that was in direct contradiction with Witness QCB's evidence.3316 In his view, no reasonable trier of fact could have relied on Witness QCB's evidence concerning Ruvurajabo's murder in light of Witness WMKL's testimony to the contrary. 3317 1450. The Prosecution responds that Witness WMKL did not testify that Ruvurajabo was still alive in May 1994 but that he only thought he saw Ruvurajabo that month. 3318 It further contends that it was within the Trial Chamber's discretion to accept some but not all of Witness WMKL's evidence and that it was not obliged to discuss his testimony when considering Ruvurajabo's killing. 3319 1451. The Appeals Chamber observes that Witness WMKL testified that he saw Ruvurajabo around what he "believe[dJ" was mid-May 19943320 He further testified that he learned of Ruvurajabo's death towards the end of May, when he overheard someone boasting about having killed him3321 The Trial Judgement does not reflect express consideration of these aspects of Witness WMKL's testimony. However, the Trial Judgement shows that the Trial Chamber did not ignore Witness WMKL's

testimony, as it expressly assessed his evidence with respect to several other events in the Trial Judgement. 3322 1452. The Appeals Chamber also notes that Witness WMKL's testimony only approximated that mid-May 1994 was the last time the witness saw Ruvurajabo 3323 Notably, the Trial Chamber elsewhere rejected Witness WMKL's evidence as it related to the timing of when the Hotel Ihuliro roadblock was established, an event that occurred around the time of Ruvurajabo's killing 3324 The Appeals Chamber further observes that Witness WMKL's evidence about Ruvurajabo's killing was indirect 325 In light of the fact that Witness WMKL could only estimate when he last saw Ruvurajabo, the Trial Chamber's doubts about Witness WMKL's evidence as it related to his ability 3314 See supra, Section V.F.1(b). 3315 Ntahobali Appeal Brief, paras. 397, 398. See also ibid., para. 380; AT. 16 April 2015 pp. 28, 29. 3316 Ntahobali Appeal Brief, para. 398, referring to Trial Judgement, para.

5101. See also Ntahobali Reply Brief, paras. 179, 180 317 Ntahobali Appeal Brief, paras. 397, 398 3318 Prosecution Response Brief, para. 872 (emphasis added). 3319 Prosecution Response Brief, para. 873. 3320 See Witness WMKL, T. 7 April 2005 p. 11. 3321 See Witness WMKL, T. 7 April 2005 pp. 11, 13 and p. 11 (under seal extract). 3322 See Trial Judgement, paras. 457, 1572, 1676, 1682, 2389-2391, 2777, 2784, 2814, 2920, 3038-3040, 3108, 3110, 3699, 3779, 3809, 4988, 4990, 5062, 5071, 5100, 5101, 6445. 3323 See Witness WMKL, T. 7 April 2005 p. 11. 3324 See Trial Judgement, paras. 3109-3113. 3325 See Witness WMKL, T. 7 April 2005 pp. 11 (under seal extract), 13. 508 Case No. ICTR-98-42-A 14 December 2015

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19857/H to recall the timing of another event, and the limited probative value of Witness WMKL's testimony when compared to Witness QCB's direct evidence of Ruvurajabo's killing, the Appeals Chamber considers that a reasonable trier of fact could have preferred Witness QCB's evidence over Witness WMKL's and not expressly discuss this aspect of Witness WMKL's testimony in the Trial Judgement. 3326 1453. Moreover, the Appeals Chamber is not persuaded by Ntahobali's contention that the Trial Chamber's approval of an isolated aspect of Witness WMKL's testimony reflected an overall endorsement of this witness's evidence. 3327 To the contrary, the Trial Chamber found the witness's testimony concerning the timing of the establishment of the Hotel Ihuliro roadblock unpersuasive3328 and also concluded that Witness WMKL's account concerning the security of persons seeking refuge at the Butare Prefecture Office was not plausible332 Bearing in mind that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony, 3330 the Appeals Chamber is not convinced by Ntahobali's suggestion that the Trial Chamber's acceptance of an isolated aspect of Witness WMKL's testimony rendered its decision to 'rely on Witness QCB's account of Ruvurajabo's death unreasonable.

1454. Accordingly, Ntahobali has failed to demonstrate that the Trial Chamber failed to consider Witness WMKL's evidence regarding Ruvurajabo and that no reasonable trier of fact could have relied on Witness QCB's evidence regarding the killing of Ruvurajabo in light of the testimony of Witness WMKL. (v) Contradictory Findings 1455. Ntahobali highlights that the Trial Chamber, relying in part on the testimony of Witness QI, found that the Hotel Ihuliro roadblock, where Ruvurajabo was killed, was established "during the last days of April 1994."3331 He contends that this finding is inconsistent with Witness QCB's 3326 With respect to Ntahobali's submission that the Trial Chamber failed to provide a reasoned opinion when not discussing Witness WMKL's evidence, the Appeals Chamber observes that nowhere in his closing submissions did Ntahobali argue the clear relevance and importance of it to the killing of Ruvurajabo. See Ntahobali Closing Brief, paras. 6, 139, 142, 159, 276, 423 and Appendix 1, para. 6; Ntahobali Closing Arguments, T. 23 April 2009 pp. 7, 8. See also T. 23 April 2009 pp. 4, 5, 23, 24, 34-36 (generally discussing Witness QCB's evidence and credibility). 3327 The Trial Chamber stated that it "believe d] the testimonies of Witnesses QY and WMKL to the extent that what was made public to the eyes of the international community was that the refugees would be transferred [to Rango Forest] for their own safety", even though it was of the view that "this might have been part of the strategy to improve the international community's perception of the authorities in Rwanda and hide their true intentions, which were to get rid of the Tutsi refugees." See Trial Judgement, para.

5101. See also ibid., paras. 5099, 5100. 3328 See Trial Judgement, paras. 3109-3113. 3329 Trial Judgement, para. 2814. 3330 See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 3331 Ntahobali Appeal Brief, para. 380 (emphasis omitted), referring to Trial Judgement, para.

3112. Ntahobali develops this argument in the context of whether the Rugira roadblock existed as early as 21 April 1994. However, since 509 Case No. ICTR-98-42-A 14 December 2015

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19856/H evidence that Ruvurajabo was killed at that roadblock on 21 April 1994, as Witness QI testified that the roadblock had not been established until after the departure of UNAMIR soldiers, which necessarily occurred after 25 April 1994 as Witness QI was in Matyazo until that date.3332 According to Ntahobali, this contradiction affected Witness QCB's credibility and should have been addressed by the Trial Chamber 3333 1456. The Prosecution responds that the Trial Chamber did not err in accepting Witness QCB's evidence concerning when the Hotel Ihuliro roadblock was established. 3334 1457. The Appeals Chamber has already addressed and rejected Ntahobali's challenges to the Trial Chamber's finding, based in part on Witnesses QCB's and QI's testimonies,3335 that the roadblock was established in late April 1994.3336 1458. Ntahobali suggests that the Trial Judgement elsewhere reflects that Witness QI was at Matyazo Clinic until 25 April 1994 and that his evidence regarding the departure of the UNAMIR soldiers reflects that the establishment of the Hotel Ihuliro roadblock occurred after that date.3337 Ntahobali's argument relies on the Trial Chamber's finding that Witness QI's testimony placed the attack at Matyazo Clinic, during which he was present, "around 25 April 1994."3338 Having reviewed the relevant finding and evidence, the Appeals Chamber is of the view that Witness

QI's evidence is equivocal as to the timing of his observations of the UNAMIR soldiers and the establishment of the roadblock following their departure3339 In particular, Witness QI merely testified that there were UNAMIR soldiers "at Ntahobali's house during the war" and that "after UNAMIR's departure" a roadblock was set up.3340 The witness confirmed that he made these observations from his employer's house, located nearby, without specifying whether the observations were made before or after his temporary absence from this home, during which he observed that attack at Matyazo Clinic.3341 Ntahobali's interpretation of the evidence is not persuasive. Ntahobali's citations are to evidence and findings by the Trial Chamber that relate to the existence of the Hotel Ihuliro roadblock where Ruvurajabo was found to have been killed, the Appeals Chamber assesses these arguments here. 3332 Ntahobali Appeal Brief, para. 380, referring to Trial Judgement, para. 2084. 3333 Ntahobali Appeal Brief, para. 380. 3334 Prosecution Response Brief, para.

888. D-13-D. See ibid., para. 3109. 3336 See supra, Section V.G.2(a). See also Trial Judgement, para. 3113. 3337 Ntahobali Appeal Brief, para. 380, referring to Trial Judgement, para. 2084. 3338 Trial Judgement, para. 2084. 3339 See Witness QI, T. 25 March 2005 pp. 44-46 (closed session). 3340 Witness QI, T. 25 March 2005 p. 46 (closed session). 3341 See Witness OI, T. 25 March 2005 pp. 44-46 (closed session). See also Witness QI, T. 23 March 2005 pp. 42, 43 (closed session), 44, 45, 49, 50, T. 24 March 2005 pp. 32, 33 (closed session). 510 Case No. ICTR-98-42-A 14 December 2015

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19855/H 1459. Furthermore, the Appeals Chamber recalls that the Trial Chamber's finding that the Hotel Thuliro roadblock was established "in late April 1994*3342 and after the departure of the UNAMIR soldiers, 3343 took into account the evidence of Ntahobali and several Defence witnesses, who testified that the UNAMIR soldiers left Butare prior to 21 April 1994.334 Ntahobali therefore fails to demonstrate that the Trial Chamber's findings that the Hotel Ihuliro roadblock was established in late April 1994, relying in part on the testimony of Witness QI, is inconsistent with the Trial Chamber's reliance on Witness QCB's evidence that Ruvurajabo was killed at that roadblock on 21 April 1994.

1460. The Appeals Chamber therefore dismisses Ntahobali's contention that the Trial Chamber made contradictory findings regarding the date on which the Hotel Ihuliro roadblock was established. (vi) Additional Evidence Admitted on Appeal 1461. On the basis of the trial record alone, the Appeals Chamber has found that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of the evidence concerning the killing of Ruvurajabo. In accordance with the relevant standard, the Appeals Chamber will now determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.

1462. The Appeals Chamber finds Witness QCB's testimony pertaining to the killing of Ruvurajabo detailed and coherent. 3345 His explanations given in cross-examination as they concern alleged inconsistencies about this event are clear and convincing 3346 His evidence is first-hand3347 and his identification of Ntahobali is compelling. 3348 1463. As noted in Section V.F.1(d) above, the Appeals Chamber admitted as additional evidence on appeal Witness QCB's RCMP Statements which reveal that the witness provided contradictory statements to the RCMP as to whether he observed first-hand or learned from another source about abductions that occurred during the genocide in which Ntahobali was implicated as a co-perpetrator. For the same reasons as developed in relation to Witness QCB's evidence 3342 Trial Judgement, para. 3113. 3343 See Trial Judgement, para. 3112. 3344 See Ntahobali, T. 24 April 2006 pp. 34, 35; Witness WBTT, T. 31 May 2005 pp. 47-48 (closed session); Denise Ntahobali, T. 9 June 2005 pp. 21-23, T. 13 June 2005 p. 17; Witness WBUC, T. 1 June 2005 pp. 54-56. See also Trial Judgement, paras. 3029, 3112, fn. 8624 Witness QCB, T. 20 March 2002 pp. 59-62, 65-73, 75-78, T. 25 March 2002 pp. 115, 122-126, 128-131, 140-142 and 93, 94, 96-101, 105, 110-113 (closed session). 3346 Witness QCB, T. 26 March 2002 pp. 35-37, 40, 41. 3347 Witness QCB, T. 20 March 2002 pp. 59-62, 65-73, 75-78. 511 Case No. ICTR-98-42-A 14 December 2015

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19854/H concerning the killings at the IRST, the Appeals Chamber finds that the additional evidence admitted on appeal does not undermine the credibility of Witness QCB3349 The Appeals Chamber makes this determination in light of the evidence in the trial record, including potentially conflicting evidence as to Ntahobali's whereabouts on the morning of 21 April 1994, evidence about the date of establishment of the Hotel Ihuliro roadblock, Witness WMKL's evidence about when Ruvurujabo was killed as well as evidence related to the alleged fabrication of evidence by Witness QCB 3350 1464. In light of the trial evidence and the additional evidence admitted on appeal, and considering its analysis of Ntahobali's responsibility conducted below, the Appeals Chamber is itself convinced beyond reasonable doubt of Ntahobali's guilt relating to the killing of Ruvurajabo at the Hotel Ihuliro roadblock. (vii) Conclusion 1465. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's submissions as they relate to the assessment of the evidence pertaining to the killing of Ruvurajabo. (b) Superior Responsibility 1466. The Trial Chamber concluded that Ntahobali bore superior responsibility pursuant to Article 6(3) of the Statute for the conduct of the Interahamwe who killed Ruvurajabo and considered this as an aggravating factor in sentencing. 3351 In particular, it recalled that

Ntahobali instructed Interahamwe to kill Ruvurajabo and that they followed his order.3352 On this basis, the Trial Chamber found as the only reasonable inference that Ntahobali exercised effective control over these Interahamwe and that he "was in a superior-subordinate relationship to them, on an ad hoc or temporary basis, when they killed Ruvurajabo."3353 1467. Ntahobali submits that the Trial Chamber erred in concluding that he exercised effective control over the Interahamwe who killed Ruvurajabo solely on the evidence that they followed Ntahobali's alleged order to kill him.3354 He points to case law reflecting that, while a superior's 3348 Witness QCB, T. 20 March 2002 pp. 65, 68-71, 73-77, T. 21 March 2002 pp. 81, 82, T. 25 March 2002 pp. 40, 41 and 45-53, 55, 57-61, 65-68 (closed session). 3349 See supra, Section V.F.1(d). 3350 See supra, Sections V.F.l(d), V.G.2, V.G.3(a)(iv). 3351 See Trial Judgement, paras. 5847-5849, 5971, 6056, 6220. 3352 Trial Judgement, para. 5847. 3353 Trial Judgement, para. 5847. 3354 Ntahobali Appeal Brief, paras. 907-909. 512 Case No. ICTR-98-42-A 14 December 2015

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19853/H ability to issue orders may be indicative of effective control, it does not automatically establish it. 3355 1468. In addition, Ntahobali contends that the Trial Chamber failed to consider Witness QCB's evidence that the Interahamwe who killed Ruvurajabo were from Kigali and under Robert Kajuga's ("Kajuga") control, or other evidence that Kajuga or Nteziryayo exercised effective control over them. 3356 In Ntahobali's view, the Trial Chamber failed to provide a reasoned opinion by not addressing this evidence and no reasonable trier of fact could have found beyond reasonable doubt that Ntahobali had effective control over the Interahamwe who killed Ruvurajabo. 3357 1469. The Prosecution responds that the Trial Chamber correctly found that Ntahobali exercised effective control over the Interahamwe at the Hotel Ihuliro roadblock based on the evidence that the Interahamwe complied with Ntahobali's instructions to kill Ruvurajabo as well as other evidence of Ntahobali's role at that roadblock, 3358 which includes Ntahobali ordering Interahamwe to commit other crimes. 3359 The Prosecution contends that the Trial Chamber was not required to ascertain whether other individuals had similar control over the group in question and that, in any event, Ntahobali has not demonstrated that Kajuga or Nteziryayo had effective control over the Interahamwe to the extent that it negated

Ntahobali's effective control.3360 It notes that, although Witness QCB referred to the group of Interahamwe as Kajuga's Interahamwe, the witness maintained that Ntahobali was the head of the group.3361 1470. Ntahobali replies that, contrary to the Prosecution's contention, the Trial Chamber did not rely on evidence of his general role at the Hotel Ihuliro roadblock, such as alleged orders to commit other crimes there, when finding that he exercised effective control over the Interahamwe who killed Ruvurajabo 3362 He points out that the only crime the Trial Chamber found that he had ordered at the Hotel Ihuliro roadblock was Ruvurajabo's murder and that the Trial Chamber only concluded that he manned the roadblock, not that he controlled it. 3363 Ntahobali argues that the evidence referred to by the Prosecution as reflecting Ntahobali's control over Interahamwe does not Trial Judgement, paras. 838-841. 3356 Ntahobali Appeal Brief, para.

910. Ntahobali further argues that the Prosecution alleged that these Interahamwe were Nteziryayo's subordinates. See idem, referring to Prosecution Closing Brief, paras. 197, 198 at pp. 366, 367, Trial Judgement, paras. 3982, 4031. Ntahobali Appeal Brief, para. 910. 3358 Prosecution Response Brief, paras. 1177-1179. 3359 Prosecution Response Brief, para. 1177, referring to Trial Judgement, para. 3118. 3360 Prosecution Response Brief, para. 1180. 3361 Prosecution Response Brief, para. 1180. 3362 Ntahobali Reply Brief, paras. 366-368. See also ibid., para. 370 (arguing that the Trial Chamber only found Ntahobali to have ordered the killing of Ruvurajabo and committed the rape and killing of the Tutsi girl) 3363 Ntahobali Reply Brief, paras. 370, 371. 513 Case No. ICTR-98-42-A 14 December 2015

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19852/H necessarily concern those who killed Ruvurajabo or events at the Hotel Thuliro roadblock. 3364 Finally, Ntahobali submits that the Prosecution ignores that Witness QCB's evidence suggests that Kajuga controlled the Interahamwe as well as his testimony that the Interahamwe at the roadblock could have been soldiers. 3365 1471. The Appeals Chamber first turns to Ntahobali's contention that the Trial Chamber erred in concluding that he exercised effective control over the Interahamwe who killed Ruvurajabo solely on the basis of the evidence that they followed his alleged order. The Appeals Chamber recalls that "[i]ndicators of effective control are 'more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent (or] punish' 3366 A superior's ability to issue binding orders that are complied with by subordinates is one of the indicators of effective control generally relied upon in the jurisprudence of the Tribunal. 3367 1472. The Trial Judgement reflects that, in finding that Ntahobali had effective control over the Interahamwe who killed Ruvurajabo, the Trial Chamber expressly relied on Ntahobali's issuance of an instruction to the Interahamwe to kill Ruvurajabo with which they complied. 3368 In summarising Witness QCB's evidence concerning Ruvurajabo's killing, the Trial Chamber noted

that Interahamwe sought instructions from Ntahobali in relation to Ruvurajabo upon his refusal to produce identification at the roadblock. 3369 Given the Trial Chamber's acceptance of Witness QCB's evidence as it relates to this event, the Appeals Chamber is not convinced that the Trial Chamber relied solely upon Ntahobali ordering the killing of Ruvurajabo as the indicator of his effective control over the Interahamwe that killed Ruvurajabo, but also on Witness QCB's evidence that the Interahamwe sought instructions from him.

1473. The Appeals Chamber also considers that Ntahobali's submissions fail to appreciate the broader context of the Trial Chamber's findings concerning his role at the Hotel Ihuliro roadblock In particular, the Appeals Chamber notes that the Trial Chamber also considered extensive evidence pointing to Ntahobali's leadership position and authoritative conduct at that roadblock. 3370 This evidence led the Trial Chamber to conclude that "Ntahobali manned [Hotel Thuliro roadblock] and utilised [it] with the assistance of soldiers and other unknown persons to abduct and kill 3364 Ntahobali Reply Brief, paras. 369, 371. 3365 Ntahobali Reply Brief, para. 372. 3366 Ndahimana Appeal Judgement, para. 53, quoting Blaskié Appeal Judgement, para. 69. 3367 Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fin. 139; Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, para.

299. See also Strugar Appeal Judgement, para. 256; Hadzihasanovié and Kubura Appeal Judgement, para. 199; Halilovié Appeal Judgement, paras. 204, 207 368 Trial Judgement, para. 5847. 3369 Trial Judgement, para. 2959. 3370 See Trial Judgement, paras. 3118-3121, 3124-3127. See also ibid., para. 5842. 514 Case No. ICTR-98-42-A 14 December 2015

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19851/H members of the Tutsi population."3371 While Ntahobali argues that the Trial Chamber did not find that he ordered the commission of other crimes at the roadblock or that he "controlled" it, the Appeals Chamber is of the view that the evidence accepted by the Trial Chamber concerning Ntahobali's general role at the Hotel Ihuliro roadblock reasonably supports the Trial Chamber's conclusion that Ntahobali exercised effective control over the Interahamwe who killed Ruvurajabo when he issued that order.

1474. The Appeals Chamber next turns to Ntahobali's contention that the Trial Chamber erred by not considering evidence from Witness QCB and other witnesses that the Interahamwe in question were from Kigali and under the control of Kajuga or Nteziryayo, and did not provide a reasoned opinion when omitting to address this evidence. The Appeals Chamber recalls that effective control need not be exclusive and can be exercised by more than one superior, whose criminal responsibility is not excluded by coexisting responsibility of others. 3372 In this regard, the Appeals Chamber observes that Witness QCB testified that Ruvurajabo was apprehended and attacked by "Interahamwes [sic] from Kajuga [...] it is the Robert Kajuga's Interahamwe", 3373 an assertion that is not reflected in the Trial Chamber's summary of his evidence. Nonetheless, the Appeals Chamber considers that Witness QCB's designation of "Kajuga's Interahamwe" did not require express analysis, as it was generic and was not inconsistent with the Trial Chamber's finding that Ntahobali exercised effective control over these Interahamwe when he ordered them to kill Ruvurajabo. Notably, there is no evidence suggesting that the Interahamwe responsible for Ruvurajabo's murder sought confirmation of Ntahobali's order to kill Ruvurajabo from any other alleged superior, including Kajuga.* 3374 1475. Likewise, the Appeals Chamber

finds that Ntahobali's references to other evidence that Interahamwe led by Kajuga and Nteziryayo committed crimes fail to demonstrate that the Trial Chamber was required to expressly assess this evidence in evaluating Ntahobali's superior responsibility for Ruvurajabo's killing.3375 Notably, the Trial Chamber considered some of the evidence now highlighted by Ntahobali and the leadership roles Kajuga and Nteziryayo held with 3371 Trial Judgement, para. 3128. 3372 See Bagosora and Nsengiyumva Appeal Judgement, para.

495. See also Nizeyimana Appeal Judgement, para. 346; Celebiéi Appeal Judgement, paras. 197, 198. 3373 Witness QCB, T. 20 March 2002 pp. 67, 68. See also Trial Judgement, paras. 2957-2959, 3136-3139, 3173, 5361, 5842, 5847, 5848. 3374 Cf. Halilovié Appeal Judgement, para.

206. The Appeals Chamber observes that Witness QCB testified that, at another roadblock, Interahamwe who came from Kigali were, nonetheless, "headed by" Ntahobali. Witness QCB, T. 25 March 2002 p.

156. The Appeals Chamber observes that both Ntahobali and the Prosecution confuse this reference to Interahamwe at the Hotel Ihuliro roadblock. However, read in the context of Witness QCB's entire testimony, this reference is to Interahamwe at another, nearby roadblock, which he described as roadblock number "five". The roadblock at which Ruvurajabo was killed was designated by Witness QCB as number "six". See Witness QCB, T. 20 March 2002 pp. 56-61, T. 25 March 2002 pp. 100, 112 (closed session). 515 Case No. ICTR-98-42-A 14 December 2015

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19850/H respect to Interahamwe elsewhere in the Trial Judgement. 3376 While the Trial Judgement does not reflect express consideration of the part of Witness FAM's testimony invoked by Ntahobali, the Appeals Chamber fails to see the material relevance of evidence that Interahamwe led by Kajuga and Nteziryayo committed crimes during different time periods in other locations. 3377 Ntahobali does not show that the Trial Chamber failed to provide a reasoned opinion in this regard. Similarly, he does not demonstrate that the Trial Chamber erred in finding as the only reasonable inference that Ntahobali exercised effective control over the Interahamwe who killed Ruvurajabo. 3378 1476. The Appeals Chamber therefore dismisses Ntahobali's submissions that the Trial Chamber erred in concluding that Ntahobali bore responsibility as a superior under Article 6(3) of the Statute for the conduct of the Interahamwe who killed Ruvurajabo. (c) Conclusion 1477. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate any error in the Trial Chamber's finding that he was responsible for ordering the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994 and that he also bore responsibility as a superior under Article 6(3) of the Statute.

4. Rape and Murder of a Tutsi Girl 1478. Based on the testimonies of Witnesses SX and TB, the Trial Chamber found that Ntahobali raped and murdered a Tutsi girl who arrived at the Hotel Ihuliro roadblock in a yellow Daihatsu around the end of April 1994.3379 1479. Ntahobali argues that the Trial Chamber erred in its assessment of the evidence relating to this incident, contending that it failed to properly assess material inconsistencies within the prior statements and testimonies of Witnesses SX and TB, and that it erred in its assessment of their identification evidence. The Appeals Chamber will address these contentions in turn. 3375 See Ntahobali Appeal Brief, para. 910, referring to Witness QJ, T. 8 November 2001 pp. 113-117 (closed session), Witness FAM, T. 14 March 2002 pp. 66-69. 3376 Specifically, when considering Nteziryayo's responsibility for the abductions and killings of Tutsis at Hotel Ibis committed by the Interahamwe between May and June 1994, the Trial Chamber referred to the excerpt of Witness QJ's testimony cited by Ntahobali, noting his testimony that "the Interahamwe were under the orders of their leaders, Robert Kajuga, who was their president, and Nteziryayo, who lived with [Kajuga at Hotel Ibis] and was deputy to Kajuga." See Trial Judgement, para. 3995, fn. 10878. See also ibid., paras. 3982-3985, 399, 3994, 3996, 3997. Furthermore, the Trial Judgement reflects general consideration of Witness FAM's evidence as it related to Nteziryayo's responsibility for the attacks on the Tutsi refugees by the Interahamwe and civilians at Kabakobwa. See, e.g., ibid., paras. 1741-1748. See also ibid., paras. 1517-1529. 3377 Cf. Kvocka et al. Appeal Judgement, para.

23. See also Dordevié Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para, 127; Kalimanzira Appeal Judgement, para, 195. Trial Judgement, para. 5847. 3379 Trial Judgement, para. 3135. 516 Case No. ICTR-98-42-A 14 December 2015

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19849/H (a) Inconsistencies 1480. The Trial Chamber found that the testimony of Witness SX with regard to the rape and murder of a Tutsi girl at the Hotel Ihuliro roadblock was detailed and believable, and that it was corroborated by Witness TB's equally detailed testimony. 3380 It noted that both witnesses testified that the victim arrived in a yellow Daihatsu, that a certain Jean-Pierre was with Ntahobali at the time of the incident, that the car was stopped at the roadblock, and that the people inside the car were asked to show their identity cards. 3381 The Trial Chamber recalled that Witness TB testified to seeing Ntahobali dragging a girl with braids into the woods and to subsequently seeing her dead body with vaginal injuries in the woods, and that Witness SX observed the rape from a hiding place about 20 metres away from Ntahobali and the victim 382 In addition, it considered that the witnesses' descriptions regarding the subsequent burial of the body were consistent 3383 The Trial Chamber further observed that Witnesses SX and TB placed the occurrence of the crime a few days after the Hotel Ihuliro roadblock was erected, and recalled its previous finding that the roadblock was mounted at the end of April 1994.3384 The Trial Chamber concluded that both witnesses were credible with respect to this allegation and that it was established beyond reasonable doubt

that Ntahobali raped and murdered the Tutsi girl who arrived at the Hotel Ihuliro roadblock in a yellow Daihatsu around the end of April 1994.3385 1481. Ntahobali submits that the Trial Chamber erred in its assessment of the evidence of Prosecution Witnesses SX and TB relating to the rape and murder of the Tutsi girl 3386 In particular, he contends that the Trial Chamber failed to consider that the accounts of Witnesses SX and TB conflicted in material respects 3387 Specifically, he submits that: (i) Witness SX testified that the crime occurred on 21 April 1994 while Witness TB initially testified that it occurred on 25 April 1994 and stated that it happened on 28 April 1994 during cross-examination; (ii) Witness TB never mentioned any other crime at the roadblock that day, while Witness SX mentioned around 500 killings having occurred there; (iii) Witness SX indicated that the four other occupants of the Daihatsu were killed instantly whereas Witness TB testified that three of them were allowed to leave while another girl was also kept along with the Tutsi girl; (iv) Witness SX testified that the Tutsi girl was detained for two to three hours and forced to walk in a gutter before being taken to be raped, while Witness TB testified that she was immediately taken to be raped by 3380 Trial Judgement, para. 3132. 3381 Trial Judgement, para. 3132. 3382 Trial Judgement, para. 3133. 3383 Trial Judgement, para. 3133. 3384 Trial Judgement, para. 3134. 3385 Trial Judgement, para. 3135 3386 Ntahobali Appeal Brief, paras. 422-426. See also Ntahobali Notice of Appeal, para. 177 3387 Ntahobali Appeal Brief, paras. 423, 424. 517 Case No. ICTR-98-42-A 14 December 2015

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19848/H soldiers and then by Ntahobali and never made any reference to an incident involving a gutter; and (v) Witness SX testified that Ntahobali had a hatchet, while Witness TB testified that Ntahobali only carried a pistol.3388 Ntahobali also contends that the Trial Chamber disregarded numerous and "major" contradictions between Witnesses SX's and TB's respective testimonies and their prior statements to Tribunal investigators 3389 Ntahobali submits that no reasonable trier of fact could have relied on the evidence of Witnesses SX and TB or found that they corroborated each other in light of these contradictions and inconsistencies. 3390 1482. The Prosecution responds that the Trial Chamber did not err in finding that the testimonies of Witnesses SX and TB were credible, consistent, and that they corroborated each other.3391 It contends that it was within the Trial Chamber's discretion to evaluate any inconsistencies and that any inconsistencies were minor and did not undermine the credibility of the witnesses. 3392 1483. The Appeals Chamber observes that the Trial Judgement does not reflect express consideration of the purported inconsistencies raised by Ntahobali, many of which were covered during the examination of the witnesses 393 and raised in Ntahobali's closing brief. 3394 However, the Appeals Chamber recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence, 339S without explaining its 3388 Ntahobali Appeal Brief, para.

423. See also AT. 16 April 2015 p.

31. Ntahobali also contends that Witness SX testified that he had arrived around 1.00 p.m. on the day the Tutsi girl was killed, while Witness TB testified to having seen Witness SX days before. See Ntahobali Appeal Brief, para. 423. 3389 Specifically, Ntahobali argues that, in his prior statement, Witness SX: (i) never mentioned the residence of Mujeri, while he later testified that he witnessed the killings of nearly 500 persons and the beginning of the incident involving the Tutsi girl from Mujeri's home; (ii) indicated that Ntahobali had only a club whereas he later testified that Ntahobali was carrying a small axe, a knife, and a pistol; (iii) stated that he watched the rape and murder of the victim in the company of Witness TB, while subsequently testifying that Witness TB was not with him; and (iv) indicated that the victim was wearing a skirt, while his testimony reflected that she wore trousers. With regard to Witness TB, Ntahobali submits that her prior statements reflect that: (i) she witnessed the crime in the same building and in the company of Witness SX, while she later testified that it was only the same compound; (ii) four persons stopped with the victim were allowed to leave, while she testified that only three persons were allowed to leave and that another young woman was forced to stay with the victim; (ili) when Ntahobali took the victim, she was nude,

having already been undressed by soldiers, whereas she later testified that the victim was wearing a shirt and trousers; and (iv) the soldiers took the victim towards the woods, while she testified that the victim was brought to a sorghum field. Ntahobali also notes that Witness TB's statement failed to mention the existence of a roadblock near Ntahobali's residence whereas she testified about one established about four days after 21 April 1994. See Ntahobali Appeal Brief, paras. 423, 424, referring to Witness SX's Statement, Witness TB's Statement. 3390 Ntahobali Appeal Brief, para.

426. In particular, Ntahobali points out that no reasonable trier of fact would have disregarded Witness TB's incredible explanations as to the inconsistencies between her prior statement and her testimony at trial. See ibid., para.

425. See also AT. 16 April 2015 p. 31. 3391 Prosecution Response Brief, para.

898. See also AT. 16 April 2015 pp. 5, 6. 3392 Prosecution Response Brief, para.

899. See Witness SX, T. 27 January 2004 p. 52 (closed session), T. 30 January 2004 pp. 18, 24, 26, 33-38, 66-70, and 72-84 (closed session); Witness TB, T. 5 February 2004 pp. 12-14 (closed session), 20-22, 25-32, 35. 3394 See Ntahobali Closing Brief, paras. 291-307. See also ibid., paras. 712-738. 3395 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Hategekimana Appeal Judgement, para. 82; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para.

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19847/H decision in every detail.3396 Corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony. 3397 1484. Having carefully reviewed the evidence of Witnesses SX and TB, the Appeals Chamber finds that a reasonable trier of fact could have concluded that the fundamental features of their testimonies were compatible and compelling. As emphasised by the Trial Chamber,3398 the testimonies of Witnesses SX and TB are indeed materially consistent concerning the location of the Hotel Ihuliro roadblock,3399 the arrival of the victim at the roadblock in a yellow Daihatsu with other persons,3400 the presence of Ntahobali, Jean-Pierre, Lambert, and Kazungu at the roadblock, 3401 the checking of identity cards at the roadblock,3402 the rape and the murder of the victim by. Ntahobali in the woods,3403 the injuries suffered by the victim,40 and the involvement of Witness SX in her burial. 3405 In addition, the Appeals Chamber notes that both witnesses confirmed seeing each other at the EER that specific day 3406 1485. The Appeals Chamber also finds that the purported inconsistencies between the testimonies of Witnesses SX and TB highlighted by Ntahobali are not material when viewed in context and in light of the fundamental consistency of their accounts and that it was therefore not unreasonable for the Trial Chamber not to discuss them expressly in the Trial Judgement.

1486. Specifically, the Appeals Chamber is satisfied that the Trial Chamber acted reasonably when finding that Witnesses SX and TB corroborated each other as to the timing of the crimes given that the witnesses themselves insisted that they only provided estimates 3407 In this regard, the Appeals. See, e.g., Nizeyimana Appeal Judgement, para. 223; Rukundo Appeal Judgement, para. 81; Karera Appeal Judgement, para. 174; Kvocka et al. Appeal Judgement, para. 23. e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Setako Appeal Judgement, para. 31; Hategekimana Appeal Judgement, para. 82; Nahimana et al. Appeal Judgement, para.

428. See also Ndahimana Appeal 3398 Trial Judgement, paras. 3132-3134. 3399 See Witness SX, T. 27 January 2004 p. 15; Witness TB, T. 4 February 2004 pp. 41, 42, 51. 3400 See Witness SX, T. 27 January 2004 p. 20; Witness TB, T. 4 February 2004 p. 42. 3401 See Witness SX, T. 27 January 2004 pp. 16, 18; Witness TB, T. 4 February 2004 pp. 41, 42. 3402 See Witness SX, T. 27 January 2004 p. 15; Witness TB, T. 4 February 2004 p. 42. 3403 See Witness SX, T. 27 January 2004 pp. 23, 24; Witness TB, T. 4 February 2004 p. 48, T. 5 February 2004 p. 11 (closed session). 3405 session). 3407 See Witness SX, T. 27 January 2004 p. 15; Witness TB, T. 4 February 2004 p. 41, T. 5 February 2004 pp. 11-13 (closed session). 519 Case No. ICTR-98-42-A 14 December 2015

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19846/H Chamber recalls that the Trial Chamber did not conclude that the crimes took place on a specific date but found that they occurred around the end of April 1994,3408 1487. With respect to whether other killings occurred at the Hotel Ihuliro roadblock that day, the Appeals Chamber observes that Witness SX observed the events from a different location than Witness TB, and that Witness SX's testimony reflects that he was not categorical as to the number of persons killed that day?49 The Appeals Chamber further notes that Witness TB's testimony indicated that the roadblock was used for the purpose of killing and that killings were taking place during this period 3410 Against this background, the Appeals Chamber considers that the fact that Witness TB did not specifically mention any other crime at the roadblock that day, while Witness SX mentioned that other killings occurred, did not prevent a reasonable trier of fact from finding that Witnesses SX's and TB's evidence concerning the killing of the Tutsi girl was corroborative.

1488. As to the alleged contradiction regarding the weapons Ntahobali carried during this event, the Appeals Chamber notes that both witnesses indicated that he carried a firearm and Witness TB testified that this was the only weapon that she "could see" 34ll Given the fact that Witness SX observed Ntahobali use a hatchet to kill the victim - an event that Witness TB did not witness - the Appeals Chamber is of the view that the witnesses' testimonies as to the weapons Ntahobali carried are not incompatible. 3412 1489. With respect to the alleged differences between the testimonies of Witnesses SX and TB as to the fate of the other occupants of the Daihatsu, the Appeals Chamber notes that Witness SX testified that they were killed immediately, while Witness TB testified that they were allowed to leave 3413 Although the witnesses seem to contradict each other on this point, the Appeals Chamber finds that this issue appears to be of peripheral relevance in light of the core evidence concerning the rape and murder of the victim. The Appeals Chamber further notes that Witnesses SX and TB were not extensively questioned about this issue and that Ntahobali does not demonstrate that the differences in the witnesses' testimonies in this regard render their otherwise consistent testimonies about the killing of the Tutsi girl incompatible 3414 Accordingly, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber not to address this contradiction in the Trial Judgement 3408 See Trial Judgement, para.

3135. See also ibid., para. 3134. 3409 Witness SX, T. 27 January 2004 p. 18, T. 30 January 2004 pp. 37, 61. 3410 Witness TB, T. 5 February 2004 pp. 10, 11 and 22 (closed session). 3411 See Witness SX, T. 30 January 2004 p. 26; Witness TB, T. 5 February 2004 p. 24. 3412 See Witness SX, T. 27 January 2004 pp. 23, 24, T. 30 January 2004 p. 26 and pp. 73, 74 (closed session). 3413 Compare Witness SX, T. 27 January 2004 p. 20 with Witness TB, T. 4 February 2004 p. 42 3414 See Witness SX, T. 27 January 2004 pp. 20, 21; Witness TB, T. 4 February 2004 pp. 42-45. 520 Case No. ICTR-98-42-A 14 December 2015

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19845/H and that it did not undermine the credibility and corroborative nature of Witnesses SX's and TB's accounts.

1490. The Appeals Chamber also finds that Ntahobali's submission that Witness SX's testimony that the victim was detained for two to three hours and forced to walk in a gutter contradicts Witness TB's evidence that soldiers immediately led her away to rape her is without merit. Witness SX did not testify that the victim was detained for two to three hours before being raped, but only that he was at Mujeri's residence and watched the roadblock for that amount of time. 3415 Moreover, it is not clear from Witness TB's evidence that the initial removal of the victim by the soldiers, who did not rape her, was so long that it would have been noticed by Witness SX or incompatible with that witness's evidence3416 In addition, the Appeals Chamber does not consider that the fact that Witness TB did not testify to the victim being forced to walk through a gutter was material given that the two witnesses observed the events from different locations.

1491. Finally, the Appeals Chamber rejects Ntahobali's argument that inconsistencies between the testimonies of Witnesses SX and TB and their prior statements raise serious doubts about the reliability of their evidence. The Appeals Chamber considers that many of the identified inconsistencies are minor and that Witnesses SX and TB provided reasonable explanations for them.3417 1492. The Appeals Chamber therefore concludes that Ntahobali has not shown that the Trial Chamber erred in its assessment of the evidence of Witnesses SX and TB as to the rape and murder of a Tutsi girl in late April 1994. 3415 See Witness SX, T. 27 January 2004 pp. 17, 21, T. 30 January 2004 pp. 33, 36, 69, 70. 3416 See Witness TB, T. 5 February 2004 pp. 17, 28. 3417 In particular, the Appeals Chamber observes that Witness SX: (i) explained in cross-examination that he had told the investigators about the residence of Mujeri and later stated that if he forgot to mention it, it was because he only stayed at this specific location for a few hours; (ii) conceded in cross-examination that he was mistaken about Ntahobali wearing a club and that he did not mention the gun since he was only asked about the weapons that were used by Ntahobali; (ili) explained that, to the extent that his prior statement indicates that Witness TB was with him while watching the rape and murder of the Tutsi girl, it was because

his observation reflected who else was in the entire EER compound at the time, not only the people who watched the incident with the witness; and (iv) explained that there were two girls following one another, and that it was the girl dragged by Ntahobali that was wearing trousers, while the second one was wearing a skirt. See Witness SX, T. 30 January 2004 pp. 26, 35, 36, and 72, 73, 80, 82, 83 (closed session). As for Witness TB, the Appeals Chamber notes that she: (i) explained that, while she learned from Witness SX that he observed the event from nearby, they did not watch it from the same room; (ii) explained that, in Rwanda, the meaning of the word "naked" could describe someone, like the victim, whose chest had been exposed by the time she was in Ntahobali's custody; and (iti) testified that it was implied that an obstacle was in a road when she told investigators that people were arrested (in her statement, Witness TB indicates that the yellow Daihatsu was stopped by Ntahobali and some soldiers in front of the EER, where identity cards were being checked, that soldiers were guarding the road, and that persons were being filtered - details which are materially consistent with her testimony about a roadblock). See Witness TB's Statement, pp. 3, 4; Witness TB, T. 5 February 2004 pp. 12, 13 (closed session), 24, 27, 29, 30. The Appeals Chamber finds that the remaining differences between Witness TB's Statement and her testimony identified by Ntahobali are so minor that they do not undermine the reasonableness of the Trial Chamber's findings and do not warrant express consideration. See Ntahobali Appeal Brief, paras. 424(c), 424(e). 521 Case No. ICTR-98-42-A 14 December 2015

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19844/H (b) Identification Evidence 1493. The Trial Chamber found that Witness SX identified Ntahobali in court, recalling that he had testified to having seen him often in Butare near the EER.3418 It further found that Witness TB knew Ntahobali well, noting that she also identified him in court.3419 1494. Ntahobali submits that the Trial Chamber erred in crediting the identification evidence of Witnesses SX and TB 3420 With respect to Witness SX, Ntahobali contends that the Trial Chamber erred in: (i) failing to consider the witness's reluctance to answer questions with regard to the first name of the person who informed him of Ntahobali's identity,342l ii) failing to assess this hearsay identification evidence with caution;3422 and (iii) according weight to Witness SX's in-court identification 3423 1495. With respect to Witness TB, Ntahobali highlights that unknown individuals informed her that the appellant was called "Shalom" and submits that the Trial Chamber failed to assess this hearsay evidence with appropriate caution. 3424 He contends that, while her description of Ntahobali was so vague that it could encapsulate most Rwandan men, it was nevertheless inconsistent with Witness TQ's evidence that Ntahobali had a large beard 3425 He also argues that the Trial Chamber further erred by relying on Witness TB's in-court identification of Ntahobali since the presiding judge

had previously identified his counsel in court in the witness's presence. 3426 1496. The Prosecution responds that Witness SX identified Nahobali in court. 3427 It further disputes that Witness TB learned Ntahobali's identity from hearsay and submits that the witness 3418 Trial Judgement, para. 3122, referring to Witness SX, T. 27 January 2004 pp. 16, 37, and 53 (closed session), T. 30 January 2004 pp. 15 (closed session), 25. See also ibid., para. 3880. 3419 Trial Judgement, para. 3122, referring to Witness TB, T. 4 February 2004 p.

54. See also ibid., para. 3883. 3420 Ntahobali Notice of Appeal, paras. 179, 180; Ntahobali Appeal Brief, paras. 445, 451, 452; Ntahobali Reply Brief, paras. 201, 202. See also AT. 16 April 2015 p. 30 421 Ntahobali Appeal Brief, para. 451, referring to Witness SX, T. 27 January 2004 pp. 52-54 (closed session) (French) 3422 Ntahobali Appeal Brief, para.

451. See also ibid., para. 591 (concerning identification at the EER). See also AT. 16 April 2015 p. 30. 3423 Ntahobali Appeal Brief, para. 451, referring to Trial Judgement, para.

3122. Ntahobali also argues that the witness's evidence that Ntahobali "resembles" Shalom is insufficient to establish a positive identification beyond reasonable doubt. See idem, referring to Witness SX, T. 27 January 2004 p. 37 (French). See also ibid., para. 591. 3424 Ntahobali Appeal Brief, para. 452, referring to Witness TB, T. 5 February 2004 p. 29 (French). See also Ntahobali Reply Brief, para, 203; AT. 15 April 2015 p. 40; AT, 16 April 2015 p.

30. Ntahobali Appeal Brief, para. 452, referring to Witness TB, T. 4 February 2004 p. 44 (French), Witness TQ, T. 8 September 2004 p. 19 (closed session) (French). See also AT. 15 April 2015 p.

40. The Appeals Chamber notes that, in another part of his appeal, Ntahobali similarly argues that the evidence of Witness SX was inconsistent with that of Witness TQ that Ntahobali had a beard. See Ntahobali Appeal Brief, para. 591 (concerning identification at the EER). 3426 Ntahobali Notice of Appeal, paras. 183, 184; Ntahobali Appeal Brief, para. 452, referring to Trial Judgement, para. 3122, Witness TB, T. 4 February 2004 p. 38 (closed session) (French). See also Ntahobali Appeal Brief, para. 595 427 Prosecution Response Brief. para.

920. The Appeals Chamber notes that the Prosecution erroneously inverted the names of Witnesses SX and TB and references to the transcripts, resulting in unsupported assertions concerning Witness SX's prior knowledge of Ntahobali. See ibid., paras. 920, 921, fns. 2290, 2291. Case No. ICTR-98-42-A 14 December 2015

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19843/H knew Ntahobali and his parents well and met him on several occasions in 1994. 3428 The Prosecution also points out that Witness TB was able to identify positively Ntahobali in court, although she had not seen him since 1994.3429 1497. The Appeals Chamber observes that, when considering Witness SX's identification evidence, the Trial Chamber explicitly noted that Witness SX did not know Ntahobali or his family prior to the events of 1994 and learned Ntahobali's identity from a third person. 3430 However, while caution is warranted for conviction based on hearsay evidence,3431 the Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence. 3432 Given that Witness SX's evidence implicating Ntahobali in the rape and murder of the Tutsi girl was corroborated by the testimony of Witness TB, the Appeals Chamber is satisfied that the Trial Chamber acted reasonably when accepting Witness SX's identification evidence. Indeed, the Appeals Chamber notes that despite Witness SX's initial reluctance to identify its source, he cooperated after further questioning and even volunteered to facilitate contact with his source3433 The Appeals Chamber finds that Ntahobali fails to demonstrate that the Trial Chamber did not exercise the appropriate caution in assessing Witness SX's identification evidence.

1498. With respect to Ntahobali's arguments regarding Witness SX's in-court identification, the Appeals Chamber notes that the Trial Chamber stated that: No probative weight will be assigned to an identification given for the first time by a witness while testifying, who identifies the accused while he is standing in the dock. Because all of the ircumstances of a trial necessarily lead such a witness to identify the person on trial (or, wher nore than one person is on trial, the particular person on trial who most closely resembles the ma who committed the offence charged), no positive probative weight will be given by the Chamber to these "in court" identifications. The Appeals Chamber recalls that any in-court identification should be assigned "little or no credence" given the signals that can identify an accused aside from prior acquaintance. 3435 In the present instance, while the Trial Chamber recalled that Witness SX, who did not know Ntahobali 3428 Prosecution Response Brief, para.

921. See also AT. 16 April 2015 p. 6. 3429 Prosecution Response Brief, para.

921. See also AT. 16 April 2015 p. 6. 3430 See Trial Judgement, paras. 2962, 2963. See also ibid., paras. 3880, 3949. 3431 Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, vara. 96; Karera Appeal Judgement, para. 39 Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para.

96. See also Musema Appea Judgement, para.

90. See Witness SX, T. 27 January 2004 pp. 52-54 (closed session). The Appeals Chamber observes that Witness SX also gave an explanation for why he did not know the first name of his source. 3434 Trial Judgement, para. 173, referring to Kunarac et al. Appeal Judgement, para. 320. 3435 Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para.

96. See also Kunarac et al. Appeal Judgement, para. 320. 523 Case No. ICTR-98-42-A 14 December 2015

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19842/H prior to the events of 19943436 identified Ntahobali in-court, it relied on Witness SX's testimony that he was an eye-witness to Ntahobali's presence at the roadblock and often saw Ntahobali in Butare near the EER.3437 Likewise, Witness SX's evidence reflects that a third party identified Ntahobali to him at the Hotel Ihuliro roadblock 3438 Therefore, the Appeals Chamber finds that the Trial Chamber reasonably relied upon Witness SX's evidence to find that he identified Ntahobali during the events.

1499. Turning to Witness TB's identification evidence, the Appeals Chamber finds that, contrary to Ntahobali's assertion, it was not based on hearsay. 3439 As the Trial Chamber noted, Witness TB testified that she knew Ntahobali and had met him on several occasions in 1994.3440 Furthermore, while Witness TB's evidence is not consistent with Witness Q's description that Ntahobali had a beard, Ntahobali fails to demonstrate that this undermines the reasonableness of the Trial Chamber's acceptance of Witness TB's identification evidence. The Appeals Chamber observes that both Witnesses SX and TB provided consistent evidence that Ntahobali did not have a beard during the relevant period.3441 The Appeals Chamber therefore concludes that Ntahobali does not demonstrate that the Trial Chamber was unreasonable in relying on Witness TB's identification evidence based on her knowledge of him in 1994.

1500. As for Ntahobali's contention that the Trial Chamber erred in relying on Witness TB's in-court identification, the Appeals Chamber observes that, while the Trial Chamber noted that the witness identified Ntahobali in court, it recalled that Witness TB knew Ntahobali well in 1994.3442 Ntahobali has not demonstrated any error in this conclusion. In these circumstances, the Appeals Chamber finds no error in the Trial Chamber's observation that the witness recognised Ntahobali in-court 3443 3436 See Trial Judgement, paras. 2962, 2963. 3437 See Trial Judgement, paras. 3118, 3122. 3438 Trial Judgement, para. 2962. 3439 The Appeals Chamber observes that Ntahobali also argues that the audio recording of Witness TB's evidence reveals that she referred to Ntahobali as "Charoumou" rather than "Shalom". See Ntahobali Appeal Brief, para.

452. Ntahobali provides no specific reference supporting this contention and a review of the transcripts cited by Ntahobali reflects that Witness TB referred to Ntahobali as "Shalom". The Appeals Chamber therefore dismisses this contention. 3440 See Witness TB, T. 4 February 2004 p.

42. See also Trial Judgement, para.

2972. The Appeals Chamber further observes that Witness TB correctly identified Ntahobali's parents by name. See Witness TB, T. 4 February 2004 p. 42. 3441 See Witness SX, T. 27 January 2004 p. 37; Witness TB, T. 4 February 2004 p. 42. 3442 Trial Judgement, para. 3122. 3443 See Witness TB, T. 4 February 2004 p. 38 (closed session) (presiding judge identifying Ntahobali's counsel); T. 4 February 2004 p. 54 (Witness TB's in-court identification of Ntahobali). With respect to Ntahobali's contention that the in-court identification of him by Witness TB was improper given the presiding judge's identification of Ntahobali's counsel prior to that exercise, the Appeals Chamber observes that extensive questioning continued before Witness TB was asked to identify Ntahobali in court. Ntahobali did not object to the in-court identification on this basis at that time, or uncover, through cross-examination, that Witness TB's in-court identification of Ntahobali was influenced by the presiding judge's identification of his counsel. See Witness TB, T. 4 February 2004 pp. 38-54, 58-62, 524 Case No. ICTR-98-42-A 14 December 2015

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19841/H 1501. Accordingly, the Appeals Chamber concludes that Nahobali has failed to demonstrate any error on the part of the Trial Chamber in accepting Witnesses SX's and TB's identification evidence. (c) Conclusion 1502. In light of the above, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of the evidence relating to the rape and murder of a Tutsi girl who arrived at the Hotel Ihuliro roadblock around the end of April 1994.

5. Conclusion 1503. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in finding Ntahobali criminally responsible under Article 6(1) of the Statute for committing killings of Tutsis in addition to the Tutsi girl at the Hotel Ihuliro roadblock in April 1994. Consequently, the Appeals Chamber grants Ground 4.2 of Ntahobali's appeal to the extent that it relates to the Hotel Ihuliro roadblock events and, as a result, reverses Ntahobali's convictions for committing killings of Tutsis at the Hotel Ihuliro roadblock other than the "Tutsi girl". The Appeals Chamber will consider the impact, if any, of this finding on Ntahobali's sentence in the appropriate section below.

1504. The Appeals Chamber finds that Ntahobali has failed to demonstrate any error in the Trial Chamber's conclusions on the date of the establishment of the Hotel Ihuliro roadblock, his responsibility for the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994, and his responsibility for the rape and murder of a Tutsi girl at the same roadblock around the end of April 1994. Accordingly, the Appeals Chamber dismisses Grounds 3.2 and 3.3, the remainder of Ground 4.2, and the relevant part of Ground 4.3 of Ntahobali's appeal. and 63-98 (closed session), T. 5 February 2004 pp. 8-15 (closed session), 18-42. Under the circumstances, Ntahobali's contention that Witness TB's identification was influenced by this identification is speculative. 525 Case No. ICTR-98-42-A 14 December 2015

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19840/H H. Killing of the Rwamukwaya Family (Grounds 3.4 and 4.7) 1505. The Trial Chamber found that an individual named Rwamukwaya and his family, who were of Tutsi ethnicity, were killed on or about 29 or 30 April 1994, after Ntahobali had threatened to kill them.3444 The Trial Chamber held that "[gliven the narrow time frames involved between Ntahobali's threat pronounced against the Rwamukwaya family, the sighting of their bodies, and the first sightings of Ntahobali in a vehicle known to have belonged to Rwamukwaya, [...] the inference drawn as to Ntahobali's responsibility in the killing of the Rwamukwaya family is the only reasonable conclusion based on the totality of the evidence.*3445 The Trial Chamber further found that Ntahobali was aware that the principal perpetrators killed the Rwamukwaya family with genocidal intent 446 and that "Ntahobali's announcement of his intention to have the Rwamukwaya family killed […..] substantially contributed to the commission of the Rwamukwayas' death."3447 1506. Consequently, the Trial Chamber convicted Ntahobali of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il for aiding and abetting the killing of the Rwamukwaya family. 3448 1507.

Ntahobali submits that no reasonable trier of fact could have convicted him for the killing of the Rwamukwaya family based on the evidence on the record. 3449 In particular, he contends that the Trial Chamber erred in concluding that the only reasonable inference available from the circumstantial evidence was that he aided and abetted the killing of the Rwamukwaya family.3450 Pointing out that the principal perpetrators are unknown, he argues that the conclusions that the perpetrators had genocidal intent and that he was aware of it were not the only reasonable conclusions open to the Trial Chamber. 3451 Ntahobali further submits that the Trial Chamber erred 3444 Trial Judgement, paras. 3207, 3219, 5852. 3445 See Trial Judgement, para.

3219. See also ibid., para. 5852. 3446 Trial Judgement, para. 5854. 3447 Trial Judgement, para. 5855. 3448 Trial Judgement, paras. 5855, 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169, 6186. 3449 Ntahobali Notice of Appeal, paras. 201, 213; Ntahobali Appeal Brief, paras. 495, 500. Ntahobali Notice of Appeal, paras. 213, 331; Ntahobali Appeal Brief, paras. 500, 501, 504. See also AT. 15 April 2015 pp. 35, 36. 3451 Ntahobali Notice of Appeal, paras. 330-332 (French). Ntahobali explained that he could not develop in his appeal brief Ground 4.7 of his appeal where he made this allegation of error due to the imposed word limit. See Ntahobali Appeal Brief, para.

980. Based on the language used in his appeal brief, the Appeals Chamber considers that Ntahobali has not abandoned this ground of appeal. The Appeals Chamber is of the view that the arguments he developed in his 526 Case No. ICTR-98-42-A 14 December 2015

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19839/H in its overall assessment of the evidence concerning the killing of the Rwamukwaya family.3452 He requests that the impugned conclusions be set aside and that he be acquitted of this crime. 3453 1508. The Prosecution responds that Ntahobali fails to demonstrate any unreasonableness in the Trial Chamber's assessment of the totality of the evidence in relation to the killing of the Rwamukwaya family3454 In its view, the fact that Ntahobali was seen "gallivanting around Butare in the dead family's car shortly after threatening their murder leads to the only reasonable inference that Ntahobali was responsible for their deaths."3455 It argues that Ntahobali failed to present any other reasonable conclusion based on the available evidence 3456 1509. The Appeals Chamber recalls that a trial chamber may infer the existence of a particular fact upon which the guilt of the accused depends from circumstantial evidence only if it is the only reasonable conclusion that could be drawn from the evidence presented.3457 If there is another conclusion which is also reasonably open from the evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond reasonable doubt cannot be drawn. 3458 1510. The Trial Judgement reflects that the Trial Chamber was cognisant of this standard. 3459 The Appeals Chamber considers, however, that in finding that

Ntahobali aided and abetted the killing of the Rwamukwaya family, the Trial Chamber failed to explain how this was the only reasonable inference that could be drawn from the evidence. When considering the circumstantial evidence on the record, the Trial Chamber expressly took into account the narrow timeframes between the threat uttered by Ntahobali against the Rwamukwaya family, the sighting of their dead bodies, and the first sighting of the vehicle purportedly belonging to Rwamukwaya being driven by Ntahobali 3460 In particular, the Trial Chamber considered that "the proximity between the killing of the Rwamukwaya family and the sightings of Ntahobali in Rwamukwaya's vehicle establishes a 3452 Ntahobali Notice of Appeal, paras. 200-212; Ntahobali Appeal Brief, paras. 467-499, 501-505; Ntahobali Reply Brief, paras. 213-226. Ntahobali submits that the Trial Chamber erred in: (i) finding that Prosecution Witness FA's evidence that Ntahobali pronounced a threat against the Rwamukwaya family was credible; (ii) concluding that the alleged threat was related to the killing; (iii) assessing the evidence as to when the corpses of the family were seen and evidence that Rwamukwaya may have been alive in May 1994; and (iv) ignoring evidence that Ntahobali was seen in Rwamukwaya's car prior to 25 April 1994 as well as inconsistencies within the evidence as to the description of the

car. See also Ntahobali Reply Brief, paras. 217, 218, 224-226; AT. 15 April 2015 pp. 41, 42. 3453 Ntahobali Notice of Appeal, paras. 201, 214, 332 (French); Ntahobali Appeal Brief, para. 505. 3454 Prosecution Response Brief, paras. 942-953. See also AT. 16 April 2015 pp. 7, 8. The Prosecution considers that, by not presenting arguments in his appeal brief, Ntahobali had abandoned Ground 4.7 of his appeal. See Prosecution Response Brief, para. 1218 3455 Prosecution Response Brief, para. 953. 3456 Prosecution Response Brief, para. 953. 3457 See, e.g., Karemera and Ngirumpatse Appeal Judgement, paras. 535, 553, 629; Bagosora and Nsengiyumva Appeal Judgement, para. 515; Ntagerura et al. Appeal Judgement, para. 306; Celebici Appeal Judgement, para.

458. See, e.g., Karemera and Ngirumpatse Appeal Judgement, paras. 535, 553; Bagosora and Nsengiyumva Appeal Judgement, para. 515; Ntagerura et al. Appeal Judgement, para. 306; Celebici Appeal Judgement, para. 458. 3459' See Trial Judgement, paras. 162, 163, 3219. 3460 See Trial Judgement, paras. 3219, 5852. See also ibid., paras. 3212-3218. 527 Case No. ICTR-98-42-A 14 December 2015

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19838/H link between the killing and the circumstances in which Ntahobali came into possession of the vehicle.*3461 However, the Trial Chamber did not elaborate how the combination of these factors necessarily led to the conclusion that Ntahobali's threat substantially contributed to the killing of the Rwamukwaya family. Even if Ntahobali's threat against the family, their death, and his coming into possession of their vehicle were temporally proximate and occurred in that order, the Appeals Chamber finds that this is an insufficient basis to infer as the only reasonable conclusion that Ntahobali's conduct had a substantial effect on the commission of the killing of the Rwamukwaya family by the principal perpetrators.

1511. Indeed, the Trial Chamber made no findings about the circumstances of the killing of the Rwamukwaya family, its principal perpetrators, including whether they acted pursuant to Ntahobali's threat to kill the Rwamukwaya family, or the circumstances in which Ntahobali came into possession of Rwamukwaya's vehicle. Nor did the Trial Chamber refer to any evidence in these respects. 3462 Likewise, while the Trial Chamber concluded that unidentified principal perpetrators committed the killing with the requisite genocidal intent and that Ntahobali was aware of this intent,3403 it did not refer to any of its factual findings or evidence on the record to substantiate this conclusion. 3464 1512. The Appeals Chamber finds that, in the absence of any evidence that Ntahobali's threat contributed to the killing of the Rwamukwaya family, following which he acquired their vehicle, the "narrow time frames involved between Ntahobali's threat pronounced against the Rwamukwaya family, the sighting of their bodies, and the first sightings of Ntahobali in Rwamukwaya's vehicle' 3465 could not lead a reasonable trier of fact to find that the only reasonable inference was that Ntahobali substantially contributed to the crime and was aware of the principal perpetrators' genocidal intent.

1513. Based on the foregoing, the Appeals Chamber concludes that the Trial Chamber erred in finding that Ntahobali aided and abetted the killing of the Rwamukwaya family on or about 29 or 30 April 1994.

1514. The Appeals Chamber therefore grants Grounds 3.4, in part, and 4.7 of Ntahobali's appeal and reverses his conviction for genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II for aiding 3461 See Trial Judgement, para. 3215. 3462 See Trial Judgement, Section 3.6.24. so Se Trial Judgement, Section 42.23.12. 528 Case No. ICTR-98-42-A 14 December 2015

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19837/H and abetting the killing of the Rwamukwaya family. The Appeals Chamber will examine the impact, if any, of this finding on Ntahobali's sentence in the appropriate section below. 3465 See Trial Judgement, para.

5852. See also ibid., para. 3219. 529 Case No. ICTR-98-42-A 14 December 2015

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19836/H I. Butare Prefecture Office (Grounds 3.6, 3.9 in part, 4.2-4.4) 1515. The Trial Chamber convicted Ntahobali of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il for ordering the killing of Tutsis taking refuge at the Butare Prefecture Office. 3466 The Trial Chamber also convicted Ntahobali of committing, ordering, and aiding and abetting rapes perpetrated at the Butare Prefecture Office as a crime against humanity and as outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II3467 The Trial Chamber further found that Ntahobali bore superior responsibility for the acts of the Interahamwe at the prefectoral office, "including their abductions, rapes, and killings" pursuant to Article 6(3) of the Statute and considered this as an aggravating factor when determining his sentence. 3468 1516. Ntahobali submits that the Trial Chamber erred in convicting him in relation to crimes committed at the Butare Prefecture Office. He contends that the Trial Chamber erred in: (i) making imprecise or unsupported findings; (ii) its assessment of the evidence; (iii) convicting him for ordering killings and rapes committed during attacks at the prefectoral office; and (iv) finding that he bore superior responsibility for the killings and rapes committed by Interahamwe during attacks at the prefectoral office. The Appeals Chamber will consider these contentions in turn.

1. Imprecise and Unsupported Findings 1517. In the "Factual Findings" section of the Trial Judgement concerning attacks at the Butare Prefecture Office, the Trial Chamber found that: between mid-May and mid-June 1994, Nyiramasuhuko and Ntahobali came to the [Butare Prefecture Office] with the pickup on at least seven occasions (once in mid-May; two additional times from mid-May to the beginning of June; three attacks during one night at the end of May or beginning of June; and another attack in June). Considering the pickup was nearly full on at least seven occasions, the Chamber is convinced beyond a reasonable doubt that hundreds of Tutsi refugees were abducted from the [Butare Prefecture Office] and killed. 3469 The Trial Chamber further provided the following summary of its factual findings concerning Nyiramasuhuko's and Ntahobali's involvement in crimes committed at the prefectoral office: 3466 Trial Judgement, paras. 5876, 5971, 6053-6055, 6100, 6101, 6168, 6169, 6186. 3467 Trial Judgement, paras. 6085, 6086, 6094, 6184-6186. While the Trial Chamber considered that the rapes that occurred at the Butare Prefecture Office could establish Ntahobali's responsibility for genocide, it concluded that Ntahobali was not given sufficient notice that rapes there would be used in support of this count and did not convict him of genocide on this basis. See ibid., paras. 5857-5865, 5868, 5872, 5874, 5875, 5877. Trial Judgement, paras. 5886, 5971. See also ibid., paras. 5652, 5884, 5885, 6056, 6086, 6220. 530 Case No. ICTR-98-42-A 14 December 2015

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19835/H The Chamber finds the Prosecution has proven beyond a reasonable doubt that: between 19 April and late June 1994 Nyiramasuhuko, Ntahobali, Interahamwe and soldiers went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted and raped; and the Tutsi refugees were killed in various locations throughout Ngoma commune, including the following specific incidents: i. In mid-May 1994, Nyiramasuhuko, Ntahobali and about 10 Interahamwe came to the [Butare Prefecture Office] aboard a camouflaged pickup. Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup. Ntahobali and about eight other Interahamwe raped Witness TA. Some of the Interahamwe raped two other Tutsi women. The pickup left the [Butare Prefecture Office], abducting Tutsi refugees in the process, some of whom were forced to undress. ii. During the last half of May 1994, Ntahobali and Interahamwe came to the Butare Prefecture Office] on two more occasions. Ntahobali violently raped Witness TA, hitting her on the head. Interahamwe following the orders of Ntahobali raped six other women. In a subsequent attack during this same time period, Ntahobali ordered about iii. Around the end of May to the beginning of June 1994, Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup three times in

one night. They abducted Tutsi refugees each time, some of whom were forced to undress, taking them to other sites in Butare préfecture to be killed. Nyiramasuhuko ordered Interahamwe to rape refugees because they were Tutsi. The Interahamwe beat, abused and raped many Tutsi women. iv. Throughout these attacks from 19 April to the end of June 1994, regardless of whether the refugees were taken to Rwabayanga, Kabutare, Mukoni or the IRST, hundreds of refugees were abducted from the [Butare Prefecture Office] and never seen again, including Mbasha's wife and children, Trifina and other women and children. The only reasonable inference is that these refugees were killed. v. In the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and that as a result numerous women were raped at that location. Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. During at least one of these attacks Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA. 3470 1518. The Trial Chamber provided its most detailed legal analysis of the facts relevant to the crimes committed at the prefectoral office in the "Genocide" section of the "Legal Findings" section of the Trial Judgement,471 where it concluded that Ntahobali was responsible for ordering the

killing of "Tutsis taking refuge at the Butare préfecture office" 3472 The Trial Chamber also concluded that Ntahobali committed, ordered, and aided and abetted rapes at the prefectoral office but did not convict him of genocide on this basis as it found that insufficient notice had been given that this conduct would support the charge of genocide. 3473 The Trial Chamber recalled its findings on killings and rapes made in the "Genocide" section in more condensed summaries throughout the 3470 Trial Judgement, para. 2781. 3471 Trial Judgement, paras. 5866-5875. 472 Trial Judgement, paras. 5876, 5971 473 Trial Judgement, paras. 5875, 5877. See also ibid., paras. 5863-5865 531 Case No. ICTR-98-42-A 14 December 2015

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19834/H remainder of the "Legal Findings" section when considering Ntahobali's responsibility for other crimes based on the same conduct. 3474 1519. Ntahobali contends that the Trial Judgement violated his right to a reasoned opinion and prevented him from effectively exercising his right of appeal by entering imprecise and unsupported findings with respect to his convictions for killings and rapes during attacks at the prefectoral office. 347s (a) Killings 1520. Ntahobali submits that the Trial Chamber failed to provide a reasoned opinion with respect to his convictions relating to the killings committed during: (i) attacks from 19 April to mid-May 1994; (ii) the attacks which occurred seven to 11 days after the attack in mid-May 1994 ("Last Half of May Attacks"); (iii) the Night of Three Attacks; and (iv) the First Half of June Attacks. 3476 (i) 19 April to Mid-May Attacks 1521. Ntahobali contends that the Trial Judgement implies that he was convicted for killings during attacks occurring between 19 April and mid-May 1994.3477 In this respect, he points out that the Trial Chamber concluded in paragraph 2781 of the Trial Judgement that he had participated in attacks "between 19 April and late June 1994" 3478 However, he argues that the first of the several attacks upon which the Trial Chamber made findings of his involvement occurred in mid-May 1994 and that the Trial Chamber

expressly rejected the evidence of his role in attacks at the prefectoral office prior to mid-May 19943479 Ntahobali also emphasises that the "Legal Findings" section of the Trial Judgement only discusses his liability for attacks at the Butare Prefecture Office from mid-May 1994 and beyond 3480 Consequently, Ntahobali argues that the Trial Chamber provided no 3474 See Trial Judgement, paras. 6053-6055 (extermination as a crimes against humanity), 6085, 6086, 6094 (rape as a crime against humanity), 6100, 6101, 6121 (persecution as a crime against humanity), 6168, 6169 (violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II), 6184, 6185 (outrages upon personal dignity as a serious violation of Afficle 3 common to the Geneva Conventions and of Additional Protocol II). Ntahobali Notice of Appeal, paras. 306-309; Ntahobali Appeal Brief, paras. 882-905; Ntahobali Reply Brief, paras. 356-365. The Appeals Chamber will examine Ntahobali's arguments pertaining to the imprecision of the Trial Judgement regarding his superior responsibility in Section V.I.4 below. 3476 Ntahobali Notice of Appeal, paras. 306, 307; Ntahobali Appeal Brief, paras. 882-897, 952; Ntahobali Reply Brief, paras. 356-365 3477 Ntahobali Appeal Brief, para. 884 3478 Ntahobali Appeal Brief, paras. 884, 885. 3479 Ntahobali Appeal Brief, paras. 884, 886. 3480 Ntahobali Appeal Brief, para. 886. 532 Case No. ICTR-98-42-A 14 December 2015

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19833/H reasoned opinion for convicting him for the crimes committed at the Butare Prefecture Office from 19 April to mid-May 1994 and requests that he be acquitted of any responsibility for them.3481 1522. The Prosecution responds that Ntahobali was not convicted for the attacks prior to mid-May 1994 "but that the attacks beginning on 19 April [1994] were only mentioned [in the Trial Judgement] to describe the entirety of the genocidal events" 3482 1523. The Appeals Chamber observes that the statement in paragraph 2781 of the Trial Judgement that "the Prosecution has proven beyond a reasonable doubt that: between 19 April and late June 1994 Nyiramasuhuko, Ntahobali, Interahamwe and soldiers went to the [Butare Prefecture Office] to abduct hundreds of Tutsis" does give the impression that Ntahobali was found to have participated in attacks at the Butare Prefecture Office prior to mid-May 1994. However, the Trial Chamber's factual findings reflect that Ntahobali's participation in crimes at the prefectoral office started in mid-May 1994 and was limited to the events specifically identified in paragraphs 2779 and 2781 of the Trial Judgement. 3483 This is consistent with the Trial Chamber's findings that, while the Prosecution had established that attacks occurred at the prefectoral office by the end of April 1994, Ntahobali's involvement in the attacks which occurred between late

April and early May 1994 had not been established beyond reasonable doubt.3484 Furthermore, there is no discussion of Ntahobali's criminal responsibility for any attacks occurring between 19 April and mid-May 1994 in the "Legal Findings" section of the Trial Judgement. Consequently, it is evident from a reading of the Trial Judgement as a whole that Ntahobali was not convicted for attacks occurring before mid-May 1994.

1524. Accordingly, the Appeals Chamber dismisses Ntahobali's contention as moot since the Trial Chamber did not convict him for crimes at the Butare Prefecture Office prior to the attack conducted in mid-May 1994. (ii) Last Half of May Attacks 1525. In the "Factual Findings" section of the Trial Judgement, the Trial Chamber stated as follows concerning Ntahobali's involvement in crimes committed during the attacks at the Butare Prefecture Office which occurred "around seven and 11 days after the first attack in mid-May 1994": 533 Case No. ICTR-98-42-A 14 December 2015

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19832/H The Chamber finds the Prosecution has proven beyond a reasonable doubt that around 7 and 11 days after the first attack in mid-May 1994, Ntahobali and Interahamwe came to the [Butare Prefecture Office] on two more occasions. Ntahobali violently raped Witness TA, hitting her on Interahamwe to rape Witness TA. 3485 The Trial Chamber recalled these conclusions when summarising all of its factual findings related to Ntahobali's involvement in crimes committed at the prefectoral office3486 The Trial Chamber further repeated these conclusions in discussing Ntahobali's responsibility with respect to the Last Half of May Attacks in the "Legal Findings" section of the Trial Judgement, finding that Ntahobali ordered and committed rape during these attacks.3487 The Trial Chamber did not discuss in the "Legal Findings" section of the Trial Judgement any abductions and killings which occurred during the Last Half of May Attacks.

1526. Ntahobali submits that the Trial Chamber never concluded that abductions and killings occurred during the Last Half of May Attacks despite stating that the pickup truck was full on these occasions. 3488 Ntahobali contends that the Trial Chamber therefore failed to provide a reasoned opinion when convicting him of such conduct and requests that he be acquitted for these murders. 3489 1527. The Prosecution contends that Ntahobali misstates the evidence, arguing that Witness SD testified that Ntahobali and Interahamwe arrived in the same vehicle and would "come and fetch people" some of whom "were taken away and never seen again" 3490 1528. The Appeals Chamber notes that paragraph 2779 of the Trial Judgement appears to imply that the vehicle Ntahobali used to come to the prefectoral office during the Last Half of May Attacks was used to abduct Tutsis. However, a review of the Trial Chamber's detailed factual findings on these attacks, namely paragraphs 2653 and 2781(ii) of the Trial Judgement, reflects that the Trial Chamber made no findings that abductions and killings occurred during these particular attacks. The Trial Chamber's conclusions in the "Legal Findings" section similarly do not mention abductions and killings occurring during the Last Half of May Attacks3491 In this context, the Appeals Chamber concludes that a plain reading of the Trial Chamber's detailed

factual and legal 3485 Trial Judgement, para. 2653. 3486 Trial Judgement, paras. 2779, 2781(ii). 3487 Trial Judgement, paras. 5872, 6085, 6086, 6094, 6184, 6185. 3488 Ntahobali Appeal Brief, para. 888, referring to Trial Judgement, para. 2779. 3489 Ntahobali Appeal Brief, para. 888. 3490 Prosecution Response Brief, para. 1170, referring, inter alia, to Trial Judgement, para. 2650, Witness SD, T. 17 March 2003 pp. 9, 10. 3491 Trial Judgement, para. 5872. 534 Case No. ICTR-98-42-A 14 December 2015

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19831/H conclusions concerning the Last Half of May Attacks reveals that Ntahobali was only convicted based on rapes.

1529. In this regard, the Prosecution's contention that the evidence of Witness SD, as summarised in paragraph 2650 of the Trial Judgement, demonstrates that Ntahobali was convicted for abductions during these attacks is unpersuasive. While Witness SD testified about abductions, 3492 the Trial Chamber expressly considered that this evidence "corroborated important aspects" of the attacks described by Witness TA3493 without concluding that such abductions occurred during the attacks Witness TA described.3494 Moreover, the absence of any mention of abductions and killings occurring during these attacks in the "Legal Findings" section of the Trial Judgement further reflects that the Trial Chamber did not enter convictions on this basis 3495 1530. In conclusion, the Appeals Chamber dismisses Ntahobali's argument as moot as the Trial Chamber did not convict him on the basis of killings perpetrated during the Last Half of May Attacks. (iii) Night of Three Attacks and First Half of June Attacks 1531. In the "Factual Findings" section of the Trial Judgement, the Trial Chamber stated as follows concerning Ntahobali's involvement in crimes which occurred at the Butare Prefecture Office during the Night of Three Attacks: the Chamber finds beyond a reasonable doubt that Ntahobali, Nyiramasuhuko and Interahamwe this nig the Butare Prefecture Office) three times abducting Tutsi refuges on

each occasion on [..] the Chamber is convinced beyond a reasonable doubt that Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office], assaulted them and forced them aboard the pickup. It further finds that Nyiramasuhuko gave orders to the Interahamwe to commit these crimes. The women and children were taken away from the [Butare Prefecture Office] and killed elsewhere. 3497 [..] Therefore, based upon the evidence of Witnesses TK, QBQ, RE, SS, SU and FAP, including the specific evidence as to the abduction of Mbasha's wife and children, the assault of a woma named Trifina and the assault of an unnamed woman and her children, the Chamber finds i established beyond a reasonable doubt that at the end of May or beginning of June 1994, 3492 Witness SD; T. 17 March 2003 pp. 9, 10. 3493 Trial Judgement, para. 2650. 3494 See Trial Judgement, paras. 2653, 2781(ii). 3495 The Appeals Chamber observes that, as noted by the Prosecution, paragraphs 2645 and 2648 of the Trial Judgement nclude reference to Witness TA's evidence of Ntahobali and Interahamwe beating, cutting, and killing people durin he Last Half of May Attacks. However, the Trial Chamber did not make factual or legal findings to support th conclusion that Ntahobali was convicted on the basis of this specific conduct. 3496 Trial Judgement, para. 2715. 3497 Trial Judgement, para. 2736. 535 Case No. ICTR-98-42-A 14 December 2015

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19830/H Nyiramasuhuko, Ntahobali and about 10 Interahamwe came to the [Butare Prefecture Office] aboard a camouflaged pickup. Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup. The pickup left the [Butare Prefecture Office], abducting Tutsi refugees in the process, some of whom were forced to undress. 3498 1532. In the same section, the Trial Chamber found the following regarding Ntahobali's involvement in crimes which occurred at the prefectoral office during the First Half of June Attacks: 3499 the Chamber finds it established beyond a reasonable doubt, based on the testimony of Witnesses TA, QBP and TK that, in addition to those attacks described above, Ntahobali, injured Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and that as a result, numerous women were raped at that location.

1533. The Trial Chamber recalled its conclusions concerning the Night of Three Attacks and the First Half of June Attacks in paragraph 2781(iii)-(v) of the Trial Judgement when summarising its factual findings related to Nyiramasuhuko's and Ntahobali's involvement in the crimes committed at the prefectoral office during the Night of Three Attacks and the First Half of June Attacks. In relevant respects, the Trial Chamber concluded as follows in the "Genocide" section of the "Legal Findings" section of the Trial Judgement: Around the end of May to the beginning of June 1994, Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup on three occasions in one night. They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare préfecture to be killed. Nyiramasuhuko ordered Interahamwe to rape refugees [...]. The Interahamwe beat, abused and raped many Tutsi women. [...] In the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and as a result numerous women were raped at that location. Ntahobali, injured soldiers, and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. at least one of these attacks, Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA

[...]. 3501 1534. Ntahobali submits that the Trial Chamber failed to explain what evidence supported his responsibility under Article 6(1) of the Statute for ordering killings during these attacks.3502 He points to the absence of express findings that he ordered killings or issued any other orders during these attacks and contrasts these omissions with references to specific findings that Nyiramasuhuko issued orders during these attacks. 3503 Ntahobali adds that he is unable to discern the factual basis that would support his criminal responsibility for the killings relating to the 3498 Trial Judgement, para. 2738. 3499 See Trial Judgement, Section 3.6.19.4.9. 3500 Trial Judgement, para. 2773. 3501 Trial Judgement, paras. 5873, 5874 (internal reference omitted). 3502 Ntahobali Notice of Appeal, para. 306; Ntahobali Appeal Brief, paras. 883, 951, 952. 3503 Ntahobali Appeal Brief, para. 952, referring to Trial Judgement, paras. 2698, 2712, 2730, 2736, 2738. 536 Case No. ICTR-98-42-A 14 December 2015

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19829/H findings under the "First Half of June 1994" heading in the Trial Judgement350* and points to imprecision in the Trial Chamber's findings regarding the attacks during this period. 3505 He argues that the imprecision has prevented him from mounting an effective appeal and that he should therefore be acquitted of all convictions related to these attacks. 3506 1535. The Prosecution responds that Ntahobali erroneously alleges that he cannot understand which killings he is guilty of despite simultaneously contesting his guilt for the seven attacks of which he was convicted. 3507 1536. On 25 March 2015, the Appeals Chamber requested the Prosecution to provide supplementary submissions as to what evidence cited in the Trial Judgement and findings of the Trial Chamber would support the conclusion that Ntahobali was convicted for ordering killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Night of Three Attacks and the First Half of June Attacks 3508 In response, the Prosecution points to evidence cited in the Trial Judgement and submits that the Trial Chamber correctly concluded that Ntahobali was convicted for ordering killings of Tutsis during the Night of Three Attacks and was held "responsible for ordering, while at the préfecture office during the first half of June 1994, additional killings of Tutsi refugees.'3509 1537. Regarding the Night

of Three Attacks, the Prosecution points to the Trial Chamber's findings that, during this night, Ntahobali, Nyiramasuhuko, and Interahamwe abducted refugees and took them to other sites in Butare prefecture to be killed, and that abducted refugees during these and other attacks were killed. 3510 It also relies on the Trial Chamber's conclusion that Ntahobali issued orders, including to abduct and kill Tutsis, to Interahamwe, who complied with these orders.* 3511 The Prosecution contends that these findings and the evidence credited by the Trial 3504 Ntahobali Appeal Brief, para. 889. 3505 Ntahobali submits that the Trial Chamber's finding in paragraph 2773 of the Trial Judgement that "Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees" coupled with its use of the phrase that "[dJuring one of these attacks" and the phrase "in addition to those attacks described above" raise questions as to which attacks the Trial Chamber was referring and for which of them he was convicted. He also argues that he cannot understand whether: (i) he was convicted for attacks that occurred during daylight at the prefectoral office based on the evidence of Witnesses TA and TK, which is in contradiction to its findings that the attacks occurred at night; ii) the Trial Chamber concluded that Nyiramasuhuko and him were together during

all the attacks in June 1994 at the prefectoral office; and (ili) he was convicted for ordering killings that occurred at the prefectoral office or killings that occurred elsewhere after refugees were abducted. See Ntahobali Appeal Brief, paras. 889-893. See also Ntahobali Reply Brief, paras. 364, 365. Ntahobali Notice of Appeal, paras. 307-309; Ntahobali Appeal Brief, paras. 892, 894, 960. See also Ntahobali Notice of Appeal, para. 322; Ntahobali Reply Brief, paras. 364, 365. 3507 Prosecution Response Brief, para. 1170. 3508 25 March 2015 Order, p. 2. 3509 Prosecution Supplementary Submissions, para. 1. 3510 Prosecution Supplementary Submissions, paras. 21, 28, 31, referring to Trial Judgement, paras. 2744, 2749, 2779, 2781 (iii), (iv), 5873. 3511 Prosecution Supplementary Submissions, paras. 21, 28, referring to Trial Judgement, para. 5884. 537 Case No. ICTR-98-42-A 14 December 2015

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19828/H Chamber 512 establish that Ntahobali was convicted for ordering killings during the Night of Three Attacks. 3513 1538. With respect to the First Half of June Attacks, the Prosecution emphasises that the Trial Chamber concluded that Ntahobali returned to the prefectoral office "with Interahamwe 'to rape women and abduct refugees'" and that killings resulted from these attacks3514 The Prosecution contends that the Trial Chamber's findings and evidence it relied upon 515 support Ntahobali's responsibility for ordering killings during the First Half of June Attacks. 3516 1539. In response, Ntahobali contends that, while the Trial Chamber's findings reveal that he was convicted for all murders committed during the entire period of attacks at the prefectoral office, this conclusion is unsupported and unreasonable, particularly in relation to the Night of Three Attacks and the First Half of June Attacks 3517 He disputes the Prosecution's position that the Trial Chamber's findings as to the elements of the offence may be implied 3518 Ntahobali further rejects the Prosecution's submission that the evidence cited by the Trial Chamber supports his responsibility for ordering killings under Article 6(1) of the Statute.3519 1540. The Appeals Chamber observes that the Trial Chamber convicted Ntahobali of genocide, crimes against humanity, and a serious violation of Article 3 common

to the Geneva Conventions and of Additional Protocol Il for "ordering the killing of Tutsis taking refuge at the Butare préfecture office" 3520 The Trial Chamber did not find Ntahobali responsible under any other form of liability under Article 6(1) of the Statute with respect to the killings of Tutsis who had sought refuge at the prefectoral office. 3512 In particular, the Prosecution highlights, inter alia: (i) the evidence of Witnesses TK and SJ that Interahamwe referred to Ntahobali as "chef" or "chief", respectively, and that Ntahobali issued orders to Interahamwe during the Night of Three Attacks; (ii) Witness TK's testimony that Interahamwe attacked refugees upon Ntahobali's instructions; and (iji) Witnesses TK's and RE's evidence concerning Ntahobali's authority over Interahamwe during these attacks. See Prosecution Supplementary Submissions, paras. 23, 24, 26, 29, 30, referring to, inter alia, Trial Judgement, paras. 2212, 2231, 2278, 2662, 2668, 2681, 2707. The Prosecution also points to evidence from Witness TA concerning the Mid-May Attack which, in its view, demonstrates that Ntahobali, in conjunction with Nyiramasuhuko, were in charge of the Interahamwe and led them in attacks at the prefectoral office. See ibid., para. 25, referring to Trial Judgement, paras. 2178, 2189. 3513 Prosecution Supplementary Submissions, paras. 1, 28-33. 3514 Prosecution Supplementary

Submissions, paras. 36, 37, quoting Trial Judgement, para. 5874, referring to Trial Judgement, para. 2771. 3515 The Prosecution argues that the Trial Chamber credited Witness TK's evidence that Ntahobali came to determine whether there were any men left, who were then taken away to be killed, and that he instructed Interahamwe to "[bJe firm in [their] actions", meaning to "kill all of them." See Prosecution Supplementary Submissions, paras. 37-39, quoting Trial Judgement, para. 2771 516 Prosecution Supplementary Submissions, paras. 1, 39-41 3517 Ntahobali Supplementary Submissions, paras. 11, 36. 3518 Ntahobali Supplementary Submissions, para. 7. 3519 See Ntahobali Supplementary Submissions, paras. 11, 12, 16-18, 20, 24-27, 29-36, 39, 42-48. 3520 Trial Judgement, paras. 5971, 6053, 6100, 6168. 538 Case No. ICTR-98-42-A 14 December 2015

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19827/H 1541. A review of the Trial Chamber's most detailed factual and legal findings reveals that the Trial Chamber expressly found that Ntahobali ordered killings during attacks committed at the prefectoral office only with respect to the attack conducted in mid-May 1994 ("Mid-May Attack"), 3521 The Trial Chamber also made findings about Ntahobali's involvement in abductions and killings committed at the prefectoral office during the Night of Three Attacks and the First Half of June Attacks but did not expressly find that Ntahobali ordered killings during these attacks or explain if these findings supported his ultimate convictions for ordering killings.3522 The absence of specific findings that Ntahobali ordered killings during the Night of Three Attacks and the First Half of June Attacks raises the question as to whether Ntahobali's conviction for "ordering the killing of Tutsis taking refuge at the Butare préfecture office" was also based upon those attacks. 3523 1542. Given that the Trial Chamber did not provide any further characterisation of Ntahobali's responsibility for the abductions and killings perpetrated during these attacks, Ntahobali's criminal liability for the Night of Three Attacks would be limited to the Trial Chamber's following conclusion: "Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup on

three occasions in one night. They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare préfecture to be killed."3524 Similarly, Ntahobali's criminal responsibility for ordering killings during the First Half of June Attacks would be limited to the Trial Chamber's statement that "Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees" 3525 1543. In this context, the Appeals Chamber, Judge Khan dissenting, is of the view that the Trial Chamber's conclusions relating to the Night of Three Attacks and the First Half of June Attacks do not support Ntahobali's conviction for ordering killings. Indeed, the findings do not refer to an express order given by Ntahobali to kill or a particular instruction that had a direct and substantial effect on the relevant killings. Nor do the conclusions specify the category of assailants to whom Ntahobali gave an order. The Appeals Chamber observes that, by contrast, the Trial Chamber expressly concluded in the "Factual Findings" section of the Trial Judgement that Nyiramasuhuko issued orders during the Night of Three Attacks and the First Half of June Attacks.3526 1544. The Appeals Chamber observes that the Trial Chamber expressly noted that its conclusions on these attacks were based upon the evidence of Prosecution Witnesses TK, QBQ, RE, SS, SU, 3521 See Trial Judgement, para. 5867, referring, inter alia, to Trial Judgement, Section 3.6.19.4.6. 3522 See Trial Judgement, paras. 5873, 5874. See also ibid., paras. 2715, 2736, 2738, 2773, 2781(iii) and (v). 3523 Trial Judgement, paras. 5971, 6053, 6100, 6168. See also ibid., para. 5876. 3524 Trial Judgement, para.

5873. See also ibid., paras. 2738, 2781(iii). 3525 Trial Judgement, para.

5874. See also ibid., paras. 2773, 2781(v). 3526 See Trial Judgement, paras. 2698, 2730, 2736, 2738, 2773, 2781(ii) and (v). 539 Case No. ICTR-98-42-A 14 December 2015

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19826/H FAP, and TA.352 While the evidence of these witnesses, as summarised and discussed by the Trial Chamber, appears to reflect that Ntahobali participated in abductions and killings, issued orders, and held a position of authority among the assailants during these events, 528 the Trial Chamber's discussion of this evidence does not allow the Appeals Chamber, Judge Khan dissenting, to conclude that the Trial Chamber relied on this evidence when finding Ntahobali responsible for ordering killings at the prefectoral office.

1545. In the absence of any relevant factual and legal findings underlying Ntahobali's responsibility for ordering killings which occurred during the Night of Three Attacks and the First Half of June Attacks as well as of any clear indication that the Trial Chamber intended to convict Ntahobali on this basis, the Appeals Chamber, Judge Khan dissenting, concludes that Ntahobali was not convicted in relation to the killings perpetrated during these attacks. Accordingly, the Appeals Chamber considers that Ntahobali's arguments regarding the imprecision of the Trial Chamber's findings as regards these attacks are moot and need not be discussed. (b) Rapes 1546. As noted above, the Trial Chamber provided its most detailed legal analysis of the facts relevant to crimes committed at the Butare Prefecture Office and Ntahobali's responsibility for such crimes in the "Genocide" section of the Trial Judgement 3529 This section of the Trial Judgement states as follows concerning Ntahobali's involvement in rapes committed at the prefectoral office during the Mid-May Attack, the Last Half of May Attacks, the Night of Three Attacks, and the First Half of June Attacks: Furthermore, Witness TA and two other women were raped during this mid-May attack. [...] Witness TA was brutally raped by a gang of about eight Interahamwe in addition to Ntahobali. At least two other Tutsi women were raped on

this occasion by the Interahamwe. I... 3530 [...] During the last half of May 1994, Ntahobali and Interahamwe came to the [Butare Prefecture Office] on two more occasions. Ntahobali violently raped Witness TA, hitting her on the head. Interahamwe following the orders of Ntahobali raped six other women. In a subsequent attack during this same time period, Ntahobali ordered about seven other Interahamwe to rape Witness TA [...]. 3531 Around the end of May to the beginning of June 1994, Ntahobali, Nyiramasuhuko and Interahamwe came to the [Butare Prefecture Office] on board a camouflaged pickup on three 3527 Trial Judgement, paras. 2738, 2773. The Trial Chamber also referred to the evidence of Witness QBP with respect to the First Half of June Attacks in paragraph 2773 of the Trial Judgement. However, this witness's evidence is only relevant to the Trial Chamber's additional conclusion in paragraph 2773 of the Trial Judgement that Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the Butare Prefecture Office and not to the finding supporting Ntahobali' s criminal liability. See Trial Judgement, paras. 2763-2769, 2773; infra, paras. 1857, 1858. 3528 See Trial Judgement, paras. 2657, 2668, 2681, 2687, 2704, 2707, 2710-2714, 2735, 2770, 2771. 3529 See supra, para. 1518. 3530 Trial Judgement, para. 5868. 3531 Trial Judgement, para. 5872. 540 Case No. ICTR-98-42-A 14 December 2015 que

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19825/H occasions in one night. They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare préfecture to be killed. Nyiramasuhuko ordered Interahamwe to rape refugees [...]. The Interahamwe beat, abused and raped many Tutsi women. In the first half of June 1994, Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the [Butare Prefecture Office] and as a result numerous women were raped at that location. Ntahobali, injured soldiers, and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. During at least one of these attacks, Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA [...). Each of these attacks constitutes the actus reus of genocide. Likewise, as discussed above, the Chamber finds Nyiramasuhuko and Ntahobali possessed genocidal intent. 3533 1547. Having found that Ntahobali could not be convicted of genocide on the basis of rapes that occurred at the prefectoral office due to lack of notice, 3534 the Trial Chamber assessed Ntahobali's criminal responsibility for rapes as a crime against humanity and as outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 3535 In its discussion of these crimes, the Trial Chamber stated in relevant respects: The Chamber is satisfied

that the rapes of Witness TA and many other unnamed Tutsi women at the [Butare Prefecture Office] were conducted on ethnic grounds. The Chamber finds that Ntahobali bears responsibility as a principal perpetrator for committing these acts, for ordering Interahamwe to commit rapes, and also for aiding and abetting rapes. Similarly, the Chamber considers that Ntahobali bears superior responsibility for the rapes committed by the Interahamwe, and will take this into account in sentencing 3536 [...] Ntahobali [...] raped Tutsi women at the Butare préfecture office, ordered Interahamwe to rape Tutsis, and aided and abetted the rapes of a Tutsi. For these acts, the Chamber finds Ntahobali guilty of committing, ordering, 9) and aiding and abetting rape as a crime against humanity, pursuant to Article 6 (1) of the Statute. [...] Ntahobali [...] also raped Tutsi women at the Butare préfecture office, ordered Interahamwe to rape Tutsis there, and aided and abetted the rapes of a Tutsi there. [...] the Chamber finds Ntahobali guilty of committing, ordering, and aiding and abetting outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 3538 1548. Ntahobali submits that the language used by the Trial Chamber throughout the "Legal Findings" section of the Trial Judgement is ambiguous, preventing him from effectively

exercising his right of appeal. 3539 He contends that this ambiguity requires that he be acquitted for all the rapes 3532 Trial Judgement, para. 5873 (internal reference omitted). 3533 Trial Judgement, para. 5874 (internal reference omitted). 3534 See supra, para. 1518. 3535 Trial Judgement, paras. 6085, 6086, 6094, 6184, 6185. It is clear from the Trial Judgement that Ntahobali's 3537 Trial Judgement, para. 6094. 3538 Trial Judgement, paras. 6184, 6185. 3539 Ntahobali Appeal Brief, paras. 898, 899, 904, 905. 541 Case No. ICTR-98-42-A 14 December 2015

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19824/H not specifically identified by the Trial Chamber. 540 Concerning the Mid-May Attack in particular, he argues that the Trial Chamber's conclusion in paragraph 5868 of the Trial Judgement that "at least two other Tutsi women were raped" in addition to Witness TA fails to limit the scope of his liability for rapes during this attack. 354' He also points out that the Trial Chamber is silent as to what form of responsibility was imposed on him in relation to the rapes committed by Interahamwe during this attack. 3542 1549. Concerning the Night of Three Attacks and the First Half of June Attacks, Ntahobali contends that paragraphs 5873 and 5874 of the Trial Judgement are silent as to his form of responsibility in relation to the rapes ordered by Nyiramasuhuko. 3543 1550. With regard to the First Half of June Attacks, Ntahobali submits that the Trial Chamber's statements that "Ntahobali, injured soldiers, and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees" and "[during at least one of these attacks, Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA" in paragraph 5874 of the Trial Judgement are vague and fail to inform him of what rapes committed by Interahamwe and soldiers support his conviction3544 He adds that, while the Trial Chamber indicated in paragraph 5874 of the Trial Judgement that soldiers

committed rapes at the prefectoral office, it failed to clarify whether he was held responsible for these rapes. 3545 1551. With respect to his convictions for committing rapes, Ntahobali contends that paragraphs 6086 and 6184 of the Trial Judgement are ambiguous because they give the impression that he was not only convicted for having committed the rapes of Witness TA but also of other Tutsi women during attacks at the prefectoral office 546 However, Ntahobali argues that the only conduct supporting his conviction for committing rapes under Article 6(1) of the Statute could be the Trial Chamber's conclusion that he raped Witness TA during the Mid-May Attack and seven days later, as the Trial Chamber stated that he would not be held criminally responsible for having raped Immaculée Mukagatare and Caritas 3547 1552. As regards his convictions for ordering rape, Ntahobali argues that the only rapes for which he clearly incurred ordering responsibility were those that occurred during the Last Half of May 3540 Ntahobali Appeal Brief, paras. 899, 904, 905. 3541 Ntahobali Appeal Brief, para. 899 (emphasis in original). 3542 Ntahobali Appeal Brief, para. 904. 3543 Ntahobali Appeal Brief, para. 904. 3544 Ntahobali Appeal Brief, paras. 899, 904. 3545 Ntahobali Appeal Brief, para. 905. 3546 Ntahobali Appeal Brief, paras. 899, 901. 3547 Ntahobali Appeal Brief, para, 901, referring to Trial Judgement, paras. 2172, 5868, 5872, 6086. 542 Case No. ICTR-98-42-A 14 December 2015

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19823/H Attacks. He argues that, in the absence of proper findings, he cannot be held liable under this mode of responsibility for any other rapes.3548 1553. Finally, in relation to his conviction for aiding and abetting rapes, Ntahobali submits that the Trial Judgement is vague as to whether he was convicted of aiding and abetting the rapes of Witness TA only during one of the First Half of June Attacks or for all occasions on which the Interahamwe raped her at the prefectoral office between mid-May and the first half of June 1994.3549 He requests that the Appeals Chamber find that the Trial Chamber convicted him only for aiding and abetting Witness TA's rapes during the First Half of June Attacks based on its failure to provide a clear and reasoned opinion. 3550 1554. The Prosecution responds that Ntahobali misstates the Trial Chamber's findings and fails to demonstrate any error by the Trial Chamber355' It contends that the Trial Chamber found Ntahobali guilty of committing the rape of Witness TA, ordering the rapes of Witness TA "and others", and aiding and abetting the rapes of Witness TA "and others" 3552 1555. The Appeals Chamber considers that the totality of Ntahobali's criminal responsibility under Article 6(1) of the Statute based on rapes committed during attacks at the Butare Prefecture Office is based on the Trial Chamber's conclusions in paragraphs 2644, 2653, 2773, 2781(i), (ii), and (v) in the "Factual Findings" section of the Trial Judgement where his conduct is particularised, 3553 as further reflected in paragraphs 5868, 5872, 5874, 5875, 5877, 6086, 6094, 6184, and 6185 of the "Legal Findings" section of the Trial Judgement.

1556. In this context, the Appeals Chamber does not agree that the language identified in paragraphs 5868, 5873, or 5874 of the Trial Judgement is ambiguous when considered in the 3548 Ntahobali Appeal Brief, paras. 903, 904, 958, 959. 3549 Ntahobali Appeal Brief, para.

902. See also Ntahobali Reply Brief, para. 364. 3550 Ntahobali Appeal Brief, para. 902. 3551 Prosecution Response Brief, para. 1174. 3552 Prosecution Response Brief, para. 1174. 3553 See Trial Judgement, paras. 2644 ("Ntahobali and about eight other Interahamwe raped Witness TA. Some of the Interahamwe raped two other Tutsi women."), 2653 ("The Chamber finds the Prosecution has proven beyond a reasonable doubt that around 7 and 11 days after the first attack in mid-May 1994, Ntahobali and Interahamwe came to the [Butare Prefecture Office] on two more occasions. Ntahobali violently raped Witness TA, hitting her on the head with a hammer. Interahamwe, following the orders of Ntahobali, raped six other women. In a subsequent attack during this same time period, Ntahobali ordered about seven other Interahamwe to rape Witness TA."), 2773 ("Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] in June 1994 to rape women and abduct refugees. During one of these attacks Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA."), 2781(i) ("Ntahobali and about eight other Interahamwe raped Witness TA. Some of the Interahamwe raped two other Tutsi women."), 2781(ii) ("During the last half of May 1994, Ntahobali and Interahamwe came to the [Butare Prefecture Office] on two more occasions. Ntahobali violently raped Witness TA,

hitting her on the head. Interahamwe following the orders of Ntahobali raped six other women. In a subsequent attack during this same time period, Ntahobali ordered about seven other Interahamwe to rape Witness TA"), 2781(v) ("Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees. During at least one of these attacks Ntahobali again handed Witness TA over to about seven Interahamwe to rape Witness TA."). 543 Case No. ICTR-98-42-A 14 December 2015 Quu

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19822/H context of the entire Trial Judgement. Paragraph 5868 reflects Ntahobali's criminal liability for having raped Witness TA and not for any other rapes committed by anyone else during the Mid-May Attack.34 The Trial Chamber provides no analysis identifying any conduct and does not reach any conclusion as to what Ntahobali's responsibility would be for the rapes of "at least two other women" who were also raped on this occasion. The Trial Chamber also made findings that sufficiently identified what mode of responsibility under Article 6(1) of the Statute applied to Ntahobali's conduct for rapes during each attack. 355s 1557. Furthermore, while Ntahobali questions whether he was convicted in relation to the rapes ordered by Nyiramasuhuko during the Night of Three Attacks and the First Half of June Attacks, the Appeals Chamber considers that a plain reading of the relevant factual and legal findings in the Trial Judgement indicates that the Trial Chamber did not hold him responsible for the rapes ordered by Nyiramasuhuko during these attacks. 3556 1558. With respect to the First Half of June Attacks, while the Trial Chamber indicated in paragraph 5874 of the Trial Judgement that Ntahobali, injured soldiers, and Interahamwe came to rape women at the prefectoral office, the Appeals Chamber considers that this statement was not meant to broaden Ntahobali's criminal

responsibility to include rapes committed by soldiers or Interahamwe generally. It is apparent that the Trial Chamber did not impose criminal liability upon Ntahobali for rapes committed by soldiers during this period. 3557 Furthermore, a contextual reading of the Trial Chamber's statement in this paragraph of the Trial Judgement as well as the fact that the Trial Chamber made no findings as to the modes of responsibility that would support Ntahobali's liability for the rapes of women other than Witness TA committed by Interahamwe also evinces that he was not convicted for such rapes. Rather, the Trial Judgement reflects that Ntahobali's responsibility under Article 6(1) of the Statute for the rapes committed during the First Half of June Attacks is based on the Trial Chamber's conclusions that Ntahobali went to the prefectoral office 3554 The Appeals Chamber understands from a reading of the Trial Judgement as a whole that Ntahobali was only held responsible as a superior on the basis of the crimes perpetrated by the Interahamwe following his orders. See infra, Section V.I.4. Given that Ntahobali did not issue orders to the gang of about eight Interahamwe who brutally raped Witness TA during the Mid-May Attack, the Appeals Chamber understands that he was not found responsible as a superior for their crimes. 3555 See, e.g., Trial Judgement, paras. 5868 (finding that Ntahobali

raped Witness TA), 5872 (finding that Ntahobali committed rape and ordered rapes), 5875 (finding that Ntahobali aided and abetted rape). 3556 See Trial Judgement, paras. 2654-2738, 2750-2773, 2781, 5873, 5874. 3557 Specifically, the Appeals Chamber observes that the Trial Chamber found that, although soldiers played a role in events at the Butare Prefecture Office, "no evidence has been led to establish any relationship between the soldiers and [...] Ntahobali". See Trial Judgement., para.

5887. Although this conclusion was made in the context of evaluating Ntahobali's responsibility under Article 6(3) of the Statute, it suggests that no finding of any liability was imposed on Ntahobali for the conduct of soldiers. 544 Case No. ICTR-98-42-A 14 December 2015 que

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19821/H "tO rape women" and for having "handed Witness TA over to about seven Interahamwe to rape [her]" 3558 1559. Turning to Ntahobali's contention that the Trial Chamber's findings as to his conviction for committing rapes at the prefectoral office are impermissibly vague, the Appeals Chamber recalls that paragraphs 6094 and 6184 in the "Legal Findings" section of the Trial Judgement state that Ntahobali "raped Tutsi women at the [Butare Prefecture Office]" and serve as the basis for his responsibility under Article 6(1) for committing rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II at the prefectoral office. 3559 1560. The Appeals Chamber recalls that the Trial Chamber found that Ntahobali raped one woman - Witness TA - during the Mid-May Attack and the attack seven days later.3560 The only other finding that could support Nahobali's conviction for committing rapes of women other than Witness TA is found in paragraphs 2773 and 2781(v) of the Trial Judgement, which is repeated in paragraph 5874 of the "Genocide" section of the Trial Judgement.

356) These paragraphs indicate that, in the first half of June 1994, Ntahobali, injured soldiers, and Interahamwe came to the prefectoral office "to rape women" 3562 This conclusion is based on the evidence of Witness TK. 3563 1561. In the relevant section of the Trial Judgement, the Trial Chamber recalled Witness TK's evidence that Ntahobali came to the prefectoral office "on a number of evenings" accompanied by Interahamwe and disabled soldiers and that, on some occasions, Ntahobali "abducted women who were then raped"3564 Having reviewed the evidence, the Appeals Chamber concludes that Witness TK's evidence is broad and general, providing no context as to whether the witness observed Ntahobali abduct and rape women, or if in fact Ntahobali perpetrated the rapes referred to 3558 See Trial Judgement, para.

5874. See also ibid., para. 5875 (finding Ntahobali responsible for aiding and abetting Witness TA's rape). 3559 See also Trial Judgement, para. 6185. 3560 Trial Judgement, paras. 5868, 5872. convictions on the basis of this conduct. See infra, V.I.2(a)(ii). 3562 The Appeals Chamber observes that paragraph 2773 of the Trial Judgement only refers to "in June 1994", while paragraph 2781(v) of the Trial Judgement specifies "[i]n the first half of June 1994". However, read in the context of paragraph 5874, which also refers to "the first half of June 1994", the omission in paragraph 2773 appears to be a typographical oversight. Cf. Trial Judgement, paras. 2750, 2751. See Trial Judgement, para.

2773. In this paragraph of the Trial Judgement, the Trial Chamber also referred to the evidence of Witnesses TA and QBP. However, Witness TA's evidence related to the First Half of June Attacks is only relevant to Ntahobali's conviction for aiding and abetting rapes and Witness QBP's evidence is only relevant to the Trial Chamber's additional conclusion that Nyiramasuhuko ordered Interahamwe to rape Tutsi women at the Butare Prefecture Office and not to any finding supporting Ntahobali's criminal liability for committing rapes. See ibid., paras. 2763-2769, 2773; infra, paras. 1857, 1858, Section V.I.2(e)(i). 564 See Trial Judgement, para. 2771, referring to Witness TK, T. 20 May 2002 p. 100, T. 23 May 2002 p. 126 545 Case No. ICTR-98-42-A 14 December 2015

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19820/H by the witness. Given the minimal probative value of this evidence, the Appeals Chamber concludes that no reasonable trier of fact could have relied on this evidence to find that Ntahobali raped women at the Butare Prefecture Office other than Witness TA.

1562. Concerning Ntahobali's convictions for ordering rapes, after having reviewed the Trial Judgement in its entirety and in particular the relevant factual and legal conclusions, the Appeals Chamber sustains Ntahobali's contention and finds that his responsibility for ordering rapes at the Butare Prefecture Office relies exclusively on his conduct related to the Last Half of May Attacks 3565 1563. With respect to Ntahobali's convictions for aiding and abetting rapes, the Appeals Chamber observes that the "Legal Findings" section of the Trial Judgement contains no express or implicit finding that Ntahobali aided and abetted the rape of Witness TA during the Mid-May Attack, noting only that Ntahobali and eight Interahamwe raped the witness and that Interahamwe raped two other women. 3566 Likewise, there is no reference to Ntahobali aiding and abetting Witness TA's rapes committed by Interahamwe during the Last Half of May Attacks. Instead, the Trial Chamber explicitly found that Ntahobali's conduct during the Mid-May Attack and the Last Half of May Attacks supports the conclusion that he committed and ordered rapes. 3567 1564. By contrast, paragraphs 5874 and 5875 of the Trial Judgement, which pertain to the First Half of June Attacks, describe Ntahobali's action during one such attack as having "handed Witness TA over to about seven Interahamwe to rape Witness TA"3568 and

expressly conclude that "Ntahobali aided and abetted the rapes of Witness TA."3569 The Trial Chamber reiterated later in the "Legal Findings" section that Ntahobali aided and abetted the "rapes of a Tutsi."3570 1565. Against this background, the Appeals Chamber considers that the Trial Judgement reflects that Ntahobali was not convicted for aiding and abetting the rapes of Witness TA during the Mid-May Attack and the Last Half of May Attacks, but for aiding and abetting the rapes of Witness TA by Interahamwe during the First Half of June Attacks.

1566. Finally, the Appeals Chamber rejects the Prosecution's contention that the Trial Chamber convicted Ntahobali of aiding and abetting the rape of Witness TA "and others". Paragraph 6086 of the Trial Judgement to which the Prosecution refers does not support this position. Rather, it states 3565 See Trial Judgement, paras. 2653, 2781(ii), 5872, 6086, 6184. 3566 Trial Judgement, para.

5868. By contrast, the Trial Chamber expressly found that Nyiramasuhuko aided and abetted the maps by it, pater rest, Se and authority Se ibid, para. 5869. 3568 Trial Judgement, para. 5874. 3569 Trial Judgement, para. 5875. 546 Case No. ICTR-98-42-A 14 December 2015

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19819/H that Ntahobali aided and abetted "rapes", which, when read in light of the entire Trial Judgement, reflects Ntahobali's responsibility for the multiple rapes of Witness TA by about seven Interahamwe during one of the First Half of June Attacks. 3571 1567. Based on the foregoing, the Appeals Chamber finds that no reasonable trier of fact could have found, based on the evidence of Witness TK, that Ntahobali committed rapes of Tutsi women at the Butare Prefecture Office other than Witness TA. Consequently, the Appeals Chamber finds that the Trial Chamber erred in concluding that Ntahobali raped Tutsi "women" when convicting him of committing rape as a crime against humanity and as outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Appeals Chamber dismisses the remainder of Ntahobali's challenges that the Trial Chamber erred by making imprecise and unsupported findings with respect to Ntahobali's convictions for rapes at the prefectoral office. (c) Conclusion 1568. The Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber prevented him from fully exercising his right to appeal by failing to provide a reasoned opinion regarding his convictions for crimes committed at the Butare Prefecture Office pursuant to Article 6(1) of the Statute3572 The Trial Judgement

reflects that Ntahobali was convicted pursuant to Article 6(1) of the Statute in relation to the Butare Prefecture Office for: (i) ordering killings and committing the rape of Witness TA during the Mid-May Attack; (ii) ordering the rapes of six women and committing the rape of Witness TA during an attack seven days after the Mid-May Attack; (iii) ordering the rapes of Witness TA during an attack 11 days after the Mid-May Attack; and (iv) aiding and abetting Witness TA's rape during one of the First Half of June Attacks. 3573 The Appeals Chamber, Judge Khan dissenting, finds that the Trial Judgement does not reflect that Ntahobali was convicted for ordering killings during attacks other than the Mid-May Attack.

1569. For the reasons set out above, the Appeals Chamber reverses the Trial Chamber's finding that Ntahobali is responsible for committing the rape of any Tutsi woman other than Witness TA at the prefectoral office. The Appeals Chamber will discuss the impact of this finding, if any, in Section XII below. 3570 Trial Judgement, paras. 6094, 6184 3571 Trial Judgement, paras. 5874, 5875. See also ibid., paras. 2773, 2781(v) 3572 See also infra, Section V.I.3(a). 3573 Trial Judgement, paras. 2781, 5867-5877, 5971, 6086, 6185. 547 Case No. ICTR-98-42-A 14 December 2015

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19818/H 2. Assessment of the Evidence 1570. With respect to the Mid-May Attack, the Trial Chamber found that one night in mid-May 1994, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office aboard a camouflage pickup truck.3574 The Trial Chamber concluded that Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup truck, that Ntahobali and about eight other Interahamwe raped Witness TA, and that the pickup truck left the prefectoral office with the abducted Tutsi refugees. 3575 The Trial Chamber convicted Ntahobali for ordering killings and committing the rape of Witness TA during this attack. 3576 1571. Concerning the Last Half of May Attacks, the Trial Chamber concluded that around seven and 11 days after the Mid-May Attack, Ntahobali and Interahamwe came to the prefectoral office on two more occasions35 In particular, the Trial Chamber determined that during the first attack of the Last Half of May Attacks, which occurred seven days after the Mid-May Attack ("First Attack"), Ntahobali ordered the rapes of six women and raped Witness TA. 3578 The Trial Chamber determined that during the second attack of the Last Half of May Attacks, which occurred 11 days after the Mid-May Attack ("Second Attack"), Ntahobali ordered about seven Interahamwe to rape Witness TA.3579 The Trial Chamber convicted Ntahobali for committing and

ordering rape on this basis 3580 It further found that Ntahobali raped a woman named Caritas during the Second Attack but did not convict Ntahobali on this basis due to insufficient notice 3581 1572. As regards the Night of Three Attacks, the Trial Chamber found that, around the end of May or the beginning of June 1994, Ntahobali, Nyiramasuhuko, and Interahamwe came to the prefectoral office on board a camouflaged pickup truck three times in one night, and that they abducted Tutsi refugees each time and took them to other sites in Butare Prefecture to be killed 3582 The Appeals Chamber recalls that it has concluded, Judge Khan dissenting, that Ntahobali was not 3574 Trial Judgement, paras. 2644, 2781(i). 3575 Trial Judgement, paras. 2644, 2781(i). 3576 See supra, Section V.I.1(c); infra, Section V.I.3(a). 3577 Trial Judgement, para. 2653. 3578 Trial Judgement, para.

2653. The Trial Chamber's finding that Interahamwe, following the orders of Ntahobali, raped six other women during the First Attack is, however, reversed by the Appeals Chamber below. See infra, Sections V.I.3(b), V.I.3(c). The Appeals Chamber deems it unnecessary as a result to examine Ntahobali's challenges to . the Trial Chamber's assessment of the evidence for his conviction for ordering the rapes of six women during the First Attack. 3579 Trial Judgement, para. 2653. 3580 See Trial Judgement, paras. 6085, 6086, 6094, 6184, 6185. See also supra, Sections V.I.1 (b), V.I.1(c). 3581 Trial Judgement, paras. 2172, 2648. 3582 Trial Judgement, paras. 2661, 2715, 2736, 2738, 2748, 2749, 2781(iii). In order to conclude that the refugees abducted from the prefectoral office were killed, the Trial Chamber also relied, in part, on evidence that two refugees named Semanyenzi and Annonciata had been abducted from the prefectoral office during the Night of Three Attacks but escaped and returned to it, informing refugees that those who had been abducted were killed. See ibid., paras. 2746- 2749. The Trial Chamber had previously determined that the co-Accused could not be convicted on the basis of the crimes committed against Semanyenzi and Annonciata. See ibid., para. 2172. 548 Case No. ICTR-98-42-A 14 December 2015

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19817/H convicted for ordering killings during these attacks.83 The Trial Chamber further found that Ntahobali participated in the abduction of "Mbasha's wife and children" from the prefectoral office during these attacks but did not convict him on the basis of this conduct due to insufficient notice. 3584 1573. Concerning the First Half of June Attacks, the Trial Chamber determined that Ntahobali, injured soldiers, and Interahamwe came to the prefectoral office in the first half of June 1994 to rape women and abduct refugees 585 It also found that, during one of these attacks, Ntahobali handed Witness TA over to about seven Interahamwe to rape her.3586 The Trial Chamber convicted Ntahobali for aiding and abetting the rape of Witness TA during one of these attacks. 3587 1574. Ntahobali challenges the Trial Chamber's assessment of the evidence concerning all of these attacks. The Appeals Chamber recalls that it has determined, Judge Khan dissenting, that Ntahobali was not convicted on the basis of his conduct during the Night of Three Attacks or in relation to the killings that were perpetrated during the First Half of June Attacks.3588 However, the Appeals Chamber considers that the Trial Chamber's factual findings with respect to these attacks were relevant to the Trial Chamber's analysis of Ntahobali's responsibility for ordering the killings and rapes for which he was

convicted as well as for the Trial Chamber's finding that Ntahobali bore superior responsibility for the acts of the Interahamwe 589 In this context, the Appeals -Chamber will address Ntahobali's challenges to the assessment of the evidence concerning these attacks as a demonstration of error could have the potential to invalidate the verdict or occasion a miscarriage of justice. Accordingly, the Appeals Chamber will first examine Ntahobali's general challenges before turning to his submissions pertaining to the identification evidence, the Mid-May Attack and Last Half of May Attacks, the Night of Three Attacks, the First Half of June Attacks, and the number of refugees abducted and killed. 3583 See supra, Sections V.I. 1(a)(iii), V.I.1(c). 3584 Trial Judgement, paras. 2172, 2727. 3585 Trial Judgement, paras. 2773, 2781(v). 3586 Trial Judgement, para. 2773. 3587 See Trial Judgement, paras. 5876, 5971, 6053-6055, 6085, 6086, 6094, 6100, 6101, 6168, 6169, 6184, 6185, 6186. See also supra, Sections V.I.1(b), V.I.1(c). The Appeals Chamber has reversed Ntahobali's convictions on the basis that he committed rapes during these attacks. See supra, Sections V.I.1(b), V.I.1(c). 3588 See supra, Sections V.I.1 (a) (i), V.I.1(c). 3589 See infra, Sections V.I.3, V.I.4. In particular, the Appeals Chamber stresses that, as indicated below, the Trial Chamber relied on Ntahobali's participation in these attacks to support its conclusion that Ntahobali ordered killings during the Mid-May Attack. See infra, paras. 1901, 1902. The Appeals Chamber further stresses that the Trial Chamber "consider[ed] the evidence in its entirety" when making findings on Ntahobali's responsibility as a superior under Article 6(3) of the Statute. See infra, para. 1920, quoting Trial Judgement, para.

5884. See also infra, para. 1927. 549 Case No. ICTR-98-42-A 14 December 2015

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19816/H (a) General Challenges 1575. Ntahobali submits that the Trial Chamber erred in: i) reversing the burden of proof; (ii) admitting and making findings on unpleaded and prejudicial evidence; (iii) rejecting admissible evidence; (iv) inferring trauma to justify inconsistencies in the Prosecution evidence; (v) improperly assessing expert testimony; and (vi) failing to consider exculpatory evidence. (i) Reversal of the Burden of Proof 1576. Ntahobali argues that the Trial Chamber erred in law in assessing the evidence related to the attacks committed at the Butare Prefecture Office based on a "chronological framework" 359° In his view, the Trial Chamber reversed the burden of proof by "accepting the veracity" of the Prosecution evidence before considering the Defence evidence3591 He claims that, by doing so, the Trial Chamber foreclosed the possibility that Defence evidence could raise reasonable doubt. 3592 1577. The Prosecution responds that Ntahobali's contentions are "pure speculation" and that he does not demonstrate that the Trial Chamber abused its discretion or erred in the manner in which it assessed the Prosecution and Defence evidence 3593 1578. The Appeals Chamber finds that the manner in which the Trial Chamber organised its assessment of the evidence in the Trial Judgement in no way reflects a failure to properly apply the burden of proof.359* Furthermore, the

Appeals Chamber observes that the Trial Chamber evaluated Ntahobali's alibi evidence before addressing the reliability and credibility of the Prosecution evidence related to attacks committed at the prefectoral office 59S It also bears noting that the Trial Chamber made all the factual findings concerning Ntahobali's participation in the crimes related to 3590 Ntahobali Appeal Brief, para. 603. 3591 Ntahobali Appeal Brief, paras. 604-606. Ntahobali highlights in particular the Trial Chamber's conclusion that Witness TA's evidence was credible and reliable before assessing the Defence evidence. See ibid., para. 605, referring to Trial Judgement, paras. 2629, 2630, 2633, 2635-2638. 3592 Ntahobali Notice of Appeal, para. 242; Ntahobali Appeal Brief, para. 606; Ntahobali Reply Brief, para.

245. Ntahobali argues that the manner in which the Trial Chamber evaluated the Prosecution evidence before the Defence evidence was contrary to governing and relevant case law. See Ntahobali Appeal Brief, para. 606, referring to R v. Geddes (Canada, 2011), para. 16, R v. W (D.) (Canada, 1991), R v. C.L. Y. (Canada, 2008) paras. 24-30; Ntahobali Reply Brief, para. 245, referring to Ntagerura et al. Appeal Judgement, paras. 171-174. 3593 Prosecution Response Brief, paras. 982, 983. The Prosecution also contends that Ntahobali failed to raise the argument that the Trial Chamber reversed the burden of proof in his notice of appeal and that his contention should accordingly be summarily dismissed. See ibid., para.

982. However, the Appeals Chamber notes that Ntahobali alleged in his notice of appeal that the Trial Chamber erred in the "application of the concept of the burden of proof" in assessing the evidence related to the Butare Prefecture Office. See Ntahobali Notice of Appeal, para.

242. The Appeals Chamber therefore considers that Ntahobali's allegation of error was properly raised and will examine it. 3594 See generally Trial Judgement, paras. 2535-2782. See, in particular, Trial Judgement, para. 2600 ("Having examined the alibis relevant to the events at the [Butare Prefecture Office], the Chamber now evaluates the Prosecution case bearing in mind those aspects of the alibis that were deemed reasonably possibly true."). See also ibid., paras. 2577-2599. 550 Case No. ICTR-98-42-A 14 December 2015

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19815/H the attacks at the prefectoral office or the occurrence of the crimes during those attacks 596 after it assessed the relevant Defence evidence. 3597 1579. The Appeals Chamber therefore dismisses Ntahobali's allegation that the Trial Chamber reversed the burden of proof. (ii) Unpleaded and Prejudicial Evidence 1580. The Trial Chamber observed that the names of Caritas, "Mrs. Mbasha", Trifina, Immaculée Mukagatare, Annonciata, and Semanyenzi did not appear in the Nyiramasuhuko and Ntahobali Indictment, the Prosecution Pre-Trial Brief or its appendix, or the Prosecution's opening statement. 3598 It also noted that their identities had only been disclosed in four witness statements less than two months prior to trial without any further indication that this new information was being provided. 359 Consequently, the Trial Chamber found that the late disclosure of these victims' names "accorded bias to the Defence in preparing its case" and concluded that it would not convict the co-Accused for the alleged crimes against these victims if they would be established. 3600 Relying on the Admissibility Appeal Decision of 2 July 2004 and the Kupreskié et al. Appeal Judgement, the Trial Chamber stated that it would nonetheless consider the evidence concerning these individuals for "other permissible purposes", including "background information, circumstantial evidence in support of

other allegations, to demonstrate a special knowledge, opportunity or identification of the accused" 3601 1581. Ntahobali argues that the Trial Chamber erred in relying on the evidence of: (i) the rape of Caritas as circumstantial evidence that he and Interahamwe raped several unknown women, including Witness TA, at the Butare Prefecture Office;3602 and (ii) the abduction of Mbasha's wife and children and the killing of Trifina to support his convictions for the abduction and killings of other unnamed Tutsi refugees at the prefectoral office during the Night of Three Attacks. 3603 He submits that the Trial Chamber's reasoning for not allowing him to be convicted for these crimes - because the tardy disclosure of the victims' identities prejudiced him in the preparation of his defence - prevented the Trial Chamber from considering this evidence with respect to evidence 3596 See Trial Judgement, paras. 2653, 2682, 2715, 2727, 2738, 2749, 2773, 2779, 2781. 3597 See, e.g., Trial Judgement, paras. 2577-2600, 2639-2643, 2652, 2665, 2682, 2725, 2726, 2737, 2768, 2778. Cf. ibid., para. 2678 $98 Trial Judgement, para. 2172 3599 Trial Judgement, para. 2172. 3600 Trial Judgement, para. 2172. 3601 Trial Judgement, para. 2172, referring to Admissibility Appeal Decision of 2 July 2004, paras. 14, 15, Kupreskié et al. Appeal Judgement, paras. 321-323, 336. 3602 Ntahobali Appeal Brief, paras. 762, 763, referring to Trial Judgement, paras. 2648, 5868. See also ibid., para. 760 3603 Ntahobali Appeal Brief, para. 764, referring to Trial Judgement, paras. 2727, 2730, 2738. See also ibid., para. 760 551 Case No. ICTR-98-42-A 14 December 2015 ти

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19814/H of rapes, abductions, and killings of unknown victims.?** Ntahobali generally argues that the Trial Chamber erred in using evidence concerning the abductions of Annonciata and Semanyenzi as well. 3605 Ntahobali contends that the Trial Chamber fundamentally misinterpreted the Admissibility Appeal Decision of 2 July 2004 to support its position that it could consider this evidence. 3606 1582. Ntahobali also argues that the Trial Chamber erred in using evidence pertaining to the abduction of Mbasha's wife and children for the purpose of establishing Ntahobali's presence during the Night of Three Attacks, as the probative value of the hearsay identification evidence was outweighed by the prejudicial effect. 3607 He submits that the same reasoning applies to the reliance on evidence of the rape of Immaculée Mukagatare 3608 1583. The Prosecution responds that the Trial Chamber was entitled to admit any evidence that it deemed to have probative value, even when lack of notice prevented any conviction on the basis of it.3609 It contends that Ntahobali does not show how the Trial Chamber misinterpreted the Admissibility Appeal Decision of 2 July 20043610 1584. The Appeals Chamber observes that, when assessing evidence concerning the Second Attack of the Last Half of May Attacks, during which the Trial Chamber found that Ntahobali ordered about seven Interahamwe to rape Witness

TA,3611 the Trial Chamber also recalled Witness TA's evidence of Ntahobali raping a girl named Caritas during the same attack 3612 Nevertheless, the Trial Chamber did not convict Ntahobali for the rape of Caritas but concluded that 3604 Ntahobali Appeal Brief, paras. 762, 764. In this regard, Ntahobali argues that the Trial Chamber's logic would allow the Prosecution to conceal the identities of known victims, knowing that evidence of such rapes and killings could serve as a basis to enter a conviction against an accused. See idem. Ntahobali Notice of Appeal, para. 271; Ntahobali Appeal Brief, para. 760, referring to Trial Judgement, paras. 2656, 2658, 2659, 2703, 2745-2747. 3606 Ntahobali Appeal Brief, paras. 761, 762, 764. Ntahobali argues that, in the Renzaho Appeal Judgement, the Appeals Chamber specified that evidence in support of material facts not pleaded in an indictment can be admitted "to the extent that it is relevant to proof of other allegations pleaded in the indictment." See ibid., para. 762 (emphasis in original), referring to Renzaho Appeal Judgement, paras. 71, 90. 3607 Ntahobali Appeal Brief, para. 765, referring to Trial Judgement, paras. 2667-2677, 2680, 2694. 3608 Ntahobali Appeal Brief, para. 765, referring to Trial Judgement, paras. 2750, 2769, 2770, 2773. See also ibid., para.

760. Ntahobali also contends that the Trial Chamber misapplied the Kupreskit et al. Appeal Judgement and, consequently, Rule 93 of the Rules in justifying the use of this evidence because it could not have been admitted through this rule without prior notice from the Prosecution. He alternatively submits that the Trial Chamber improperly used this evidence as prior criminal conduct for the purpose of demonstrating a general propensity or disposition to commit crimes charged. He argues that the evidence should be excluded and that he should be acquitted of the crimes committed at the Butare Prefecture Office. See Ntahobali Notice of Appeal, para. 272; Ntahobali Appeal Brief, paras. 766-769. The Prosecution responds that the disclosure provisions, as interpreted in the Kupreskic et al. Appeal Judgement, do not apply in this instance as the relevant evidence was not used to establish a pattern of conduct. See Prosecution Response Brief, para.

1125. The Appeals Chamber rejects Ntahobali's argument on the same basis as it did for Nyiramasuhuko's identical submission. See supra, Section IV.F.2(a). In addition, the Appeals Chamber notes that Ntahobali does not show how any of the disputed evidence constituted "prior criminal conduct" and was used for the purpose of demonstrating a general propensity or disposition of Ntahobali to commit crimes. 3609 Prosecution Response Brief, paras. 1123, 1124. 3610 Prosecution Response Brief, para. 1123. 3611 See Trial Judgement, paras. 2653, 2781(ii). See also ibid., para. 5872. 3612 Trial Judgement, para. 2648. 552 Case No. ICTR-98-42-A 14 December 2015

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19813/H "the details of this rape provide circumstantial evidence to support the fact that Interahamwe and Ntahobali raped many women, including Witness TA at the [Butare Prefecture Office]."3613 Similarly, when assessing evidence concerning the Night of Three Attacks - for which Ntahobali was not convicted - the Trial Chamber accepted the evidence pertaining to the abduction of Mbasha's wife and children and the killing of Trifina3614 However, it recalled that it would not enter convictions on the basis of this conduct but found that the "credible and consistent information" with regard to these events provided circumstantial support for its findings regarding the abduction of other unnamed Tutsi refugees from the prefectoral office. 3615 The Trial Chamber also relied, in part, on evidence that Semanyenzi and Annonciata had been abducted from the prefectoral office but escaped and returned to it, informing refugees that those who had been abducted were killed, to conclude that the refugees abducted from that office were killed 3616 1585. The Appeals Chamber sees no error in this approach. The Trial Chamber considered that insufficient notice had been given to Ntahobali concerning the crimes against these particular individuals and that he was prejudiced in this regard, which is not equivalent to a finding that the evidence is inadmissible under Rule 89(C) of the Rules 3617 The

Prosecution has an obligation to state the material facts underpinning the charges in an indictment, but not the evidence by which such material facts are to be proven. 3618 Furthermore, Rule 89(C) of the Rules allows a trial chamber to admit any relevant evidence it deems to have probative value. 3619 In this case, the evidence identified by Ntahobali is related temporally, geographically, and thematically to the pleaded allegations of Ntahobali's responsibility for rapes committed at the Butare Prefecture Office as well as the pleaded allegations of his involvement in abductions and killings of those seeking refuge there.3620 Ntahobali does not demonstrate that the Trial Chamber erred in its consideration of this evidence or in its interpretation of the Admissibility Appeal Decision of 2 July 2004 when doing so. 3621 3613 Trial Judgement, para. 2648. 3614 Trial Judgement, paras. 2717-2730. 3615 Trial Judgement, paras. 2727, 2730. 3616 See Trial Judgement, paras. 2746-2749. 3617 See Admissibility Appeal Decision of 2 July 2004, paras. 14, 15. 3618 Nahimana et al Appeal Judgement, para. 322; Simié Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 21; Kupreskié et al. Appeal Judgement, para. 88. 3619 Admissibility Appeal Decision of 2 July 2004, para. 15. 3620 The Appeals Chamber finds no merit in Ntahobali's contention that if trial chambers were allowed to

consider the evidence in this manner, it would, inter alia, induce the Prosecution to deliberately conceal identities of victims. The Tribunal's jurisprudence on the pleading of the identities of victims renders this argument meritless as it dictates that the Prosecution name the victims if it is in a position to do so, even in cases where a high degree of specificity is impractical, since the identity of the victim is information that is valuable to the preparation of the Defence case. Bagosora and Nsengiyumva Appeal Judgement, para. 132; Ntakirutimana Appeal Judgement, para. 25; Kupreskié et al. Appeal Judgement, para.

90. Furthermore, the Appeals Chamber recalls that it has overturned Ntahobali's convictions for committing rapes of women other than Witness TA and that it found below that the Trial Chamber erred in convicting Ntahobali for 553 Case No. ICTR-98-42-A 14 December 2015

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19812/H 1586. Moreover, as discussed in Section V.I.2(d)(iv) below, the Appeals Chamber finds no merit in Ntahobali's contentions concerning the credibility and probative value of the evidence surrounding the abduction of Mbasha's wife and children. 3622 Ntahobali does not demonstrate that the prejudicial effect of this evidence outweighs its relevance. Indeed, considering that Ntahobali's defence to his participation in attacks committed at the prefectoral office relies in part on a defence of alibi, 623 evidence concerning Ntahobali's presence during the Night of Three Attacks, as reflected in part through his participation in the abduction of Mbasha's wife and children, is highly relevant to the Trial Chamber's consideration of the pleaded criminal conduct. In light of this analysis, Ntahobali likewise fails to substantiate his position that the Trial Chamber erred in considering the evidence concerning the rape of Immaculée Mukagatare.

1587. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's arguments concerning the allegedly improper use of unpleaded and prejudicial evidence. (iji) Rejection of Admissible Evidence 1588. Ntahobali submits that the Trial Chamber impermissibly denied the admission of judgements from Rwandan proceedings demonstrating that Prosecution Witness TQ was convicted of crimes committed during the genocide 3624 Ntahobali argues that this evidence should have led the Trial Chamber to treat the witness's evidence with caution and that it erred in not doing so 3625 Ntahobali submits that the Appeals Chamber should disregard Witness TQ's evidence for its analysis on the alleged crimes committed at the Butare Prefecture Office. 3626 1589. The Prosecution responds that the Trial Chamber did not er in rejecting the admission of these documents and that the Trial Chamber properly assessed the evidence of Witness TQ. 3627 1590. The Appeals Chamber observes that the Trial Chamber relied upon the evidence of Witness TQ about the poor conditions at the prefectoral office together with the evidence of several ordering the rapes of six other women at the Butare Prefecture Office. See supra, Sections V.I.1(b), •V.I.1(c); infra, Section V.I.3(b). Consequently, his individual responsibility for committing, ordering, and aiding and abetting the rapes as well as his superior responsibility

for rapes committed by Interahamwe at the prefectoral office is limited to the rapes of Witness TA. See supra, Section V.I.1(c); infra, Section V.I.4(b). In this regard, Ntahobali's contention that this evidence was unreasonably used to prove that he and Interahamwe raped several other unknown women is now moot. The Appeals Chamber also finds no merit in Ntahobali's reliance on the Renzaho Appeal Judgement as he fails to demonstrate that the Trial Chamber's analysis of unpleaded evidence in this proceeding is inconsistent with the findings of the Appeals Chamber in that case. 3622 See also infra, Sections V.I.2(b)()a, V.I.2(b) i)b. 3623 See Trial Judgement, paras. 2578-2600 3624 Ntahobali Notice of Appeal, para. 263; Ntahobali Appeal Brief, para. 754, referring to Ntahobali Appeal Brief, Bar Nabobali Notice of Appeal, para, 264; Nahobali Appeal Brief, para, 754, referring ra Niahobali Appeal Brief, Par abobali Notice of Appeal, para. 265; Niahobali Appeal Brief, para. 754. 3627 Prosecution Response Brief, para.

1120. See also ibid., paras. 934-937. 554 Case No. ICTR-98-42-A 14 December 2015

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19811/H other witnesses in this regard.628 With respect to the attacks at the prefectoral office, the Trial Chamber further considered that Witness TQ's evidence of Ntahobali driving a Peugeot pickup truck formed part of the "substantial evidence rebut[ting] Ntahobali's claim that he did not know how to drive and that it could not have been him driving the pickup to the [Butare Prefecture Office]."3629 In addition to Witness Q's testimony, the Trial Chamber also considered the evidence of several witnesses who testified that Ntahobali drove a vehicle to the prefectoral office as well as the evidence of Witnesses TG, FA, D-2-13-0, and D-13-D to find that Ntahobali had been seen driving generally. 3630 1591. In this context, the Appeals Chamber finds that Ntahobali's contention that the Trial Chamber failed to exercise sufficient caution with respect to Witness Q's evidence due to its prior erroneous decision denying the admission of judgements from Rwandan proceedings fails to identify an error that would invalidate the decision to rely on Witness TQ's evidence or lead to a miscarriage of justice. His argument that the Trial Chamber failed to exercise sufficient caution with respect to Witness Q's evidence is indeed belied by the fact that the Trial Chamber only relied on Witness TQ's evidence when it was extensively corroborated. The Appeals Chamber therefore dismisses

Ntahobali's contention. (iv) Inference of Trauma 1592. Ntahobali submits that the Trial Chamber acted ultra vires by drawing inferences of trauma to justify discrepancies, inconsistencies, and implausibilities in Witness TA's testimony.3631 He contends that trauma cannot be automatically inferred and argues that the Trial Chamber points to no evidence demonstrating that Witness TA was traumatised and that it impacted her evidence. 3632 He argues that, because of this error in the analysis of Witness TA's otherwise incredible evidence, the Trial Chamber erred in convicting him on the basis of her testimony. 3633 1593. The Prosecution responds that, given the nature of Witness TA's experience at the prefectoral office, the Trial Chamber did not require an expert to attest to her trauma and its impact 3628 Trial Judgement, para. 2627. 3629 Trial Judgement, para. 2666. 3630 Trial Judgement, paras. 2664, 2666. 3631 Ntahobali Notice of Appeal, paras. 266, 267; Ntahobali Appeal Brief, para. 755, referring to Trial Judgement, paras. 635, 2637, 2770. 632 Ntahobali Appeal Brief, paras. 756, 757 (French) 3633 Ntahobali Appeal Brief, para.

758. S55 Case No. ICTR-98-42-A 14 December 2015

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19810/H on her testimony. 3634 It contends that Ntahobali fails to demonstrate that the Trial Chamber abused its discretion in considering the effects of trauma on Witness TA's evidence. 3635 1594. The Appeals Chamber observes that the Trial Chamber considered the impact of trauma on Witness TA's testimony in finding that the following aspects of her evidence did not undermine her credibility: (i) the variance between her prior statement, which indicated that she was anally raped during the Mid-May Attack, and her testimony that she was not; (ii) her failure to report to the local authorities that Ntahobali had raped her, even though she had reported being raped by other assailants; and (iii) the confusion in her testimony as to whether she was raped on the fourth or fifth occasion Ntahobali visited the prefectoral office and whether she was raped on the same occasion that Immaculée Mukagatare was raped. 3636 1595. It is established practice for trial chambers to take into consideration the impact of trauma on a witness's evidence. 3637 The Trial Chamber found that Witness TA was raped by Ntahobali and about eight other Interahamwe during the Mid-May Attack,3638 "violently raped" by Ntahobali during the First Attack of the Last Half of May Attacks,3639 raped by about seven Interahamwe during the Second Attack of the Last Half of May Attacks,3640 and raped by about

seven Interahamwe during one of the First Half of June Attacks 3641 These rapes occurred against a backdrop of violence at the prefectoral office witnessed by Witness TA, the evidence of which the Trial Chamber described as "among the worst encountered" and which, in its view, portrayed "a clear picture of unfathomable depravity and sadism" 3642 The Appeals Chamber finds that, in light of the record before the Trial Chamber, a reasonable trier of fact could have considered the fact that Witness TA suffered considerable trauma as it related to the events at the prefectoral office and that Ntahobali has not demonstrated that the Trial Chamber erred in considering this trauma when assessing the witness's evidence. 3643 3634 Prosecution Response Brief, para. 1121. 3635 Prosecution Response Brief, para. 1121. 3636 Trial Judgement, paras. 2635, 2637, 2770. See also infra, paras. 1695, 1697, 1859. 3637 Musema Appeal Judgement, para. 63. ("The issue here is whether the Trial Chamber's consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness."). See also Hategekimana Appeal Judgement, para. 84; Ntawukulilyayo Appeal Judgement, para. 152. 3638 Trial

Judgement, paras. 2644, 2781 (i). 3639 Trial Judgement, paras. 2653, 2781 (ii). 3640 Trial Judgement, paras. 2653, 2781 (ii). The Appeals Chamber has found in another sub-section of this Judgement that the Trial Chamber erred in convicting Ntahobali for ordering about seven Interahamwe to rape Witness TA during this attack given the insufficient evidentiary record supporting the conclusion that he ordered the crime. See infra, Section V.I.3(b). However, the Appeals Chamber does not otherwise find that the Trial Chamber erred in its assessment of the evidence as it concerns the fact that Witness TA was raped during this event. See infra, Section V.I.2(c)(ii). 3641 Trial Judgement, paras. 2773, 2781 (v). 3642 Trial Judgement, para. 5866. 3643 See also infra, Section V.I.2(c)(i). 556 Case No. ICTR-98-42-A 14 December 2015

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19809/H 1596. The Appeals Chamber therefore dismisses Ntahobali's contention in this respect. (v) Expert Evidence 1597. Ntahobali contends that the Trial Chamber erred in relying on the evidence of Prosecution Expert Witnesses Guichaoua and Des Forges to corroborate witnesses' testimonies regarding factual evidence of crimes committed at the Butare Prefecture Office, thereby exceeding the limitations imposed on expert evidence 364ª In particular, Ntahobali asserts that the Trial Chamber erred by using Expert Witness Des Forges's testimony concerning the phone conversations she had with Nsabimana in 1996 to prove Ntahobali's acts and conduct at the prefectoral office notwithstanding the limitations imposed on expert evidence. 3645 He contends that Expert Witnesses Guichaoua's and Des Forges's evidence should be excluded and that he should be acquitted of crimes allegedly committed at the prefectoral office. 3646 1598. The Prosecution argues that Ntahobali's arguments are meritless and should be summarily dismissed. 3647 1599. The Appeals Chamber observes that, with respect to the Trial Chamber's allegedly erroneous use of Expert Witness Guichaoua's evidence, Ntahobali simply refers to paragraphs 2560, 2561, and 2575 of the Trial Judgement, which discuss the witness's evidence concerning Nyiramasuhuko's diary 3648 However, his blanket assertion that the witness's

statements referred "to facts rather than opinions" fails to demonstrate that the Trial Chamber erred in the consideration of Expert Witness Guichaoua's interpretations of Nyiramasuhuko's diary and that this evidence exceeded the scope of his area of expertise. 3649 1600. As for the purported improper use of Expert Witness Des Forges's evidence, the Appeals Chamber observes that, when assessing Witness TA's evidence concerning the Mid-May Attack, the Trial Chamber noted that the statement Nsabimana gave to Expert Witness Des Forges during a telephone conversation in 1996 that "soldiers and others were coming to take away women to rape them and other people were being selected to be killed" was "consistent" with the testimony of 3611 Ntahobali Notice of Appeal, paras. 268-274; Ntahobali Appeal Brief, para. 759, referring to Ntahobali Appeal Brief, para.

499. Brit, part- A The Appease, are 27 274 and ali re a hot pisa, 5, 75. Sace i amisi i ol this aspect of Witness Des Forges's testimony above. See supra, Section III.H. 3646 Ntahobali Notice of Appeal, paras. 273, 274. 3647 Prosecution Response Brief, para.

1122. See also ibid., para. 949. 3648 Ntahobali Appeal Brief, para.

759. In his notice of appeal, Ntahobali refers to paragraphs 2338-2342, 2405, 2605, Prefecture Office. 557 Case No. ICTR-98-42-A 14 December 2015

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19808/H Witness TA. 3650 When considering the number of refugees abducted and killed from the prefectoral office, the Trial Chamber noted that "Des Forges testified that Nsabimana told her he did not know how many refugees were taken away from the [Butare Prefecture Office], but that he did know that this was happening. 3651 1601. The Appeals Chamber has repeatedly held that the role of expert witnesses is to assist the trial chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. 3652 In the case at hand, the Appeals Chamber is not persuaded that the Trial Chamber's consideration of Expert Witness Des Forges's general evidence about the rapes, killings, and abductions committed at the prefectoral office ignored the limitations imposed on expert evidence. In particular, Ntahobali fails to demonstrate how Expert Witness Des Forges's general testimony about rapes and killings concerned the acts and conduct of Ntahobali or disputed facts. To the extent the Trial Chamber required corroboration of Witness TA's evidence to find that Ntahobali committed crimes at the prefectoral office during the Mid-May Attack, it relied on factual witnesses who implicated him in crimes there.3653 Likewise, the Trial Chamber relied on factual witnesses to determine how many refugees were abducted from the prefectoral office and killed.

3654 1602. Accordingly, the Appeals Chamber concludes that Ntahobali has not demonstrated that the Trial Chamber erred in its use of expert witness testimony in reaching conclusions concerning attacks at the Butare Prefecture Office. (vi) Exculpatory Evidence 1603. Ntahobali argues that the Trial Chamber ignored evidence from his Witnesses WCNJ and WUNBJ that attacks did not occur at the Butare Prefecture Office and that the Trial Chamber violated its obligation to provide a reasoned opinion by not expressly assessing this evidence. 3655 Specifically, Ntahobali points to Witness WCNJ's testimony that the witness spoke with the Tutsi refugees present at the prefectoral office who never mentioned that they faced security problems, but instead spoke of difficulties in finding food and having to sleep on the veranda 3656 Ntahobali also highlights Witness WUNBI's testimony that he was present at the prefectoral office during all working days and sometimes on weekends and that: (i) he never saw or heard of any rapes or 3649 See also supra, Section IV.A.2. 3650 Trial Judgement, para, 2632, referring to Alison Des Forges, T. 9 June 2004 p. 51. 3651 Trial Judgement, para. 2774, referring to Alison Des Forges, T. 9 June 2004 p. 51. 3652 Bagosora and Nsengiyumva Appeal Judgement, fn. 503; Nahimana et al. Appeal Judgement, para.

509. See also Nahimana et al. Appeal Judgement, para.

212. See Trial Judgement, para. 2634. 3654 See Trial Judgement, paras. 2774-2779. 3655 Ntahobali Notice of Appeal, para. 242; Ntahobali Appeal Brief, paras. 608-610. 558 Case No. ICTR-98-42-A 14 December 2015

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19807/H abductions, or that Ntahobali was involved in criminal activities there; (ii) no mass grave could have been dug without his knowledge, and he did not see corpses at the Butare Prefecture Office; (iii) the night watchman did not inform him that any crimes were committed during the night; and (iv) the number of refugees hardly changed." Ntahobali contends that the Trial Chamber could not have found that there was a mass grave at the prefectoral office, that there was a visible reduction in the number of refugees, or that there were attacks at night "without dealing with [this] highly relevant and exculpatory piece of evidence.*3658 1604. The Prosecution responds that the Trial Chamber did not err in rejecting the evidence of Witnesses WUNBJ and WCNJ because their testimonies were contradicted by, inter alios, Witnesses TK, SU, RE, SS, FAP, QBQ, and SJ, who provided credible evidence about the rapes, abductions, and killings that occurred at the prefectoral office and of Ntahobali's involvement. 3659 1605. The Appeals Chamber observes that the Trial Chamber neither summarised nor expressly assessed the evidence of Witnesses WUNBJ and WCNJ referred to by Ntahobali as relevant to whether attacks occurred at the Butare Prefecture Office. The Trial Judgement nonetheless shows that the Trial Chamber did not disregard their testimonies, as it expressly referred to and

evaluated them elsewhere in the Trial Judgement in relation to the establishment of the Hotel Ihuliro roadblock and Ntahobali's role in its operation, the number of refugees at the EER, the training of civilians, the distributions of weapons, and the purpose of roadblocks in Butare Town. 3660 1606. The Appeals Chamber recalls that if a trial chamber did not refer to the evidence given by a witness, it is to be presumed that the trial chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its findings 3661 In the instant case, the Appeals Chamber is not persuaded that the Trial Chamber disregarded the evidence of these two witnesses as it relates to the prefectoral office but considers that, given its limited probative value, the Trial Chamber found that the evidence did not prevent it from reaching the conclusion that Ntahobali perpetrated attacks against the Tutsi refugees at the prefectoral office. 3656 Ntahobali Appeal Brief, para. 609, referring to Witness WCNJ, T. 2 February 2006 pp. 8-10 and 53-55 (closed session). See also Ntahobali Reply Brief, para. 246. 3657 Ntahobali Appeal Brief, para. 608, referring to Witness WUNBJ, T. 8 March 2006 pp. 40-45 (closed session), 46-51, T. 3 April 2006 pp. 40-42 (closed session). 3658 Ntahobali Appeal Brief, para. 608, referring to Trial Judgement, paras. 2740-2742, 2776. 3659 Prosecution Response Brief, para. 984. 3660 See Trial Judgement, paras. 3010-3013, 3020, 3107, 3110, 3126, 3907, 3910, 3911, 5195, 5196, 5201-5204, 5251, 5266, 5269, 5270, 5321, 5322, 5328, 5329, 5387, 5388, fins. 8617, 10739, 14129, 14131, 14133, 14135-14137, 14179. 3661 See Kvocka et al. Appeal Judgement, para.

23. See also Dordevic Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para. 127; Kalimanzira Appeal Judgement, para. 195. 559 Case No. ICTR-98-42-A 14 December 2015

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19806/H 1607. The Appeals Chamber observes that the evidence of Witness WCNJ to which Ntahobali refers is brief and indirect 662 as well as of questionable credibility in light of mutually corroborating direct and indirect evidence provided by numerous Prosecution witnesses that attacks occurred at the prefectoral office. 3663 As for Witness WUNBJ's evidence, while Ntahobali stresses that the witness testified that he went to work at the prefectoral office on all working days and some weekends, a comprehensive reading of the witness's evidence reflects that he was engaged in one to two weeks of training elsewhere in Butare in the time period between the middle and the end of May 1994 and was manning roadblocks following the training. 3664 As this contradicts the witness's testimony that he went to work at the prefectoral office on all working days, the probative value of the witness's daytime observations of the prefectoral office is diminished. His contradictory evidence also undermines the credibility of his assertion that the number of refugees at the prefectoral office did not change, particularly when considered against the contradictory evidence of multiple Prosecution and Defence witnesses.3665 Witness WUNBJ's testimony also reflects that he was not one of the displaced persons at the prefectoral office, 3666 was not present there during the evenings 3667 - when the

Trial Chamber found that attacks had occurred3668 - and that his own characterisation of his conversation with those who sought refuge there was nothing more than greeting them.3669 Witness WUNBI's statement during cross-examination that he would have known if violence had occurred at night was merely based on his assumption that the night watchman would have informed him. 3670 The Appeals Chamber further notes that, while the witness testified that he saw no mass grave at the prefectoral office and that he would have seen it if one 3662 Ntahobali Appeal Brief, para. 609, referring to Witness WNCJ, T. 2 February 2006 pp. 8-10 and 53-55 (closed 3663 For example, Prosecution Witnesses TA, QJ, TK, SU, RE, SS, FAP, SD, QBP, and QBQ all testified that attacks were perpetrated against the displaced Tutsis seeking refuge at the prefectoral office some time between April and mid-June 1994. See Trial Judgement, paras. 2174-2197, 2201-2224, 2242-2318, 2328-2334. 3664 Witness WUNBJ, T. 8 March 2006 pp. 34 (closed session), 36, 37, T. 5 April 2006 pp. 9, 10 and 14, 15, 42, 43 3665 Trial Judgement, paras. 2776-2778. See also infra, Section V.I.2(f). 3666 Witness WUNBJ, T. 8 March 2006 pp. 15, 16, 40-44 (closed session). 3667 Witness WUNBJ, T. 8 March 2006 p. 40 (closed session). 3668 Trial Judgement, paras. 2644, 2653, 2738, 2773, 2781. Ntahobali argues that Witness WUNBJ's

testimony contradicts that of Witnesses TA and TK that daytime attacks occurred at the Butare Prefecture Office. See Ntahobali Appeal Brief, para. 608, referring to Trial Judgement, paras. 2188, 2218, 2630, 2638, 2771. The Appeals Chamber observes that all but one of the paragraphs referred to by Ntahobali reflect the Trial Chamber's consideration of the evidence of these witnesses that they had observed Ntahobali during the day, not that attacks occurred then. See Trial Judgement, paras. 2218, 2630, 2638, 2771. Moreover, while paragraph 2188 of the Trial Judgement recalls Witness TA's testimony that Ntahobali came during the day and took people away to be killed, the Trial Chamber did not expressly accept this evidence, and a comprehensive reading of Witness WUNBJ's testimony reflects that his presence at the prefectoral office was not daily and not necessarily in contradiction with this evidence. The Appeals Chamber dismisses this contention. 3669 Witness WUNBJ, T. 8 March 2006 p. 44 (closed session). 3670 Witness WUNBJ, T. 5 April 2006 p. 61 (closed session). 560 Case No. ICTR-98-42-A 14 December 2015

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19805/H existed, he also testified that he did not know what a mass grave was and did not know if he could recognise one. 3672 1608. The Appeals Chamber considers that, in light of the numerous accounts from the relevant Prosecution witnesses that contradict Witness WUNBJ's testimony, a reasonable trier of fact could have found that Witness WUNBJ's indirect evidence that no violence occurred at the prefectoral office and that there were no signs of violence there lacked credibility 3673 1609. While it would have been preferable for the Trial Chamber to discuss expressly the relevant aspects of the evidence of Witnesses WUNBJ and WCNJ to which Ntahobali refers, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in failing to consider them. (b) Identification Evidence 1610. In concluding that Ntahobali participated in the Mid-May Attack, the Last Half of May Attacks, the Night of Three Attacks, and the First Half of June Attacks that led to the abduction, killing, and rape of displaced Tutsis who had sought refuge at the Butare Prefecture Office, 364 the Trial Chamber relied on identification evidence provided by Prosecution Witnesses TA, TK, QJ, S.J, RE, QBQ, QBP, QY, SD, FAP, SU, and SS, who testified about Ntahobali's presence at the prefectoral office. 3675 1611. Ntahobali submits that the evidence of these witnesses was not sufficient

to establish his involvement in the attacks at the prefectoral office beyond reasonable doubt 3676 In particular, he argues that the Trial Chamber erred in its evaluation of the identification evidence by: (i) improperly relying on hearsay evidence from witnesses with no prior knowledge of him; and (ii) failing to address the Prosecution's failure to conduct an identification parade and ask certain witnesses to identify him in court as well as by not sufficiently considering the inability of several witnesses to identify him in court. 3677 Ntahobali also contends that the Trial Chamber erred in accepting the evidence of Prosecution witnesses with respect to the Mid-May Attack, the Last Half 3671 Witness WUNBJ, T. 8 March 2006 p. 46, T. 3 April 2006 p. 41 (closed session), T. 5 April 2006 p. 59 (closed 3672 Witness WUNBJ, T. 5 April 2006 p. 59 (closed session). Ntahobali also argues that Witness WUNBJ did not testify to seeing "bloodstains" at the prefectoral office but the testimony referred to by Ntahobali does not reflect any mention of bloodstains, including any denial that they were there. See Ntahobali Appeal Brief, para. 608, referring to Witness WUNBJ, T. 8 March 2006 pp. 41-45 (closed session), 46, T. 3 April 2006 pp. 40-42 (closed session). 3673 Trial Judgement, para. 5427, fn. 14179. 3674 See also supra, Section V.I.1. 3675 Trial Judgement, paras. 2633, 2638, 2662-2682. See also ibid., para. 2771. 3676 Ntahobali Notice of Appeal, paras. 244-255; Ntahobali Appeal Brief, paras. 716-748. 3677 Ntahobali Notice of Appeal, paras. 248, 250, 251; Ntahobali Appeal Brief, paras. 716-720, 729-732, 745-747. 561 Case No. ICTR-98-42-A 14 December 2015

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19804/H of May Attacks, and the Night of Three Attacks 3678 The Appeals Chamber will address Ntahobali's general challenges prior to examining his contentions related to the specific attacks. (i) General Challenges a. Hearsay Evidence 1612. Ntahobali submits that the Trial Chamber failed to apply sufficient caution when assessing identification evidence, because it consisted solely of hearsay evidence from witnesses who had no prior knowledge of him. 3679 He notes that the witnesses' testimonies reflect that he was not known by them, but identified by Interahamwe3680 or unidentified refugees. 3681 He argues that Interahamwe may have "falsely used the name Shalom to fool the victims" or that refugees may have misheard the name uttered, as the record reflects that a name similar to his - Salum - was commonly used. 3682 In support of his contention, Ntahobali submits that a review of the transcripts and audio recordings reveals that Witnesses QA, TA, SU, SS, and QBQ mispronounced his name.3683 Ntahobali also contends that the Trial Chamber's emphasis that some refugees specified that he was the son of Nyiramasuhuko is misplaced given the possibility that the unknown persons who identified him at the Butare Prefecture Office could have been mistaken in their identification. 3684 1613. In addition, Ntahobali argues that it was inappropriate for the Trial Chamber to rely

on jurisprudence affirming the use of hearsay identification evidence, given the material differences between the evidence used to identify him and the convicted persons in the other cases. 3685 According to Ntahobali, no reasonable trier of fact could have convicted him for crimes committed at the prefectoral office in the absence of corroborating "firsthand identification evidence" 3686 1614. The Prosecution responds that the law allows reliance on hearsay identification evidence without corroboration by firsthand evidence and that the Trial Chamber exercised sufficient caution 3678 Ntahobali Notice of Appeal, paras. 245-247, 249; Ntahobali Appeal Brief, para. 748. 3679 Ntahobali Notice of Appeal, paras. 250, 251; Ntahobali Appeal Brief, paras. 716, 718, 719, 720. Ntahobali notes that none of the 12 witnesses who testified about crimes occurring at the Butare Prefecture Office knew him prior to 1994. See Ntahobali Appeal Brief, para. 716, referring to Witnesses TA, TK, SJ, SU, QBQ, RE, SS, FAP, SD, QY, OBP, and QJ. See also AT. 15 April 2015 p. 46; AT. 16 April 2015 p. 35. 80 Ntahobali Appeal Brief, para. 728, referring to Trial Judgement, para. 2668. 3681 Ntahobali Appeal Brief, para. 729, referring to Trial Judgement, paras. 2633, 2668. See also AT. 15 April 2015 B 1 tahobali Appeal Brief, paras, 728, 729. 3683 Ntahobali Appeal Brief, paras. 728, 748, referring to Witness QA, T. 23 March 2004 pp. 27, 28 (closed session), Vitness TA, T. 25 October 2001 pp. 31, 32, 36, Witness SU, T. 14 October 2002 pp. 37, 38, Witness SS Г. 3 March 2003 pp. 49, 50, Witness QBQ, T. 3 February 2004 pp. 10, 11. Cf. AT. 15 April 2015 p. 41 3684 Ntahobali Appeal Brief, para.

729. See also AT. 15 April 2015 p. 46. 3685 Ntahobali Appeal Brief, para. 730, referring to Trial Judgement, para. 2679, Rukundo Appeal Judgement, Ramuhanda Appeal Judgement. See also Ntahobali Reply Brief, para. 320; AT. 15 April 2015 pp. 46, 47. 3686 Ntahobali Appeal Brief, paras. 720, 732. See also Ntahobali Reply Brief, para. 321; AT. 16 April 2015 pp. 36, 37. 562 Case No. ICTR-98-42-A 14 December 2015

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19803/H when assessing this evidence. 68 It contends that Ntahobali's submission that Interahamwe would refer to someone other than him by his name is unsupported. 3688 The Prosecution also argues that Ntahobali's contention that he might have been misidentified at the prefectoral office based on someone else having a name similar to his is without merit, noting that the evidence reflects that his name - Shalom - is Hebrew and unique.3689 Likewise, it contends that Ntahobali fails to demonstrate how the fact that multiple witnesses also referred to him as Nyiramasuhuko's son does not bolster his identification.36% It adds that Ntahobali has not drawn any relevant distinction between the Trial Chamber's reliance on hearsay identification evidence and the Tribunal's jurisprudence that has affirmed the use of such identification in other cases. 3691 1615. Ntahobali replies that the name "Shalom" is not, as the Prosecution contends, unique. 3692 1616. The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence3693 and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence. 3694 The Appeals Chamber further recalls that a witness's prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of

identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.3695 In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali's identification at the prefectoral office. 3696 The Trial Chamber considered the hearsay nature of various witnesses' identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.3697 Nahobali's general contentions concerning the Trial Chamber's use of hearsay, which do not discuss this analysis, 3698 fail to demonstrate that the Trial Chamber erred in this regard. 3687 Prosecution Response Brief, paras. 1091-1093, 1098, 1099. See also AT. 16 April 2015 pp. 9-11. 3688 Prosecution Response Brief, para. 1095. 3689 Prosecution Response Brief, para. 1095. 3690 Prosecution Response Brief, para. 1096. 3691 Prosecution Response Brief, para. 1097, referring to Rukundo Appeal Judgement, para. 201. 3692 Ntahobali Reply Brief, para. 319, referring to Exhibit D413 (Sealed excerpt of Witness CCR's testimony in the Muvunyi case) (confidential), p. 17. 3693 Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para.

96. See also Musema Appeal Judgement, para.

90. Judgement, para. 96; Karera Appeal Judgement, para.

39. Ruzindana Appeal Judgement, paras. 327, 328. 3696 Trial Judgement, paras. 168, 169, 2638, 2679. 3697 Trial Judgement, paras. 2633, 2638, 2678-2680. 3698 See Ntahobali Appeal Brief, paras. 716-720. 563 Case No. ICTR-98-42-A 14 December 2015

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19802/H 1617. Turning to Ntahobali's contention that Interahamwe may have falsely used the name "Shalom" to fool the victims, the Appeals Chamber understands that Ntahobali raises this contention to demonstrate error in the Trial Chamber's reliance on Witness TK's evidence, who heard Interahamwe who had surrounded Ntahobali refer to him as "Shalom, chef"?3699 The Appeals Chamber considers that Ntahobali's unsupported contention fails to demonstrate that the Trial Chamber erred in relying on Witness TK's evidence, which it found to be "significantly detailed" and corroborated by other witnesses. 3700 Likewise, Ntahobali's argument that he might have been misidentified by refugees because another name similar to his - "Salum" - was common in Butare is as speculative as it is misleading, as the evidence of Witness QA that he cites in support of this submission reflects that this name was only common among Muslims in Butare rather than all men.3101 Similarly, he does not show that the various pronunciations of his name by witnesses who testified before the Tribunal varied materially from "Shalom" so as to make it unreasonable for the Trial Chamber to rely on hearsay identifications of him.3702 Indeed, the transcripts from the witnesses pointed out by Ntahobali reflect the name being recorded as "Shalom" 3703 Moreover, the Appeals Chamber finds that, contrary to Ntahobali's

assertions, the fact that Ntahobali was identified repeatedly as Nyiramasuhuko's son provided further support to the reliability of the identifications. 3704 Ntahobali does not show that the Trial Chamber abused its discretion in relying on the impugned hearsay evidence. 3705 3699 Trial Judgement, para. 2668. 3700 See Trial Judgement, paras. 2668-2677. Witness TA's evidence reflects that, on another occasion, she heard Interahamwe refer to Ntahobali as Shalom as well. See Witness TA, T. 25 October 2001 p.

60. The Appeals Chamber disagrees with Ntahobali's contention that Witness TK's evidence required corroboration or his implicit assertion that the witness's evidence of Interahamwe referring to him as "Shalom, chef" is somehow incompatible with other evidence on the record. See Nahobali Appeal Brief, para. 728; Ntahobali Reply Brief, para. 319. 3701 See Witness QA, T. 23 March 2004 pp. 27, 28 (closed session). 3702 See Ntahobali Appeal Brief, paras. 728, 748, referring to Witness TA, T. 25 October 2001 pp. 31, 32 ("Chaloum"), Witness SU, T. 14 October 2002 pp. 37, 38 ("Sharomo"), Witness SS, T. 3 March 2003 pp. 49, 50 ("Sharomo"), Witness QBQ, T. 3 February 2004 pp. 10, 11 ("Sharomu"). Notably, while Witness TA wrote "Chaloum", the interpreter heard the witness say the name "Shalom." See Witness TA, T. 25 October 2001 pp. 31, 32, 35, 36. Furthermore, the interpreter noted that words written with "L" can be pronounced as "R". See Witness TA, T. 25 October 2001 p. 31 ("THE INTERPRETER: She couldn't pronounce the 'R'. You hear 'Sharom' but it is written 'Shalom'. She pronounces it Sharom but it is written with an 'L' and not an 'R'. She means Shalom, this is what 3703 See Witness TA, T. 25 October 2001 p. 31; Witness SU, T. 14 October 2002 p. 37; Witness SS, T. 3 March 2003 Bit riles inl Pa. a Pa.ras.-2b5a, 2001 p. 10. 3705 Ntahobali argues that, given the nature of the identification evidence, it is impossible to establish the declarants' reliability and that he was prevented from verifying their information through investigation or cross-examination. See Ntahobali Appeal Brief, para.

730. However, Ntahobali's contention is unsupported by any reference and thereby fails to meet the standard required for appellate review. See supra, para.

35. Similarly, Ntahobali argues that four witnesses never testified to Ntahobali's presence at the Butare Prefecture Office and that the Trial Chamber failed to assess this omission, particularly because, in Ntahobali's words, "people apparently exclaimed saying 'this is Shalom' or something to that effect". See Ntahobali Appeal Brief, para.

744. See also ibid., para.

717. The Prosecution rejects this contention as unsupported and unpersuasive. See Prosecution Response Brief, paras. 1094, 1111. Ntahobali does not point to a particular finding of the Trial Chamber nor demonstrate with references to the record how evidence of witnesses hearing Ntahobali's name at the Butare Prefecture Office is necessarily incompatible with witnesses who did not hear people state his name. The Appeals Chamber dismisses this contention without further consideration. 564 Case No. ICTR-98-42-A 14 December 2015

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19801/H 1618. With respect to Ntahobali's contention that the Trial Chamber erred in relying on inapplicable jurisprudence, the Appeals Chamber observes that the Trial Chamber cited to excerpts of the Kamuhanda Appeal Judgement and Rukundo Appeal Judgement as supporting the proposition that identification of an accused at the scene of a crime may be based on hearsay evidence. 3706 Ntahobali argues that unlike the accused in the Rukundo and Kamuhanda cases, he was not a figure of authority and that, unlike those cases, hearsay evidence used against him was not corroborated by identification evidence from witnesses who knew him.3707 While hearsay identification evidence from witnesses who had no prior knowledge of Kamuhanda was used to corroborate more direct identification evidence in that case,3708 Ntahobali fails to demonstrate material differences between the nature of the identification of Rukundo by witnesses who had no prior knowledge of him and the identification of Ntahobali by witnesses in a similar position with respect to him.3709 Niahobali also does not show that being a figure of authority is a necessary ingredient when relying on hearsay identification evidence.

1619. In light of the above, the Appeals Chamber finds that Ntahobali has not demonstrated any error in the Trial Chamber's reliance on hearsay identification evidence. b. Identification Parade and In-Court Identification 1620. Ntahobali argues that the Trial Chamber failed to rule on his motion of 30 May 2001 requesting the Prosecution to conduct an identification parade; a request that was repeated in his closing brief and similarly ignored3710 He further emphasises that, of the 12 witnesses who identified him as being present at the Butare Prefecture Office, the Prosecution failed to ask five of them to identify him in court,"'' three testified that they would be unable to identify him in court, 3712 one was not found credible by the Trial Chamber for this event, 3713 and one misidentified 3706 Trial Judgement, para. 2679, referring to Ramuhanda Appeal Judgement, paras. 241, 300, Rukundo Appeal Judgement, paras. 196-198. 37071 Ntahobali Appeal Brief, para. 730. 3708 See Kamuhanda Appeal Judgement, paras. 240, 241, 300. 3709 Compare Rukundo Appeal Judgement, paras. 195-198 (noting that, while certain witnesses had no prior knowledge of Rukundo, hearsay identification evidence that provided additional and specific details concerning Rukundo's identity provided a greater indicia of reliability) with, e.g., Trial Judgement, paras. 2633 (Witness TA was able to identify Ntahobali

by his given name, Shalom, learned of his familial relationship with Pauline Nyiramasuhuko through other refugees, and knew that Nyiramasuhuko was the Minister of Women's Affairs), 2668 (Witness TK overheard a woman refer to Ntahobali as "Shalom" and identify his mother as "Pauline", as well as overheard Interahamwe refer to Ntahobali as "Shalom, chef"). 3710 Ntahobali Appeal Brief, para. 745, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Extremely Urgent Motion to Order Disclosure of All Information Regarding Process and Methods of Identification, 30 May 2001 ("30 May 2001 Motion"). 3711 Ntahobali Appeal Brief, para. 746, referring to Witnesses QBP, QJ, SD, SS, and SU. 3712 Ntahobali Appeal Brief, paras. 741, 746, referring to Witnesses FAP, QBQ, and QY. 3713 Ntahobali Appeal Brief, para. 746, referring to Witness SJ, Trial Judgement, para.

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19800/H Ntahobali as Nteziryayo. 3714 Ntahobali argues that, consequently, only Witnesses TK and TA, whose reliability and credibility he argues are questionable for other reasons, were able to identify him in court. 3715 1621. The Prosecution responds that in-court identifications are afforded little to no credence and that, accordingly, the Trial Chamber did not rely on them when assessing evidence of Ntahobali's presence at the Butare Prefecture Office.3716 It adds that Ntahobali fails to demonstrate that the Trial Chamber erred in relying on witnesses who did not identify him in court or in relying on Witness RE's identification evidence notwithstanding the witness's misidentification of Ntahobali in court. 3717 1622. The Appeals Chamber observes that, contrary to Ntahobali's contention, the Trial Chamber expressly denied his 30 May 2001 Motion requesting that the Prosecution conduct an identification parade.3718 Ntahobali does not argue that the Trial Chamber erred in its decision and fails to demonstrate why the Trial Chamber should have reconsidered its position based on submissions in the Ntahobali Closing Brief nearly eight years later 3719 His submissions in this respect are therefore dismissed.

1623. Turning to Ntahobali's contentions that Witnesses QBP, QJ, SD, SU, and SS were not asked to identify Ntahobali in court and that Witnesses FAP, QBQ, and QY testified that they would not be able to do so, the Appeals Chamber observes that Witnesses FAP, QBP, QBQ, QY, SD, SS, and SU were principally used to corroborate the evidence of Witness TK - who identified Ntahobali in court - about the vehicle used by attackers or the fact that it was driven by Ntahobali. 3720 Their prior knowledge of Ntahobali and ability to identify him in the courtroom were therefore of limited to no relevance. Given these circumstances, which were considered by the Trial Chamber, the Appeals Chamber is not persuaded that the fact that in court identifications of Ntahobali were not 3714 Ntahobali Notice of Appeal, para. 248; Ntahobali Appeal Brief, para. 746, referring to Witness RE. See also Ntahobali Reply Brief, para. 323, referring to Kvocka et al. Appeal Judgement, para. 473; AT. 15 April 2015 op. 42, 43; AT. 16 April 2015 p. 35 9 Ntahobali Appeal Brief, para. 747, referring to Witnesses TA and TK. 3716 Prosecution Response Brief, para. 1109. 3717 Prosecution Response Brief, para. 1109, referring to Kvocka et al. Appeal Judgement, para. 576. 3718 T. 11 June 2001 pp. 5, 6, referring to 30 May 2001 Motion. 3719 The Appeals Chamber fails to see how Ntahobali's reference to the first Haradinaj et

al. Trial Judgement, which concerns a situation where the Prosecution carried out photo-board identifications and failed to follow its own guidelines, is relevant. See Ntahobali Appeal Brief, para. 745, fn. 1582, referring to Haradinaj et al. Trial Judgement of 3 April 2008, para. 31. 3720 Trial Judgement, paras. 2663, 2664. See also ibid., paras. 2242-2262, 2265-2273, 2281-2298. 566 Case No. ICTR-98-42-A 14 December 2015

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19799/H requested or that certain witnesses testified that they would be unable to identify him in court prevented the Trial Chamber from relying on their evidence. 3721 1624. With respect to Witness RE's misidentification in court of Ntahobali as Nteziryayo, the Appeals Chamber observes that the Trial Chamber considered this when assessing the witness's evidence implicating Ntahobali in attacks at the EER. 3722 It found that the misidentification did not undermine the reliability of her identification evidence in light of the "nearly nine years" that had passed since the attacks 3723 The Trial Chamber also found that Witness RE's evidence concerning the circumstances of her identification of Ntahobali on the Night of Three Attacks was corroborated by other witnesses3724 and the witness's ability to describe Ntahobali's familial link with Nyiramasuhuko 3725 Although a witness's failure to identify an accused in court can be a reason for declining to rely on the identification evidence of that witness,326 the Appeals Chamber recalls that the failure of courtroom identification does not necessarily destroy any case which might have been otherwise established in evidence. 3727 The Appeals Chamber considers that, in the present instance, Nahobali fails to show that Witness RE's in-court misidentification of Ntahobali prevented the Trial Chamber from relying on the witness's otherwise credible and corroborated identification evidence of Ntahobali during the Night of Three Attacks.

1625. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate any error concerning the absence of an identification parade, the absence of in-court identifications, or an incorrect in-court identification. (ii) Mid-May Attack and Last Half of May Attacks 1626. The Trial Chamber concluded that Ntahobali was present and participated in the Mid-May Attack based on Witness TA's identification evidence3728 When considering the basis of Witness TA's knowledge of Ntahobali, the Trial Chamber noted that she was not acquainted with Ntahobali prior to encountering him during the Mid-May Attack and only knew him by his given 3721 The Appeals Chamber assesses in greater detail below Ntahobali's contentions that the Trial Chamber erred in relying on identification evidence from Witnesses QBP, TA, and SD in relation to the Night of Three Attacks as they did not testify about this event. See infra, Section V.I.2(b)(iii)c. 3722 Trial Judgement, para. 3948. 3723 Trial Judgement, para.

3948. In the context of assessing Witness RE's ability to identify Nyiramasuhuko, the Trial Chamber also stated that Witness RE's misidentification of Nteziryayo as Ntahobali was not "probative". See ibid., fn.

7548. See also supra, Section IV.F.2(c)(iii)d. 3724 See, e.g., Trial Judgement, paras. 2663, 2664, 2668, 2672, 2674, 2675, 2680, 2681. 3725 See Witness RE, T. 25 February 2003 p. 47. 3726 See Lukié and Lukic Appeal Judgement, para.

503. See also Rukundo Appeal Judgement, para. 71; Limaj et al. Appeal Judgement, fn. 68, referring to Kvocka et al. Appeal Judgement, para.

473. Kvocka Appeal Judgement, paras. 473, 576. 3728 Trial Judgement, para. 2638. 567 Case No. ICTR-98-42-A 14 December 2015

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19798/H name, "Shalom" 3729 However, it observed that she learned he was "the son of Pauline Nyiramasuhuko, who was the Minister of Women's Affairs."3730 Consequently, the Trial Chamber was convinced that Witness TA was referring to Ntahobali throughout her testimony when she referred to "Shalom" 3731 1627. The Trial Chamber also considered the following circumstances as demonstrating the reliability of Witness TA's identification of Ntahobali during this specific event: (1) at times, there was some public lighting from lamp posts that reached the area from the other side of the road; (2) there was moonlight behind the [Butare Prefecture Office] where Witness TA said she was raped by Ntahobali; (3) Interahamwe used torches to search through the refugees; and (4) Witness TA provided significant details as to what Ntahobali was carrying, stated what he was wearing, and Ntahobali was in close proximity to Witness TA when he grabbed her hand and raped her. Further, she had also previously seen him in daylight. 3732 1628. As regard the First Attack of the Last Half of May Attacks, during which the Trial Chamber found that Ntahobali raped Witness TA, the Trial Chamber recalled that, by then, Witness TA had already seen Ntahobali and concluded that she was close enough to identify him because they were in "direct contact" 3733 When assessing Witness TA's evidence about the Second

Attack of the Last Half of May Attacks, the Trial Chamber similarly found her identification of Ntahobali reliable because, at that point, "Witness TA had already suffered the same treatment at the hands of Ntahobali" and was again in contact with him because he handed her over to a group of Interahamwe. 3734 1629. Ntahobali argues that the Trial Chamber erred in accepting Witness TA's identification evidence, partly because it relied on her in-court identification of Ntahobali after the Presiding Judge had identified him. 3735 Ntahobali further submits that no reasonable trier of fact could have relied on Witness TA's identification evidence, because she could not provide a credible physical 3729 Trial Judgement, para. 2633. 3730 Trial Judgement, para. 2633. 3731 Trial Judgement, para. 2633. 3732 Trial Judgement, para.

2638. See also ibid., para. 2630 ("Witness TA said Shalom and other Interahamwe raped her. [...] Shalom was wearing trousers and a shirt made of kitenge. Over the course of the events, Witness TA saw Shalom on more than eight occasions at the [Butare Prefecture Office]. Further, she stated that Shalom raped her on two occasions and took her by the arm to Interahamwe in order to be raped on multiple occasions. Therefore, Witness TA had numerous opportunities to view Shalom up close. Although the attacks at the [Butare Prefecture Office] occurred at night, Witness TA stated there was moonlight behind the [Butare Prefecture Office] on several of those occasions. In addition, there was occasionally some public lighting from the lamp posts that reached the area from the other side of the road near Chez Venant. [...] Of particular importance, Witness TA testified that she observed Shalom leading an Interahamwe training exercise one morning in June 1994. Therefore, she saw Shalom during broad daylight.") (internal references omitted). 3733 Trial Judgement, para. 2645. 3734 Trial Judgement, para. 2649. 3735 Ntahobali Notice of Appeal, paras. 252-254; Ntahobali Appeal Brief, para.

740. See also AT. 15 April 2015 p. 46. 568 Case No. ICTR-98-42-A 14 December 2015

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19797/H description of him and because she conceded that she did not dare to look at anyone in the face.3736 He also contends that the Trial Chamber failed to consider evidence from Witness TA and several other witnesses, which demonstrated that there was little or no lighting at the prefectoral office 3137 and very little moonlight at the time when the attacks occurred. 3738 He points to the evidence from Witness RE suggesting that, under these circumstances, it was even difficult to identify the uniforms of assailants, and argues that it would have been harder to recognise faces. 3739 Ntahobali adds that the Trial Chamber misstated Witness TA's testimony in paragraph 2628 of the Trial Judgement that the "truck's lights were illuminated" as the witness testified that the vehicle lights were switched off when it was parked 3740 1630. Ntahobali further submits that the Trial Chamber erred in finding that Witness TA observed Ntahobali during the day prior to the Mid-May Attack, as her evidence reflects that she saw Ntahobali training Interahamwe during the day in June 1994, while the latter were singing 3741 He also argues that this evidence is uncorroborated and contradicted by Witnesses FAP and RE who testified to having heard no singing throughout their stay at the prefectoral office, and should not have been used to bolster Witness TA's identifications of him during the

attacks, which occurred in May 1994.3742 Ntahobali concludes that, in light of the Trial Chamber's failure to consider the arguments above, the hearsay nature of Witness TA's uncorroborated identification, and the Trial Chamber's failure to consider the difficult circumstances in which she identified him, no reasonable trier of fact could have relied on Witness TA's testimony.3743 1631. The Prosecution responds that the Trial Chamber did not rely on Witness TA's in-court identification of Ntahobali, that Ntahobali misrepresents Witness TA's testimony, and that he otherwise fails to demonstrate that the Trial Chamber erred in its assessment of her identification evidence. 3744 3736 Ntahobali Appeal Brief, para. 740, referring to Witness TA, T. 6 November 2001 pp. 80-82. See also Ntahobali Reply Brief, para, 325, referring to Witness TA, T. 6 November 2001 pp. 90, 91. Ntahobali Appeal Brief, para.

740. Specifically, Ntahobali points to the testimony of Witness TA, who stated that the Butare Prefecture Office yard had no lighting and the evidence of Witnesses RE, SS, FAP, and SU, which, in his view demonstrates that there was no lighting at the Butare Prefecture Office. See idem, referring to Witness TA, T. 30 October 2001 pp. 109-113, Witness RE, T. 26 February 2003 pp. 20, 21, Witness SS, T. 4 March 2003 pp. 40-42, Witness FAP, T. 12 March 2003 pp. 16, 17, Witness SU, T. 17 October 2002 pp. 91, 92. 3738 Ntahobali Appeal Brief, para. 740. 3739 Ntahobali Appeal Brief, para. 740, referring to Witness RE, T. 26 February 2003 pp. 24, 25. 3740 Ntahobali Appeal Brief, para. 740. 3741 Ntahobali Appeal Brief, para. 740. 3742 Ntahobali Appeal Brief, para. 740. 3743 Ntahobali Appeal Brief, para.

740. See also AT. 15 April 2015 pp. 46, 47. Ntahobali also raises arguments that Witness TA's evidence is contradicted by that of Witnesses RE and QBP. See Ntahobali Appeal Brief, para.

740. These arguments, which pertain to the merits of Witness TA's testimony implicating Ntahobali in crimes at the Butare Prefecture Office rather than the witness's ability to identify Ntahobali are discussed below. See infra, Sections V.I.2(c)(iii), V.I.2(c)(iv). 3744 Prosecution Response Brief, para.

1112. See also AT. 16 April 2015 pp. 10, 11. 569 Case No. ICTR-98-42-A 14 December 2015

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19796/H 1632. The Appeals Chamber observes that, contrary to Ntahobali's submission that the Presiding Judge identified Ntahobali in court prior to Witness TA's identification, the Presiding Judge simply identified counsel for Ntahobali 3745 Furthermore, Witness TA was asked to identify Ntahobali in court four days after this incident.3746 Ntahobali does not demonstrate how the conduct of the Presiding Judge corrupted the subsequent in-court identification process, to which Ntahobali did not object when it occurred. In addition, the Appeals Chamber notes that the Trial Chamber simply recalled that Witness TA identified Ntahobali in court but that this aspect of her evidence was not material to its assessment of the witness's identification evidence. 3747 1633. The Appeals Chamber also finds that Ntahobali's undeveloped contention that the Trial Chamber erred in accepting Witness TA's identification evidence because she could not provide a credible physical description of him ignores that Witness TA described Ntahobali when asked to do so 3748 Witness TA also described what he wore and carried, which the Trial Chamber referred to and found reliable.3749 While Ntahobali points to an excerpt of Witness TA's testimony that she could not look at anyone in the face, this portion of her evidence arose when she was being asked if she knew who the prefect of Butare was at the end of April 1994.3750 This statement does not demonstrate that the Trial Chamber's reliance on Witness TA's identification of Ntahobali was unreasonable given that it was elicited for purposes other than establishing how she was able to identify Ntahobali.

1634. With respect to Ntahobali's claim that the Trial Chamber failed to consider evidence that there was insufficient lighting at the prefectoral office, the Appeals Chamber again recalls that the Trial Chamber relied on Witness TA's ability to identify Ntahobali based, in part, on Witness TA's evidence that "at times, there was some public lighting from lamp posts that reached the area from the other side of the road", "there was moonlight behind the [Butare Prefecture Office]", and "Interahanwe used torches to search through the refugees" 3751 1635. Ntahobali's argument that the Trial Chamber erred in not considering other evidence that there was no lighting at the prefectoral office fails to undermine the Trial Chamber's finding that "at times, there was some public lighting from lamp posts that reached the area from the other side 3745 Witness TA, T. 25 October 2001 p. 70 ("So, if you want to pursue it, the observation made by learned counsel for Ntahobali are [sic] valid."). 3746 See Witness TA. T. 29 October 2001 pp. 102-104. 3747 See Trial Judgement, paras. 2193, 2638, 2645, 2649. 3748 Witness TA, T. 31 October 2001 pp. 37, 38. 3749 Trial Judgement, paras. 2630, 2634, 2638. 3750 See Witness TA, T. 6 November 2001 p. 81. 3751 Trial Judgement, para.

2638. See also ibid., para. 2630. 570 Case No. ICTR-98-42-A 14 December 2015

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19795/H of the road" 3752 Ntahobali simply refers to disparate observations from witnesses at the prefectoral office that do not demonstrate that their observations coincide with times when Witness TA was raped by Ntahobali or handed over by him to be raped by others, 13 and which are not necessarily incompatible with Witness TA's own evidence that no light came from the prefectoral office375* but that there was some public lighting that came from the direction of the town. 3755 1636. Similarly, Ntahobali's references to evidence that the attacks on Witness TA occurred during the rainy scason3756 is not incompatible with the Trial Chamber's conclusion that there was moonlight behind the prefectoral office when Witness TA said she was raped by Ntahobali. 3757 Ntahobali also fails to demonstrate how Witness RE's evidence is incompatible with Witness TA's evidence that she could identify Ntahobali. Indeed, the evidence of Witness RE reflects that torchlight enabled her to identify Ntahobali and allowed her to specify that the uniforms used were military uniforms, 3758 undermining Ntahobali's assertion that "if it was hard to make out uniforms, it was obviously even harder to make out faces.'3759 3752 Trial Judgement, para.

2638. Ntahobali challenges the Trial Chamber's use of the phrase "at times" with respect to the lighting, arguing that the Kinyarwanda recording of Witness TA's testimony reflects that she only saw lighting on one occasion and did not link it to the night she was attacked and argues that this differs from the transcripts. See Ntahobali Appeal Brief, para. 740, referring to Witness TA, T. 8 November 2001 pp. 23, 24. Ntahobali's contentions ignore that the question concerning the lighting was asked in the context of the first time the witness saw Ntahobali. See Witness TA, T. 8 November 2001 p.

23. The Appeals Chamber considers that it was therefore reasonable for the Trial Chamber to consider this evidence in the context of this attack and finds no material significance in the purported distinction raised by Ntahobali. See Ntahobali Appeal Brief, para. 740, referring, inter alia, to Witness FAP, T. 12 March 2003 p. 16, Witness RE, T. 26 February 2003 pp. 20, 21, Witness SS, T. 4 March 2003 p. 41, Witness SU, T. 17 October 2002 p. 91. 3754 Witness TA, T. 30 October 2001 pp. 110-113. Ntahobali also appears to argue that the Trial Chamber failed to acknowledge that Witness TA testified that there was no light at the Butare Prefecture Office. See Ntahobali Appeal Brief, para.

740. However, the Trial Chamber's conclusions accurately reflect Witness TA's evidence that light came from sources other than the Butare Prefecture Office. See Trial Judgement, paras. 2630, 2638. Ntahobali fails to demonstrate how the Trial Chamber erred in its analysis and the Appeals Chamber dismisses this contention without 3755 Witness TA, T. 30 October 2001 pp. 109, 110. 3756 See Ntahobali Appeal Brief, para.

740. See Trial Judgement, para.

2638. See also Witness TA, T. 30 October 2001 pp. 107, 109. The Appeals Chamber observes that Ntahobali also points to an annex of his appeal brief that contains a lunar calendar, which was part of his closing brief at trial and indicates that only nine to 24 percent of the moon was visible in Rwanda in mid-May 1994. See Ntahobali Appeal Brief, para. 740, referring to Annex F. The Prosecution responds that Annex F is not part of the record. See Prosecution Response Brief, fn.

2880. Ntahobali appears to suggest that, because Annex F contains facts of common knowledge, its contents are judicially noticed. See Ntahobali Appeal Brief, para. 740, referring to Annex F. However, Ntahobali makes no showing that what is contained in Annex F meets the requirements for judicial notice under Rule 94 of the Rules. Moreover, the Appeals Chamber recalls that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence. See Prosecutor v. Blagoje Simic, Case No. IT-95-9-A, Decision on Blagoje Simié's Motion for Admission of Additional Evidence, Alternatively for Taking of Judicial Notice, 1 June 2006, para.

26. Annex F does not constitute evidence in the trial record and Ntahobali has not sought to admit it under Rule 115 of the Rules as additional evidence on appeal. This contention is therefore dismissed. 3758 Witness RE, T. 26 February 2003 pp. 21, 22 ("Q. Madam Witness, is it correct to say that at the [Butare Prefecture Office] there was no light at night? A. No there was no light. Q. And when you say that a person — those persons you referred to as Shalom and Kazungu came to the [Butare Prefecture Office], how are you able to say that the one you referred to as the driver was Shalom? A. They came at night and I saw them. I saw them when they were waking up people, shining the torch into their faces."), 25 ("A. Yes, I did say that I know the uniforms worn by our soldiers, but 571 Case No. ICTR-98-42-A 14 December 2015

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19794/H 1637. As to Ntahobali's contentions concerning the Trial Chamber's statement that Witness TA testified that the "truck's lights were illuminated" during the Mid-May Attack, the Appeals Chamber observes that the reference to the witness's testimony provided by the Trial Chamber does not support this statement. 3760 Witness TA testified that the vehicle's lights were switched off when it was parked at the prefectoral office and turned on only when it was moving3761 However, the Trial Chamber did not determine that Witness TA was capable of identifying Ntahobali based on lighting from this truck. 3762 The Appeals Chamber therefore finds that this error has not occasioned a miscarriage of justice.

1638. The Appeals Chamber observes that all of Ntahobali's arguments concerning the Trial Chamber's failure to consider evidence demonstrating the absence of lighting at the Butare Prefecture Office ignore the central aspects of Witness TA's evidence, which gave credence to her identification of Ntahobali and which the Trial Chamber accepted. As recalled above, the Trial Chamber's reliance on Witness TA's identification evidence was, in part, based on the witness's extended and direct physical contact with Ntahobali when he raped her and when he handed her over to be raped by others.3763 Moreover, the Appeals Chamber observes that the Trial Chamber found that Ntahobali raped Witness TA behind the prefectoral office buildings in the direction of the ORINFOR. 3764 Nahobali fails to demonstrate how the evidence he points to concerning the absence of light on the premises of the prefectoral office would have made it unreasonable for the Trial Chamber to rely on Witness TA's evidence identifying him.

1639. With respect to Ntahobali's submission that the Trial Chamber erroneously found that Witness TA had seen Ntahobali during the day prior to seeing him during the Mid-May Attack,3765 the Appeals Chamber observes that Witness TA's testimony, as cited by the Trial Chamber, reflects that the Mid-May Attack was the first occasion on which she saw Ntahobali 3766 The only reference provided by the Trial Chamber of Witness TA seeing Ntahobali during the day is when she observed Ntahobali leading an Interahamwe training exercise one morning in June 1994.3767 Consequently, the Trial Chamber erred in paragraph 2638 of the Trial Judgement when stating that I am saying that when they came it was night and I could not distinguish the uniform. And even when they were shining their torch I could not see, but I can confirm that it was a military uniform."). 3759 Ntahobali Appeal Brief, para. 740. 3760 Trial Judgement, para. 2628, referring to Witness TA, T. 8 November 2001 p. 13. 3761 Witness TA, T. 8 November 2001 p. 25. 3762 Trial Judgement, para. 2638. 3763 See Trial Judgement, para.

2638. See also ibid., paras. 2631, 2645, 2648, 2770. 3764 Trial Judgement, paras. 2631, 2645. 3765 Trial Judgement, para. 2638. 3766 Trial Judgement, para. 2178. 3767 Trial Judgement, paras. 2189, 2630, referring to Witness TA, T. 29 October 2001 pp. 29, 30, 32, 40, 41. See, in particular, Witness TA, T. 29 October 2001 p. 32 ("Q. Do you recollect during what month you saw this? A. I recall that it was in June."). 572 Case No. ICTR-98-42-A 14 December 2015

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19793/H she had "seen him in daylight" prior to the Mid-May Attack as there is no evidence supporting this conclusion 3768 Nonetheless, the Appeals Chamber is not persuaded that this error renders the Trial Chamber's reliance on Witness TA's identification of Ntahobali unreasonable given the other factors that the Trial Chamber relied on to bolster the credibility and reliability of Witness TA's identification of Ntahobali, including that "Ntahobali was in close proximity to Witness TA when he grabbed her hand and raped her.*3769 1640. The Appeals Chamber is equally unconvinced by Ntahobali's contention that the Trial Chamber erred in relying on Witness TA's evidence that she saw Ntahobali leading an Interahamwe training exercise one morning in June 1994 because it was uncorroborated and contradicted. 3770 The Appeals Chamber recalls that corroboration is not a requirement and that a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony 3771 Having reviewed the evidence of Witnesses RE and FAP pointed out by Ntahobali, the Appeals Chamber does not consider that it is necessarily incompatible with Witness TA's evidence, as the excerpts cited fail to show that either Witness RE or Witness FAP were in a similar position as Witness TA when she testified to having observed this event. 3772 1641. Finally, the Appeals Chamber recalls

that a reasonable trier of fact could have relied on Witness TA's identification evidence despite the fact that her knowledge of Ntahobali was hearsay and uncorroborated. 3773 The Trial Chamber's assessment of Witness TA's testimony reflects that the Trial Chamber was fully apprised of and carefully considered the circumstances in which Witness TA identified Ntahobali.3774 Ntahobali's unsupported argument that the Trial Chamber failed to exercise sufficient caution does not demonstrate that it erred in its approach 3775 1642. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in finding that Witness TA testified that the "truck's lights were illuminated" in paragraph 2628 of the Trial Judgement and in stating that Witness TA had observed Ntahobali during the day prior to the Mid-May Attack. However, the Appeals Chamber concludes that these errors have not occasioned a 3768 Trial Judgement, para. 2638. 3769 Trial Judgement, para. 2638. 3770 Ntahobali Appeal Brief, para. 740. 3771 See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimung Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 3772 See Witness FAP, T. 13 March 2003 p. 37; Witness RE, T. 26 February 2003 p. 35. 3773 See supra, paras. 1616, 1640. 3774 See Trial Judgement, paras. 2638, 2644, 2645. 3775 Ntahobali also contends that the Trial Chamber unreasonably failed to address the generic nature of the Prosecution vitnesses' description of him, which he argues is similar to that of thousands of Rwandan men. See Ntahobali Appea 3rief, para.

748. This general contention is unsupported and fails to demonstrate that no reasonable trier of fact coul have relied on Prosecution identification evidence. Indeed, as noted by the Trial Chamber, the Defence evidence 573 Case No. ICTR-98-42-A 14 December 2015

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19792/H miscarriage of justice given the other factors relied upon by the Trial Chamber to find that Witness TA's identification of Ntahobali was credible and reliable. Consequently, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that he was present at the Butare Prefecture Office during the Mid-May Attack and the Last Half of May Attacks based on Witness TA's identification evidence. (iii) Night of Three Attacks 1643. When assessing whether Ntahobali was present and involved in the Night of Three Attacks, the Trial Chamber found Witness TK's testimony "particularly convincing" as to the events of that evening. 3776 It further considered Witness TK's evidence, in conjunction with the testimonies of Witnesses TA, QJ, QBQ, QBP, RE, FAP, SD, SJ, SS, and QY, that Ntahobali arrived at the Butare Prefecture Office in a pickup truck and that several of these witnesses described Ntahobali as driving it.3777 1644. The Trial Chamber also found that Witness TK, who did not know Ntahobali prior to this evening, was able to identify him based on overhearing a conversation Ntahobali had with Mbasha's wife, which was followed by Ntahobali abducting her and her children 3778 The Trial Chamber considered that Witnesses QJ, SJ, RE, and WKKTD corroborated some of the "details of the conversation between Mbasha's wife and Ntahobali"

3779 Specifically, the Trial Chamber found that Witnesses SJ and RE "corroborated the occurrence of the conversation between Ntahobali and a woman who was seated on the veranda."3780 It further found that Witness QJ "corroborated the occurrence of the abduction"3781 and that this witness and Witness WKKTD testified that Mbasha's wife worked at a pharmacy, "lending credence to the veracity of Witness TK's account that Mbasha's wife said she knew Ntahobali because he was sent to the pharmacy to buy drugs. 3782 The Trial Chamber concluded that, "based upon the consistency and corroboration of the substantive evidence, [...] Ntahobali was in fact present at the [Butare Prefecture Office] during the [Night of Three Attacks].*3783 1645. Ntahobali submits that the Trial Chamber erred in its assessment of Witness TK's identification evidence generally and in relying on Witness SJ in light of its conclusion that it would reflects that Ntahobali had "an average physical appearance". See Trial Judgement, para. 3012, referring to Witness WUNBJ, T. 5 April 2006 p. 38 (closed session). 3776 Trial Judgement, para. 2662. 3777 Trial Judgement, paras. 2662-2664. 3778 Trial Judgement, paras. 2667, 2668, 2680. 3779 Trial Judgement, para. 2672. 3780 Trial Judgement, para.

2673. See also ibid., para. 2674. 3781 Trial Judgement, para. 2675. 3782 Trial Judgement, para.

2675. See also ibid., para. 2680. 574 Case No. ICTR-98-42-A 14 December 2015

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19791/H not rely on that witness's testimony in relation to the abduction of Mbasha's wife.3784 He further submits that the Trial Chamber erred in accepting the evidence of Witnesses TK, QJ, RE, and SJ concerning the conversation between Ntahobali and Mbasha's wife and the ensuing abduction of her and her children during the Night of Three Attacks 3785 Ntahobali similarly argues that the Trial Chamber erred in accepting the identification evidence of Witnesses QY, TA, SD, FAP, and QBQ, who the Trial Chamber found corroborated Witness TK's testimony that Ntahobali drove the pickup truck used during the Night of Three Attacks.3786 The Appeals Chamber will address these arguments in turn. a. Witnesses TK and SJ i. Witness TK 1646. As noted above, the Trial Chamber found Witness TK's evidence "particularly convincing" as to the events of the Night of Three Attacks 3787 Its deliberations on the evidence concerning Ntahobali's presence at the Butare Prefecture Office demonstrate the witness's central importance to its conclusion that Ntahobali was present during these attacks. 3788 1647. Ntahobali argues that the Trial Chamber erred in according weight to Witness TK's in-court identification of him. 3789 Ntahobali contends that the Trial Chamber also erred in relying on the fact that Witness TK identified him on the basis of a conversation with Mbasha's wife during which

he acknowledged his identity to Mbasha's wife, given that Witness TK did not provide evidence to this effect.3790 Ntahobali adds that the Trial Chamber erred in failing to consider that Witness TK: (i) admitted that she "was not really looking at" him but "only darted glances at him" and that he was surrounded by people; (ii) testified that she covered herself with "some clothing" on the Night of Three Attacks so as not to expose herself, which explained why she could not provide a "detailed description" of him; (iii) refused to say whether she needed glasses or not; and (iv) testified to having seen him during the day on one occasion only and without paying attention if he was in fact 3783 Trial Judgement, para. 2682. 3784 Ntahobali Appeal Brief, paras. 722, 737. 3785 Ntahobali Notice of Appeal, paras. 245-247; Ntahobali Appeal Brief, paras. 721-727. 3786 Ntahobali Notice of Appeal, paras. 245, 246; Ntahobali Appeal Brief, paras. 733-744. 3787 Trial Judgement, para. 2662. 3788 Trial Judgement, paras. 2662-2682. 3789 Ntahobali Appeal Brief, para. 737, referring to Trial Judgement, para. 2223. 3790 Ntahobali Appeal Brief, para. 722, referring to Trial Judgement, paras. 2667, 2668, 2680. See also Ntahobali Reply Brief, para. 318. 575 Case No. ICTR-98-42-A 14 December 2015

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19790/H there that day.3791 According to Ntahobali, Witness TK's evidence should have been treated with caution under the particular circumstances of her identification.3792 1648. The Prosecution responds that Ntahobali's assertion that Witness TK did not testify that Ntahobali acknowledged his identity to Mbasha's wife is based on a misstatement of the Trial Chamber's conclusion that Ntahobali "acknowledged his own identity" during the conversation 3793 It further argues that the Trial Chamber reasonably relied on Witness TK's identification evidence despite her near-sightedness and highlights that the witness clarified that at the time she could in fact see Ntahobali. 3794 1649. The Appeals Chamber notes that, in support of his contention that the Trial Chamber erred in relying on Witness TK's in-court identification of him, Ntahobali only cites to the Trial Chamber's summary of this aspect of the witness's evidence. 3795 However, the Trial Chamber's express assessment of Witness TK's evidence placing Ntahobali at the prefectoral office on the Night of Three Attacks in fact contains no reference to the witness's in-court identification of Ntahobali. 3796 Ntahobali's contention in this respect is therefore dismissed.

1650. As suggested by Ntahobali, the Trial Judgement could give the impression that Witness TK testified that Ntahobali expressly acknowledged Mbasha's wife's identification of him. 3797 However, the Appeals Chamber notes that such a conclusion is not supported by the Trial Chamber's prior summaries of Witness TK's testimony or a review of the evidence cited by it. 3798 Witness TK's evidence, as summarised by the Trial Chamber, nonetheless reflects that when Ntahobali asked Mbasha's wife if she knew him and she responded that he was "Shalom" whose mother was "Pauline", he did not reject her response and continued to speak with her.3799 Her evidence does not reflect that Ntahobali rejected this identification of him - suggesting that he tacitly acknowledged it - and the Appeals Chamber considers that, in any event, any error in the Trial Chamber's reflection of her evidence would not result in a miscarriage of justice. 3791 Ntahobali Appeal Brief, para. 737, referring to Witness TK, T. 22 May 2002 pp. 51, 52, T. 23 May 2002 88, 89, 91-97, T. 27 May 2002 pp. 40-42. Pfiz Ntahobali Appeal Brief, para, 737. Ntahobali further contends that Witness TK's account of him as a killer trying to convince Mbasha's wife to leave with him, his subsequent assault of her, and that she was undressed and seated in the front cabin of the vehicle is implausible. See ibid., para.

722. The Appeals Chamber dismisses this contention, which only reflects Ntahobali's unsubstantiated opinion. 3793 Prosecution Response Brief, para. 1106. 3794 Prosecution Response Brief, para. 1110, referring to Witness TK, T. 23 May 2002 pp. 93, 94. 3795 Ntahobali Appeal Brief, para. 737, referring to Trial Judgement, para. 2223. 3796 Trial Judgement, paras. 2667-2671, 2680, 2681. 3797 Trial Judgement, para. 2680 ("In this case, the Chamber finds the hearsay identification of Ntahobali to be reliable. Witness TK heard Mbasha's wife identify Ntahobali, stating she knew Ntahobali when he came to the pharmacy where she worked in response to which Ntahobali acknowledged his own identity.") (emphasis added). 3798 See Trial Judgement, paras. 2213, 2668. 3799 See Witness TK, T. 20 May 2002 pp. 76, 77, 81-83; Trial Judgement, paras. 2213, 2668. 576 Case No. ICTR-98-42-A 14 December 2015

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19789/H 1651. Similarly, the Appeals Chamber finds that Ntahobali does not demonstrate that the Trial Chamber erred in failing to consider the specific excerpts of Witness TK's testimony concerning the circumstances under which she saw Ntahobali during the Night of Three Attacks or during the day. As evinced by the Prosecution's response, Ntahobali takes aspects of Witness TK's evidence out of context and ignores that the witness maintained that she looked at Ntahobali during the Night of Three Attacks and provided a physical description of him.3800 The Appeals Chamber considers that it was within the Trial Chamber's discretion to rely on Witness TK's identification evidence, notwithstanding her concessions that she did not stare at him.380l Furthermore, the Appeals Chamber finds that Trial Chamber cautiously considered the circumstances concerning Witness TK's ability to observe Ntahobali on this evening. Specifically, it concluded that she was close enough to identify Ntahobali during the Night of Three Attacks without glasses on the basis of her testimony that her near-sightedness was not so bad that she could not identify people in the courtroom without glasses, and her explanation that she was at the front of the prefectoral office and could see everything the Interahamwe were doing. 3802 1652. With respect to Ntahobali's contention that the Trial Chamber erred when

considering that Witness TK testified that she saw Ntahobali "during the day on a few occasions" 3803 the Appeals Chamber observes that, in contrast with Ntahobali's assertions, a review of Witness TK's testimony indicates that she testified that Ntahobali "could occasionally be seen" at the prefectoral office during the day in addition to during the evenings when the attacks occurred 3804 Ntahobali's argument that Witness TK did not pay attention if Ntahobali was at the prefectoral office stems from a reading of the witness's testimony taken out of context and is without merit. 3805 1653. The Appeals Chamber therefore dismisses Ntahobali's arguments in these respects. ii. Witness SJ 1654. When assessing evidence of Ntahobali's presence during the Night of Three Attacks, the Trial Chamber considered that Witness SI's evidence corroborated "some of the details" of Witness TK's evidence concerning the "occurrence" of the conversation between Mbasha's wife and Ntahobali, 3806 In a later section of the Trial Judgement specifically concerning the abduction of Mbasha's wife, the Trial Chamber further found that "Witness SJ corroborated Witness TK's 3800 See Witness TK, T. 23 May 2002 pp. 93-95. 3801 See Witness TK, T. 23 May 2002 pp. 93-97. 3802 Trial Judgement, para. 2669. 3803 Trial Judgement, para. 2676, referring to Witness TK, T. 23 May 2002 pp. 89, 90. 3804 Witness TK, T. 23 May 2002 pp. 89, 90. 3805 See Witness TK, T. 23 May 2002 p. 89, referred to in Ntahobali Appeal Brief, para. 737. 3806 Trial Judgement, para.

2673. See also ibid., para. 2672. 577 Case No. ICTR-98-42-A 14 December 2015

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19788/H testimony that Ntahobali took the woman and her children in the vehicle and drove away with them."3807 However, the Trial Chamber, observing that Witness SJ admitted during her recall testimony in 2009 that she "had not told the truth in her original testimony" when denying knowing Witnesses TK, TA, and QJ upon the instructions of a Prosecution translator, did "not accept Witness SI's testimony as to this event.*3808 1655. Ntahobali argues that the Trial Chamber unreasonably relied on Witness SJ's testimony to corroborate the conversation between Mbasha's wife and Ntahobali to establish that he was at the prefectoral office during the Night of Three attacks when it subsequently rejected the witness's inextricably linked testimony concerning Mbasha's wife's abduction. 3809 1656. The Prosecution responds that Ntahobali fails to demonstrate how the Trial Chamber's reliance on Witness SI's evidence to corroborate the "occurrence" of the conversation between Ntahobali and Mbasha's wife was unreasonable when the Trial Chamber only held that it did "not accept" Witness SI's testimony with respect to proving the abduction of Mbasha's wife, for which it relied on Witnesses TK and QJ.3810 1657. The Appeals Chamber recalls its settled jurisprudence that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony. 3811 However, the

Appeals Chamber notes that the Trial Chamber rejected Witness SJ's evidence "as to this event", i.e. with respect to the abduction of the Mbasha family, because she had falsely denied knowing Witnesses TK, TA, and QJ.3812 The Appeals Chamber therefore finds that no reasonable trier of fact could have, on the ground articulated by the Trial Chamber, on one hand, rejected Witness SJ's evidence as to the abduction of Mbasha's wife and children, which corroborated that of Witnesses TK and QJ,3813 but, on the other hand, relied on the witness's evidence concerning the conversation between Ntahobali and Mbasha's wife that immediately preceded the abduction as corroborative of Witness TK's evidence. Witness SJ's evidence concerning the conversation between Ntahobali and Mbasha's wife was inextricably linked to her evidence about the abduction and also corroborated the same witness that Witness SJ had denied knowing. Accordingly, the 3807 Trial Judgement, para. 2721. 3808 Trial Judgement, para. 2723. 3809 Ntahobali Appeal Brief, paras. 725, 746, referring to Trial Judgement, paras. 2672, 2673, 2676. See also AT. 16 April 2015 p.

34. Ntahobali further contends that Witness SJ's identification evidence is not credible. 23, 2 order no rad See Ntahobali Appeal Brief, para. 725; AT. 16 April 2015 pp. 34, 35. 3810 Prosecution Response Brief, para. 1102, referring to Trial Judgement, paras. 2673, 2717, 2718, 2721, 2723. 3811 See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 3812 Trial Judgement, para. 2723. 3813 The Appeals Chamber observes that all three witnesses - Witnesses TA, TK, and QJ - testified about attacks at the Butare Prefecture Office and two of them - Witnesses TK and QJ - were relied upon by the Trial Chamber to find that Ntahobali abducted Mbasha's wife and children. See Trial Judgement, paras. 2717-2727. 578 Case No. ICTR-98-42-A 14 December 2015

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19787/H Appeals Chamber finds that the Trial Chamber erred in relying on Witness SJ's evidence to corroborate Witness TK's evidence identifying Ntahobali as speaking with and abducting Mbasha's wite during the Night of Three Attacks 3814 The Appeals Chamber will assess the impact of this error, if any, after having reviewed all of Ntahobali's challenges concerning the evidence identifying him in relation to the conversation with and the abduction of Mbasha's wife. b. Abduction of Mbasha's Wife and Children 1658. When assessing evidence identifying Ntahobali as being present during the Night of Three Attacks, the Trial Chamber detailed Witness TK's account of a conversation between Ntahobali and Mbasha's wife, where Mbasha's wife identified Ntahobali as Nyiramasuhuko's son, who, in the past, had been sent to the pharmacy by his mother. 3815 The Trial Chamber subsequently relied on this aspect of the witness's testimony when finding that Ntahobali was present during the Night of Three Attacks3816 In so doing, the Trial Chamber considered that Witnesses SJ and RE "corroborated the occurrence of the conversation between Ntahobali and a woman who was seated on the veranda.*3817 The Trial Chamber further found that Witness QJ "corroborated the occurrence of the abduction" of Mbasha's wife," 3818 and that this witness and Defence Witness WKKTD testified that Mbasha's wife worked at a

pharmacy, "lending credence to the veracity of Witness TK's account that Mbasha's wife said she knew Ntahobali because he was sent to the pharmacy to buy drugs. *3819 1659. Ntahobali submits that the Trial Chamber erred as it failed to consider the following inconsistencies among the evidence of Witnesses TK, RE, QJ, and SJ concerning Ntahobali's conversation with Mbasha's wife and her subsequent abduction:3820 (i) Witnesses TK and RE were close enough to hear the conversation between Mbasha's wife yet, unlike Witness TK, Witness RE did not testify that Ntahobali asked Mbasha's wife if she knew him, or that the conversation included reference to the family connection between Ntahobali and Nyiramasuhuko,3821 (ii) Witness QJ did not testify about a conversation between Mbasha's wife and Ntahobali or about 3814 The Appeals Chamber finds it unnecessary to consider the remainder of Ntahobali's challenges as they relate to the reliability and credibility of Witness SJ's evidence identifying him during the Night of Three Attacks. See Ntahobali Appeal Brief, paras. 725, 736. Trial Judgement, para. 2668. 3816 See Trial Judgement, paras. 2680, 2682. 3817 Trial Judgement, para.

2673. See also ibid., para. 2674. 3818 Trial Judgement, para. 2675. 3819 Trial Judgement, para.

2675. See also ibid., para. 2680. 3820 Ntahobali Appeal Brief, paras. 680-684, 690, 722, 723. See also Ntahobali Notice of Appeal, paras. 245, 246; tahobali Supplementary Submissions, para. 25 (arguing that it would be unreasonable to rely on uncorroborate spects of Witness TK's evidence given that all the witnesses who testified about the abduction of Mbasha's wife an children were either on the veranda or very close to it). 3821 Ntahobali Appeal Brief, para. 724, Annex E. See also Ntahobali Reply Brief, paras. 313, 314; AT 16 April 2015 p. 35. 579 Case No. ICTR-98-42-A 14 December 2015

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19786/H Nahobali's presence during the event, even though the Trial Chamber found that he was on the veranda with them when this conversation occurred;3822 (iii) Witness TK testified that Mbasha's wife was assaulted and was stripped before being taken away, whereas Witnesses QJ and RE said she was not undressed and Witness RE testified that she was taken away peacefully;3823 (iv) Witness TK testified that Mbasha's wife was taken away in the front cabin of the vehicle whereas Witness QJ testified that Mbasha's wife and her children boarded the back of the vehicle 3824 (v) Witness RE testified that she assumed Nyiramasuhuko was sitting in the vehicle, whereas Witness TK testified that Nyiramasuhuko was near the vehicle;382 (vi) Witness QJ testified that the event occurred in broad daylight where Witness TK specified that it occurred at night; 3826 and (vii) Witness TK described Ntahobali as wearing a long black coat and carrying a sword, whereas Witnesses RE and SJ referred to military fatigues and a gun. 827 Ntahobali further contends that it is implausible for Witnesses QJ, SJ, and RE "to testify about this event" when none of them mentioned it in their prior statements.3828 1660. The Prosecution responds that the inconsistencies identified by Ntahobali are misstatements of the relevant evidence or immaterial to the Trial Chamber's analysis. 3829 It submits that Ntahobali fails to demonstrate that the Trial Chamber erred in its assessment of the evidence, which the Trial 3830 Chamber found to be corroborative. Ntahobali Notice of Appeal, para. 247; Ntahobali Appeal Brief, para.

724. See also Ntahobali Reply Brief, para. 316, referring to Trial Judgement, para. 2676; AT. 16 April 2015 p. 34 3823 Ntahobali Appeal Brief, paras. 683, 690, 724. See also ibid., Annex C, Nos. 7, 8; AT. 16 April 2015 p. 35. 3824 Ntahobali Appeal Brief, paras. 683, 690, 724. See also ibid., Annex C, No.

11. Without support, Ntahobali contends that Witness RE testified that Mbasha's wife was taken away in the "front cabin" of the vehicle. See ibid., para.

724. However, in Annex C to his appeal brief, he points to evidence demonstrating that Witness RE did not know where Mbasha's wife and her children were placed on the vehicle. See ibid., Annex C, No. 11, referring to Witness RE, T. 26 February 2003 p. 34 (French). The Appeals Chamber will not consider Ntahobali's contradictory submissions Ntahobali Appeal Brief, para. 724, referring to Witness, RE, T. 24 February 2003 p. 19, Witness TK, T. 20 May 2002 p.

86. Ntahobali appears to argue that the Trial Chamber also failed to consider that Witness TK's evidence was internally inconsistent as well because the witness's prior statement indicates that Nyiramasuhuko walked around the refugees. See ibid., para. 724, referring to Exhibit D44 (Witness TK's November 1996 Statement). Ntahobali does not identify any material difference and this contention is dismissed without further consideration. 3626 Ntahobali Appeal Brief, paras. 682, 724, 738. See also ibid., Annex C, No.

4. Ntahobali argues that the Trial Chamber's failure to address contradictory evidence about whether the event occurred during the night or day is critical as this would impact the witnesses' abilities to see Ntahobali. See ibid., paras. 724, 738. 3827 Ntahobali Appeal Brief, paras. 690, 724. See also ibid., para. 737. 3828 Ntahobali Appeal Brief, para.

726. See also ibid., para. 691. 3829 Prosecution Response Brief, paras. 1101, 1103, 1105, 1106. 3830 Prosecution Response Brief, paras. 1103, 1104, 1107. The Prosecution argues that Ntahobali's uncited contentions in paragraph 724 of his appeal brief as well as his blanket references to the annexes referred to in paragraphs 723 and 727 of his appeal brief should be summarily dismissed as they, inter alia, fail to provide exact references to the parts of the trial record supporting the argument. See ibid., paras. 1101, 1104. Ntahobali replies that the uncited contentions found in paragraph 724 of his appeal brief are supported with references in Annexes C, D, and E attached to it. See Ntahobali Reply Brief, para.

314. The Appeals Chamber will consider the references provided in the annexes to the extent they support precise arguments fully articulated in the Ntahobali Appeal Brief. In this respect, the Appeals Chamber dismisses the non-particularised arguments in paragraphs 723 and 727 of the Ntahobali Appeal Brief. However, as paragraph 724 identifies arguments as well as their significance, the Appeals Chamber will refer to the relevant annexes, which provide supporting references to the record. 580 Case No. ICTR-98-42-A 14 December 2015

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19785/H 1661. The Appeals Chamber observes that the Trial Judgement does not reflect express consideration of the purported inconsistencies raised by Ntahobali, some of which were covered during the examination of the witnesses.831 However, the Appeals Chamber recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence, 3832 without explaining its decision in every detail. 3833 Corroboration may exist even when some details differ between testimonies; provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony. 3834 1662. As regards purported inconsistencies between the testimonies of Witnesses TK, RE, and QJ concerning the substance and occurrence of a conversation between Ntahobali and Mbasha's wife, the Appeals Chamber finds that the differences identified by Ntahobali are not material and did not require express consideration by the Trial Chamber. Specifically, while Ntahobali emphasises that Witness RE, unlike Witness TK, did not testify to hearing Mbasha's wife identify Ntahobali or make any familial connection between him and Nyiramasuhuko as testified to by Witness TK, the Appeals Chamber,

having reviewed the testimonies cited by Ntahobali and the Trial Chamber, 3835 recalls its previous determination that the evidence of Witnesses TK and RE is consistent as to the manner in which Ntahobali sought to induce Mbasha's wife to leave the Butare Prefecture Office and that the Trial Chamber's summary of their accounts reflects this consistency. 3836 The Appeals Chamber further recalls that it has also addressed and dismissed challenges that the evidence of Witness QJ was incompatible with that of Witnesses TK and RE concerning this event because Witness QJ did not testify about the conversation between Mbasha's wife and Ntahobali or identify Ntahobali as present during the Night of Three Attacks.3837 Ntahobali 3831 See Witness RE, T. 25 February 2003 pp. 47, 48, T. 26 February 2003 pp. 22, 31, 32; Witness QJ, T. 12 November 2001 pp. 71-81, 93 (closed session); Witness SJ, T. 3 June 2002 pp. 40, 41. 3832 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Hategekimana Appeal Judgement, para. 82; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 207. 3833 See, e.g., Nizeyimana Appeal Judgement, para. 223; Rukundo Appeal Judgement, para. 81; Karera Appeal Judgement, para. 174; Kvocka et al. Appeal Judgement, para.

23. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Setako Appeal Judgement, para. 31; Hate gekimana Appeal Judgement, para. 82; Nahimana et al. Appeal Judgement, para. 428. pp. 76, 77, 81, 83, 86, Witness RE, T. 24 February 2003 p. 19, T. 25 February 2003 pp. 46, 47, T. 26 February 2003 p. 30, 31. See also ibid., paras. 2668, 2674, 2717, 2719. • See supra, Section IV.F.2(e)(iii)b 3837 See supra, Section IV.F.2(e)(iii)b. Ntahobali further contends that the Trial Chamber erred in stating in paragraphs 2672 and 2680 of the Trial Judgement, respectively, that Witness QJ "corroborated some of the details of the conversation between Mbasha's wife and Ntahobali" and that the witness had "an adequate basis upon which to identify Ntahobali". See Ntahobali Appeal Brief, para.

738. These uncited statements give the impression that the Trial Chamber considered that Witness QJ expressly testified about Ntahobali's presence during the conversation with and abduction of Mbasha's wife. However, a review of the Trial Chamber's detailed analysis of Witness QJ's evidence, supported by citations, reveals that the Trial Chamber considered that the witness corroborated the identification of her profession, and the occurrence of the abduction of Mbasha's wife and her children. See Trial 5811 Case No. ICTR-98-42- A 14 December 2015

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19784/H fails to demonstrate that no reasonable trier of fact could consider the testimonies of Witnesses TK, RE, and QJ to be compatible or that the Trial Chamber abused its discretion by not expressly addressing the purported differences in their testimonies pointed out by Ntahobali.

1663. The Appeals Chamber also finds no merit in Ntahobali's contention that the Trial Chamber erred in failing to consider that Witness TK testified that Mbasha's wife was assaulted and stripped before being taken away, whereas Witnesses QJ and RE said she was not undressed and Witness RE testified that she was taken away peacefully.3838 The Appeals Chamber observes that Witness TK testified that Mbasha's wife was stripped by Interahamwe once she arrived at the vehicle, and not by Ntahobali 3839 While Witness RE denied that Mbasha's wife was undressed, she was not able to discuss where Mbasha's wife was placed in the vehicle. 3840 Her evidence suggests that she did not necessarily follow what occurred once Mbasha's wife arrived at the vehicle and that she speculated that Mbasha's wife was not undressed on the basis that she was told by Ntahobali that she would not be killed at the prefectoral office.3841 Moreover, Witness RE, similarly to Witness TK, testified that Interahamwe stripped people at the prefectoral office who were removed from it on that evening, 3842 an aspect of her testimony which the Trial Chamber expressly recalled in the Trial Judgement 3843 The evidence of Witness QJ is ambiguous on this point as he was not questioned about whether Mbasha's wife was undressed when being loaded on the vehicle. 3844 1664. In addition, Ntahobali does not substantiate that

Witness TK testified that Mbasha's wife was "assaulted" or that this witness's description of the removal of Mbasha's wife was materially inconsistent with Witness RE's testimony that Mbasha's wife was taken away "peacefully." A review of the transcripts reveals that both witnesses provided materially consistent accounts of how Ntahobali induced Mbasha's wife to leave her position at the prefectoral office. 3845 Witness TK Judgement, para.

2675. See also ibid., paras. 2196, 2197 (summarising Witness QJ's evidence), 2718. The Appeals Chamber finds that, while the Trial Judgement is unclear, Ntahobali has not identified an error that has occasioned a miscarriage of justice. 3838 See also supra, Section IV.F.2(e) (ji)b. 3839 Witness TK, T. 20 May 2002 pp. 83, 85. 3810 See Witness RE, T. 24 February 2003 p. 19; T. 25 February 2003 p. 47; T. 26 February 2003 p. 31. 3841 See Witness RE, T. 24 February 2003 p. 19; T. 25 February 2003 p. 47; T. 26 February 2003 p.

31. See also supra, Section IV.F.2(e)(iii)b. 3842 See Witness RE, T. 24 February 2003 p. 21, T. 26 February 2003 p. 31; Witness TK, T. 20 May 2002 p.

87. The Trial Chamber recalled these elements of the testimonies of Witnesses TK and RE. See Trial Judgement, paras. 2215, 3843 Trial Judgement, para. 2278. 3844 See Witness QJ, T. 8 November 2001 pp. 146-155, T. 12 November 2001 pp. 93, 94 (closed session) ("Q. Witness, could you tell us the clothing that other person was wearing during that event that you say you experienced or witnessed at the prèfecture? [sic] A. When I saw that person she was wearing a wraparound that she had wrapped around her waist and a pullover. [...] THE INTERPRETER: She was wearing a wraparound that she wrapped around her waist and the wraparound was a kitenge that she had wrapped around her waist, and also was wearing a pullover or a sweater."). Compare Witness TK, T. 20 May 2002 p. 83 ("Q. Can you tell this court what then happened to Mrs. Mbasha after this conversation? A. At that point Shalom spoke to the lady and asked her to rise and to go towards the vehicle. He reassured her, and told that she should not be afraid, and that nothing bad will come of her.") with Witness RE, 582 Case No. ICTR-98-42-A 14 December 2015

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19783/H testified that Mbasha's wife started pleading with the Interahamwe at the vehicle3846 and, as noted above, it is not clear from Witness RE's testimony that she then continued to observe the events. 3847 Against this background, Ntahobali does not demonstrate that no reasonable trier of fact could have considered the testimonies to be compatible or that the Trial Chamber abused its discretion by not expressly addressing the purported differences in their testimonies. 3848 1665. The Appeals Chamber observes that Ntahobali correctly points out that Witness TK testified that Mbasha's wife was taken away in the front cabin of the vehicle whereas Witness QJ testified that Mbasha's wife and her children boarded the back of the vehicle. 3849 The Trial Chamber expressly recalled Witness QJ's testimony on this point and noted Witness SJ's testimony that Mbasha's wife was placed in the front of the vehicle.3850 The Trial Chamber did not expressly set forth Witness TK's testimony as to where Mbasha's wife and her children were placed in the vehicle.385l Nevertheless, the Appeals Chamber does not find that the variance between the evidence of Witness TK and that of Witness QJ was material to Witness TK's ability to identify Ntahobali on that evening or so material to the witnesses' evidence concerning the abduction of Mbasha's wife that the Trial Chamber was required to expressly

assess this difference. 3852 1666. Furthermore, Ntahobali argues that the Trial Chamber erred in failing to consider that Witness RE testified that she "assumed" Nyiramasuhuko was sitting in the vehicle, whereas Witness TK testified that Nyiramasuhuko was near the vehicle. The Appeals Chamber finds no merit in this contention. Witness RE's evidence shows that she did not see Nyiramasuhuko and that T. 26 February 2003 p. 32 ("Q. Madam Witness, did I understand, from the description you made of the events that it was not necessary to beat up this woman for her to follow the person you referred to as Shalom? A. They did not beat the woman. They told her they were going to hide her and they took her away, very nicely, with her consent. You will understand that somebody who is telling you that he's going to hide you, he should not be beating you."). 3846 See Witness TK, T. 20 May 2002 p. 86 ("A. Well, so far as the children of Madam Mbasha were concerned, they took them with their mother. They took them from the verandah where they were, that is, in front of the prefecture office, and once they got to the vehicle where they were to be loaded, those that wanted to load Madam Mbasha and her children started throwing her children upon her and Madam Mbasha prayed for the children, pleaded, saying that, 'please pity my children, you can take me. Spare my children, please.['T*). 3848 See

also supra, Section IV.F.2(e) (iii)b. See Witness TK, T. 20 May 2002 p. 96 ("A. Pauline was also in that vehicle, in the cabin with Mbasha's wife, who was the only one to be taken on - in the cabin together with her children."); Witness QJ, T. 12 November 2001 p. 122 ("A. I am talking about the people in the cabin but the Mbasha family were in the rear part of the vehicle."). 1850 See Trial Judgement, paras. 2196, 2233, 2721. 3851 See Trial Judgement, paras. 2214, 2717. 3852 Ntahobali Appeal Brief, para.

724. See also ibid., Annex C, No. 11, referring to Witness TK, T. 20 May 2002 p. 104 (French), Witness QJ, T. 12 November 2001 pp. 141, 142 (French). Without support, Ntahobali contends that Witness RE testified that Mbasha's wife was taken away in the "front cabin" of the vehicle. See ibid., para.

724. However, in Annex C to his appeal brief, he points to evidence demonstrating that Witness RE did not know where Mbasha's wife and her children were placed on the vehicle. See ibid., Annex C, No. 11, referring to Witness RE, T. 26 February 2003 p. 34 (French). Given the contradictory nature of Ntahobali's submissions, the Appeals Chamber will not consider them further. 583 Case No. ICTR-98-42-A 14 December 2015

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19782/H she determined that the minister was present based on Ntahobali's comments.* Witness TK's evidence, however, reveals that she saw Nyiramasuhuko when Mbasha's wife was at the vehicle.854 The Trial Chamber's summary of the witnesses' evidence reflects their differing perspectives. 3855 Considering the different perspectives of the witnesses, the Appeals Chamber does not consider that no reasonable trier of fact could have considered the testimonies to be compatible or that the Trial Chamber was required to assess any possible differences between them. Indeed, Witness QJ, who also saw Nyiramasuhuko when Mbasha's wife and her children were placed on the vehicle confirmed Witness TK's testimony that Nyiramasuhuko was near the vehicle. 3856 1667. Ntahobali's contention that Witnesses QJ and TK provided contradictory evidence as to whether the events occurred in broad daylight or at night is not supported by the record. As previously noted, the relevant portions of the witnesses' testimonies reflect that they both considered that the abduction occurred in the evening and that they could only provide estimates as to when it happened. 3857 1668. Turning next to Ntahobali's argument that the Trial Chamber failed to consider that Witness TK described Ntahobali as wearing a long black coat and carrying a sword, whereas Witnesses RE and SJ referred to military fatigues and a gun,

the Appeals Chamber observes that Ntahobali only refers to an excerpt of Witness TK's testimony wherein counsel is reading a prior statement given by the witness.3858 Witness TK was not asked to confirm the accuracy of the statement as it related to the description of what Ntahobali was wearing or what weapon he 3853 See Witness RE, T. 24 February 2003 p. 19 ("I knew that Pauline was present during that night because it was at night - because there was a woman among the refugees who had three children, and when they tried waking up that woman to take her where she was standing on the verandah, the woman refused to go, and I heard Shalom telling the woman, "We're not going to kill you. We, rather, wanted to take you to Pauline who is in the vehicle so she can go and hide you'. I, therefore, understood from what was said that Pauline was present within the premises, even though I did not see her personally."), T. 25 February 2003 p. 47 ("Q. Madam Witness, I'm right in saying that that night you did not see, with your own eyes, Pauline Nyiramasuhuko. Is that true? A. It is true I did not see her with my own eyes that night but somebody came, woke up the woman and said he wanted the woman to go to Pauline to be hidden. Q. Madam Witness, you did not see Pauline Nyiramasuhuko next to the woman who had three children that night. Is that true? A. Pauline Nyiramasuhuko was in a vehicle.

It was Pauline's son who said he was taking the woman to Pauline. Q. You also did not hear Pauline Nyiramasuhuko talking to Interahamwe or those that you referred to as Shalom and Kazungu; is that correct? A. It was Shalom and Kazungu who said they left Pauline in vehicle. The vehicle was close, but I did not hear Pauline say anything from that vehicle. Q. You also did not hear Pauline Nyiramasuhuko say anything, whatsoever, while she was outside the vehicle. Is that correct? A. No, Pauline was aboard the vehicle and did not get off the vehicle, and that is why I'm saying I did not hear Pauline say anything, but I confirm that she was present because her son did say that they were together."). See also Trial Judgement, paras. 2277, 2694. See Witness TK, T. 20 May 2002 pp. 86 ("A. [....] At the time [Mbasha's wife] was saying that Pauline was right there. She was in front of the vehicle, Madam."), 89, 90 ("Q. Can you tell this Court when Mr. Mbasha was being taken into a vehicle, you said Pauline was in front of the vehicle. Can you tell where you were standing [..]? A. I cannot estimate the distance in terms of metres, but I can say that I was very near her. As a matter of fact, when the other refugees were being loaded, I was very near in front of the préfecture's office, and I was able to hide behind the trees, that is, before the préfecture's office. And I can say that from where I was, I was able to see all that they did."). 3855 Trial Judgement, paras. 2214, 2277, 2694. 3856 See Witness QJ, T. 8 November 2001 p. 153. 3857 See supra, Section IV.F.2(e) (iii)b. 3858 See supra, para. 1659, fn. 3827. 584 Case No. ICTR-98-42-A 14 December 2015

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19781/H possessed 3859 The Appeals Chamber recalls that prior statements of a witness who provides live testimony are primarily relevant to a trial chamber in its assessment of the witness's credibility, and it is not necessarily the case that they should or could generally in and of themselves constitute evidence that the content thereof is truthful.3860 Under the circumstances, the Appeals Chamber does not consider that the Trial Chamber was required to discuss any possible variances between Witness TK's prior statement, on one hand, and the testimonies of Witnesses RE and SJ, on the other, as to what Ntahobali was wearing or what weapon he carried 1669. As for Ntahobali's contention that it is implausible for Witnesses QJ, SJ, and RE "to testify about this event" when none of them mentioned it in their prior statements, the Appeals Chamber recalls that it has already considered and rejected similar arguments raised in Nyiramasuhuko's appeal3861 The Appeals Chamber rejects Ntahobali's arguments for the same reasons and does not find that the Trial Chamber was required to discuss any purported variances or that any omissions in the prior statements of these witnesses rendered their evidence unreliable.

1670. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in failing to consider purported inconsistencies between the evidence of Witnesses TK, QJ, RE, and SJ concerning Ntahobali's conversation with Mbasha's wife and her subsequent abduction when determining whether he was present during the Night of Three Attacks.

1671. Nonetheless, the Appeals Chamber recalls that it has found that the Trial Chamber erred in relying on Witness SJ's evidence to corroborate other evidence identifying Ntahobali as speaking with and abducting Mbasha's wife during the Night of Three Attacks. However, because Witness SJ's evidence was used to corroborate the testimony of Witness TK - who the Trial Chamber found "particularly convincing" as to the events of this evening - and the Trial Chamber considered that Witness TK's accounts were corroborated by Witnesses RE and QJ with respect to the conversation with and/or the abduction of Mbasha's wife and children, the Appeals Chamber finds that the error has not occasioned a miscarriage of justice. c. The Vehicle 1672. When assessing evidence of Ntahobali's presence during the Night of Three Attacks, the Trial Chamber recalled that Witness TK testified that Nyiramasuhuko and Ntahobali came to the Butare Prefecture Office on three occasions "aboard a camouflaged Toyota Hilux with an open 3859 See Witness TK, T. 22 May 2002 pp. 10-14. 3860 See Akayesu Appeal Judgement, para.

134. See also Simba Appeal Judgement, para. 103. 3861 See supra, Section IV.F.2(e) (i)b. 585 Case No. ICTR-98-42-A 14 December 2015

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19780/H back. "3862 It further observed that Witnesses TA, QJ, QBQ, QBP, and RE "described the pickup as a Toyota or a Toyota Hilux" and that, in addition to Witness TK, Witnesses QBP, FAP, and SD "corroborated the accounts that the vehicle was a pickup with an open back and was camouflaged."3863 The Trial Chamber found that the description of the vehicle as a camouflaged pickup truck was "largely consistent'3864 and observed that Witnesses TK, RE, SS, FAP, SD, QY, and QBQ testified that Ntahobali was "driving the vehicle.»3865 1673. Ntahobali submits that the Trial Chamber failed to apply sufficient caution in assessing the identification evidence of Witnesses QY, SD, FAP, and QBQ 866 In particular, Ntahobali argues that the Trial Chamber unreasonably relied on Witness QY's testimony despite finding her identification evidence not credible as it pertained to attacks at the prefectoral office at the end of April or early May 19943867 He contends that the Trial Chamber erred in assigning weight to Witness SD's identification evidence despite characterising it as "devoid of any specific details" and because Witness SD did not actually see Ntahobali but was only told that he drove the vehicle. 3868 1674. Ntahobali further contends that the Trial Chamber unreasonably relied on Witness FAP's testimony because her identification of Ntahobali was based on 'hearsay from persons unknown

to her and was made under stressful circumstances 3869 He also points out that the witness was unable to identify Nahobali in court and that she did not see Ntahobali again at the prefectoral office after the Night of Three Attacks.3870 He also takes issue with the fact that the Trial Chamber failed to note that Witness QBQ testified that she only saw Ntahobali once at the prefectoral office in late April 1994, at night and under stressful circumstances, and that she never saw him again. 3871 Ntahobali adds that the Trial Chamber failed to address Witness QBQ's mental health issues and points out that the witness only gave a brief and general description of Ntahobali.3872 1675. In addition, Ntahobali argues that, since Witnesses TA and SD did not testify about the Night of Three Attacks, it was unreasonable for the Trial Chamber to consider their testimonies 3862 Trial Judgement, para. 2662. 3863 Trial Judgement, para. 2663. 3864 Trial Judgement, para. 2663. 3865 Trial Judgement, para. 2664. 3866 Ntahobali Appeal Brief, paras. 733-748. 3867 Ntahobali Appeal Brief, para. 735, referring to Trial Judgement, paras. 2141, 2615, 2616, 2626. 3868 Ntahobali Appeal Brief, para. 739, referring to Trial Judgement, para.

2620. See also AT. 15 April 2015 p. 47. 3869 Ntahobali Appeal Brief, para. 741, referring to Witness FAP, T. 12 March 2003 pp. 15, 16. 3870 Ntahobali Appeal Brief, para. 741, referring to Trial Judgement, para. 2311. 3871 Ntahobali Appeal Brief, para. 742, referring to Witness QBQ, T. 3 February 2004 pp. 6-11, 89, 90. 3872 Ntahobali Appeal Brief, para. 742, referring to Witness QBQ, T. 3 February 2004 pp. 28, 29. Ntahobali also argues that Witness QBQ did not mention him in her prior statement and that she was not expected to testify against him according to the Prosecution Pre-Trial Brief. See idem, referring to Ntabakuze Appeal Judgement, paras. 54, 94. 586 Case No. ICTR-98-42-A 14 December 2015

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19779/H corroborative of other witness evidence on the vehicle used and Ntahobali's presence during the event. 3873 Finally, Ntahobali submits that the Trial Chamber erroncously assessed inconsistencies concerning the make and colour of the vehicle used during the Night of Three Attacks.3874 1676. The Prosecution responds that the Trial Chamber properly assessed the identification evidence from Witnesses QY, SD, and FAP and underlines that the Trial Chamber only used their evidence to corroborate Witness TK's evidence that Ntahobali drove the vehicle to the prefectoral office and that the vehicle used during the attacks was an open-backed pickup truck. 3875 It further responds that Ntahobali's submissions concerning inconsistencies about the pickup truck used during the Night of Three Attacks do not cast doubt on the Trial Chamber's findings and ignore fundamentally consistent evidence regarding the vehicle used. 3876 1677. The Appeals Chamber observes that, when assessing evidence regarding Ntahobali's presence at the prefectoral office during the Night of Three Attacks, the Trial Chamber listed Witness QY as one of several witnesses who "testified that Ntahobali was driving the vehicle."3877 However, the Trial Chamber unequivocally rejected Witness QY's evidence implicating Ntahobali in attacks at the prefectoral office at that time, due to discrepancies in her testimony, the

unreliable nature of her identification evidence, and her admission that she had lied to the Trial Chamber about whether she knew Witnesses QBQ and SJ. 3878 1678. In the view of the Appeals Chamber, the conclusions of the Trial Chamber in these distinct sections of the Trial Judgement are irreconcilable and no reasonable trier of fact could have relied on Witness QY's evidence in this respect.** Consequently, the Appeals Chamber finds that the Trial Chamber erred in relying on Witness QY's testimony that Ntahobali drove a vehicle to the prefectoral office when assessing evidence of Ntahobali's involvement in the Night of Three Ntahobali fails to demonstrate how any omission in a Prosecution's submission about Witness QBQ's anticipated testimony is relevant to the assessment of that testimony. The Appeals Chamber therefore dismisses this contention. 3873 Ntahobali Appeal Brief, para. 675. 3874 Ntahobali Appeal Brief, para. 675, referring to ibid., Annexes C, D, and E. Ntahobali argues that Witness QJ did not testify about a camouflage vehicle. See idem. See also Ntahobali Reply Brief, para. 278. 3875 Prosecution Response Brief, para.

1108. The Prosecution does not directly respond to Ntahobali's contentions concerning Witness QBQ. Cf. Prosecution Response Brief, para. 1111 (responding to a separate argument raised by Ntahobali). 3876 Prosecution Response Brief, paras. 1015, 1049. 3877 Trial Judgement, para. 2664. 3878 See Trial Judgement, paras. 2616, 2620, 2626. 3879 In so finding, the Appeals Chamber is mindful that the Trial Chamber found that Witness QY's evidence demonstrated her ability to identify Ntahobali at the EER. See Trial Judgement, para.

3948. Contrary to Witness QY's evidence concerning the attack at the Butare Prefecture Office around the end of April or early May 1994, the Trial Chamber determined that Witness QY's testimony about Ntahobali's presence at the EER was sufficiently corroborated. See ibid., paras. 3946-3950. 587 Case No. ICTR-98-42-A 14 December 2015

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19778/H Attacks 3880 The Appeals Chamber will discuss whether this error has occasioned a miscarriage of justice in its conclusion to the present sub-section.

1679. Concerning Witness SD's identification evidence, the Appeals Chamber observes that the Trial Chamber noted that Witness SD's evidence was "devoid of specific details" in relation to a prior attack on the prefectoral office and when considering whether Witness SD's evidence provided sufficient corroboration to the testimony of the witness who principally testified about the event.3881 With respect to the Night of Three Attacks, the Trial Chamber did not find Witness SD's evidence to be lacking credibility. To the contrary, when assessing evidence as to Ntahobali's presence during the Night of Three Attacks, the Trial Chamber noted that Witness SD's testimony corroborated other evidence that Ntahobali drove a vehicle to the prefectoral office and that it was a pickup truck with an open back and was camouflaged 3882 Ntahobali does not demonstrate that the Trial Chamber abused its discretion in relying on these aspects of Witness SD's testimony.

1680. With respect to Witness FAP's evidence, the Appeals Chamber notes that the Trial Chamber considered that the witness's testimony corroborated Witness TK's testimony that Ntahobali drove a pickup truck used in the attacks, a fact which was also corroborated by multiple other witnesses. 3883 The Appeals Chamber also observes that, when assessing Witness FAP's evidence, the Trial Chamber expressly considered that the witness first saw Ntahobali during the Night of Three Attacks, that she learned the identity of Ntahobali from other people, and that she said she was unable to identify Ntahobali in court.3884 Ntahobali fails to demonstrate that the Trial Chamber acted unreasonably or explain why the absence of any prior knowledge of Ntahobali or the circumstances necessarily rendered Witness FAP's identification evidence unreliable 3885 Moreover, the Appeals Chamber recalls that hearsay from persons unknown to the witness and a witness's inability to identify an accused in court does not render his identification evidence inadmissible.3886 The Appeals Chamber also finds that Ntahobali fails to explain the relevance of Witness FAP's testimony that she did not see Ntahobali again after the Night of Three Attacks to the Trial Chamber's consideration of her testimony that he drove the vehicle during these attacks.

1681. Turning to Ntahobali's argument related to Witness QBQ's evidence, the Appeals Chamber observes that the Trial Chamber explicitly acknowledged that the witness testified that Ntahobali and Nyiramasuhuko arrived at the prefectoral office in a white-coloured Toyota pickup truck 3880 Trial Judgement, para. 2664. 3881 See Trial Judgement, para.

2620. See also ibid., paras. 2612, 2619, 2621-2626. 3882 Trial Judgement, paras. 2663, 2664. 3883 Trial Judgement, paras. 2663, 2664. 3884 Trial Judgement, paras. 2302, 2303, 2311. 3885 Trial Judgement, paras. 2302, 2303, 2311. 3886 See supra, Section V.I.2(b)(i)a. See also Trial Judgement, para. 2311. 588 Case No. ICTR-98-42-A 14 December 2015

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19777/H covered in mud around the end of April 19943887 However, based on the witness's recollection of the abduction and escape of a man named Semanyenzi, which was recalled by Witnesses RE, SS, SU, and FAP with respect to the Night of Three Attacks, the Trial Chamber concluded that Witness QBQ was in fact testifying to events at the beginning of June 19943888 As discussed below, other consistencies between Witness QBQ's evidence and that of witnesses testifying about the Night of Three Attacks rendered this determination reasonable 3889 The Appeals Chamber finds that Ntahobali fails to demonstrate that the Trial Chamber abused its discretion in its assessment of Witness QBQ's evidence in light of the entire record. Ntahobali also fails to point to any error or substantiate his argument that the Trial Chamber was unreasonable in failing to address Witness QBQ's mental health issues or that her description of Ntahobali was "rather brief and general". He does not demonstrate that these factors necessarily impacted the reliability of her evidence.

1682. In assessing the evidence related to Ntahobali's presence and the appearance of the pickup truck during the Night of Three Attacks,89' the Trial Chamber determined that the description of the vehicle as a camouflaged pickup truck was "largely consistent."3891 In coming to this conclusion, it observed that Witness TA, among several other witnesses, described "the pickup as a Toyota or a Toyota Hilux" and that Witness SD, among others, "corroborated the accounts that the vehicle was a pickup with an open back and was camouflaged."3892 The Trial Chamber also observed that Witness SD was one of several witnesses who testified that Ntahobali was "driving the vehicle."3893 1683. The Trial Chamber's analysis may suggest that it considered Witnesses TA and SD to have provided direct evidence concerning the Night of Three Attacks when discussing the vehicle used by Ntahobali, although there is no dispute that neither witness provided evidence about these particular attacks.389 However, read in the context of all the attacks at the prefectoral office, it appears that the Trial Chamber considered that Witnesses TA and SD, who testified about Ntahobali's use of a similar vehicle in other attacks, offered circumstantial evidence supporting the account of witnesses who testified about the appearance of the pickup truck as well as Ntahobali's presence specifically during the Night of

Three Attacks. While it would have been preferable for the Trial Chamber to distinguish the direct evidence on the Night of Three Attack from the 3887 Trial Judgement, paras. 2330, 2331. 3888 Trial Judgement, para. 2658. 3889 See infra, Section V.I.2(d)(ii)b. 3890 See Trial Judgement, Section 3.6.19.4.7.2 "Identification of Ntahobali". 3891 Trial Judgement, para. 2663. 3892 Trial Judgement, para. 2663. 3893 Trial Judgement, para. 2664. 3894 See supra, para. 1672; infra, Section V.I.2(d)(iii). 589 Case No. ICTR-98-42-A 14 December 2015

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19776/H circumstantial evidence, Ntahobali does not demonstrate that the accounts of Witnesses TA and SD were "irrelevant" or that no reasonable trier of fact could have relied on their testimonies in this manner.

1684. As to Ntahobali's argument regarding alleged inconsistencies related to the make and colour of the vehicle, the Appeals Chamber observes that, when assessing evidence of Ntahobali's presence during the Night of Three Attacks, the Trial Chamber recalled that Witness TK testified to Nyiramasuhuko and Ntahobali coming "aboard a camouflaged Toyota Hilux with an open back.*3895 The Trial Chamber further noted that Witnesses TA, QJ, QBQ, QBP, and RE "described the pickup as a Toyota or a Toyota Hilux" and that, in addition to Witness TK, Witnesses QBP, FAP, and SD "corroborated the accounts that the vehicle was a pickup with an open back and was camouflaged.*389 The Trial Chamber also noted that Witnesses SJ and SS "described a Peugeot pickup" and that Witnesses SS and SU testified that the pickup truck belonged to "Rwamukwaya" 3897 which was described by Witness SU as "a camouflaged dark-coloured Toyota Hilux" 3898 The Trial Chamber found that the description of the vehicle as a camouflaged pickup truck was "largely consistent» 3899 1685. In this context, the Appeals Chamber considers that the Trial Chamber assessed inconsistencies with respect to the pickup truck in the Prosecution evidence. 3900 In the view of the Appeals Chamber, Ntahobali simply extracts and lists the various witnesses' testimonies in the annexes to his appeal brief.3901 He does not demonstrate how the Trial Chamber's analysis is unreasonable or how any error would have occasioned a miscarriage of justice, particularly since other evidence demonstrated Ntahobali's presence and participation in the Night of Three Attacks 3902 His argument in this regard is therefore dismissed.

1686. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in relying on Witness QY's testimony that Ntahobali drove a vehicle to the Butare Prefecture Office when assessing identification evidence of Ntahobali's involvement in the Night of Three Attacks.3903 However, given that Witness QY's evidence was used to corroborate the accounts of Witnesses T, 3895 Trial Judgement, para. 2662. 3896 Trial Judgement, para. 2663. 3897 Trial Judgement, para. 2663 3898 Witness SU, T. 14 October 2002 pp. 30, 31, referred to in Trial Judgement, para. 3172. 3899 Trial Judgement, para. 2663. 3900 The Appeals Chamber has previously dismissed Ntahobali's contentions that the Trial Chamber erred in relying on the identification evidence of Witnesses TA and SD. See supra, para. 1683. 5 consie bal particul fie, gune in the anal Appeal is called pry prod he pea Chaneo vie annexes. See supra, fn. 3830. 3902 See supra, Section V.I.2(6) (iii)b. 3903 Trial Judgement, para. 2664. 590 Case No. ICTR-98-42-A 14 December 2015

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19775/H RE, SS, FAP, SD, and QBQ on this point, and that Ntahobali has not demonstrated that the Trial Chamber erred in its assessment of their evidence, the Appeals Chamber concludes that this error has not occasioned a miscarriage of justice. (iv) Conclusion 1687. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in its acceptance of the evidence of Witnesses QY and SJ in relation to the Butare Prefecture Office, which was used to identify Ntahobali during the Night of Three Attacks, as well as limited aspects of Witness TA's evidence relevant to identifying Ntahobali during the Mid-May Attack. However, the Appeals Chamber concludes that these errors have not occasioned a miscarriage of justice. The Appeals Chamber finds that Ntahobali has not demonstrated any other errors concerning evidence identifying him at the Butare Prefecture Office.

1688. For these reasons, the Appeals Chamber dismisses Ntahobali's contentions that the Trial Chamber erred in finding that the evidence established his presence during attacks at the Butare Prefecture Office beyond reasonable doubt. (c) Mid-May Attack and Last Half of May Attacks 1689. The Trial Chamber relied principally on the evidence of Witness TA to find that Ntahobali ordered killings and raped Witness TA during the Mid-May Attack, and raped Witness TA and ordered her rape during the Last Half of May Attacks394 On the basis of these findings, the Trial Chamber convicted Ntahobali for ordering killings and committing the rape of Witness TA during the Mid-May Attack as well as committing the rape and ordering the rapes of Witness TA during the Last Half of May Attacks.3905 1690. Ntahobali submits that the Trial Chamber erred in law and in fact in its assessment of the evidence pertaining to his participation in these attacks. In particular, Ntahobali argues that the Trial Chamber erred in: (i) its assessment of Witness TA's evidence concerning the Mid-May Attack; (ii) its assessment of Witness TA's evidence relating to the Last Half of May Attacks; (ili) making contradictory findings and in its assessment of Defence evidence undermining Witness TA's accounts of the Mid-May Attack and Last Half of May Attacks; and (iv) its assessment of evidence 3904 Trial Judgement, paras.

2644, 2653, 2781(i), (ii), 5867. The Appeals Chamber observes that with respect to the Mid-May Attack and the Last Half of May Attacks, the Trial Chamber found that other witnesses provided evidence that offered circumstantial support to Witness TA's evidence implicating Ntahobali in the attacks. See ibid., paras. 2632, 2634, 2650, 2651. The Trial Chamber also found that Interahamwe, following the orders of Ntahobali, raped six other women during the First Attack of the Last Half of May Attacks. See supra, para.

1562. The Appeals Chamber, however, has reversed Ntahobali's convictions in this respect below and will therefore not examine Ntahobali's challenges to the assessment of the evidence solely relevant to this incident. See infra, paras. 1912, 1913. 591 Case No. ICTR-98-42-A 14 December 2015

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19774/H that generally undermined Witness TA's credibility. 3906 The Appeals Chamber will address these arguments in turn. (i) Mid-May Attack 1691. The Trial Chamber, relying principally on the testimony of Witness TA, found that, one night in mid-May 1994, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office aboard a camouflage pickup truck 3907 It concluded that Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup truck, that Ntahobali and about eight other Interahamwe raped Witness TA, and that "[slome of the Interahamwe raped two other Tutsi women."3908 The Trial Chamber further found that the pickup truck left the prefectoral office with the abducted Tutsi refugees, some of whom were forced to undress. 3909 It convicted Ntahobali for ordering killings and committing the rape of Witness TA during this attack on this basis. 3910 1692. Ntahobali challenges the Trial Chamber's assessment of Witness TA's evidence pertaining to the Mid-May Attack.39'' Specifically, he argues that the Trial Chamber erred in its evaluation of Witness TA's testimony that she was not anally raped when her prior statement reflects that she was raped vaginally and anally. 3912 Nahobali submits that this variance is material as it concerns the actus reus of the crime of rape and because the witness's statement mentions anal intercourse on two

occasions, specifying that it did not happen during a subsequent attack. 3913 He contends that the Trial Chamber's reasoning that the variance was not material in light of the trauma the witness had suffered is unsupported by the witness's testimony and contrary to her own explanation that the variance reflected an incorrect recording of her statement 3914 Ntahobali further argues that the Trial Chamber erred in finding that Witness TA had never reported to Rwandan authorities that he raped her for reasons of trauma and shame. 391S He contends that this reasoning is unsupported by the 3905 See supra, Section V.I.1(c). 3906 Ntahobali Notice of Appeal, para. 242; Ntahobali Appeal Brief, paras. 611-614, 618, 621-624, 626, 628-648; Ntahobali Reply Brief, paras. 247-257. 3907 Trial Judgement, paras. 2644, 2781(i). The Trial Chamber considered that other evidence was consistent or corroborated the circumstances described by Witness TA. See ibid., paras. 2632, 2634. 3908 Trial Judgement, paras. 2644, 27816). 3909 Trial Judgement, paras. 2644, 2781(i). 3910 See supra, Section V.I.1(c); infra, Section V.I.3(a). 3911 Ntahobali Appeal Brief, paras. 622, 623, 626. 3912 Ntahobali Appeal Brief, para. 622, referring to Exhibit D6B (Witness TA's Statement). The un-highlighted version of the exact same statement admitted as Exhibit D7 has been referred to as "Witness TA's Statement" in this 3913 Ntahobali Appeal Brief, para. 622. 3914 Ntahobali Appeal Brief, paras. 622, 755-758. See also supra, Section V.I.2(a)(iv). 915 Ntahobali Appeal Brief, para. 623, referring to Trial Judgement, para. 2637. 592 Case No. ICTR-98-42-A 14 December 2015

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19773/H witness's own explanation that she did not report him because he had left the country and is unreasonable in light of the fact that the witness had reported that others had raped her. 3916 1693. Ntahobali further submits that the Trial Chamber erred by omitting to consider other variances between Witness TA's prior statement and testimony as well as internal inconsistencies within her evidence concerning the Mid-May Attack3917 In particular, he highlights that Witness TA's Statement reflects that Nyiramasuhuko was not with Ntahobali during the evening attack, but that the witness testified that Nyiramasuhuko was present. 3918 Concerning the internal inconsistencies within the witness's evidence, Ntahobali emphasises that Witness TA testified that: (i) 10 Interahamwe and Nyiramasuhuko were present during the attack but elsewhere testified that the reference to 10 Interahamwe included Nyiramasuhuko; and ii) during the attack, Nyiramasuhuko immediately identified persons to be abducted who were then loaded onto the vehicle and immediately taken away, while also testifying that Ntahobali and other Interahamwe attacked persons at the prefectoral office and that he and eight Interahamwe raped the witness before the refugees were put on board the vehicle and left 3919 1694. The Prosecution responds that Ntahobali fails to demonstrate that the Trial Chamber's conclusions were

so unreasonable that no reasonable trier of fact could have reached them. 3920 It also argues that many of the alleged inconsistencies raised by Ntahobali were reasonably addressed in the Trial Judgement. 3921 1695. Turning first to Ntahobali's contention that the Trial Chamber erred in its assessment of Witness TA's evidence concerning whether she had been anally raped during the Mid-May Attack, the Appeals Chamber observes that the Trial Chamber considered this variance between her testimony and prior statement and concluded that in light of the "obvious intensity of experiencing 3916 Ntahobali Appeal Brief, para. 623 (French), referring to Witness TA, T. 29 October 2001 p. 99 (French). 3917 Ntahobali Appeal Brief, para. 626; Ntahobali Reply Brief, para. 252. 3918 Ntahobali Appeal Brief, para. 626, referring to Witness TA's Statement, Witness TA, T. 6 November 2001 pp. 60 61. Ntahobali also submits that Witness TA's Statement did not indicate that she saw Nyiramasuhuko prior to the Mid-May Attack, whereas she testified that she had seen Nyiramasuhuko for the first time at 3.00 p.m. the day of that attack. See idem. For the same reasons as developed in Section IV.F.2(d) addressing Nyiramasuhuko's appeal, the Appeals Chamber rejects this argument. Ntahobali Appeal Brief, para.

626. Ntahobali's contention in paragraph 633 of his appeal brief about the improper use of Expert Witness Alison Des Forges's evidence have been addressed above in Section V.I.2(a)(v). Ntahobali also asserts that the Trial Chamber contradicted itself by finding that Tutsi refugees were forcefully undressed during the Mid-May Attack and by using it as a basis to convict him despite concluding that there was insufficient evidence to convict him for this act. See Ntahobali Appeal Brief, para. 678, referring to Trial Judgement, paras. 2644, 2738, 2781(i), (iii), 5873, 6137. The Appeals Chamber observes that Ntahobali's reference to the Trial Chamber's allegedly contradictory conclusion that the Prosecution failed to adduce sufficient evidence to prove beyond reasonable doubt that Tutsis were forced to undress concerned attacks at the EER as opposed to the prefectoral office. See Trial Judgement, paras. 6132, 6137. See also infra, para.

1846. Moreover, the Trial Chamber did not enter convictions against Ntahobali in relation to the Mid-May Attack on the basis that Tutsis were forcefully undressed. See Trial Judgement, paras. 5866-5871, 6053, 6100, 6168. The Appeals Chamber therefore dismisses this argument. 3920 Prosecution Response Brief, paras. 982, 989. 593 Case No. ICTR-98-42-A 14 December 2015

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19772/H multiple gang rapes at the hands of Interahamwe, this discrepancy is understandable and does not adversely affect the Chamber's credibility assessment of the witness?"3922 Contrary to Ntahobali's contention, a plain reading of the witness's testimony in its entirety supports the Trial Chamber's rationale that the "intensity of experiencing multiple gang rapes" could impact her recollection of the events. 923 The Appeals Chamber sees no error in focussing on this consideration rather than on the witness's explanation when confronted with this discrepancy,3924 as it is established practice for trial chambers to take into consideration the impact of trauma on a witness's evidence 3925 1696. Furthermore, while Ntahobali stresses the materiality of this variance, Witness TA's prior statement only reflects that anal penetration was perpetrated by a single individual on one occasion 3926 By contrast, the witness's prior statement and testimony consistently reflect that she was vaginally raped by multiple people on this occasion alone. The Appeals Chamber is not persuaded that the variance highlighted by Ntahobali was material given her consistent position that she was attacked in a manner that demonstrates that she was raped.

1697. The Appeals Chamber also observes that the Trial Chamber expressly considered that Witness TA had reported that she had been raped by other assailants to authorities in her prefecture without mentioning Ntahobali because he had fled the country.3927 Ntahobali contends that this evidence does not support the Trial Chamber's conclusion that Witness TA's explanation for not reporting Ntahobali was reasonable in light of a possible trauma and the potential shame associated with these events without demonstrating that the Trial Chamber abused its discretion in so finding. 3928 1698. Regarding Ntahobali's argument that the Trial Chamber erred by omitting to consider inconsistencies between Witness TA's prior statement and testimony, the Appeals Chamber observes that, unlike her testimony, Witness TA's prior statement reflects that Nyiramasuhuko "was not with [Ntahobali] this night" of the Mid-May Attack and contains no reference to the witness seeing Nyiramasuhuko at the prefectoral office at 3.00 p.m. on the day of that attack. 3929 When 3921 Prosecution Response Brief, para. 989, referring to Ntahobali Appeal Brief, paras. 621-639. 3922 Trial Judgement, para. 2635. 3923 See Trial Judgement, paras. 2174-2193. See Witness TA, T. 6 November 2001 pp. 54, 55 ("Q. My question is, madam; you stated on the 19th of November 1997 that one of the eight persons penetrated you through the anus; is that correct? A. That was not put down correctly. When I stated, I said this man went past behind me. And in your question you asked me whether any of those people penetrated me through some other opening, and I said no.") Musema Appeal Judgement, para.

63. See also Hategekimana Appeal Judgement, para. 84; Ntawukulilyayo Appeal Judgement, para.

152. See also supra, Section V.I.2(a)(iv). 3926 Witness TA's Statement, pp. K0043300, K0043301 (Registry pagination) ("I believe each of the men actually pen trial dude vagne, para. an passed in my anus."). 3928 Ntahobali Appeal Brief, para. 623, referring to Trial Judgement, para. 2637. 3929 Witness TA's Statement, p. K0043300 (Registry pagination). 594 Case No. ICTR-98-42-A 14 December 2015

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19771/H challenged with these inconsistencies, the witness affirmed her testimony, suggesting that the information in her prior statement was improperly recorded or less important than her testimony. 3930 1699. The Appeals Chamber reiterates that a trial chamber has the discretion to accept a witness's testimony, notwithstanding inconsistencies between the said testimony and the witness's previous statements, 931 and the fact that a trial chamber does not address or mention alleged discrepancies does not necessarily mean that it did not consider them. 932 The Appeals Chamber considers that it would have been preferable for the Trial Chamber to note that Witness TA's prior statement indicated that Nyiramasuhuko was not with Ntahobali during the Mid-May Attack and explain why this inconsistency did not impact the credibility of her testimony.3933 However, the Appeals Chamber considers that, in light of Witness TA's repeated affirmations of the accuracy of her testimony as well as her repeated explanations that her statement was not a full and accurate recording of the information she provided to investigators,3934 a reasonable trier of fact could have considered that this inconsistency was not material and did not undermine the credibility of Witness TA's account.

1700. With respect to the internal inconsistencies within Witness TA's testimony, the Appeals Chamber does not find that the variance between Witness TA's initial testimony that Nyiramasuhuko was present in addition to 10 Interahamwe and subsequent account that Nyiramasuhuko was one of those 10 individuals is material. 3935 1701. Ntahobali also fails to demonstrate any material internal inconsistency in Witness TA's testimony as to whether the Tutsi refugees were immediately removed from the prefectoral office upon being pointed out by Nyiramasuhuko or whether there was time for Ntahobali and eight 3930 See Witness TA, T. 5 November 2001 pp. 55, 56, 59, 60; T. 6 November 2001 pp. 58, 61. 3931 Kanyarukiga Appeal Judgement, para. 121; Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86; Kajelijeli Appeal Judgement, para.

96. See also Rutaganda Appeal Judgement, para. 443; Musema Appeal Judgement, para. 89. 3932 Ntawukulilyayo Appeal Judgement, para. 152; Nchamihigo Appeal Judgement, para. 165; Krajisnik Appeal Judgement, para. 139; Musema Appeal Judgement, paras. 18-20. 3933 The Appeals Chamber considers that the Trial Chamber was under no obligation to consider the absence of any mention in Witness TA's prior statement that she saw Nyiramasuhuko around 3.00 p.m. on the day of the Mid-May Attack. The statement is remarkably brief when compared to the length of her testimony. The Appeals Chamber considers that this element of Witness TA's testimony was peripheral to the core features of her evidence concerning the attack, and it is reasonable that more details would arise over the course of the witness's examination in court. 3934 Witness TA, T. 1 November 2001 p. 15 (closed session), T. 5 November 2001 pp. 68, 126, 130, T. 6 November 2001 pp. 61, 68. In this regard, the Appeals Chamber observes that Ntahobali generally argues that Witness TA is not reliable given that she blamed Tribunal investigators on at least eight occasions and "gave implausible explanations" for alleged contradictions between her testimony and prior statement. See Ntahobali Appeal Brief, para.

629. The Appeals Chamber finds that Ntahobali's submissions do not demonstrate that no reasonable trier of fact could have accepted Witness TA's explanations that recording errors resulted in omissions in her prior statement. Thus, the Appeals Chamber dismisses this general contention. 3935 Witness TA, T. 25 October 2001 pp. 33, 36 ("A. The Interahamwe that I saw, apart from Nyiramasuhuko, were ten in number [...] Q. When you say ten members of the Interahamwe, did you include Shalom in that number ten? A. Yes."), T. 31 October 2001 p. 41 ("A. All together, including Shalom and his mother, were ten in number."). 595 Case No. ICTR-98-42-A 14 December 2015

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19770/H Interahamwe to rape Witness TA beforehand. Ntahobali simply extracts parts of Witness TA's evidence and fails to appreciate that the substantial and detailed account provided by her after extensive questioning reveals that after Nyiramasuhuko pointed out Tutsis to be abducted, Ntahobali took the witness to the back of the prefectoral office where he and eight Interahamwe raped her. 3936 Witness TA's detailed testimony, in this context, reflects that, after raping her, the assailants left aboard the same vehicle carrying Nyiramasuhuko and the abducted Tutsis. 3937 1702. Consequently, the Appeals Chamber finds that, in his arguments addressed above, Ntahobali has not demonstrated that the Trial Chamber erred in its assessment of Witness TA's evidence pertaining to the Mid-May Attack. (ii) Last Half of May Attacks 1703. The Trial Chamber, relying on the testimony of Witness TA, partially corroborated by that of Witness SD, concluded that around seven and 11 days after the Mid-May Attack, Ntahobali and Interahamwe came to the prefectoral office on two more occasions.3938 In particular, the Trial Chamber found that during the First Attack of the Last Half of May Attacks, which occurred seven days after the Mid-May Attack, Ntahobali violently raped Witness TA, hitting her on the head with a hammer. 3939 The Trial Chamber found that during the Second Attack of the Last Half of

May Attacks, which occurred 11 days after the Mid-May Attack, Ntahobali ordered about seven Interahamwe to rape Witness TA. 3940 The Trial Chamber convicted Ntahobali for committing and ordering rape on this basis 3941 1704. Ntahobali contends that the Trial Chamber erred in its assessment of Witness TA's evidence with respect to the First Attack. 3942 Specifically, he submits that the witness initially testified that Ntahobali put his hammer to her forehead, before testifying that he hit her on the face with it, whereas the witness's prior statement only reflects that Ntahobali took out the hammer to deter her from resisting. 3943 He argues that the witness's explanation of blaming investigators is unbelievable and contends that no reasonable trier of fact could have found the variance to be minor as it 3936 See Witness TA, T. 25 October 2001 pp. 46-48, 56, T. 31 October 2001 pp. 31-36, 50-59, T. 6 November 2001 pp. 47, 48. See also Trial Judgement, paras. 2631, 2632. 37 See Witness TA, T. 25 October 2001 pp. 56, 66. See also Trial Judgement, para. 2181. 3938 Trial Judgement, paras. 2650, 2651, 2653. Whoa, raeme, pher 2, ring Test it Chase also As no ha me, has me, fall hong the revers of by the Appeals Chamber in Section V.I.3(b) below. 3940 Trial Judgement, paras. 2653, 2781(ii) 3941 See supra, Sections V.I.1(b), V.I.1(c). 3942 Ntahobali Appeal Brief, paras. 623, 624, 626, 633. See also Niahobali Reply Brief, para. 252. 3943 Ntahobali Appeal Brief, para. 624. 596 Case No. ICTR-98-42-A 14 December 2015

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19769/H concerned the "actus reus" and was "an integral part of the commission of the rape" 3944 Ntahobali further argues that the Trial Chamber erred in failing to consider that the witness testified that Ntahobali took her behind the prefectoral office to the same place he had raped her during the Mid-May Attack, whereas her prior statement reflects Ntahobali did not take her there on this occasion. 3945 He reiterates that the witness's explanation that her statement was not accurately recorded is implausible. 3946 1705. Concerning the Second Attack, Ntahobali contends that the Trial Chamber erred in failing to assess that Witness TA's testimony varied as to whether Ntahobali wore banana leaves, and was inconsistent as to whether Ntahobali left after handing Witness TA over to Interahamwe or if he remained and raped Caritas next to the witness 3947 He observes that Witness TA also testified that she could not see while being raped.3948 Ntahobali further contends that the Trial Chamber erred by omitting to consider that the witness testified that Interahamwe took her behind the prefectoral office and that the seven attackers undressed her, whereas her prior statement reflects that he took her behind the prefectoral office and that he lifted her skirt. 3949 He rejects the witness's explanations for these variances, respectively arguing that she implausibly asserted that her

prior statement was recorded incorrectly or that her response was confusing. 39 In addition, he argues that the Trial Chamber erred in not considering that, on two occasions, Witness TA testified that she did not see him after the First Attack and in not concluding that this raised reasonable doubt in her evidence with respect to the Second Attack. 3951 1706. Finally, Ntahobali argues that the Trial Chamber unreasonably concluded that Witness SD corroborated Witness TA's evidence with respect to the Last Half of May Attacks 3952 He argues that Witness SD's testimony lacked sufficient detail to meet the minimum standard required for corroboration. 3953 He stresses that the Trial Chamber elsewhere concluded that Witness SD's testimony concerning prior attacks on the prefectoral office was "devoid of any specific details" and did not appear to attach any weight to his evidence, making it unreasonable for the Trial Chamber 3944 Ntahobali Appeal Brief, para.

624. See also ibid., para. 629. 3945 Ntahobali Appeal Brief, para. 626. 3916 Ntahobali Appeal Brief, para.

626. See also ibid., para. 629. 3947 Ntahobali Appeal Brief, para. 626. 3948 Ntahobali Appeal Brief, para. 626. 3949 Ntahobali Appeal Brief, para. 626. 3950 Ntahobali Appeal Brief, para.

626. See also ibid., para. 629. 3951 Ntahobali Appeal Brief, para. 646. 3952 Ntahobali Appeal Brief, paras. 640-645; Ntahobali Reply Brief, paras. 254, 255. Ntahobali Appeal Brief, para.

643. In particular, Ntahobali submits that nothing in Witness SD's evidence demonstrates that she referred to the attacks about which Witness TA testified, as she never mentioned Witness TA, did not provide evidence that Ntahobali raped or ordered rapes and abductions, and did not provide any specific dates for the attacks that occurred prior to the transfer to Nyange in early June 1994. See idem. See also Ntahobali Reply Brief, para. 254; AT. 15 April 2015 pp. 47, 48. 597 Case No. ICTR-98-42-A 14 December 2015 au

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19768/H to rely on it in this instance.'»* He also points out that Witness SD testified that women and girls were taken away to be raped, rather than being raped at the Butare Prefecture Office. 3955 In Ntahobali's view, no reasonable trier of fact could have relied upon Witness TA's evidence absent "proper corroboration" 3956 1707. The Prosecution responds that Ntahobali fails to demonstrate that the Trial Chamber's conclusions were so unreasonable that no reasonable trier of fact could have reached them. 3957 It argues that many of the alleged inconsistencies raised by Ntahobali were reasonably addressed in the Trial Judgement and that Ntahobali does not demonstrate any error as it relates to the Trial Chamber's conclusion that Witness SD corroborated Witness TA's testimony 3958 1708. The Appeals Chamber observes that the Trial Chamber considered the differences between Witness TA's testimony and prior statement concerning whether Ntahobali hit her with a hammer during the First Attack. 3959 The Trial Chamber acknowledged that she affirmed her testimony and accepted her explanation that the investigator may have misunderstood her as the injury she suffered was minor 3960 While Ntahobali argues that the Trial Chamber was unreasonable in reaching this conclusion, specifically because the variance concerned the "actus reus" and was an "integral part of the commission of rape", the Appeals Chamber finds that Ntahobali's contentions are irrelevant to the Trial Chamber's consideration of the elements of rape 3961 Ntahobali simply disagrees with the Trial Chamber's reasoning without demonstrating any error in the exercise of its discretion in the assessment of the evidence. His contention is accordingly dismissed.

1709. Turning to the differences in Witness TA's testimony and prior statement as to whether Ntahobali took her behind the prefectoral office where she was raped during the Mid-May Attack, the Appeals Chamber observes that, contrary to Ntahobali's submission, the Trial Chamber considered that "Witness TA was confronted with a prior statement in which she said she was in 3954 Ntahobali Appeal Brief, para. 644, referring to Trial Judgement, paras. 2620, 5950. See also Ntahobali Reply Brief, par abobali Appeal Brief, para.

643. Ntahobali also observes that the Trial Chamber found that Witness SD testified that Nyiramasuhuko "arrived every night" at the Butare Prefecture Office, while Witness TA only gave evidence that she was present during the Mid-May Attack (and not the Last Half of May Attacks). See ibid., para. 645; Ntahobali Reply Brief, para.

255. He further argues that the Trial Chamber erred in finding that Witness SD testified that the vehicle came "each night" as the French version of the transcript reflects that the witness only testified that it came "at night". See Ntahobali Appeal Brief, para. 642, referring to Trial Judgement, paras. 2620, 2650. The Appeals Chamber considers that Ntahobali makes contradictory submissions, arguing that Witness SD contradicts Witness TA by suggesting that Nyiramasuhuko came every night, yet also arguing that Witness SD's transcripts do not support the conclusion that Nyiramasuhuko came every night. These contradictory submissions are dismissed without further consideration. 3956 Ntahobali Appeal Brief, para. 648. 3957 Prosecution Response Brief, paras. 982, 989. 3958 Prosecution Response Brief, paras. 989, 993. 3959 Trial Judgement, para. 2647. 3960 Trial Judgement, para. 2647. 3961 See, in particular, Trial Judgement, para. 6075. 598 Case No. ICTR-98-42-A 14 December 2015 ти

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19767/H view of the other refugees when she was raped on this occasion [and] [...] maintained in her testimony that she was taken behind the [Butare Prefecture Office].*3962 In so noting, the Trial Chamber referred to excerpts from the witness's testimony where she was cross-examined on this precise variance.3963 Ntahobali does not demonstrate that no reasonable trier of fact could have relied upon Witness TA's evidence in light of the purported variance. 3964 1710. As regards Ntahobali's arguments concerning the Second Attack, the Appeals Chamber finds no material variance in Witness TA's evidence as to whether or not Ntahobali wore banana leaves 3965 The Appeals Chamber also notes that Ntahobali fails to point to any material inconsistency concerning whether he left after handing Witness TA over to Interahamwe to be raped or if he remained and raped Caritas next to the witness. Witness TA testified that Interahamwe "raped me and [Ntahobali] left, leaving behind him[...] these men who were raping me 3966 and that she saw Ntahobali raping Caritas next to where she was when she was being attacked 3967 During cross-examination, Witness TA testified that she was unable to see or take note of what was happening around her when she was raped but clarified that, "at the end of this - incident" she was able to see Ntahobali who was "very near" to her.3968 The Appeals Chamber considers that the evolutions in Witness TA's testimony reflect clarifications achieved through precise questioning rather than material contradictions.

1711. The Appeals Chamber is also unpersuaded by Ntahobali's contention that the Trial Chamber erred in failing to consider that Witness TA's testimony and prior statement varied as to whether he or Interahamwe took the witness behind the prefectoral office and undressed her. Notably, Witness TA's evidence consistently indicates that Ntahobali found her and physically delivered her to the Interahamwe during this attack, 3969 and that Ntahobali raped Caritas about five to six metres away from where the Interahamwe attacked her. 3970 In this context, even though her prior statement indicates that Ntahobali led her behind the prefectoral office 3971 whereas her testimony indicates that the Interahamwe did this,392 the variance is insignificant. 3962 Trial Judgement, para. 2646. 3963 Trial Judgement, para. 2646, referring to Witness TA, T. 5 November 2001 pp. 125-129, Witness TA's Statement. 3964 The Appeals Chamber considers that Ntahobali's arguments, as they relate to variances between Witness TA's prior statement and testimony, ignore that she was fundamentally consistent that during this attack only Ntahobali raped her Compare Witness TA's Statement, p. K0043301 (Registry pagination) with Witness TA, T. 25 October 2001 pp. 67, 69, T. 31 October 2001 pp. 93-97. 3965 Witness TA, T. 31 October 2001 pp. 107, 108. 3966 Witness TA, T. 25 October 2001 pp. 75, 76. 3967 Witness TA, T.

25 October 2001 pp. 81, 84. 3968 Witness TA, T. 31 October 2001 p. 111. 3969 Witness TA, T. 25 October 2001 pp. 75-77, T. 31 October 2001 p. 111, T. 6 November 2001 pp. 9, 10. 3970 Witness TA, T. 25 October 2001 pp. 81-83. See also Witness TA, T. 31 October 2001 p. 111. 3971 Witness TA's Statement, p. K0043301 (Registry pagination). 3972 Witness TA, T. 31 October 2001 p. 111. 599 Case No. ICTR-98-42-A 14 December 2015

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19766/H 1712. Likewise, while Witness TA's prior statement indicates that Ntahobali "lifted [her] skirt' 3973 and her testimony reflects that the Interahamwe removed her clothes,3974 the Appeals Chamber does not consider that any difference in this respect made it unreasonable for the Trial Chamber to rely on her testimony. Witness TA's evidence is fundamentally consistent with her prior statement that Ntahobali found her at the prefectoral office and that about seven Interahamwe raped her based on Ntahobali's prompting. 3975 The Appeals Chamber finds that a reasonable trier of fact could have relied on her evidence notwithstanding this minor variance, particularly given the fact that Ntahobali was involved in attacking Witness TA on multiple occasions at the prefectoral office. As these inconsistencies were canvassed in detail through Witness TA's cross-examination, the Appeals Chamber is not persuaded that the Trial Chamber ignored them or was required to expressly consider them in the Trial Judgement.

1713. The Appeals Chamber also finds no merit in Ntahobali's contention that the Trial Chamber erred in not considering that, on two occasions, Witness TA testified that she did not see him after the First Attack. Witness TA's evidence that she "did not see [Ntahobali] again", when read in context, reveals that she did not see him again on the night of the First Attack. 3976 Upon further questioning, the witness recalled her testimony that she saw Ntahobali on more than eight occasions and proceeded to discuss the events of the Second Attack, in which Ntahobali gave the witness over to Interahamwe to be raped 3977 Once again, the Appeals Chamber considers that the evolutions in Witness TA's evidence reflect clarifications achieved through precise questioning rather than material contradictions.

1714. The Appeals Chamber observes that, when assessing Witness TA's evidence concerning the Last Half of May Attacks, the Trial Chamber found that "Witness SD corroborated important aspects of each of these attacks. "3978 It noted that, while Witness SD's testimony "was not specific as to what occurred during each attack, she identified the distinctive features of the vehicle, namely that it was covered in mud and contained Nyiramasuhuko, Ntahobali and Interahamwe" and concluded that "[t]herefore, her testimony provides corroboration for Witness TA's testimony as to the attacks by Ntahobali."3979 The Trial Chamber also stated that it was "convinced" that Witness SD was at the prefectoral office prior to the Nyange transfer in early June 1994 and 3973 Witness TA's Statement, p. K0043301 (Registry pagination). 3974 See, e.g., Witness TA, T. 25 October 2001 pp. 75, 77, 78, T. 31 October 2001 p. 111, T. 6 November 2001 pp. 9-11. Compare Witness TA's Statement, p. K0043301 (Registry pagination) with Witness TA, T. 25 October 2001 Bho Wines:. T:25 0200r 2010p. 11, T. 6 November 2001 p. 9, 11-13. 3977 See Witness TA, T. 25 October 2001 pp. 75, 76-81. 3978 Trial Judgement, para. 2650. 3979 Trial Judgement, para.

2651. See also ibid., para. 2650. 600 Case No. ICTR-98-42-A 14 December 2015

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19765/H observed that she testified that there were "attacks by [Ntahobali] both prior to and after the transfer to Nyange in early June 1994.*3980 1715. With respect to Ntahobali's contentions that the Trial Chamber unreasonably concluded that Witness SD corroborated Witness TA's evidence with respect to the Last Half of May Attacks, the Appeals Chamber reiterates that two prima facie credible testimonies corroborate one another when one testimony is compatible with the other regarding the same fact or a sequence of linked facts. 3981 In the instant case, the Appeals Chamber considers that the Trial Chamber's finding of corroboration is reasonable, reflecting the similarities in the evidence of Witnesses TA and SD concerning: (i) Ntahobali's participation in the attacks at the Butare Prefecture Office prior to early June 1994; (ii) the vehicle used; (ii) the fact that Interahamwe took people; and (iv) the fact that women were identified to be raped. 3982 The Trial Chamber's analysis demonstrates that it was aware of all the differences between the testimonies of Witnesses SD and TA that Ntahobali highlights. 3983 In the view of the Appeals Chamber, the differences stressed by Ntahobali do not render Witness SD's evidence incompatible with that of Witness TA. Indeed, the differences would reasonably be expected given the Trial Chamber's findings pertaining to the chaotic and precarious circumstances in which refugees lived at the prefectoral office, the fact that Witness SD provided a more general account as well as the fact that Witness TA was assaulted repeatedly by Ntahobali whereas Witness SD was not.

1716. Furthermore, although the Trial Chamber noted that Witness SD's evidence was "devoid of any specific details", it did so in relation to a prior attack on the prefectoral office when considering whether the witness's evidence provided sufficient corroboration to the testimony of Witness QY, who principally testified about that event. 3985 The Trial Chamber did not find Witness SD's evidence to be lacking credibility, but instead rejected Witness QY's evidence due to credibility issues concerning that particular witness 3986 In contrast to its approach to Witness QY's evidence in that instance, the Trial Chamber was convinced by Witness TA's testimony concerning the Last Half of May Attacks. While it noted that Witness SD's testimony "was not specific as to what 3980 Trial Judgement, para. 2651. 3981 Nizeyimana Appeal Judgement, para. 96; Gatete Appeal Judgement, para. 125; Kanyarukiga Appeal Judgement, aras. 177, 220; Ntawukulilyayo Appeal Judgement, para. 121; Nahimana et al. Appeal Judgement, para. 428 • See infra, para. 1716 3983 Trial Judgement, paras. 2650, 2651. 3984 Trial Judgement, paras. 2627 ("These people consisted mainly of women and children in poor physical condition; many of them had visible skin ailments and were malnourished [...] the evidence was clear and consistent that these people had fled other communes and préfectures to escape violence and the

threat of death."), 2740 ("[The evidence established that Tutsi refugees were being killed at the [prefectoral office]."), 2781 ("The Chamber finds the Prosecution has proven beyond a rcasonable doubt that: between 19 April and late June 1994 [...] Tutsi refugees were physically assaulted and raped; and the Tutsi refugees were killed in various locations throughout Ngoma commune".). See Trial Judgement, para.

2620. See also ibid., paras. 2621-2626. 3986 See Trial Judgement, paras. 2621-2626. 601 Case No. ICTR-98-42-A 14 December 2015 Qu

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19764/H occurred during each attack" and that aspects of her evidence were hearsay, it nonetheless relied on the distinctive features of it that were consistent with Witness TA's evidence3987 The Appeals Chamber is satisfied that the Trial Chamber acted within its discretion, refusing to make findings where Witness SD's general evidence only supported testimony that lacked credibility, yet relying on Witness SD's evidence to the extent that it corroborated the more detailed and credible account given by Witness TA. Consequently, the Appeals Chamber rejects Ntahobali's claim that no "proper corroboration" of Witness TA's evidence existed.

1717. Based on the foregoing, the Appeals Chamber finds that, in his arguments addressed above, Ntahobali has not demonstrated that the Trial Chamber erred in its assessment of Witness TA's evidence pertaining to the Last Half of May Attacks. (iti) Contradictory Findings and Evidence 1718. Ntahobali argues that the Trial Chamber made contradictory findings and failed to consider evidence that demonstrated that no refugees were at the Butare Prefecture Office at the time when Witness TA testified that the Mid-May Attack and the Last Half of May Attacks occurred 3988 Ntahobali also points out that Witness RE testified that she arrived at the prefectoral office around 15 May 1994 and asserted that there was no attack between then and her transfer to the EER the following day, that she only saw Ntahobali at the EER, and that she was transported to Nyange one day after returning to the prefectoral office from the EER. 3989 1719. In addition, Ntahobali argues that the Trial Chamber erred in its assessment of the evidence from Defence Witnesses WUNHE and WUNJN, who testified that Witness TA was not at the prefectoral office between April and June 1994 but was staying with her uncle 3990 According to 3987 Trial Judgement, paras. 2650, 2651. The Appeals Chamber observes that the Trial Chamber also noted that Witness SD did not see Ntahobali driving the vehicle but heard that this was

the case. See ibid., para. 2650. 3988 Ntahobali Appeal Brief, paras. 618, 636, 637. See also Ntahobali Reply Brief, paras. 249-251. Specifically, Ntahobali points to findings by the Trial Chamber as well as evidence, such as that of Witness RE, which, in his view, reflect that all the refugees were transferred from the prefectoral office to the EER between 15 and 20 May 1994, returning to the prefectoral office only on 31 May 1994. See Ntahobali Appeal Brief, paras. 618, 633, 636, 637; Ntahobali Reply Brief, paras. 250, 251. 3989 Ntahobali Appeal Brief, para.

637. Ntahobali also argues that Witness RE testified that the first and only attack that she mentioned occurred at the Butare Prefecture Office around 10 June 1994 according to her prior statement. See idem. The Appeals Chamber addresses this challenge in Section V.I.2(d)(ii)e below. The Appeals Chamber considers that Ntahobali's references to the evidence of Witnesses QBP and SD in paragraph 250 of his reply brief improperly go beyond responding to the Prosecution's contentions and seek to introduce new arguments that should have been raised in his appeal brief. The Appeals Chamber recalls that reply briefs shall be limited to arguments in reply to the response brief. See Practice Direction on Formal Requirements on Appeal, para.

6. Ntahobali was expressly made aware of this limitation in these appeal proceedings. See Decision on Motions for Extension of Time Limit and Word Limit for the Filing of Reply Briefs, 27 August 2013, para.

4. In any event, the Appeals Chamber notes that it has considered and ejected similar contentions by Nyiramasuhuko in Section IV.F.2(d) above Ntahobali Appeal Brief, paras. 611-614. See also Ntahobali Reply Brief, paras. 247, 248; AT. 15 April 2015 p. 49 602 Case No. ICTR-98-42-A 14 December 2015

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19763/H him, this evidence raises doubts as to Witness TA's presence at the prefectoral office and the credibility of her testimony concerning the Mid-May Attack and the Last Half of May Attacks. 3991 1720. The Prosecution responds that Ntahobali does not show contradictions in the Trial Chamber's findings or the Prosecution evidence or that the Trial Chamber abused its discretion in rejecting Witness WUNJN's evidence and in finding that Witness WUNHE's evidence did not undermine the credibility of Witness TA. 3992 1721. The Appeals Chamber has already considered above in Section IV.F.2(d) similar allegations regarding the absence of refugees from the prefectoral office in May 1994 raised by Nyiramasuhuko. Based on a detailed and careful consideration of the Trial Chamber's findings, the Appeals Chamber has rejected Nyiramasuhuko's contention that the Trial Chamber's conclusions about the transfer of refugees from the prefectoral office to the EER were contradictory with its findings concerning the Mid-May Attack 3993 For the same reasons, the Appeals Chamber dismisses Ntahobali's contention that the Trial Chamber's conclusions about the transfer of refugees from the prefectoral office to the EER were contradictory with its findings concerning the Mid-May Attack and the Last half of May Attacks.

1722. The Appeals Chamber also finds no merit in Ntahobali's argument that Witness RE's testimony contradicts Witness TA's testimony. While Ntahobali emphasises that Witness RE testified that she arrived at the prefectoral office around 15 May 1994, that she was transferred to the EER the next day without any attack occurring, that she only saw him once at the EER, and that she went to Nyange the day after she returned to the prefectoral office, he does not demonstrate that Witnesses TA and RE were together at the prefectoral office or at the EER in mid to late May 1994 or that their evidence is necessarily contradictory. These arguments are therefore dismissed 3994 1723. Turning to the assessment of the evidence of Witnesses WUNJN and WUNHE, who placed Witness TA at her uncle's home rather than the prefectoral office from April to June 1994, the Appeals Chamber observes that the Trial Chamber determined that their evidence did not 3991 Ntahobali Appeal Brief, paras. 611-614. See also Ntahobali Reply Brief, paras. 247, 248; AT. 15 April 2015 p. 49. 3992 Prosecution Response Brief, paras. 985, 986, 989-991. 3993 See supra, Section IV.F.2(d). 3994 Ntahobali also argues that when reading Witness TA's evidence as to her own presence at the BER in the context of the Trial Chamber's findings and evidence concerning the transfer of refugees to the EER, it is clear that she

actually testified about attacks that occurred in "late July 1994 and even thereafter" rather than the mid and latter half of May 1994. Nahobali argues, however, that this evidence is unbelievable as all the refugees had left the Butare Prefecture Office for Rango at this point, and that the witness's estimates that 6,000 refugees were present is inconsistent with the Trial Chamber's finding that "around 200" were there after they returned from the BER. See Ntahobali Appeal Brief, paras. 618, 632, 636. In light of the analysis in Section IV.F.2(d), the Appeals Chamber finds that Ntahobali simply offers his interpretation of Witness TA's evidence without demonstrating inconsistencies in the Trial Chamber's findings or that it was required to discuss any of the interpretations of her testimony that he now provides. The Appeals Chamber therefore dismisses these contentions without further consideration. 603 Case No. ICTR-98-42-A 14 December 2015

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19762/H undermine the credibility of Witness TA. 3995 In reaching this conclusion, the Trial Chamber found, inter alia, that: (i) Witnesses WUNJN and WUNHE "named a different person whom they said was [Witness TA's] uncle", 3996 (ii) it had doubts as to the "reliability of [Witness WUNJN's] memory concerning the crucial issue of Witness TA's location from April to July 1994" because he admitted that "he confused Witnesses QBP and TA in answering a question as to where Witness QBP had lived", 3997 and (iii) Witness WUNJN's "failure to earlier correct the inaccuracies or incomplete information on his identification sheet further undermines his credibility."3998 It also stated that "Witness WUNHE testified that he saw Witness TA in April and towards the end of May 1994" 3999 1724. The Appeals Chamber agrees with Ntahobali that the Trial Chamber erred in reaching each of these conclusions. 4000 First, the Trial Chamber's finding that Witnesses WUNJN and WUNHE were referring to different individuals as Witness TA's uncle is unsupported by the transcripts cited by the Trial Chamber as well as other portions of their evidence.4001 Second, although Witness WUNJN mistakenly referred to Witness TA as Witness QBP, the witness correctly acknowledged the mistake immediately as a slip of tongue as well as later in his testimony. 4002 The Trial Chamber's conclusion unreasonably ignores the

witness's otherwise consistent evidence demonstrating a clear ability to distinguish between the two individuals.4003 Third, the Appeals Chamber finds that, in this instance, it was unreasonable for the Trial Chamber to find that Witness WUNJN's failure to correct the inaccuracies or incomplete information on his identification sheet undermined the witness's credibility as making such corrections is principally the responsibility of the counsel who files the sheet and because the witness testified that he did in fact inform the counsel of the incompleteness of his form. 4004 The Trial Chamber's analysis fails to sufficiently address these circumstances. Finally, as pointed out by Ntahobali, Witness WUNHE testified that he saw Witness TA "at least twice a week" at her uncle's home after 6 April 1994 and "up to the end of the month of May" 4005 which he confirmed during cross-examination. 3995 Trial Judgement, para. 2641. 3996 Trial Judgement, para. 2639. 3997 Trial Judgement, para. 2640. 3998 Trial Judgement, para. 2640. 3999 Trial Judgement, para.

2641. In the Trial Chamber's summary of Witness WUNHE's testimony, the Trial Chamber stated that Witness WUNHE testified that he saw Witness TA in April 1994 when he witnessed the destruction of her home "but he did not see her after sometime towards the end of May 1994". See idem. 4000 See Ntahobali Appeal Brief, para. 612; Ntahobali Reply Brief, paras. 247, 248. 4001 Of the transcripts cited, the only relevant excerpts reflect that Witnesses WUNJN and WUNHE gave consistent evidence of the person with whom Witness TA sought refuge. See Witness WUNJN, T. 7 February 2006 p. 24 (closed session); Witness WUNHE, T. 8 December 2006 p. 66 (closed session). See also Witness WUNJN, T. 6 February 2006 pp. 20, 21 (closed session); Witness WUNHE, T. 8 December 2005 pp. 66, 67 (closed session). " See Witness WUNJN, T. 7 February 2006 pp. 12, 13, 23 (closed session). 4003 Witness WUNJN, T. 6 February 2006 pp. 12-17, 22, 24 (closed session), T. 7 February 2006 pp. 19-23 (closed 4004 See Witness WUNJN, T. 6 February 2006 pp. 5, 6 (closed session). 4005 Witness WUNHE, T. 8 December 2005 pp. 67-69 (closed session). 604 Case No. ICTR-98-42-A 14 December 2015

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19761/H 1725. The Appeals Chamber does not find, however, that these errors undermine the reasonableness of the Trial Chamber's determination that the testimonies of Witnesses WUNJN and WUNHE did not raise doubt with respect to Witness TA's evidence that she was at the Butare Prefecture Office when the Mid-May Attack and Last Half of May Attacks occurred in light of the other factors upon which the Trial Chamber relied.

1726. Indeed, the Appeals Chamber observes that the Trial Chamber stated that it was "not convinced that after narrowly escap[ing] death at the home of her uncle, a fact agreed upon by Witnesses WUNJN and WUNHE, Witness TA would present herself at a drinking establishment at night during the events of April to July 1994.*4007 Ntahobali argues that the Trial Chamber misapplied the burden of proof in using the verb "convinced", and that it incorrectly interpreted the evidence of Witnesses WUNJN and WUNHE as referring to a "drinking establishment" when they described seeing Witness TA in the "sitting room" of her uncle's home. 4008 The Appeals Chamber is of the view that the use of the term "convinced" was intended to indicate that the Trial Chamber did not find the evidence of these witnesses to be prima facie credible.**' Moreover, a review of the evidence of Witnesses WUNJN and WUNHE, as cited by the Trial Chamber and Ntahobali, supports the Trial Chamber's conclusion that Witness TA's uncle used parts of his residence as a "drinking establishment" that was open to the public. 4010 The Trial Chamber's determination that it did not find credible the testimonies of Witnesses WUNJN and WUNHE that Witness TA, a Tutsi who had narrowly escaped death, would "present herself" at her uncle's drinking establishment to serve beverages to Hutu clients is therefore reasonable.

1727. The Trial Chamber also found "Witness WUNJN's claim that no Tutsis were killed in his secteur during the April to July 1994 events [...] not believable in light of the fact that killing was widespread throughout Butare préfecture" and was contradicted by evidence from Defence Witness AND-30.4011 Ntahobali does not substantiate his claim that the Trial Chamber erred in reaching this finding, only pointing to the evidence of Witness WUNJN to argue that the situation 4006 Witness WUNHE, T. 12 December 2005 p. 21 (closed session). 4007 Trial Judgement, para. 2639. 4008 Ntahobali Appeal Brief, para. 612, referring to Trial Judgement, paras. 2639-2642, Witness WUNJN, T. 6 February 2006 pp. 20, 21 (closed session). ao is tidy ge ronstant a where recalled that he eted has burden to pro aging a crimi ad that. See Trial Judgement, paras. 163, 2644. 4010 Trial Judgement, paras. 2359 (referring to Witness WUNJN, T. 6 February 2006 p. 21 (closed session)), 2363 referring to Witness WUNHE, T. 8 December 2005 pp. 65, 66 (closed session)). See also ibid., para. 2639 Trial Judgement, para. 2640 605 Case No. ICTR-98-42-A 14 December 2015

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19760/H may have been different at the lower administrative structures of cellules. 4012 This unsubstantiated argument is dismissed without further consideration.

1728. Furthermore, the Trial Chamber noted that it was not put to Witness TA that the person named by Witnesses WUNJN and WUNHE was her uncle before ultimately concluding that the evidence of these two witnesses did not "undermine[] the credibility of Witness TA."4013 Ntahobali argues that it was unfair for the Trial Chamber to consider this omission in the cross-examination of Witness TA, as he only knew of Witness TA's identity in April 2001, and because he lost his investigator in July 2001 and did not know of the existence of Witness TA's uncle when cross-examining her later that year. 4014 Ntahobali, however, does not point to any part of the record to support his position 15 and fails to demonstrate that the Trial Chamber erred in considering this omission. 4016 In any event, the Appeals Chamber is not persuaded that this consideration was central to the Trial Chamber's analysis of the credibility of Witnesses WUNJN and WUNHE.

1729. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber reached contradictory findings or erred in its assessment of evidence in a way that would render its conclusions on the credibility of Witness TA's testimony concerning the Mid-May Attack and the Last Half of May Attacks unreasonable. (iv) Additional Credibility Challenges 1730. Ntahobali contends that the Trial Chamber failed to consider sufficiently additional evidence that should have raised reasonable doubt in Witness TA's testimony generally, including the fact that: (i) Witness QBP, a relative who was allegedly present with WitnessTA at the Butare Prefecture Office, did not confirm that Witness TA had been raped; (ii) Exhibit D473, which contains the transcript of an interview between Nsabimana and BBC journalist Fergal Keane, reflects that a white journalist visited the prefectoral office, in contradiction to Witness TA's account that no white people were there; (iti) Witness QBQ's testimony concerning how refugees were removed from the prefectoral office to Nyange is materially inconsistent with Witness TA's evidence; (iv) the evidence of Witnesses RE, QBP, and TK describing the circumstances under 4012 Ntahobali Appeal Brief, para. 612, referring to Witness WUNJN, T. 6 February 2006 pp. 40-42 (closed session). 4013 Trial Judgement, para. 2641. 4014 Ntahobali Appeal Brief, para. 613. 4015 As a preface to this argument, Ntahobali also contends that the Trial Chamber erred in failing to provide a reasoned therefore dismisses it without further consideration. 4016 See supra, Section II.F. 606 Case No. ICTR-98-42-A 14 December 2015 QuI

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19759/H which refugees from the prefectoral office were transferred to Rango Forest is materially different to Witness TA's testimony; and (v) Witness TA did not testify about the Night of Three Attacks. 4017 1731. Ntahobali further argues that the Trial Chamber unreasonably failed to address several aspects of Witness TA's testimony that he alleges are inconsistent or contradictory, and which concern: (i) her compliance with instructions to remain behind the prefectoral office; (ii) the fact that she was raped in Nkubi; (iii) the number of members of her family who were killed; (iv) when refugees from the prefectoral office were transferred to Rango Forest; and (v) her presence at the EER.4018 He contends that the Trial Chamber also failed to assess portions of Witness TA's evidence that he deems "implausible"' as well as the witness's "aggressive and arrogant demeanour" 4020 1732. The Prosecution responds that when the Trial Chamber discussed inconsistencies in Witness TA's testimony, it did so reasonably. 4021 1733. The Appeals Chamber finds that Ntahobali overstates the nature of the relationship between Witnesses QBP and TA 022 as well as their continuous presence together at the prefectoral office and the EER. 4023 The Appeals Chamber is therefore not persuaded that the fact that Witness QBP did not testify about the rapes Witness TA suffered demonstrates that the Trial Chamber erred in relying on the evidence of Witness TA that she was raped during the Mid-May Attack and the Last Half of May Attacks. 4024 4017 Ntahobali Appeal Brief, paras. 626, 630, 631, 634. See also ibid., para. 677; AT. 15 April 2015 pp. 33, 50; Ntahobali Supplementary Submissions, para. 18. 4018 Ntahobali Appeal Brief, paras. 626, 628. 4019 Ntahobali Appeal Brief, para.

628. Ntahobali Appeal Brief, para.

621. See also AT. 15 April 2015 p.

50. In his submissions with regard to Witness TA's demeanour, Ntahobali also points out that Judge Bossa had no opportunity to observe Witness TA's alleged "aggressive and arrogant" demeanour. See Ntahobali Appeal Brief, para. 621, referring to ibid., Ground 1.6. However, the Appeals Chamber recalls that Judge Bossa certified her familiarisation with the record and did not consider that there were particular issues involving witness credibility that she needed to assess in light of the witnesses' visually observable demeanour in court. See supra, Section III.C. 4021 Prosecution Response Brief, para. 989. she was unsure of the nature of the relationship and that they did not grow up in the same household. See Witness QBP, T. 29 October 2002 pp. 42, 43 (closed session). Prefecture Office. See Ntahobali Appeal Brief, para.

634. As noted in relation to Nyiramasuhuko's appeal, the excerpts of Witness QBP's testimony do not reflect that they were continually together. See supra, fn. 2003. 4024 Ntahobali also argues that Witness TA lacked credibility because she testified that she did not know anyone at the Butare Prefecture Office, contradicting Witness QBP's testimony to the contrary. See Ntahobali Appeal Brief, paras. 628, 634. However, Witness TA's testimony reflects that she did not meet people with whom she "developed a friendship". See Witness TA, T. 7 November 2001 p.

109. Moreover, although Witness TA also testified that she "did not know anybody", this was in response to whether she knew Witness SJ. See ibid., p. 114 (closed session). Her evidence reflects that she knew persons who were at the prefectoral office and Witness TA was not asked if she knew Witness QBP. See Witness TA, T. 25 October 2001 pp. 81, 83, T. 29 October 2001 pp. 15, 25. See also Trial Judgement, paras. 2183, 2185. The Appeals Chamber is not persuaded by Ntahobali's suggestion that Witness TA sought to conceal that Witness QBP was present, or that no reasonable trier of fact could have relied upon Witness TA's 607 Case No. ICTR-98-42-A 14 December 2015

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19758/H 1734. The Appeals Chamber also fails to see how the evidence that Nsabimana gave an interview to BBC journalist Fergal Keane at the prefectoral office should have raised doubt in Witness TA's evidence concerning the Mid-May Attack and the Last Half of May Attacks. Fergal Keane appeared as a witness and testified that he arrived in Butare Prefecture around 15 June 1994, placing his visit some time after the attacks in question. 4025 The Appeals Chamber further observes that, in response to a compound question about whether "white people" came to film her or give food to the witness at the prefectoral office, Witness TA simply testified that she "did not see them."4026 Through his blanket reference to the recording of the interview given by Nsabimana to Fergal Keane and the Trial Chamber's consideration of this evidence concerning the number of refugees at the prefectoral office around 15 June 1994,4027 Ntahobali fails to demonstrate how this evidence contradicts Witness TA's or somehow raises doubts about her accounts concerning the Mid-May Attack and Last Half of May Attacks.

1735. Similarly, Ntahobali does not demonstrate that the Trial Chamber erred in failing to assess Witness TA's evidence concerning the transfer of refugees from the prefectoral office to Nyange in light of Witness QBQ's allegedly contradictory testimony. Ntahobali argues that Witness TA testified that refugees were forced onto "garbage trucks" while Witness QBQ denied this, testifying that there was only "one bus" 4028 However, the Appeals Chamber observes that the Trial Chamber noted Witness TA's evidence "that during her stay at the [Butare Prefecture Office] she and other refugees were picked up by buses and vehicles used for rubbish collection and driven to Nyange."4029 In this regard, Witness TA's evidence is similar to that of several other witnesses, including Witness QBQ's, that refugees were removed from the prefectoral office in buses. 4030 Moreover, the reference provided by Ntahobali does not demonstrate that Witness QBQ unequivocally denied that a garbage truck was used and, contrary to Ntahobali's contention, this witness also indicated that more than one bus was involved. 4031 1736. Ntahobali also fails to demonstrate any differences between the evidence of Witness TA and that of Witnesses RE, QBP, and TK concerning the circumstances under which refugees were evidence about the Mid-May Attack and Last Half of May Attacks because she did not discuss Witness QBP in her testimony. See also infra, para. 1860. 4025 Fergal Keane, T. 25 September 2006 p. 10. 4026 Witness TA, T. 7 November 2001 p. 94. 4027 Ntahobali Appeal Brief, para. 626, referring to Exhibit D473, Trial Judgement, para. 5077. 4028 Ntahobali Appeal Brief, para. 628, referring to Witness TA, T. 6 November 2001 p. 62, T. 7 November 2001 pp. 25, 26, Witness QBQ, T. 3 February 2004 p.

77. Trial Judgement, para. 4125, referring to Witness TA, T. 6 November 2001 p. 62 (emphasis added). 4030 See Trial Judgement, paras. 4154-4167. 4031 See Witness QBQ, T. 3 February 2004 pp. 23, 75 (testifying that three buses were used), 77. See also Tria Judgement, paras. 4072, 4163. The Appeals Chamber observes that Ntahobali also refers to the testimony of Witness QBP at T. 24 October 2002 p. 100 to support his position concerning inconsistencies between Witness TA's 608 Case No. ICTR-98-42-A 14 December 2015

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19757/H transferred from the Butare Prefecture Office to Rango Forest that would have prevented the Trial Chamber from relying on Witness TA's evidence concerning the Mid-May Attack and the Last Half of May Attacks. Ntahobali emphasises that Witness TA testified that refugees were attacked prior to boarding vehicles and that 1,000 refugees were transported in two buses, while Witnesses RE and QBP did not confirm that violence was used at this point, and Witnesses RE and TK only testified that one bus was used and that it "may not even have been full.»4032 The Appeals Chamber observes that the Trial Chamber found that it could not rely upon Witness TA's estimates as to the number of refugees taken from the prefectoral office to Rango Forest. 4033 In so finding, it nonetheless considered Witness TA's evidence "credible with respect to the time of her arrival and her experience at the [Butare Prefecture Office].*1034 Since the Trial Chamber had already expressed doubts as to Witness TA's estimates concerning the number of refugees transferred, the Appeals Chamber is of the view that the Trial Chamber was under no obligation to provide any further analysis as to differences between Witness TA's evidence and any other witness's concerning the number of buses used to transfer refugees to Rango Forest.

1737. Moreover, nothing in Witness TA's testimony reflects, as Ntahobali alleges, t035 that she testified that Tutsis were being killed as they boarded the buses to Rango Forest. Rather, her testimony indicates that those Tutsis who had not already been killed at the prefectoral office were transferred to Rango Forest. 4036 In contrast to Ntahobali's assertion that the Trial Chamber failed to address the contradictions between Witness TA's evidence and Witness RE's with respect to whether the refugees were beaten, the Appeals Chamber observes that the Trial Chamber found Witness TA's evidence largely consistent with the evidence of Witnesses SU, FAP, and Des Forges that the transfer was coercive. 4037 The Trial Chamber also addressed Witness RE's testimony in reaching this conclusion, noting that she testified that the transfer was supervised by Interahamwe. 4038 Indeed, although Witness RE stated that nobody was forced or manhandled into the buses in the excerpt of her testimony referenced by Ntahobali, the witness explained that this was because the transfer was obligatory, 4039 Ntahobali also fails to demonstrate any contradiction between Witness TA's testimony and Witness QBP's testimony that she did not see anyone being evidence and Witness QBP's concerning the transfer to Nyange. However, this aspect of Witness QBP's testimony concerns the transfer to Rango Forest. 4032 Ntahobali Appeal Brief, para. 626. 4033 Trial Judgement, para. 5075. 4034 Trial Judgement, para. 5075. 4035 Ntahobali Appeal Brief, para. 626. 4036 Witness TA, T. 7 November 2001 pp. 26-30, 104-106, T. 8 November 2001 pp. 65-67. 4037 Trial Judgement, paras. 5081, 5084 4038 Trial Judgement, para. 5081. 4039 Witness RE, T. 27 February 2003 pp. 53, 54. 609 Case No. ICTR-98-42-A 14 December 2015 Qu

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19756/H beaten because Witness QBP emphasised that she was only speaking from her perspective and confirmed that the transfer was forced. 4040 1738. As for Ntahobali's contention that Witness TA's failure to testify about the Night of Three Attacks despite her presence at the prefectoral office during this time-period negatively impacts her credibility, the Appeals Chamber notes that Ntahobali fails to reference anything in Witness TA's evidence in support of his argument. Ntahobali merely refers to the testimony of Witness TA reflecting that she stayed at the prefectoral office between her arrival from the BER at the end of April 1994 and her departure to Rango Forest in June 1994, but highlights nothing in her testimony indicating that she stayed at the prefectoral office at all times between these two dates, or that every refugee at the prefectoral office witnessed or would have remembered the Night of Three Attacks. 4041 1739. Turning to Ntahobali's submissions regarding the Trial Chamber's failure to address various internal inconsistencies within Witness TA's testimony as well as variances between her evidence at trial and in her prior statement, the Appeals Chamber finds that Ntahobali's argument that Witness TA contradicted herself as to whether or not she complied with instructions to remain behind the prefectoral office is without merit. Witness TA's evidence

indicates that, while it was forbidden for the Tutsis to move from the back of the office, she and others did not always follow this instruction and sometimes moved to the front of the prefectoral office given the large number of people and lack of discipline." 4042 1740. Likewise, Ntahobali fails to identify any material inconsistency in an excerpt of Witness TA's testimony that she was raped in Nkubi the day before she fled to the "préfecture office" 4043 Ntahobali simply extracts this line of Witness TA's testimony and ignores the surrounding evidence. Witness TA consistently testified that she went to the EER prior to going to the prefectoral office and was equally consistent as to the details of her rape by Interahamwe in Nkubi beforehand. 4044 When this statement of Witness TA is read in context with the entirety of her testimony, and particularly with her testimony immediately following it, which describes the roadblocks and corpses she passed on her way to Butare prefecture before reaching the EER and ultimately the prefectoral office, 4045 it is evident that Witness TA was not contradicting her 4040 Witness QBP, T. 24 October 2002 pp. 8, 9. 4041 See Ntahobali Appeal Brief, paras. 630, 631, 677; infra, Section V.I.2(d)(iii). See also supra, Section IV.F.2(e) ii). 4042 Witness TA, T. 5 November 2001 pp. 68, 99-101. See also Witness TA, T. 30 October 2001 pp. 22-26. 4043

Ntahobali Appeal Brief, para. 626, referring to Witness TA, T. 29 October 2001 pp. 91, 92 ("A. [...] [t]he day after the rape, I fled to the préfecture office."). 4044 Witness TA, T. 29 October 2001 pp. 91, 92, T. 30 October 2001 pp. 70-72 (closed session), T. 5 November 2001 114 (closed session), T. 6 November 2001 p. 81 1045 Witness TA. T. 29 October 2001 pp. 91-100. See also Witness TA, T. 30 October 2001 p. 70 (closed session) T. 6 November 2001 p. 32. 610 Case No. ICTR-98-42-A 14 December 2015

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19755/H testimony that she went to the EER prior to the prefectoral office but merely made a general statement in relation to her movements that subsumed her trip to the EER as part of her journey to the prefectoral office.

1741. Ntahobali also misconceives Witness TA's evidence as to the number of members of her family who were killed during the genocide to suggest it is contradictory. 4046 Witness TA testified that she thought that up to 80 members of her family were killed in Butare in 1994, in general. 4047 Ntahobali confuses this aspect of Witness TA's testimony with her prior statement in which she describes an attack she suffered at the compound of a family member in which she and 30 other victims were thrown - wounded or dead - into a latrine, and with her related cross-examination in which she corrected her prior statement by stating that 60 people died during the attack as opposed to 30.4048 Although the witness testified that the victims of the attack included members of her family, nothing in her testimony or her prior statement reflects that all of those killed were related to her when she referred to the number of victims. 4049 1742. With respect to Ntahobali's contention that Witness TA's prior statement was contrary to her testimony about when refugees from the prefectoral office were transferred to Rango Forest, the Appeals Chamber notes that Witness TA consistently stated that this transfer took place in mid-June 1994 when testifying before the Trial Chamber. 4050 In light of the detailed evidence the witness provided as to her location between April and June 1994, and the Trial

Chamber's finding that Witness TA was credible as to the timeline of the attack she witnessed at the prefectoral office, Ntahobali fails to demonstrate that the Trial Chamber erred in not expressly discussing the difference between her testimony and prior statement that the transfer occurred in May 1994.4051 1743. Contrary to Ntahobali's assertion, the Appeals Chamber further observes that the Trial Chamber expressly noted Witness TA's explanation that her prior statement did not reflect that she went to the EER prior to the prefectoral office because it was improperly recorded 052 The Trial Chamber also considered Witness TA's failure to mention that she was transferred to Nyange in her 4046 Ntahobali Appeal Brief, para. 628, referring to Witness TA, T. 1 November 2001 pp. 9-15 (closed session), Trial Judgement, para. 2174. 4047 Witness TA, T. 29 October 2001 p. 109. 4048 Witness TA, T. 1 November 2001 pp. 10-15 (closed session). 4049 Witness TA, T. 1 November 2001 pp. 12-16 (closed session); Witness TA's Statement, p. K0043299 (Registry pad winess TA, T. 29 October 2001 pp. 61, 62, T. 6 November 2001 p. 62, 65, 68, 106, 107. 4051 Witness TA stated in her prior statement that "[bly the end of May 94 all the remaining refugees from the Prefecture were taken to Rango Forest where we spent about the whole month of June until the Inkotanyi came and rescued us." See Witness TA's Statement, p. K0043302 (Registry pagination). The Trial Chamber relied on Witness TA's evidence that the attacks she testified to at the prefectoral office occurred in mid-May 1994, the last half of May 1994, and during 611 Case No. ICTR-98-42-A 14 December 2015

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19754/H prior statement, noting that her testimony only "came out in response to a question posed in cross-examination by the Nyiramasuhuko Defence about Witness TA's transfer from the [prefectoral office] to Rango [Forest]" 4053 It also noted in its summary of Witness TA's evidence as to the events in Nyange that, when it was put to the witness that she had never mentioned having been sent to Nyange before Rango Forest in her prior testimony, she agreed. 4054 Witness TA explained that she had not mentioned it because she had not spent the night there as most of the refugees had been killed.4055 Ntahobali fails to demonstrate that the Trial Chamber erred in accepting this explanation, particularly since it is consistent with other witness evidence that there was a partial transfer of refugees to Nyange that occurred prior to the transfer to Rango Forest4056 and that it played a comparatively minor role in her experience of the attacks at the prefectoral office.

1744. The Appeals Chamber turns to Ntahobali's contention that the Trial Chamber failed to address, or erroneously relied on, several aspects of Witness TA's evidence that are "implausible" and failed to consider Witness TA's "aggressive and arrogant demeanour". 4057 1745. By listing numerous extracted statements in Witness TA's testimony that he considers "implausible" and alleging that no reasonable trier of fact would have relied on Witness TA's evidence, Ntahobali fails to identify any error of fact or law on the part of the Trial Chamber, let alone how the error would have impacted the Trial Chamber's conclusion. Referring to the standards of appellate review recalled at the beginning of this Judgement, the Appeals Chamber dismisses Ntahobali's contention that it was unreasonable for the Trial Chamber to rely on Witness TA's evidence in light of these alleged "implausible accounts" by Witness TA. 4058 1746. The Appeals Chamber also rejects Ntahobali's contentions that the Trial Chamber failed to address the impact of Witness TA's alleged "aggressive and arrogant demeanour" on her credibility. In support of his claim, Ntahobali argues that the interpreters "toned down" Witness TA's aggressive and arrogant statements by only partially translating them, without pointing to his submissions at trial in this respect.4059 The Appeals Chamber notes that the Trial Chamber

previously adjudicated this issue and Ntahobali fails to demonstrate any error in the Trial 4052 See Trial Judgement, para. 3893, referring to Witness TA, T. 5 November 2001 p. 119 (closed session), Witness TA's Statement. The Trial Chamber observed that Witness TA explained that her mention of these events was not recorded in her statement. See idem. 4053 Trial Judgement, para. 4055. 4054 Trial Judgement, para.

4125. See also ibid., para. 5005. 405S Witness TA, T. 6 November 2001 pp. 62, 63. 4056 See Trial Judgement, paras. 4153, 5073. 4057 See supra, para. 1731. 1058 See supra, Section II. 4059 Ntahobali Appeal Brief, para. 621, referring to ibid., Annex H. 612 Case No. ICTR-98-42-A 14 December 2015

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19753/H Chamber's conclusion that Witness TA's demeanour was reflected in the written transcripts. 1060 Ntahobali also relies on the fact that Witness TA likened Ntahobali and Nyiramasuhuko's counsel to an Interahamwe during her testimony 061 The Appeals Chamber considers that a trial chamber's assessment of a witness's demeanour may be implicit in its assessment of the witness's credibility.4062 The Appeals Chamber is of the view that a reasonable trier of fact could have considered that this aspect of Witness TA's demeanour in court did not undermine her credibility, particularly since the witness alluded to this in response to sensitive, and somewhat indelicate, questions posed during cross-examination as to whether she smelled when she was at the prefectoral office as well as in response to questions she feared would disclose her identity to the public. 4063 1747. Recalling that the assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a trial chamber to which the Appeals Chamber must accord deference, 4064 and having reviewed the transcripts of Witness TA's testimony, the Appeals Chamber is not persuaded that the Trial Chamber was unreasonable in not expressly discussing Witness TA's demeanour or in not concluding that it undermined her credibility. 06s 1748. Accordingly, the Appeals Chamber rejects these

additional challenges to Witness TA's credibility as regards the Mid-May Attack and Last Half of May Attacks. (v) Conclusion 1749. In light of the analysis above, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in relying on the evidence of Witness TA concerning his participation in the Mid-May Attack and the Last Half of May Attacks. (d) Night of Three Attacks 1750. The Trial Chamber found that, around the end of May or the beginning of June 1994, Ntahobali, Nyiramasuhuko, and Interahamwe came to the Butare Prefecture Office on board a camouflaged pickup truck three times in one night.4066 They abducted Tutsi refugees each time, some of whom were forced to undress, and took them to other sites in Butare Prefecture to be 4060 29 June 2004 Decision, para. 45. 4061 Ntahobali Appeal Brief, para. 621, referring to Witness TA, T. 31 October 2001 pp. 63, 64, T. 1 November 2001 p. 115, 116 (closed session) Cf. Nizeyimana Appeal Judgement, para. 260; Kanyarukiga Appeal Judgement, para. 121; Nahimana et al. Appea Judgement, para. 194. 4063 Witness TA, T. 31 October 2001 pp. 63, 64, T. 1 November 2001 pp. 115, 116 (closed session). 4061 Nizeyimana Appeal Judgement, paras. 56, 260; Muvunyi Appeal Judgement of 1 April 2011, para. 26. 4065 See also supra, Section III.F. 4066 Trial Judgement, paras. 2661, 2715, 2738, 2781(iii). 613 Case No. ICTR-98-42-A 14 December 2015

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19752/H killed. 4067 It found that Nyiramasuhuko ordered the Interahamwe to commit these crimes, and determined that Ntahobali and the Interahamwe attacked women and children at the prefectoral office, assaulted them, and forced them onto the pickup truck. 4068 The Appeals Chamber recalls that it has determined, Judge Khan dissenting, that Ntahobali was not convicted on the basis of his conduct during the Night of Three Attacks. 4069 However, for the reasons mentioned above, the Appeals Chamber will nonetheless address Ntahobali's challenges to the assessment of the evidence concerning these attacks. 4070 1751. The Trial Chamber identified several victims during these attacks, including Mbasha's wife and children, who the Trial Chamber concluded were abducted by Ntahobali and the Interahamwe. 4071 Recalling its finding that the Defence did not receive notice of the identity of Mbasha's wife and children, the Trial Chamber did not convict Ntahobali for these specific incidents. 4072 Rather, the Trial Chamber used this as circumstantial evidence to support its findings on abductions and killings of other unnamed Tutsi refugees at the prefectoral office. 4073 1752: Ntahobali argues that the Trial Chamber erred in: (i) its conclusion related to the timing of the Night of Three Attacks; (ii) its assessment of the credibility and reliability of Prosecution witnesses; (iii) failing to

consider Witnesses TA's and SD's silence on the Night of Three Attacks; (iv) its assessment of the abduction of Mbasha's wife and children during these attacks; (v) its assessment of evidence relating to other abductions during the Night of Three Attacks; and (vi) its assessment of general inconsistencies 4074 The Appeals Chamber will address Ntahobali's contentions in turn. 4075 (i) Timing of the Night of Three Attacks 1753. The Trial Chamber, noting the "similar timeline as to the date of the attacks" provided by Witnesses TK, QJ, SU, SS, and FAP, concluded that the Night of Three Attacks occurred "around the end of May or beginning of June 1994:34076 It also concluded that "sometime between 5 June 4067 Trial Judgement, paras. 2715, 2736, 2738, 2748, 2749, 2781 (ili). 4068 Trial Judgement, paras. 2736, 2738, 2781(iii). 4069 See supra, Sections V.I.1 (a)(iii), V.I.1(c). 4070 See supra, Section V.I.2. 4071 Trial Judgement, para.

2727. See also ibid., para. 2661. 4072 Trial Judgement, paras. 2172, 2716, 2727, 2730, 2782. 4073 Trial Judgement, paras. 2172, 2716, 2727, 2730, 2782. See also supra, Section V.I.2(a)(ii). 4074 Ntahobali Notice of Appeal, paras. 242, 243; Ntahobali Appeal Brief, paras. 657-704; Ntahobali Reply Brief, addressed and dismissed Nyiramasuhuko's relevant submissions in Section IV.F.2 above. 4076 Trial Judgement, para.

2661. See also ibid., para. 2781(iii) ("Around the end of May to the beginning of June 1994"). 614 Case No. ICTR-98-42-A 14 December 2015

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19751/H and 15 June 1994" Nsabimana posted "gendarmes or soldiers" at the Butare Prefecture Office, 4077 that these security personnel had been "requisitioned by Nsabimana", and that the evidence did not "support an inference that Nsabimana requisitioned the soldiers and/or gendarmes to harm the refugees", 4078 1754. Ntahobali submits that the Trial Chamber erred in finding that the Night of Three Attacks occurred around the end of May or beginning of June 1994.407 Relying on the evidence of Witnesses RE, TK, SU, and QBP, he argues that "[a]ny reasonable trier of fact could only have reached the logical and reasonable finding that the alleged attacks must have taken place after 5 June 1994", which is inconsistent with the Trial Chamber's conclusions that Nsabimana deployed gendarmes and soldiers to the prefectoral office sometime between 5 and 15 June 1994 and that abductions and rapes had ceased from that time on. 4080 According to Ntahobali, this precludes any finding beyond reasonable doubt that the Night of Three Attacks occurred. 4081 1755. The Prosecution responds that Ntahobali fails to demonstrate how any reasonable trier of fact could only come to the conclusion based on the evidence at trial that the Night of Three Attacks "undoubtedly occurred after 5 June 1994"4082 and that his arguments do not undermine the Trial Chamber's finding that the Night of Three Attacks

occurred in late May or early June 1994.4083 1756. The Appeals Chamber observes that the Trial Chamber explicitly considered the accounts of Witnesses TK, SU, and RE regarding the timing of the attacks relied upon by Ntahobali in support of his contention that the attack must have occurred after 5 June 19944084 The Appeals Chamber 4077 Trial Judgement, para. 2812. 4078 Trial Judgement, paras. 2813, 2815. 4079 Ntahobali Appeal Brief, para. 658. 4080 Ntahobali Appeal Brief, paras. 658 (referring to Trial Judgement, paras. 2809-2812), 660-662. See also ibid., paras. 659, 664, 709; AT. 15 April 2015 p. 52; AT. 16 April 2015 pp. 33, 34. Ntahobali argues that the Trial Chamber relied on the testimony of Witness SU to prove that abductions and rapes ceased once soldiers and gendarmes were posted at the Butare Prefecture Office. See Ntahobali Appeal Brief, para.

658. See also Ntahobali Reply Brief, para. 264: AT. 16 April 2015 р. 33. 1081 Ntahobali Appeal Brief, paras. 659-662, 664. See also AT. 15 April 2015 p. 52 1082 Prosecution Response Brief, para.

1003. The Prosecution argues that the first week of June 1994 ran from Wednesday 1 June to Saturday 4 June, that the transfer to Nyange therefore happened between this time, and that the Night of Three Attacks could have occurred during this period, as Witnesses RE and TK testified. See idem. Prosecution Response Brief, paras. 994, 997-1008. 4084 The Trial Chamber noted that Witness TK testified to arriving at the Butare Prefecture Office at the end of May or early June, after the attempted transfer of Tutsi refugees to Nyange, and that therefore "all of her testimony pertained to events from the beginning of June 1994." See Trial Judgement, paras. 2203, 2655, referring, inter alia, to Witness TK, T. 21 May 2002 pp. 121, 122 (closed session), T. 23 May 2002 pp. 51, 52. As for Witness SU, the Trial Chamber considered her testimony that the Night of Three Attacks occurred "on a Friday after she had arrived at the [Butare Prefecture Office]" and that "[this would place the date in June 1994" as the witness arrived towards the end of May 1994. See Trial Judgement, paras. 2242, 2251, 2655; Witness SU, T. 14 October 2002 p.

30. With respect to Witness RE. the Trial Chamber explicitly considered her testimony that the Night of Three Attacks occurred after the attempted transfer to Nyange and President Sindikubwabo's visit to the Butare Prefecture Office. See Trial Judgement, paras. 2276, 2277, 2657; Witness RE, T. 25 February 2003 pp. 46, 47, T. 27 February 2003 p.

5. Witness RE explicitly 615 Case No. ICTR-98-42-A 14 December 2015

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19750/H finds that Ntahobali has not demonstrated that, on the basis of this evidence, it was unreasonable for the Trial Chamber to conclude that the Night of Three Attacks could have occurred around the end of May or the beginning of June 1994.

1757. With respect to Witness QBP, the Appeals Chamber observes that the Trial Chamber did not expressly rely on this witness when concluding that the Night of Three Attacks occurred around the end of May or beginning of June 1994.4085 Nevertheless, the Trial Chamber stated, in the course of its analysis on this event, that it was convinced that Witness QBP was referring to the Night of Three Attacks when testifying about the only attack she described. 4086 However, a careful review of Witness QBP's testimony reveals that she did not testify about the Night of Three Attacks. Instead, as noted in another part of the Trial Judgement, the Trial Chamber found that Witness QBP's testimony on an attack at the prefectoral office concerned an attack after the Night of Three Attacks in the first half of June 1994.4087 Ntahobali's reliance on Witness QBP's testimony as it relates to the timing of the Night of Three Attacks is therefore misplaced. As to the Trial Chamber's erroneous statement about the relevance of Witness QBP's evidence to the Night of Three Attacks, the Appeals Chamber observes that the Trial Chamber did not in fact rely on Witness QBP's evidence regarding the timing of the Night of Three Attacks, or Ntahobali's and Nyiramasuhuko's conduct during this particular night. 4088 The Appeals Chamber therefore finds that this error has not occasioned a miscarriage of justice.

1758. In any event, regardless of when exactly the Night of Three Attacks occurred at the end of May 1994 or at the beginning of June 1994, the Appeals Chamber sees no merit in Ntahobali's argument that the posting of security personnel at the prefectoral office is inconsistent with the finding that the attacks took place. Contrary to Ntahobali's arguments, the Trial Chamber did not find that all abductions and rapes ceased once gendarmes and/or soldiers were posted at the prefectoral office." 4089 In fact, the Trial Chamber expressly determined that additional attacks stated that she was unsure of the exact timing of events. See Witness RE, T. 25 February 2003 pp. 39, 40, 43, 46, T. 27 February 2003 p. 5. 4085 See Trial Judgement, para. 2661. 4086 Trial Judgement, para. 2657. 4087 Witness QBP, T. 24 October 2002 pp. 84-86, 88, T. 28 October 2002 pp. 71, 74; Trial Judgement, para.

2750. See also supra, paras. 894, 960; infra, paras. 1757, 1863. 4088 As discussed above, Witness QBP's testimony was only relied upon as circumstantial evidence for the Night of Three Attacks in relation to the vehicle used during the attacks at the prefectoral office, and as to what Nyiramasuhuko wore in general. See supra, Section V.I.2(b)(iii)c; Trial Judgement, para. 2698, fn. 7559. 4089 The Trial Chamber stated that the "evidence established] that these soldiers forestalled attacks against those taking refuge" at the Butare Prefecture Office. See Trial Judgement, para. 5902, referring to Witness SU, T. 21 October 2002 p. 38, Witness SS, T. 10 March 2003 pp. 34, 35. According to Witness SU, the gendarmes prevented the abduction of refugees when a red Toyota vehicle came to the prefectoral office and they continued to guard the refugees. However. she testified that the gendarmes, realising that they were guarding Tutsi refugees, threatened to kill the refugees should the RPF arrive. See Witness SU, T. 21 October 2002 pp. 38, 39. Witness SS testified that, on one occasion, the soldiers chased away a vehicle coming to abduct people, but she also stated that "this did not stop the abduction from continuing because later on they came." See Witness SS, T. 10 March 2003 pp. 34, 35. See also Trial Judgement, para. 2290. 616 Case No. ICTR-98-42-A 14 December 2015

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19749/H occurred in the first half of June 1994.4090 The lack of merit of Ntahobali's argument is further reflected by his reliance on Witness SU's evidence to submit that the Night of Three Attacks did not occur because the witness testified that abductions and rapes had ceased once Nsabimana posted gendarmes and soldiers at the prefectoral office, 4091 In fact, Witness SU gave direct evidence about the Night of Three Attacks, which the Trial Chamber relied on to find that the attacks occurred 4092 Similarly, Witnesses RE and TK, on whom Ntahobali relies to support his theory, also testified about the Night of Three Attacks.4093 1759. Based on the foregoing, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that the Trial Chamber erred as to the timing of the Night of Three Attacks. (ii) Credibility and Reliability of Prosecution Witnesses 1760. Ntahobali challenges the Trial Chamber's reliance on the testimonies of Witnesses QY, SJ, QBQ, FAP, SS, SU, and RE about the Night of Three Attacks. 4094 a. Witnesses QY and SJ 1761. The Trial Chamber relied, inter alia, on the evidence of Witnesses QY and SJ in support of its finding that Ntahobali and the Interahamwe came to the Butare Prefecture Office on three occasions in one night, abducting Tutsi refugees on each occasion. 4095 1762. Ntahobali argues that, given the Trial Chamber's findings elsewhere in the

Trial Judgement, the evidence of Witnesses QY and SJ was not reliable or credible and that the Trial Chamber erred in relying on their testimonies with respect to the Night of Three Attacks. 4096 1763. The Prosecution responds that Ntahobali's arguments lack merit and that he fails to demonstrate how the Trial Chamber erred in relying on the testimonies of Witnesses QY and SJ where they corroborated other evidence pertaining to the Night of Three Attacks, 4097 1764. The Appeals Chamber has previously determined that the Trial Chamber erred in relying on the evidence of Witnésses QY and SJ with respect to the presence of Nyiramasuhuko and Ntahobali 4090 Trial Judgement, para.

2751. See also ibid., paras. 2750, 2752-2773. 4091 See Ntahobali Appeal Brief, paras. 658, 659. 4092 Trial Judgement, paras. 2251-2253, 2661, 2703, 2706, 2715, 2731, 2732, 2736, 2738. 4093 Compare Ntahobali Appeal Brief, para. 661, referring to Witnesses RE and TK with Trial Judgement, paras. 2211-2216, 2277, 2278, 2654-2661, 2703, 2704, 2707, 2715, 2717, 2719, 2724, 2725, 2727-2730, 2738 1094 Ntahobali Appeal Brief, paras. 667-674, 686, 687, 690, 691, 699 4095 Trial Judgement, paras. 2663, 2664, 2703, 2705, 2713. 4096 Ntahobali Appeal Brief, paras. 667, 668. See also Ntahobali Reply Brief, para. 275. 4097 Prosecution Response Brief, paras. 1044-1048. 617 Case No. ICTR-98-42-A 14 December 2015

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19748/H during the Night of Three Attacks.4» For the reasons stated previously,*» the Appeals Chamber finds that it was also unreasonable for the Trial Chamber to rely on Witnesses QY's and SJ's testimonies to establish that Nyiramasuhuko, Ntahobali and the Interahamwe came to the prefectoral office three times in one night, abducting Tutsi refugees on each occasion.

1765. Nevertheless, as for the issue of identification of Nyiramasuhuko and Ntahobali, the Appeals Chamber is not persuaded that the Trial Chamber's erroneous reliance on Witnesses QY and SJ occasioned a miscarriage of justice. 4100 Aside from the accounts of Witnesses QY and SJ, the Trial Chamber relied on the evidence of Witnesses TK, RE, SU, SS, FAP, and QBQ to establish that Ntahobali, Nyiramasuhuko, and the Interahamwe came to the prefectoral office three times in one night to abduct Tutsi refugees.4101 The Trial Chamber also relied on the evidence of Witnesses RE, FAP, SU, and QBQ to determine that certain refugees survived the abductions and returned to the prefectoral office to inform the remaining refugees that abducted persons had been killed. 4102 1766. The Appeals Chamber is likewise not persuaded that the evidence of Witness QY or Witness SJ was essential to the Trial Chamber's determinations that: (i) the Night of Three Attacks occurred around the end of May or beginning of June 1994;4103 (i) Ntahobali participated in the abduction of Mbasha's wife and children;4104 and (ili) Ntahobali and the Interahamwe, based on Nyiramasuhuko's orders, attacked and forced women and children aboard a pickup truck, and that the women and children were taken from the prefectoral office and killed elsewhere. +105 1767. In light of the foregoing, the Appeals Chamber finds that the

Trial Chamber erred in relying on the evidence of Witnesses QY and SJ when making findings about the Night of Three Attacks. 4098 See supra, paras. 804, 846, 1657, 1678. 4099 See supra, Sections IV.F.2(c)(ii)d, IV.F.2(c)(iii)f, V.I.2(b)(iii)a.ii, V.I.2(b)(iii)c. 4100 See supra, paras. 856, 1687. See Trial Judgement, paras. 2703, 2704, 2706-2712, 2714, 2715. The Appeals Chamber has addressed and dismissed in the section below Ntahobali's challenges to the Trial Chamber's reliance on the evidence of Witnesses TK, SU, SS, FAP, and QBQ in these respects. 4102 See Trial Judgement, paras. 2746-2748. 4103 See Trial Judgement, para.

2661. While the Trial Chamber referred to the evidence of Witness SJ as it related to the timing of the Night of Three Attacks, the Trial Chamber emphasised that Witness SI's account differed from the testimonies of Witnesses TK, QJ, SU, SS, and FAP as to when the attacks occurred. See ibid., para.

2659. See also ibid., para.

2654. Noting that Witnesses TK, QJ, SU, SS, and FAP provided "a similar timeline", the Trial Chamber reached its conclusion that the Night of Three Attacks occurred around the end of May or beginning of June 1994 based on their evidence. See ibid., para. 2661. 4104 The Trial Chamber expressly rejected Witness SJ's evidence and did not refer to Witness QY's evidence in its analysis pertaining to the abduction of Mbasha's wife and children. See Trial Judgement, paras. 2717-2727. 4105 Trial Judgement, para.

2736. The Trial Chamber did not refer to the evidence of Witnesses QY and SJ to determine that, during the Night of Three Attacks, Ntahobali, Nyiramasuhuko, and the Interahamwe abducted refugees who were killed elsewhere. See idem. Furthermore, the Appeals Chamber is not persuaded that the evidence of Witnesses QY and SJ was material to the Trial Chamber's conclusion that refugees were abducted from the prefectoral office in order to be killed. See ibid., paras. 2743, 2746, 2747. Consequently, to the extent that the Trial Chamber erred in relying on this evidence, the Appeals Chamber does not find that it has occasioned a miscarriage of justice. 618 Case No. ICTR-98-42-A 14 December 2015

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19747/H However, the Appeals Chamber concludes that this error has not occasioned a miscarriage of justice and dismisses Ntahobali's contentions in this regard. b. Witness QBQ 1768. The Trial Chamber relied on the evidence of Witness QBQ in support of its finding that Ntahobali, Nyiramasuhuko, and the Interahamwe came to the Butare Prefecture Office on three occasions in one night, abducting Tutsi refugees on each occasion. 4106 1769. Ntahobali submits that the Trial Chamber erred in relying on Witness QBQ's testimony about the Night of Three Attacks.4 He contends that her evidence reflects that these attacks occurred in April or carly May 1994,4108 before the transfer to Nyange, 4109 therefore contradicting the Trial Chamber's findings "on all events, as well as the testimony of other witnesses that it endorsed."4110 In this regard, he submits that the Trial Chamber "committed a serious error" in considering that Witness QBQ testified about the Night of Three Attacks "in June" merely because she referred to Semanyenzi's survival.411' In Ntahobali's view, the "inconsistencies in the dates" should have led the Trial Chamber to discard Witness QBQ's evidence as it did with Witness QY's, particularly because Witness QY had testified that she and Witness QBQ were "always together" at the prefectoral office. 4112 1770. Ntahobali also emphasises that, in her prior statement, Witness

QBQ only described one attack "on that same night" and did not mention him. 4113 He further contends that the Trial Chamber "erroneously disregarded" several inconsistencies in Witness QBQ's prior statement without noting that she consistently blamed errors on Tribunal investigators. 4114 4106 Trial Judgement, paras. 2663, 2664, 2686, 2693, 2699, 2703, 2714, 2715, 2738. The Trial Chamber also relied upon Witness OBQ's evidence in Nyiramasuhuko participated in the abduction of multiple truckloads of Tutsi refugees from the prefectoral office and that these refugees were killed. See ibid., paras. 2747-2749. 4107 Ntahobali Appeal Brief, para. 669. 4108 Ntahobali Appeal Brief, para.

669. Specifically, Ntahobali points to Witness QBQ's testimony that she arrived at the prefectoral office in late April 1994 and that the Night of Three Attacks occurred three days after her arrival. See idem, referring to Witness QBQ, T. 3 February 2004 pp. 6-11. 4109 Ntahobali Appeal Brief, para. 669, referring to Witness QBQ, T. 3 February 2004 pp. 22-24. Ntahobali also notes that Witness QBQ testified that the transfer to Nyange occurred prior to the transfer to the BER and that her evidence indicates that the departure for Rango Forest occurred the "day after" the return from the EER. See idem. 4110 Ntahobali Appeal Brief, para. 669. 4111 Ntahobali Appeal Brief, para. 669. 4112 Ntahobali Appeal Brief, para. 669. 4113 Ntahobali Appeal Brief, para.

669. See also Ntahobali Reply Brief, para. 274. 4114 Ntahobali Appeal Brief, para. 669. 619 Case No. ICTR-98-42-A 14 December 2015

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19746/H 1771. The Prosecution responds that the Trial Chamber reasonably concluded that Witness QBQ testified about the Night of Three Attacks and that Ntahobali distorts her testimony and prior statement to allege inconsistencies that do not exist. 4115 1772. The Appeals Chamber observes that the Trial Chamber expressly summarised Witness QBQ's testimony with respect to her arrival at the prefectoral office, the timing of the Night of Three Attacks as well as her transfers to Nyange, the EER, and Rango Forest. 4116 The Appeals Chamber notes that the Trial Chamber did not rely on Witness QBQ's testimony when it assessed and determined that the Night of Three Attacks occurred around the end of May or beginning of June 1994.47 Nevertheless, the Trial Chamber expressly noted that Witness QBQ testified about the abduction and escape of Semanyenzi and that Witnesses RE, SS, SU, and FAP also testified that "a man named Semanyenzi was abducted on the [Night of [T]hree [A]ttacks at the [Butare Prefecture Office] which occurred around the beginning of June 1994."4118 It then concluded that Witness QBQ's testimony pertained "to this event at the beginning of June 1994."4119 On this basis, the Appeals Chamber is of the view that the Trial Chamber carefully considered Witness QBQ's testimony in relation to the Night of Three Attacks and the timing of its occurrence.

1773. Bearing this analysis in mind, the Appeals Chamber rejects Ntahobali's submission that the Trial Chamber determined that Witness QBQ testified about the Night of Three Attacks simply because she testified about Semanyenzi's survival. As discussed in detail above, the Trial Judgement shows that Witness QBQ's testimony is consistent with other evidence in relation to significant features relating to the Night of Three Attacks which 'do not concern Semanyenzi's survival.4120 Ntahobali demonstrates no error in the Trial Chamber's assessment of the witness's testimony with respect to these other features.4121 Given the considerable overlap between the account of Witness QBQ and that of several other witnesses in relation to the Night of Three Attacks, the Appeals Chamber finds that a reasonable trier of fact could have relied on Witness QBQ's evidence, despite any variances between her evidence and that of other witnesses regarding the timing of the Night of Three Attacks. 4115 Prosecution Response Brief, paras. 1041-1043. 4116 See Trial Judgement, paras. 2328-2330, 2334, 3891, 4071-4075, 5022. IT 0 Trial decement pas on the li Tine opeN Ch or thre it on the evidence of Winesses TK, Q, SS, SU, and 4118 Trial Judgement, para. 2658. 4119 Trial Judgement, para. 2658. 4120 See supra, para. 891. 4121 See supra, para. 1681. 620 Case No. ICTR-98-42-A 14 December 2015

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19745/H 1774. Likewise, Ntahobali does not demonstrate that discrepancies between Witness QBQ's testimony and the Trial Chamber's findings, or other evidence on the record, relating to transfers to Nyange, the EER, or Rango Forest made it unreasonable for the Trial Chamber to rely on her otherwise credible and corroborated account of the Night of Three Attacks. The Appeals Chamber understands Ntahobali's argument to be that Witness QBQ's evidence of being transferred to Nyange before being transferred to the EER is contrary to the Trial Chamber's conclusions on the timing of these transfers from the prefectoral office. 4122 In the same vein, he argues that her testimony that the transfer to Rango Forest occurred one day after the return from the EER is also contrary to the Trial Chamber's findings. 4123 The Appeals Chamber notes that the Trial Chamber did not rely on the evidence of Witness QBQ as to the timing of the Nyange transfer or Nsabimana's orders to have refugees transferred to the EER from the prefectoral office. 4124 With respect to the timing of the transfer to Rango Forest, the Trial Chamber explicitly considered that Witness QBQ's testimony conflicted with other evidence and, accordingly, did not find her credible as to the timeframe of this transfer. 4125 1775. Accordingly, the Appeals Chamber is not persuaded that the Trial Chamber ignored these discrepant

aspects of Witness QBQ's evidence or that it was required to assess them when considering her testimony on the Night of Three Attacks. In the view of the Appeals Chamber, Ntahobali's focus on details of Witness QBQ's evidence regarding the timing of events ignores the precarious circumstances upon which she sought refuge at the Butare Prefecture Office, as noted by the Trial Chamber.4126 Ntahobali also ignores the Trial Chamber's conclusion that the circumstances at the prefectoral office, based on the evidence of survivors, "paint[ed] a clear picture of unfathomable depravity and sadism."4127 Given the deference which must be accorded to a trial chamber's assessment of witness evidence, the Appeals Chamber considers that the Trial Chamber was entitled to disregard Witness QBQ's testimony regarding the timing of certain events, while relying on her account, where it was credible and corroborated, in relation to the Night of Three Attacks.

1776. The Appeals Chamber turns to Ntahobali's contention that the Trial Chamber should have discarded. Witness QBQ's evidence as it discarded that of Witness QY, particularly because 621 Case No. ICTR-98-42-A 14 December 2015

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19744/H Witness QY had testified that she and Witness QBQ were "always together" at the prefectoral office." 428 The Appeals Chamber is not convinced that the Trial Chamber was required to assess both witnesses and their evidence identically.* In this regard, the Appeals Chamber recalls that the Trial Chamber unequivocally rejected Witness QY's evidence due to discrepancies in her testimony, the unreliable nature of her identification evidence, and her admission that she had lied to the Trial Chamber about whether she knew Witnesses QBQ and SJ.4130 To the contrary, the Trial Chamber found several elements of Witness QBQ's evidence about the Night of Three Attacks credible and corroborated. 4131 Furthermore, given the Trial Chamber's determination that Witness QY lacked credibility, Ntahobali does not demonstrate that the Trial Chamber erred in not relying on her testimony that she was "always together" with Witness QBQ at the prefectoral office to discount Witness QBQ's evidence.

1777. Further, the Appeals Chamber finds no merit in Ntahobali's contention about inconsistencies between Witness QBQ's testimony and her June 1999 prior statement. 4132 Having reviewed her prior statement, the Appeals Chamber observes that the witness explicitly mentioned multiple attacks in one night and Ntahobali's presence. 4133 The Appeals Chamber considers that Ntahobali's selective reference to parts of Witness QBQ's prior statement fails to demonstrate that this inconsistency could undermine the witness's credibility or her otherwise corroborated account of the Night of Three Attacks.

1778. As to Ntahobali's allegations of other discrepancies between Witness QBQ's prior statement and her testimony at trial, the Appeals Chamber notes that Ntahobali merely refers to pages of the transcript of her testimony without specifying the discrepancies or explaining how they undermine the Trial Chamber's assessment of her evidence and credibility. Given the vague and unsubstantiated nature of his submissions, the Appeals Chamber dismisses Ntahobali's argument in this regard 1779. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of Witness QBQ's testimony. 4128 Ntahobali Appeal Brief, para. 699, referring to Witness QY, T. 23 February 2009 pp. 39, 40 (closed session). 4129 See also supra, para. 892. 4130 See supra, paras. 892, 1677. 4131 See supra, para. 891. 4132 See Ntahobali Appeal Brief, para. 669, referring to Witness QBQ, T. 3 February 2004 pp. 64, 65, 67, 68, Exhibit D148 (Witness QBQ's Statement). See also Ntahobali Reply Brief, para. 274. 4133 Witness OBO's Statement, p. 5566 (Registry pagination) ("Pauline again came back in the 'Pick up' van described earlier, with her son Shalom as the driver. [....] When she arrived, she promptly ordered the Interahamwe to select some people from the crowd of refugees. Her orders were carried out to the letter. A woman who resisted was clubbed to death in the presence of Pauline. PAULINE did not even flinch. We learnt later that the people were taken to a place called MUKONI where they were killed and dumped in a mass grave. Pauline paid two more visits to the [prefectoral] office to take people away in similar fashion. The people taken away were never seen again."). 622 Case No. ICTR-98-42-A 14 December 2015

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19743/H c. Witness FAP 1780. The Trial Chamber relied on the evidence of Witness FAP regarding the timing of the Night of Three Attacks and in support of its finding that Ntahobali, Nyiramasuhuko, and the Interahamwe came to the Butare Prefecture Office on three occasions in one night, abducting Tutsi refugees on each occasion. 4134 The Trial Chamber also relied on the evidence of Witness FAP to conclude that Ntahobali and Interahamwe attacked women and children at the prefectoral office, forced them aboard the pickup truck, and that the women and children were taken away and killed elsewhere. 4135 1781. Ntahobali submits that the Trial Chamber unreasonably ignored numerous contradictions and inconsistencies that rendered Witness FAP's evidence incredible with respect to the Night of Three Attacks.4136 Specifically, he contends that Witness FAP gave inconsistent evidence as to whether Hutu refugees were present during the Night of Three Attacks and submits that Witness QBP contradicted Witness FAP "on the presence of refugees that night" 4137 He also avers that Witness FAP's testimony that no "grown men" were left at the prefectoral office on the Night of Three Attacks was contradicted by "other witnesses" and a video admitted into evidence. 4138 Ntahobali argues that, in light of these errors, it was unreasonable for the Trial Chamber to believe that Witness FAP testified

about the Night of Three Attacks simply because she spoke about Semanyenzi's survival. 4139 1782. In addition, Ntahobali points to alleged contradictions in Witness FAP's testimony that do not directly concern the Night of Three Attacks but, in his view, undermine her credibility,4140 In particular, he highlights that Nsabimana testified that refugees transferred from the Butare University Hospital to the prefectoral office arrived on 2 May 1994 and suggests that this evidence contradicts Witness FAP's testimony that she left the hospital and arrived at the prefectoral office in the "last two weeks of May" 1994.414' He also argues that Witness FAP's evidence about the timing of her arrival at the prefectoral office is contradicted by the Trial Chamber's finding that refugees at the prefectoral office had already been transferred to the EER at this time. 4142 Ntahobali further 4134 Trial Judgement, paras. 2654, 2656, 2660, 2661, 2663, 2664, 2703, 2710-2712, 2715. 4135 Trial Judgement, para, 2736. The Trial Chamber also relied upon the testimonies of Witness FAP to find that, from mid-May through June 1994, Ntahobali and Nyiramasuhuko participated in the abduction of multiple Tutsi refugees from the Butare Prefecture Office, who were subsequently killed. See ibid., paras. 2746, 2747, 2749. 4136 Ntahobali Appeal Brief, para.

670. See also Ntahobali Reply Brief, para. 280. 4137 Ntahobali Appeal Brief, para. 670, referring to Trial Judgement, paras. 2300, 2302, 2307, 2308, Witness FAP, T. 11 March 2003 pp. 45, 46, Witness QBP, T. 28 October 2002 pp. 49, 50. 4138 Ntahobali Appeal Brief, para. 670, referring to Trial Judgement, para. 2307, Exhibit D473 (Nsabimana Interview with Fergal Keane). 4139 Ntahobali Appeal Brief, para. 670. 4140 Ntahobali Appeal Brief, para. 670. 4141 Ntahobali Appeal Brief, para. 670. 4142 Ntahobali Appeal Brief, para. 670. 623 Case No. ICTR-98-42-A 14 December 2015

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19742/H emphasises that Witness FAP did not testify about the transfer to the EER or Nyange, even though she remained at the prefectoral office until she left for Rango Forest. 4143 1783. The Prosecution responds that Ntahobali's arguments regarding Witness FAP should be dismissed as he fails to demonstrate how the Trial Chamber erred in accepting her testimony. 4144 1784. In the view of the Appeals Chamber, Ntahobali's contentions regarding inconsistencies and contradictions in Witness FAP's evidence about the Night of Three Attacks ignore the key aspects of the witness's testimony that the Trial Chamber relied upon and found corroborated by Witnesses TK, RE, QBQ, SS, and SU.4145 In particular, the Trial Chamber noted Witness FAP's testimony that: (i) a black camouflage-coloured vehicle covered with mud arrived three times during the same evening, each time with Nyiramasuhuko and Ntahobali on board, and each time taking away many refugees who never returned; 414 (ii) on the second trip, Nyiramasuhuko instructed the Interahamwe to load the Tutsi refugees into the vehicle and the Interahamwe herded young Tutsi men, women, and children into the vehicle by beating them; 147 and (iii) on the third trip, Nyiramasuhuko instructed Ntahobali and the Interahamwe to select systematically young women and girls to rape and kill them, that the women were not raped but thrown onto the

vehicle, and that the Interahamwe drove them away. 4148 Based on elements of Witness FAP's evidence and that of other witnesses, including Witnesses TK, RE, QBQ, SS, and SU, the Trial Chamber determined that Ntahobali, Nyiramasuhuko, and the Interahamwe came aboard a camouflaged pickup truck multiple times in one night, that Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup truck, and that the pickup truck left the prefectoral office abducting refugees. 4149 1785. In this context, Ntahobali's contention about the purported inconsistency in Witness FAP's testimony as to whether Hutu refugees were still present during the Night of Three Attacks is immaterial.4150 Likewise, Ntahobali's undeveloped contention that Witness QBP's testimony 4143 Ntahobali Appeal Brief, para. 670. 4144 Prosecution Response Brief, paras. 1057-1061. 4145 See Trial Judgement, para. 2738. 4146 Trial Judgement, paras. 2302, 2710. 4147 Trial Judgement, para. 2711. 4148 Trial Judgement, para. 2712. 4149 See Trial Judgement, paras. 2660, 2706-2709, 2715, 2738. See also ibid., paras. 2211-2215, 2251-2253, 2277, 2278, 2284, 2285, 2287, 2289. 4150 The Appeals Chamber observes that, in any event, there is no internal inconsistency in Witness FAP's evidence regarding the presence of Hutu refugees during the Night of Three Attacks. The Trial Chamber noted her evidence that "Hutu refugees

stayed in a house, prepared food and the next day were transferred to Mubumbano". See Trial Judgement, para. 2300, referring to Witness FAP, T. 11 March 2003 p. 45, T. 12 March 2003 pp. 7, 46. However, Witness FAP explicitly stated that the Hutu refugees "were not a stable group", that a group would come and stay for a few days, and that "each time there was another group that would arrive". When asked if the Hutu refugees were a constant presence at the prefectoral office, Witness FAP responded: "Yes, the [prefectoral] office was their 624 Case No. ICTR-98-42-A 14 December 2015

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19741/H "contradicted Witness FAP's on the presence of refugees that night" fails to identify how the Trial Chamber erred in the assessment of the latter's evidence. 4151 Regarding the absence of grown men during the Night of Three Attacks, Ntahobali simply points to an aspect of Witness FAP's testimony about the second attack on this evening, when young Tutsi men, women, and children were herded and beaten. 4152 Ntahobali's submissions fail to substantiate how this discrete aspect of Witness FAP's testimony could undermine the rest of her evidence or her credibility, particularly given the varying vantage points of all the witnesses who observed the attack as it unfolded. In this regard, Ntahobali does not demonstrate that a BBC video, which the Trial Chamber considered was only created around 15 June 1994, reflecting the presence of men at the prefectoral office is somehow incompatible with Witness FAP's evidence about what she saw during the Night of Three Attacks. 4153 Finally, Ntahobali's contention that the Trial Chamber found that Witness FAP testified about the Night of Three Attacks simply because she spoke about Semanyenzi's survival ignores the numerous other elements of Witness FAP's testimony that were corroborated and found credible by the Trial Chamber and demonstrated that she was present during that particular night.

1786. Turning to Ntahobali's challenges concerning aspects of Witness FAP's testimony that are not directly related to the Night of Three Attacks, the Appeals Chamber finds that Ntahobali fails to demonstrate that Witness FAP's evidence concerning the timing of her arrival at the prefectoral office is necessarily inconsistent with Nsabimana's evidence,4154 or that her presence at the prefectoral office sometime in the last two weeks of May 1994 is contradictory to the Trial Chamber's findings concerning the transfer of refugees to the EER. 4155 Moreover, Witness FAP's testimony appears to reflect that she arrived at the prefectoral office after refugees were transferred resting place before they were transferred elsewhere. Every time they came, they would rest first [...] before they continued on their way." See Witness FAP, T. 12 March 2003 pp. 46, 47. 4151 The Appeals Chamber observes that Ntahobali simply points to Witness QBP's testimony at T. 28 October 2002 pp. 49, 50 without referencing the specific portion of Witness FAP's evidence that it allegedly contradicts. Ntahobali also fails to elaborate how his challenge relates to a finding by the Trial Chamber based on Witness FAP's testimony. Consequently, the Appeals Chamber dismisses this aspect of Ntahobali's appeal. 152 Ntahobali Appeal Brief, para. 670, referring to Trial Judgement, para.

2307. See Trial Judgement, para. 2384, referring to Exhibit D473 (Nsabimana Interview with Fergal Keane), Fergal Keane, T. 25 September 2006 p.

10. See also ibid., para. 5077. 4154 Ntahobali points to the Trial Chamber's summary of Nsabimana's testimony and related exhibits reflecting that certain persons were transferred from the Butare University Hospital to the Butare Prefecture Office on 2 May 1994. See Ntahobali Appeal Brief, para. 670, referring to Trial Judgement, para. 2394, Exhibit D479B (Letter from Vice-Rector of National University of Rwanda, 25 April 1994), Exhibit D480B (Letter from Nsabimana to Deputy Vice-Chancellor, 2 May 1994). However, it is unclear to the Appeals Chamber how this aspect of Nsabimana's testimony and the relevant exhibits undermine the Trial Chamber's finding that Witness FAP was at the prefectoral office and was an eye-witness to the Night of Three Attacks. Indeed, Ntahobali does not demonstrate that Witness FAP arrived with the refugees, about which Nsabimana was testifying. Compare Trial Judgement, para. 2298 (Witness FAP) with ibid., paras. 2394, 2395 (Nsabimana). As previously discussed, the Appeals Chamber considers that the Trial Chamber's conclusions reflect that displaced Tutsis who sought refuge at the prefectoral office were moved to the EER between 15 and 20 May 1994 and stayed there until approximately 31 May 1994, when they returned to the prefectoral office. However, in the view of the Appeals Chamber, these findings are not categorical or inconsistent with findings and evidence that refugees remained 625 Case No. ICTR-98-42-A 14 December 2015

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19740/H to the BER, making it reasonable that she would not have testified about that event. 4156 Ntahobali also does not show how any omission in Witness FAP's testimony concerning the transfer of refugees from the prefectoral office to Nyange was material to or undermined the Trial Chamber's reliance on her corroborated evidence concerning the Night of Three Attacks.

1787. For these reasons, the Appeals Chamber dismisses Ntahobali's contentions above that the Trial Chamber erred in its assessment of Witness FAP's testimony regarding the Night of Three Attacks. d. Witnesses SS and SU 1788. The Trial Chamber relied on the evidence of Witnesses SS and SU regarding the timing of the Night of Three Attacks and in support of its finding that Ntahobali, Nyiramasuhuko, and the Interahamwe came to the Butare Prefecture Office on three occasions in one night, abducting Tutsi refugees on each occasion. 4157 The Trial Chamber also relied on the evidence of Witnesses SS and SU to conclude that Ntahobali and Interahamwe attacked women and children at the prefectoral office, forced them aboard the pickup truck, and that the women and children were taken away and killed elsewhere. 4158 1789. Ntahobali submits that the Trial Chamber erred in relying on the evidence of Witnesses SS and SU. 4159 In particular, he argues that, given their familial relationship, the Trial Chamber should have exercised the same caution when considering their evidence as it did with other witnesses who had family ties with the co-Accused. 4160 Ntahobali also contends that no reasonable trier of fact would have believed that Witnesses SU and SS never discussed the events of 1994 or their respective testimonies with each other. 4161 1790. Ntahobali further claims that, given that

Witnesses SS and SU were sleeping in the same place at the prefectoral office, the Trial Chamber should have considered every inconsistency in their testimonies. 4162 In this respect, he submits that the Trial Chamber failed to consider numerous or arrived at the prefectoral office between the transfer of refugees to the BER and their return en masse at the end of May 1994. See supra, Sections IV.F.2(đ), V.I.2(c) (iii). 4156 The Appeals Chamber observes that Witness FAP testified to arriving at the Butare Prefecture Office in the last two weeks of May 1994. See Witness FAP, T. 12 March 2003 p.

42. Trial Judgement, paras. 2654-2661, 2663, 2664, 2703, 2706, 2707, 2715, 2731-2733, 2736, 2738. 4158 Trial Judgement, para.

2736. The Trial Chamber also relied upon the testimonies of Witnesses SU and SS to find that, from mid-May through June 1994, Ntahobali and Nyiramasuhuko participated in the abduction of multiple Tutsi refugees from the prefectoral office, who were subsequently killed. See ibid., paras. 2741, 2742, 2746, 2749. 4159 Ntahobali Appeal Brief, paras. 672-674. 4160 Ntahobali Appeal Brief, paras. 674, 750. See also Ntahobali Reply Brief, para. 288. 4161 Ntahobali Appeal Brief, paras. 674, 750. See also Ntahobali Reply Brief, para. 288. 4162 Ntahobali Appeal Brief, para.

672. See also Ntahobali Reply Brief, paras. 283-287. 626 Case No. ICTR-98-42-A 14 December 2015

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19739/H inconsistencies between their evidence and with other Prosecution evidence,4163 including: (i) variances in the evidence of Witnesses SU and SS about when Witness SU left the prefectoral office; 4164 (ii) the fact that only Witness SU testified about the presence of Warrant Officer Emmanuel Rekeraho, who drove a Sovu health centre ambulance, during the Night of Three Attacks;4165 (iii) the evolving and contradictory evidence as to the timing of their arrival at the prefectoral office; 4166 (iv) Witness SU's testimony that the Interahamwe were present at the prefectoral office until "the evening of the rapes" whereas Witness SS "did not mention those rapes",4167 (v) the fact that Witness SS "asserted that a witness who testified that refugees could go to the veranda was a liar" whereas Witness SU gave testimony to this effect;4168 (vi) Witness SU's testimony concerning the transfer to Nyange was contradicted by Witnesses RE and SJ, and that Witness SS "never testified about Nyange", 4169 and (vii) the fact that Witnesses SS and SU contradicted each other on the circumstances under which their statements were taken and on the location of their mother's death. 4170 1791. Ntahobali also submits that the Trial Chamber erred in "failing to make a finding" on the evidence of Witnesses D-2-11-D and D-2-21-T, who testified that Witnesses SU and SS remained in their sector and

could not have been at the prefectoral office, the EER, Nyange, or Rango Forest. 4171 1792. In addition, Ntahobali contends that it was implausible for the two witnesses to stay apart during the day in order "to avoid being abducted together" and to sleep in the same place at night when the attacks occurred 4172 Accerding to him, the demeanour of Witnesses SS and SU further undermined their credibility, 4173 In this regard, Ntahobali contends that Witness SU provided 4163 Ntahobali Appeal Brief, para. 674. 4164 Ntahobali Appeal Brief, para.

673. Ntahobali submits that, according to Witness SS, Witness SU left the Butare Prefecture Office at some point in time and did not see her again, while Witness SU testified that she stayed at the proteing o Winess, T. MarSh i p.

68) Was SC, T. 15 odober 20 ap. To 50,520 Forest. See ide, 165 Ntahobali Appeal Brief, para. 673 4166 Ntahobali Appeal Brief, para. 673, referring to Trial Judgement, para. 3934, Witness SU, T. 15 October 2002 pp. 82, 83, T. 3 March 2003 pp. 36, 37, Witness SS, T. 4 March 2003 pp. 49-52. According to Ntahobali, Witness SS arrived on 27 May 1994 and Witness SU on 28 May 1994. He argues that the Trial Chamber failed to explain how these witnesses could have gone to the Butare Prefecture Office when the refugees were at the BER. He further highlights Witnesses SU's and SS's confusion regarding when they were at the Butare University Hospital and their arrival at the Butare Prefecture Office. See idem. T. 17 October 2002 p. 88. €169 Ntahobali Appeal Brief, para. 673. 4170 Ntahobali Appeal Brief, para. 673. 4171 Ntahobali Appeal Brief, para. 674. 4172 Ntahobali Äppeal Brief, para. 673, referring to Witness SS, T. 3 March 2003 pp. 38, 39, Witness SU, T. 17 October 2002 pp. 92, 93. 4173 Ntahobali Appeal Brief, paras. 673, 674. Ntahobali specifically refers to numerous aspects of both witnesses' testimonies that demonstrate, in his view, "[n]umerous demeanour problems". See ibid., para. 673. 627 Case No. ICTR-98-42-A 14 December 2015

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19738/H "spurious answers when confronted with obvious contradictions" and emphasises that the witnesses repeatedly blamed investigators for omissions in their statements. 4174 1793. The Prosecution responds that the Trial Chamber duly considered the allegations of collusion between Witnesses SS and SU.4175 It also argues that inconsistencies between the evidence of Witnesses SS and SU are minor or non-existent, and that Ntahobali either misstates their evidence or overstates the inconsistencies. 4176 The Prosecution additionally submits that Ntahobali fails to demonstrate how the Trial Chamber erred in preferring the evidence of Witnesses SS and SU over that of Witnesses D-2-11-D and D-2-21-T.4177 1794. The Appeals Chamber observes that, in support of his contention that the Trial Chamber should have treated the evidence of Witnesses SS and SU with caution because they were related, Ntahobali points to paragraphs in the Trial Judgement that assess alibi or Defence witnesses who have family ties with or were detained accomplices of the co-Accused. 4178 The Appeals Chamber is not persuaded that the circumstances of these witnesses required similar treatment for Witnesses SS and SU, who were not accomplices, detained, or related to the defendants. In this regard, Ntahobali fails to demonstrate how the fact that Witnesses SS and SU are related, which the Trial Chamber duly noted,

4179 created an incentive for them to implicate Ntahobali in crimes or to lie about the events. 4180 1795. Furthermore, the Trial Chamber noted that Witnesses SS and SU were in contact with each other and by implication could have spoken about the 1994 events and their testimonies. 4181 Noting Witness SS's testimony that she and Witness SU did not discuss Witness SU's 2002 testimony 182 and that, "[alt the time of her testimony, Witness SU was not living with [Witness SS], although they visited one another", the Trial Chamber accepted Witness SU's testimony that she "never 4174 Ntahobali Appeal Brief, paras. 673, 674. Noting that Witness SU blamed inconsistencies on the investigators recording her statement and testified that "all that is indicated in this statement, I have seen that mistakes have been made", Ntahobali argues that the witness therefore recanted all her previous evidence on the record. See ibid., para. 674, referring to Witness SU, T. 21 October 2002 pp. 8-10. The Appeals Chamber fails to see how this citation confirms Ntahobali's assertion and dismisses it without further consideration. 4175 Prosecution Response Brief, para. 1072. 4176 Prosecution Response Brief, paras. 1063-1071, 1073. 4177 Prosecution Response Brief, paras. 1074, 1075. 4178 See Ntahobali Appeal Brief, para. 674, referring to Trial Judgement, paras. 2546, 2579, 2590, 3666. 4179 Trial

Judgement, paras. 2245, 2281. 4180 The Appeals Chamber has determined that "consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie." See Setako Appeal Judgement, para. 143, referring to Muvunyi Appeal Judgement of 1 April 2011, para. 37, Nchamihigo Appeal Judgement, paras. 47, 305. 4181 See Trial Judgement, paras. 2245, 2281, 2761. 4182 Trial Judgement, para. 2283, referring to Witness SS, T. 4 March 2003 p. 61 (closed session), T. 10 March 2003 pp. 13, 14 (closed session). 628 Case No. ICTR-98-42-A 14 December 2015

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19737/H discussed the events of 1994 or the events" at the Butare Prefecture Office with Witness SS.4183 Ntahobali does not demonstrate how the Trial Chamber abused its discretion in the assessment of the evidence in reaching this conclusion. His submissions reflect mere disagreement with the Trial Chamber's determination and are therefore rejected.

1796. Regarding alleged discrepancies in the testimonies of Witnesses SS and SU, the Appeals Chamber recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence, 4184 without explaining its decision in every detail. 4185 1797. Contrary to Ntahobali's contention, the Trial Judgement reflects that the Trial Chamber explictly considered the discrepancy concerning Witness SU's departure from the Butare Prefecture Office.418 In any event, given the Trial Chamber's finding that Witnesses SS and SU provided consistent evidence regarding the Night of Three Attacks, Ntahobali does not demonstrate how any discrepancy on Witness SU's departure from the prefectoral office, which occurred in June 1994, after the attacks, would undermine their credibility or the Trial Chamber's assessment of their evidence. Furthermore, and contrary to Ntahobali's assertion, Witnesses SS and SU testified to the presence of an ambulance from the Sovu health centre on the Night of Three Attacks.4187 The Appeals Chamber observes that beyond merely listing differences between the evidence of Witnesses SS and SU, including one that does not exist, Ntahobali fails to demonstrate how this discrepancy would undermine the reasonableness of the Trial Chamber's reliance on the witnesses' testimonies about the Night of Three Attacks.

1798. The Trial Chamber also considered Witness SU's evidence of her arrival at the Butare Prefecture Office on or around 28 May 1994,4188 and that Witness SS testified to arriving the second time on 27 May 19944189 The Trial Chamber did not discuss as a discrepancy Witness SS's evidence on her second arrival to the prefectoral office, or that Witness SU testified to Witness SS 4183 Trial Judgement, para. 2761, referring to Witness SU, T. 21 October 2002 pp. 47, 48, 50 (closed session). See, in particular, Witness SU, T. 21 October 2002 pp. 50, 51 (closed session). Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para.

207. Judgement, para. 174; Kvocka et al. Appeal Judgement, para.

23. See Trial Judgement, paras. 2242, 2290. The Trial Chamber noted that, according to Witness SU, she left the prefectoral office for Rango Forest at the end of June 1994. See ibid., para. 2242; Witness SU, T. 21 October 2002 p.

35. It also noted that according to Witness SS, her sister left the Butare Prefecture Office for two days and returned later. See Trial Judgement, para. 2290; Witness SS, T. 4 March 2003 p. 37. 4187 See Trial Judgement, paras. 2251, 2284, 2285. 4188 See Trial Judgement, paras. 2242, 2245. See also Witness SU, T. 15 October 2002 pp. 157, 158 (French). 629 Case No. ICTR-98-42-A 14 December 2015

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19736/H being at the Butare University Hospital in mid-April and arriving at the prefectoral office in early May 1994,4190 Nonetheless, the Appeals Chamber perceives no discrepancy nor evolution within Witness SS's evidence that would have required express consideration by the Trial Chamber or warrant particular caution. While Witness SS testified at one point that she arrived on 27 April 1994, she subsequently corrected herself and reconfirmed her arrival date to be 27 May 1994.4191 It is also unclear whether a discrepancy exists between the evidence of Witnesses SS and SU as claimed by Ntahobali as Witness SS testified that she arrived at the Butare University Hospital in April 1994.419 In these circumstances, the Appeals Chamber dismisses Ntahobali's arguments regarding alleged material variances in the testimonies of Witnesses SS and SU with respect to their arrival at the prefectoral office.

1799. Having reviewed the references provided by Ntahobali in support of his submission that the Trial Chamber failed to consider the discrepancy that Witness SU testified about the Interahamwe being present at the prefectoral office until "the evening of the rapes" whereas Witness SS "did not mention those rapes", 4193 it is unclear whether these references relate to the Night of Three Attacks, or how the witnesses' credibility or the Trial Chamber's findings could be undermined. Recalling that the Appeals Chamber cannot be expected to consider a party's submissions in detail if they are obscure, vague, or suffer from other formal and obvious insufficiencies, 4194 Ntahobali's argument is dismissed without further consideration.

1800. Moreover, the testimonies of Witnesses SS and SU are not necessarily contradictory regarding the presence of Tutsi refugees on the veranda of the prefectoral office. 4195 Ntahobali's argument that Witness SS "asserted that a witness who testified that refugees could go to the veranda was a liar"' is unsupported by the witness's evidence. 419 Having reviewed the evidence 4189 See Trial Judgement, para.

2281. The Trial Chamber noted that Witness SS went to the Butare Prefecture Office on two occasions, that she 27 May 1994. See idem. See also Witness SS, T. 3 March 2003 pp. 36, 37. See Ntahobali Appeal Brief, para.

673. Ntahobali also argues that the Trial Chamber failed to explain hov Witnesses SS and SU could have gone to the prefectoral office while refugees were at the BER. See idem. Given the close proximity between the Butare Prefecture Office and the EER as well as the fact that there was nothing preventing refugees from arriving on their own to the prefectoral office, Ntahobali does not demonstrate why the Trial Chamber had to explicitly consider this alleged contradiction. This argument is therefore dismissed. 4191 Witness SS, T. 3 March 2003 pp. 36, 37. 4192 Witness SS, T. 4 March 2003 p. 51. 4193 Ntahobali Appeal Brief, para. 673, referring to Witness SU, T. 4 March 2003 pp. 27, 28. 4194 See supra, para. 35. 4195 In this regard, the Appeals Chamber notes that Witness SU stated "we were prohibited from approaching the veranda and when it rained, we were rained on in the open air." See Witness SU, T. 17 October 2002 p.

88. On the same issue, wices SS statid "crain, be day, prfans cod doe staye on from thered See dires he, T: March 200s efugees could go to the veranda, PBo 7,e Appeals Chamber finds that Nahobali misrepresents Witess SS's testimony as she equivocally responded to the question that if another witness "stated before this Court that it was impossible to get close to the veranda in the 630 Case No. ICTR-98-42-A 14 December 2015

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19735/H referred to by Ntahobali,*" the Appeals Chamber also finds that Ntahobali does not demonstrate how purported differences between the evidence of Witness SU and that of Witnesses RE and SJ on the transfer to Nyange was relevant to the Trial Chamber's assessment of Witness SU's testimony concerning the Night of Three Attacks.4198 Ntahobali also does not point to excerpts of Witness SS's testimony that would demonstrate that her failure to testify "about Nyange" would be in material contradiction with Witness SU's evidence about the transfer there.

1801. As to the alleged discrepancies concerning the circumstances under which Witnesses SS's and SU's prior statements were given, it is unclear, from Ntahobali's references to Witness SS's testimony, how the testimonies of both witnesses are contradictory4199 or how any purported inconsistency in this respect would undermine the credibility of their account concerning the Night of Three Attacks. Similarly, Ntahobali makes no demonstration as to how the discrepancy in their testimonies regarding the location of the death of their mother is material to their evidence concerning the Night of Three Attacks.

1802. Turning to Ntahobali's arguments regarding the evidence of Witnesses D-2-11-D and D-2-21-T, the Appeals Chamber observes that the Trial Chamber noted Witness D-2-11-D's evidence regarding events at roadblocks and at the Hotel Ihuliro,4200 but did not discuss or summarise his testimony that Witness SU sought refuge at his home from mid-April 1994 until July 1994 and that she was not at the Butare Prefecture Office during this time.4201 The Trial Chamber, however, explicitly considered that it was put to Witness SU that she had not been at the prefectoral office during the time she said she was and was instead at someone's house from 27 May 1994 until the end of the war. 4202 Witness SU replied that "six people were discovered hiding and killed at his place - so, I left on that day 27th of May to Butare" 4203 The Trial Chamber night for fear of being killed [...] was this witness wrong?" that "the [other] witness maybe got it wrong" or "the other witness got it wrong:" See Witness SS, T. 4 March 2003 pp. 27, 28. See Witness SU, T. 14 October 2002 pp. 87, 88; Witness RE, T. 24 February 2003 pp. 16, 17; Witness SJ, T. 29 May 2002 pp. 71-73. 4198 Specifically, Ntahobali submits that, "[a]ccording to Witness SU, the child who informed them about the killings in Nyange alerted them to the danger by signalling the [third] bus to stop, which explains their return to the [Butare Prefecture Office]," whereas Witnesses RE and SJ gave evidence that "it was the return of a young man to the [Butare Prefecture Office] that prompted them not to go to Nyange." Ntahobali also argues that the Trial Chamber erred in failing to consider that Witness SU did not mention that she had gone to Nyange in her prior statement. See Ntahobali Appeal Brief, para.

673. However, the Appeals Chamber observes that the Trial Chamber expressly noted this evidence in the Trial Judgement and her explanation that "the omission must have been the fault of the person taking her statement, since many things she said had not been included in her statement." See Trial Judgement, para.

4122. Consequently, Ntahobali's contention is without merit and the Appeals Chamber dismisses it without further consideration. 4199 See Ntahobali Appeal Brief, para. 673, referring to Witness SS, T. 4 March 2003 pp. 60-62 (closed session). 4200 See Trial Judgement, paras. 3089, 5403. 4201 See Witness D-2-11-D, T. 22 October 2007 pp. 22-24 (closed session), T. 23 October 2007 pp. 30-35 (closed session). 4202 Trial Judgement, para. 2767. 4203 Witness SU, T. 21 October 2002 pp. 69, 70 (closed session). See Trial Judgement, para. 2767. 631 Case No. ICTR-98-42-A 14 December 2015

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19734/H concluded that, "[therefore, she only spent three days in [this man's] home" 4204 The Appeals Chamber recalls the Trial Chamber's discretion to evaluate inconsistencies in the evidence and decide which version it considers more credible. 4205 In light of the consistency of the account of Witness SU's evidence on the Night of Three Attacks with the accounts of other witnesses, 206 the Appeals Chamber finds that a reasonable trier of fact could have placed more weight on Witness SU's account over that of Witness D-2-11-D.

1803. With respect to Witness D-2-21-T, the Appeals Chamber notes that the Trial Chamber expressly assessed her evidence with respect to fabrication of evidence as well as events at the Sahera and Tumba Sectors.4207 The Trial Chamber found Witness D-2-21-T "neither credible nor reliable" in relation to allegations of evidence fabrication. 4208 Ntahobali points to aspects of the witness's testimony that relate to Witnesses SS's and SU's participation in the Ibuka association meetings, and submits that the 1994 events recounted by Witness SU during these meetings were lies. 4209 Witness D-2-21-T' also testified that Witness SU "told us that this was in July 1994 that she went to the [prefectoral] office" and that "[Witness SU] and her sister were not at the [prefectoral] office during the months of May and June."4210 Given the hearsay nature of Witness D-2-21-T's testimony of Witnesses SU's and SS's whereabouts between May and July 1994, the Trial Chamber's determination that she lacked credibility, and the consistency of the direct evidence of Witnesses SU and SS regarding the Night of Three Attacks,4211 the Appeals Chamber sees no error in the Trial Chamber's preference for the evidence of Witnesses SS and SU over that of Witness D-2-21-T.

1804. Likewise, the Appeals Chamber finds no merit in Ntahobali's vague and unsupported contention that parts of Witnesses SS's and SU's testimonies were implausible, in particular the fact that they stayed apart during the day and slept in the same place at night, when attacks took 4204 Trial Judgement, para. 2767. 4205 See, e.g., Ndahimana Appeal Judgement, paras. 46, 93; Hategekimana Appeal Judgement, para. 82; Ntabakuze Appeal Judgement, fn.

523. The Trial Chamber observed the following consistencies between Witness SU's account and that of Witnesses SS, TK, QJ, RE, QBQ, and FAP: (i) Nyiramasuhuko, her driver, and the Interahamwe come to the Butare Prefecture Office on a pickup truck covered in mud or cow dung; (ii) Nyiramasuhuko alighted from the vehicle and told the Interahamwe to load refugees onto the truck; (iii) the Interahamwe began attacking refugees and loaded them onto the vehicle; and (iv) the pickup truck departed with Nyiramasuhuko and returned the same night to abduct other refugees. See Trial Judgement, paras. 2196, 2215, 2251-2253, 2277, 2278, 2284, 2285, 2287, 2289, 2302-2304, 2307, 2308, 2330, 2662- 2664, 2704, 2706-2711, 2732, 2733, 2738. 4207 See Trial Judgement, paras. 247, 249, 253-282, 346, 359, 402, 451, 1001, 1016, 1483, 1671-1673, 2002-2005, 2093-2095, 3793, 5114, 5162. 4208 See Trial Judgement, paras. 346-359. See also ibid., paras. 402, 451, 1672, 1673, 2002-2005, 2093-2095, 3793, 4209 See Witness D-2-21-T, T. 3 November 2008 pp. 46-48 (closed session). 4210 See Witness D-2-21-T, T. 5 November 2008 pp. 59-61 (closed session). 4211 See Trial Judgement, paras. 2706-2709, 2715, 2731-2733, 2736, 2738. 632 Case No. ICTR-98-42-A 14 December 2015

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19733/H place. 212 The Appeals Chamber notes that beyond his argument, Ntahobali does not substantiate how their testimonies in this respect are implausible or how this would undermine their corroborated accounts regarding the Night of Three Attacks.

1805. Finally, upon review of the specific passages of their testimonies referred to by Ntahobali in support of his submissions,4213 the Appeals Chamber does not find that the demeanour of Witnesses SS and SU and their explanations that it was the fault of investigators for omissions in prior statements, prevented a reasonable trier of fact from relying on their evidence concerning the Night of Three Attacks.

1806. Accordingly, the Appeals Chamber finds that Ntahobali's arguments above have not demonstrated that the Trial Chamber erred in relation to the assessment of the evidence of Witnesses SS and SU concerning the Night of Three Attacks. e. Witness RE 1807. The Trial Chamber relied on the evidence of Witness RE in finding that Ntahobali, Nyiramasuhuko, and the Interahamwe came to the Butare Prefecture Office on three occasions in one night, abducting Tutsi refugees on each occasion. 4214 1808. . Ntahobali submits that Witness RE's evidence is contradicted by other evidence and is inconsistent with the Trial Chamber's own findings 4215 Specifically, he notes that Witness RE only testified about the Night of Three Attacks, which, according to her occurred around 26 to • 27 April 1994, approximately two to three days after "the events of Nyange" 4216 Ntahobali contends that this timing contradicts the Trial Chamber's conclusion about when these attacks occurred.4217 Ntahobali further claims that the Trial Chamber erred in failing to consider that 4212 See Ntahobali Appeal Brief, para. 673, referring to Witness SS, T. 3 March 2003 pp. 38, 39, Witness SU, 7117 October 2002 pp. 92, 93. See Ntahobali Appeal Brief, para. 673, referring to Witness SU, T. 14 October 2002 pp. 21-23, 34, T. 15 October 2002 pp. 43-45, 51, 52, 54, 56-61, 63-65, 97-99, T. 16 October 2002 pp. 7-10, 29, 37, 38, 41, 45-50, T. 17 October 2002 pp. 4-6, 11, 12, 14, 15, 70, 88-90, T. 21 October 2002 pp. 28, 30, 33, Witness SS, T. 5 March 2003 p. 15, 16, 19-25, 28, 29, 31-36, 38, 39, 58-61, T. 10 March 2003 pp. 6, 7 (closed session). • Trial Judgement, paras. 2660. 2707, 2715.

2738. The Trial Chamber also relied upon the testimony of Witness RE to find that, from mid-May through June 1994, Ntahobali and Nyiramasuhuko participated in the abduction of multiple Tutsi refugees from the Butare Prefecture Office, who were subsequently killed. See ibid., paras. 2746, 2747, 2749. 4215 Ntahobali Appeal Brief, para. 691. 4216 Ntahobali Appeal Brief, para.

691. Ntahobali contends that Witness RE testified to arriving at the Butare Prefecture Office around 15 April 1994, situated the "events of Nyange around 24 April 1994", and gave evidence that the Night of Three Attacks occurred two to three days after Nyange. See idem, referring to Witness RE, T. 24 February 2003 pp. 9-14, T. 25 February 2003 pp. 5-7. ' Ntahobali Appeal Brief, para. 691. 633 Case No. ICTR-98-42-A 14 December 2015

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19732/H Witness RE, while at the prefectoral office, did not testify about other attacks, such as the Mid-May Attack and the Last Half of May Attacks. *218 1809. The Prosecution responds that Nahobali's challenges to Witness RE's credibility should be dismissed for misstating the evidence and lack of reference. 4219 1810. The Appeals Chamber recalls the Trial Chamber's conclusion that the Night of Three Attacks occurred around the end of May or beginning of June 1994.4220 In assessing Witness RE's testimony, the Trial Chamber expressly noted that her account was inconsistent with other evidence about the timing of the Night of Three Attacks, particularly in relation to the transfer to Nyange. 4221 Considering the similarities between the core elements of Witness RE's evidence and that of Witnesses FAP, QBQ, SS, SU, and TK, the Trial Chamber was nonetheless convinced that they were referring to the same night of three attacks. 222 Nahobali does not demonstrate that a reasonable trier of fact could not have reached this finding.

1811. In addition, the Appeals Chamber sees no significance in Ntahobali's contention that Witness RE only testified about the Night of Three Attacks and not, for example, about the Mid-May Attack or the Last Half of May Attacks 223 In this regard, the Appeals Chamber recalls its previous analysis that Ntahobali does not establish that Witness RE was necessarily at the Butare Prefecture Office during these other attacks.4224 1812. For the foregoing reasons, the Appeals Chamber dismisses Ntahobali's submissions regarding Witness RE's credibility. (iii) Failure to Consider Witnesses TA's and SD's Evidence 1813. Ntahobali submits that the Trial Chamber erred in failing to consider that Witnesses TA and SD, who were at the Butare Prefecture Office during the relevant time, did not testify about the 4218 Ntahobali Appeal Brief, para. 691. 4219 Prosecution Response Brief, para. 1081. 4220 See Trial Judgement, paras. 2661, 2738, 2781(iii). 4221 Trial Judgement, para. 2657. 4222 Trial Judgement, paras. 2656-2658. These core elements include: (i) the arrival of Ntahobali, Nyiramasuhuko, and the Interahamwe on a camouflaged pickup truck; (ii) the Interahamwe attacking and abducting refugees, including a voman and her children; (iii) the pickup truck departing with refugees and returning the same night to abduct othe efugees; and (iv) the fact that the Night of Three Attacks occurred

prior to the transfer of refugees from the Butar Prefecture Office to Rango Forest. See, e.g., ibid., paras. 2203, 2211-2215, 2220, 2242, 2251-2253, 2277, 2278, 2284 2285. 2287. 2289. 2299. 2302. 2304. 2307 , 2308, 2655, 2660, 2663, 2704, 2706, 2709, 2710, 2717-2719, 2731-2736, 4223 See Ntahobali Appeal Brief, para. 691. 4224 See supra, paras. 870, 871, 1722. The Appeals Chamber observes that Ntahobali also argues that Witness RE and other refugees were not at the Butare Prefecture Office when the Mid-May Attack and the Last Half of May Attacks occurred. See Ntahobali Appeal Brief, para.

637. See also ibid., paras. 618, 636. 634 Case No. ICTR-98-42-A 14 December 2015

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19731/H Night of Three Attacks.4225 Ntahobali stresses the unreasonableness of this omission especially given the Trial Chamber's acceptance of Witness SS's testimony that the Interahamwe "woke up everybody" during the attacks. 4226 1814. The Prosecution responds that Witnesses TA's and SD's silence regarding the Night of Three Attacks does not demonstrate that the event did not occur and points to elements of their evidence that offer circumstantial support for its occurrence. 227 According to the Prosecution, the Trial Chamber's conclusion that refugees fled during the Night of Three Attacks is consistent with Witness SS's testimony that everyone was woken up as well as the fact that Witnesses TA and SD did not testify about "these attacks" 4228 1815. The Appeals Chamber has previously determined that the fact that Witnesses TA and SD did not testify about the Night of Three Attacks does not demonstrate that no reasonable trier of fact could have found that these attacks occurred. 229 Furthermore, the Appeals Chamber considers that the Trial Chamber was not required to discuss any possible difference within the Prosecution evidence where that evidence was not incompatible. In this instance, Ntahobali does not show that either Witness TA or Witness SD denied the occurrence of the Night of Three Attacks or that they provided evidence that contradicted that of Witnesses TK, RE,

FAP, QBQ, SS, and SU on these attacks. While Ntahobali points out Witness SS's evidence that the Interahamwe "woke up everybody" on the third attack of the same night, suggesting that Witnesses TA and SD could not have been unaware of the attack, Ntahobali overlooks that both witnesses testified to the existence of other attacks than those they specifically described. 4230 1816. Based on the above, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in failing to consider that Witnesses TA and SD did not mention the Night of Three Attacks. 4225 Ntahobali Appeal Brief, para.

677. See also ibid., para. 711; Ntahobali Reply Brief, para.

277. Ntahobali adds that Witness TA also testified about attacks at the Butare Prefecture Office that occurred after the Night of Three Attacks. See Ntahobali Appeal Brief, para. 677. 4226 Ntahobali Appeal Brief, para. 677, referring to Trial Judgement, para.

2709. The Appeals Chamber has previously considered Ntahobali's contentions that the Trial Chamber erred in relying on the evidence of Witnesses TA and SD as it relates to the vehicle used during the Night of Three Attacks. See supra, Section V.I.2(b)(iii)c. 4227 Prosecution Response Brief, para. 1050. 4228 Prosecution Response Brief, para. 1050. 4229 See supra, Section IV.F.2(e) (ii). 4230 See, e.g., Witness SD, T. 17 March 2003 pp. 9-11, 41, 49, 50, 65-71, T. 18 March 2003 p. 18; Witness TA, T. 1 November 2001 pp. 50, 51. Ntahobali further submits that Witnesses TA's and SD's silence regarding the Night of Three Attacks was also unreasonable, especially since the Trial Chamber accepted evidence that refugees fled the Butare Prefecture Office during the attacks in order to justify why Witnesses SU and QBQ only testified about two attacks that evening. See Ntahobali Appeal Brief, para. 677, referring to Trial Judgement, para.

2660. In the view of the Appeals Chamber, it is unclear how evidence of refugees fleeing the prefectoral office would render the Trial Chamber's assessment of the Night of Three Attacks unreasonable in light of the fact that Witnesses TA and SD did not testify about it. The Appeals Chamber therefore dismisses Ntahobali's argument. 635 Case No. ICTR-98-42-A 14 December 2015

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19730/H (iv) Abduction of Mbasha's Wife and Children 1817. The Trial Chamber concluded that, during the Night of Three Attacks, Ntahobali and the Interahamwe abducted Mbasha's wife and children. 23l In coming to this conclusion, the Trial Chamber relied on the testimonies of Prosecution Witnesses TK, QJ, and RE.4232 1818. Ntahobali submits that the Trial Chamber failed to apply caution to the evidence of Witnesses TK and QJ, who are related by marriage and lied about not discussing their testimonies in this case. 4233 He avers that the Trial Chamber unreasonably determined that this "lie" did not undermine the credibility of Witnesses TK and QJ, particularly considering allegations of collusion made against them after amici curiae investigations.4234 Niahobali specifically notes the Trial Chamber's differential treatment between Witnesses TK and QJ and others witnesses, such as Witnesses QA, D-2-13-D, and D-2-14-D.4235 In the same vein, Ntahobali stresses that Witnesses TK and RE are related by marriage and argues the Trial Chamber failed to exercise sufficient caution when considering this familial link, especially in light of its assessment of Defence witnesses. 4236 1819. In addition to the several alleged inconsistencies that have been addressed in the subsection addressing Ntahobali's challenge to identification evidence, 4237 Ntahobali also argues that the Trial Chamber

erred in concluding that the material inconsistencies within the evidence of Witnesses TK, QJ, RE, SJ, and Witness WKKTD concerning the age and gender of Mbasha's children were insignificant and could be explained by the passage of time. 4238 Ntahobali further submits that the Trial Chamber erred in failing to consider that Witness RE "did not mention Mbasha in her prior statement, but suddenly remembered that at trial" and that "Witness TK did not mention Mbasha or his wife but only their children in her first prior statement 4239 Ntahobali also contends that the Trial Chamber erred in disregarding the "threatening attitude of Witness TK when confronted with on the basis of the abduction of Mbasha's wife due to insufficient notice but nonetheless considered that the credible and consistent information with regard to this event provided circumstantial support for its findings regarding the abduction of other unnamed Tutsi refugees from the Butare Prefecture Office. See supra, Sections IV.F.2(a), V.I.2(a)(ii). 4232 Trial Judgement, paras. 2717-2720, 2727. had barred the cross-examination of Witness QJ on whether he knew if his wife was called to testify for the Prosecution. See idem, referring to Witness QJ, T. 12 November 2001 pp. 59-61 (closed session). 4235 Ntahobali Appeal Brief, para. 685, referring to Trial Judgement paras. 376, 1733, 1999, 3371, 3376. 4236 Ntahobali Appeal Brief, paras. 750-752. See also ibid., para. 691. 4237 Ntahobali Appeal Brief, paras. 681-684, 689-691. See also Ntahobali Reply Brief, para.

293. Specifically, the Appeals Chamber has previously assessed Ntahobali's arguments that the evidence of Witnesses TK, RE, QJ, and/or SJ are, inter alia, inconsistent as to: (i) the timing of the attack; (ii) whether the abduction was forceful or not; (ili) where the victims were placed in the vehicle; (iv) whether Mbasha's wife was undressed; and (v) what Ntahobali wore. See supra, Section V.I.2(b)(iii)b. The Appeals Chamber has also addressed Ntahobali's challenges pertaining to alleged inconsistencies between the evidence of Witness TK and QJ about the vehicle used. See supra, paras. 1684, 1685. 4238 Ntahobali Appeal Brief, paras. 688, 689. See also Ntahobali Reply Brief, para. 294. 636 Case No. ICTR-98-42-A 14 December 2015

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19729/H that contradiction" and generally argues that she repeatedly provided "implausible and spurious explanations" when confronted with inconsistencies. 4240 1820. Ntahobali submits that, in light of the inconsistent accounts on the abduction of Mbasha's wife and children, no reasonable trier of fact could have dismissed Witness WKKTD's exculpatory evidence 4241 He contends that, while Witness WKKTD's testimony was uncorroborated and hearsay, he was found to be credible and his evidence should have raised doubt about the abduction. 4242 He claims that the Trial Chamber reversed the burden of proof in this respect. 4243 1821. The Prosecution responds that, despite any familial relationships, the Trial Chamber correctly assessed and properly relied on the evidence of Witnesses TK, QJ, and RE in relation to the abduction of Mbasha's wife and children.4244 It further submits that: (i) inconsistencies regarding the age and gender of Mbasha's children are insignificant; (ii) alleged inconsistencies between witness testimonies and their prior statements as well as challenges to the credibility of Witnesses RE and TK are misstatements of the evidence; and (iji) Witness WKKTD's evidence was unreliable. 4245 1822. The Appeals Chamber observes that the Trial Chamber considered the relationship between Witnesses TK and QJ and the possibility that they discussed their testimonies before

the Tribunal 4246 Specifically, the Trial Chamber stated: Witness QJ testified that he is married to Witness TK, which was confirmed by Witness TK. Both witnesses also testified that they had never discussed the events of April to July 1994 together, and did not know of each other's plans to testify before this Tribunal. The Chamber recalls its previous finding that while it does not believe that these witnesses never discussed the events at issue in this case, or their plans to testify before this Tribunal, this alone does not undermine Witness TK or Witness QJ's credibility. 4247 1823. The Appeals Chamber has already considered and rejected the contention that it was unreasonable to rely on aspects of Witnesses QJ's and TK's evidence concerning the Night of Three Attacks, notwithstanding the Trial Chamber's disbelief that they had not discussed the events and 4239 Ntahobali Appeal Brief, paras. 686, 691, 699. 4240 Ntahobali Appeal Brief, paras. 686, 699. 4241 Ntahobali Appeal Brief, para. 692. 4242 Ntahobali Appeal Brief, para. 692. 4243 Ntahobali Appeal Brief, para. 692. 4244 Prosecution Response Brief, paras. 1010-1022, 1030-1032, 1036, 1037, 1117. The Prosecution also submits that the Trial Chamber did allow Witness QJ to be cross-examined on his credibility but restricted him from providing answers for Witness TK. See ibid., para. 1016. 4245 Prosecution Response Brief, paras. 1018-1020, 1030-1032, 1076, 1078, 1081 4246 Trial Judgement, para.

2677. See also ibid., para. 3795 4247 Trial Judgement, para. 3795 (internal references omitted). See also ibid., para. 2677. 637 Case No. ICTR-98-42-A 14 December 2015

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19728/H their participation in proceedings with each other. 4248 As to Ntahobali's contention that the amici curiae investigations demonstrated collusion between Witnesses TK and QJ and other witnesses, the Appeals Chamber recalls that it has also previously rejected this argument. 4249 1824. The Appeals Chamber is also not persuaded that, in light of the distinguishable circumstances, the Trial Chamber was required to disregard the evidence of Witnesses TK and QJ as it did with Witnesses QA, D-2-13-D, and D-2-14-D.4250 The Trial Chamber observed that Witness QA admitted that he lied to Canadian police in another proceeding, lied to the Prosecution in 1996, and admitted that most of his testimony given under oath to the Tribunal in 2004 was false 4251 The Trial Chamber determined that Witness QA lacked credibility and did not rely on his evidence. 4252 As for Witnesses D-2-13-D and D-2-14-D, the Trial Chamber considered that they were neighbours, were imprisoned together, met and signed their statements to the Kanyabashi Defence investigator together, went to Arusha to testify together, and were detained together while waiting to give their evidence.4253 It further noted that Witness D-2-13-D even testified that Witness D-2-14-D "helped Witness D-2-13-D draft his confession which was sent to the Gacaca courts and was given to Nkeshimana, the Kanyabashi Defence

investigator."4254 In light of their admission to interacting with the Kanyabashi Defence investigator, their close ties, as well as the numerous opportunities which they had to discuss their experiences due to their parallel participation in the case, the Trial Chamber considered that their testimonies were not reliable and their credibility undermined. 4255 By contrast, the Appeals Chamber notes that Witnesses TK and QJ were neither found to have provided false testimony nor to have colluded by helping each other prepare their testimonies or statements to investigators.

1825. Concerning Witness RE's relationship to Witness TK, the Appeals Chamber observes that the Trial Chamber explicitly considered that Witness RE's relative was Witness TK's sister-in-law. 4256 It also noted Witness RE's testimony that she did not inform Witness TK that she was to testify in Arusha 425 Having considered other allegations of evidence fabrication, the Trial Chamber did not find that Witness RE's relationship with Witness TK undermined her 4248 See supra, Section IV.F.2(b). The Appeals Chamber has also already rejected the contention that the Trial Chamber barred cross-examination on whether Witness QJ knew that Witness TK was called to testify for the Prosecution, as the references he cites reflect that the witness was asked and answered this very question. See idem. 4249 See supra, Section III.J. 4250 See Ntahobali Appeal Brief, para. 685, referring to Trial Judgement, paras. 376, 1733, 1999, 3371, 3376. 4251 See Trial Judgement, paras. 376, 1999, 3371. 4252 Trial Judgement, paras. 885, 951, 1953, 1999, 3371, 3376. 4253 Trial Judgement, para. 1733. 4254 Trial Judgement, para. 1733. 4255 Trial Judgement, para. 1733. 4256 See Trial Judgement, para. 2720. 4257 Trial Judgement, para. 2720, referring to Witness RE, T. 24 February 2003 p. 58 (closed session). 638 Case No. ICTR-98-42-A 14 December 2015

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19727/H credibility. 4258 Ntahobali simply argues that the Trial Chamber should have exercised greater caution in light of possible collusion," 4259 but fails to substantiate allegations of collusion or demonstrate an error by the Trial Chamber.4260 Moreover, his submission regarding the Trial Chamber's observation of Defence witnesses is both vague and misguided. 4261 The Appeals Chamber observes that the Trial Chamber applied caution to Defence witnesses with familial ties to Nyiramasuhuko and Ntahobali and who may have had motivation to provide exculpatory evidence for the defendants 4262 Ntahobali has not shown that any familial link between Witnesses RE and TK provided them with an incentive to implicate him. 4263 1826. As to inconsistencies regarding Mbasha's children, the Trial Chamber explicitly considered variances among the evidence of Witnesses TR, RE, QJ, and WKKTD, concerning the number, age, and gender of these children. 426 It specifically noted that: In addition, there were some discrepancies as to the number and gender of Mbasha's children. Witness TK testified that the wife of Mbasha was accompanied by one boy and one girl. Witness WKKTD testified that Mbasha had two children aged 7 and 10 or 11, but he said they were both girls. In contrast, Witnesses RE and QJ testified that there were three children.

1827. The Trial Chamber found that the testimony of Witness WKKTD, who had known the family for six years prior to 1994 and was a close friend of the family, that Mbasha had two daughters was reliable. 4266 It considered that this evidence was not necessarily inconsistent with the testimony of Witness TK, who testified to the children being a girl and a boy, 4267 reasoning that "Witness TK said that Ntahobali asked which of the children was a girl" and since "Ntahobali was not able to identify the gender of the children, both of the children could have been girls."4268 It also considered that, although Witnesses RE and QJ said there were three children, this discrepancy was not significant in light of the "passage of time between this event and their testimony."4269 1828. Ntahobali simply lists discrepancies in the witnesses' testimonies without demonstrating how the Trial Chamber was unreasonable in assessing them.4210 Considering that Witnesses TK, RE, and QJ observed these children in the midst of an attack, Ntahobali does not show that the 4258 Trial Judgement, para. 2720. 4259 See Ntahobali Appeal Brief, paras. 749-752. 4260 See also supra, Section II.J. 4261 See Ntahobali Appeal Brief, para. 752. 4262 See Trial Judgement, paras. 2546, 2579, 2590. 4263 See also supra, Section IV.F.2(b). 1264 See Trial Judgement, paras. 2724, 2725 1265 Trial Judgement, para. 2724 (internal references omitted). 126 Trial Judgement, para. 2725. 4267 Trial Judgement, paras. 2724, 2725. 4268 Trial Judgement, para. 2725. 4269 Trial Judgement, para. 2725. 4270 See Ntahobali Appeal Brief, para.

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19726/H evidence of these witnesses, as well as that of Witness WKKTD, was incompatible despite variances as to the precise age, gender, or number of these children.

1829. Turning to Ntahobali's contentions that the Trial Chamber failed to assess purported inconsistencies between witnesses' testimonies and prior statements concerning this incident, the Appeals Chamber has concluded earlier that the omission related to the Mbasha event in Witness RE's prior statement did not make it unreasonable for the Trial Chamber to rely on her evidence. 4271 Furthermore, having reviewed Witness TK's prior statement and relevant testimony at trial, the Appeals Chamber is not convinced that the witness contradicted herself by not mentioning the presence of Mbasha's wife in her first statement as it is manifest that this statement did not purport to give an exhaustive list of everyone Ntahobali abducted at the prefectoral office. 4272 As noted by Ntahobali, in a subsequent statement that provided more detail, Witness TK recalled Ntahobali's conversation with Mbasha's wife and that she was among the family members abducted. 4273 During her testimony at trial, Witness TK stated that "Ms. Mbasha was present at the time; she was with her children and she was taken away; she was abducted with her children."4274 In the opinion of the Appeals Chamber, the fact that Witness TK only mentioned the Mbasha children and not their mother in her 1996 prior statement did not require the Trial Chamber to reject the witness's evidence.

1830. As to Ntahobali's contention that the Trial Chamber failed to consider Witness TK's threatening attitude when confronted with the contradiction discussed above as well as others, and that the witness only offered "implausible and spurious explanations" for inconsistencies,4275 the Appeals Chamber observes that the Trial Chamber explicitly considered omissions in Witness TK's prior statement and accepted her explanations for them. 4276 The Appeals Chamber recalls that trial chambers are best placed to assess the evidence, including the demeanour of witnesses.* 4217 Ntahobali provides a list of explanations that he finds "implausible or spurious" 4271 See supra, para.

1669. See also supra, Section IV.F.2(e) (iii) b. 4272 See Exhibit D44 (Witness TK's November 1996 Statement), p. K0037330 (Registry pagination) ("You asked me if I know the names of people who were taken away by [SHALOM and PAULINE. Well, I saw two children of the MBASHA family among them. There were other children transported to Kabutare."). 4273 Ntahobali Appeal Brief, para. 699; Exhibit D47 (Witness TK's 1998 Statement), p. K0052252 (Registry pagination) ("As I have mentioned in my previous statements I also remember Shalom and his discussion with the wife of Mbasha and his wanting to have sex (take as a wife) with one of their small daughters who was only about 9 years old. All the people from this family (Mbasha) were taken away and I never saw them alive again. In fact, the wife of Mbasha was killed at the Prefecture itself. She was begging for pity for her children".). 4274 Witness TK, T. 23 May 2002 pp. 20, 21. 4275 Ntahobali Appeal Brief, para. 686, referring to Witness TK, T. 21 May 2002 pp. 53, 54 (closed session), 127-131, 141, T. 22 May 2002 pp. 5-9, 15-18, 29-31, 53, 54, 100, 101, 117, 118, 134-137, T. 23 May 2002 pp. 19-21, 99, 100, 104, 105, 126, 127, 133, T. 27 May 2002 pp. 35-37, T. 28 May 2002 pp. 18, 19. 4276 Trial Judgement, para. 2683. 4277 See, e.8., Nzabonimana Appeal Judgement, para. 45; Kanyarukiga Appeal Judgement, para. 121; Simba Appeal Judgement, para. 9; Ntagerura et al. Appeal Judgement, para. 213. 640 Case No. ICTR-98-42-A 14 December 2015

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19725/H without demonstrating that no reasonable trier of fact could have relied upon Witness TK's otherwise corroborated testimony concerning the abduction of Mbasha's wife and children. 4278 1831. Ntahobali also does not demonstrate that the Trial Chamber erred in dismissing Witness WKKTD's alternative explanation for the disappearance of Mbasha's wife and her children. 4279 The Trial Chamber considered Witness WKKTD's testimony that the Mbashas were killed at a roadblock and that the eldest daughter survived the events, and determined the testimony to be uncorroborated, hearsay, and unreliable.4280 Given the direct and corroborated evidence of Witnesses TK, QJ, and RE that Mbasha's wife and children were abducted at the prefectoral office, 4281 the Appeals Chamber sees no error in the Trial Chamber's rejection of Witness WKKTD's uncorroborated and hearsay account. Considering the Trial Chamber's discretion to assess and weigh the evidence of different witnesses against each other, the Appeals Chamber is not persuaded that the Trial Chamber reversed the burden of proof in this instance. 4282 1832. Based on the foregoing, the Appeals Chamber finds that Ntahobali's arguments discussed above fail to demonstrate that the Trial Chamber erred in assessing the evidence related to the abduction of Mbasha's wife and her children. 4283 (v) Other Abductions 1833. The Trial Chamber noted

the evidence of Witnesses FAP, SU, and SS, who each testified about the abduction of a woman accompanied by children at the Butare Prefecture Office during the Night of Three Attacks. 4284 It stated that Witness FAP's testimony corroborated "numerous details 4278 Ntahobali also avers that, despite finding insufficient evidence to convict Ntahobali for the undressing of refugees, the Trial Chamber erroneously believed Witness TK's testimony that Mbasha's wife was forced to undress and placed in the front cabin of the pickup truck. See Ntahobali Appeal Brief, paras. 687, 690, referring to Trial Judgement, para.

6137. However, to support his contention, Ntahobali refers to a conclusion in the "Legal Findings" section of the Trial Judgement that concerns the events at the BER and not the Butare Prefecture Office. 4279 See Ntahobali Appeal Brief, para. 692. 4280 Trial Judgement, para. 2726. 4281 See Trial Judgement, paras. 2717-2719, 2727. 4282 The Appeals Chamber notes that Ntahobali further argues that the Trial Chamber erred in failing to consider that Witnesses QBQ and QBP never testified about Mbasha or any such abduction, and that the Trial Chamber's assessment was "selective and patently unreasonable". See Ntahobali Appeal Brief, para.

701. The Appeals Chamber observes that Ntahobali's argument is a mere statement and that he provides nothing to substantiate his submission. The Appeals Chamber recalls that it has found that Witness OBP's evidence was not relevant to the Night of Three Attacks. See supra, Section V.I.2(d)(i). Given that the Trial Chamber's determination that Witnesses TK, RE, and QJ provided corroborated evidence of the abduction of the Mbasha family, the Appeals Chamber is also not persuaded that the Trial Chamber was required to consider that Witness QBQ never testified about the abduction of the Mbashas specifically. See also supra, Section IV.F.2(e)(iii)b. The Appeals Chamber therefore dismisses Ntahobali's submission in this regard, 1292 Ntahobali contends that should the abduction of Mbasha's wife and children be excluded, the Night of Three Attacks "cannot stand up to scrutiny" as the Mbashas' abduction "constituted the lynchpin of the Chamber's assessment." See Ntahobali Appeal Brief, para.

703. As Ntahobali's contentions that the Trial Chamber erred in its assessment of this event have been dismissed, this argument is moot. 4284 Trial Judgement, paras. 2732-2734. See also ibid., para. 2731. 641 Case No. ICTR-98-42-A 14 December 2015

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19724/H of Witness TK's testimony regarding the abduction of Mbasha's wife and children", 4285 but also identified elements in Witness FAP's evidence that differed 4286 The Trial Chamber, noting "the differences in their testimonies" concluded that it was "convinced that Witnesses SU, SS and FAP were describing attacks on different individuals among the group which was abducted from the [Butare Prefecture Office] on the [Night of [T]hree [A]ttacks."4287 In this regard, it concluded that "Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office], assaulted them and forced them aboard the pickup."288.

1834. Ntahobali argues that the "differences" in the evidence of Witnesses SU, SS, and FAP referenced by the Trial Chamber were actually inconsistencies about the same event; namely, the abduction of Mbasha's wife and children. 4289 In this regard, Ntahobali avers that the Trial Chamber failed to consider that: (i) like Witness RE, Witness FAP testified that only one woman and her children were abducted during the attack, that they sat on the veranda, and that Ntahobali told the woman she would not be killed but taken to Nyiramasuhuko to hide her; and ii) like Witness TK, Witnesses SU and SS testified that the woman and her children, coming from the bursary, were abducted on the same day they arrived and were accompanied by a tall, balding, and fair-complexioned man. 290 In Ntahobali's view, the evidence of Witnesses FAP, SU, and SS "about the identity of that woman and her children converged on [Mbasha's wife]" but the accounts are radically different on "almost all the material facts" 4291 He contends that, had the Trial Chamber assessed the evidence in its entirety and not just the evidence in support of its assessment, it would have found too many inconsistencies to conclude that the "Mbasha abduction was credible beyond reasonable doubt. »4292 1835. Ntahobali further argues that, assuming that the abductions were separate, the Trial Chamber still erred in failing to consider that it was impossible that Witnesses FAP, SS, and SU neither witnessed nor heard about the event testified to by Witnesses RE, TK, and QJ and vice 4285 Trial Judgement, para. 2734. 4286 Trial Judgement, para. 2735. 4287 Trial Judgement, para. 2736. 4288 Trial Judgement, para.

2736. See also ibid., paras. 2738, 2781(iii). 4289 Ntahobali Appeal Brief, para.

694. See also Ntahobali Reply Brief, para.

296. Nahobali also argues that annexes C, ), and E of his appeal brief reveal radically different accounts of almost all material facts raised and that no reasonabl rier of fact could have overlooked these facts which are relevant to assessing the credibility of all those witnesse. ee Ntahobali Appeal Brief, paras. 697, 700. As discussed previously, because paragraph 697 of the Ntahobali Appe ief refers to his annexes in a general and non-particularised manner, the Appeals Chamber dismisses this aspect of I submission. See supra, fn. 3830. 4290 Ntahobali Appeal Brief, para. 695, referring to Witness SU, T. 17 October 2002 pp. 59-64, Witness SS, T. 3 March 2003 pp. 55, 56. 4291 Ntahobali Appeal Brief, paras. 696, 697. 4292 Ntahobali Appeal Brief, para. 698. 642 Case No. ICTR-98-42-A 14 December 2015

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19723/H versa. 429 In addition, Ntahobali contends that the Trial Chamber failed to consider that none of the witnesses, who testified to the unnamed woman and her children being abducted from the veranda, mentioned this abduction in their prior statements. 4294 1836. The Prosecution responds that Ntahobali fails to demonstrate how the Trial Chamber was unreasonable in concluding that Witnesses FAP, SS, and SU were testifying about other victims, rather than Mbasha's wife and her children. 4295 It also responds that Niahobali's assertion that none of the witnesses testifying about the unnamed woman mentioned the abduction in their prior statements should be dismissed for lack of references. 4296 1837. The Appeals Chamber observes that the Trial Chamber noted numerous elements of the evidence of Witnesses SU, SS, and FAP that could suggest that they testified about the same abduction 297 and, specifically, about Mbasha's wife and children 4298 This shows that the Trial Chamber was well aware of the similarities and differences in the relevant evidence.

1838. The Appeals Chamber has already considered and rejected the argument that the Trial Chamber erred in failing to find that Witnesses SU, SS, and FAP must have testified about the abduction of Mbasha's wife and chidren, especially in light of the purported parallels between the evidence of Witness FAP, on one hand, and Witnesses RE and TK, on the other hand. 4299 Again, the Appeals Chamber emphasises that Witness FAP's testimony, as noted by the Trial Chamber, reflects that the unknown woman she testified about was killed at the prefectoral office, 4300 which is distinct from evidence about the abduction of Mbasha's wife and children. 4301 Consequently, the Appeals Chamber considers that Ntahobali fails to demonstrate that no reasonable trier of fact could have found, as the Trial Chamber did, that Witness FAP was not testifying about Mbasha's wife and her children. 4293 Ntahobali Appeal Brief, para. 698. 4294 Ntahobali Appeal Brief, para. 699. 4295 Prosecution Response Brief, paras. 1023-1028. 4296 Prosecution Response Brief, para. 1029. 4297 The Trial Chamber noted that the evidence of Witnesses FAP, SS, and SU converged on the following facts: (i) the lady came to the prefectoral office with a man and a child or children; (ii) the woman stayed on the veranda; (iii) during their abduction, the lady and/or the children cried out in protest; and (iv) the woman was hit or killed. See Trial Judgement, paras. 2250, 2252, 2285, 2304, 2305, 2732-2734. See Trial Judgement, para.

2734. The Trial Judgement identifies several similarities within the evidence of Witnesses SU, SS, FAP, TK, RE, and QJ: (i) the woman arrived at the prefectoral with a tall, fair-complexioned man; ii) the mother and Ntahobali had a discussion; (ili) the woman pleaded to spare her children; (iv) the woman and her children were taken from the veranda; and (v) the woman and children were eventually abducted. See ibid., paras. 2667, 2668, 2673-2675, 2717-2719, 2732-2734. 4299 See supra, Section IV.F.2(e)(iii)a. 4300 Trial Judgement, para. 2735. 4301 See Trial Judgement, paras. 2196, 2213, 2214, 2277, 2717-2719. Case No. ICTR-98-42-A 14 December 2015

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19722/H 1839. Turning to the allegedly overlapping elements of Witness TK's evidence, on one hand, and that of Witnesses SU and SS, on the other hand, the Appeals Chamber observes that all the witnesses testified that the woman and her children arrived in a group that included a man, 4302 and Witnesses TK and SU consistently described one man in the group as tall and with a fair complexion.4303 Nonetheless, Witness SU's evidence reflects that the group did not simply constitute this man and his family.430* Moreover, Ntahobali provides no reference to support the contention that Witness TK testified that Mbasha and his family were coming from the bursary, 4305 The evidence of Witnesses SU and SS is distinct on this element. 4306 1840. Of greater significance, while Witness TK testified about a woman named Trifina being slit across the throat and killed before being loaded onto the vehicle,4307 she did not suggest that anything similar occurred to Mbasha's wife prior to being placed in the cabin of the vehicle with Nyiramasuhuko.4308 By contrast, Witness SU testified that the woman whom she observed being abducted was struck on the neck with a machete and, according to Witness SS, the woman she observed being abducted was dead when loaded onto the vehicle.4309 The Appeals Chamber observes that the Trial Chamber recounted all of this evidence in detail when deliberating on the testimonies of each of these three witnesses." 4310 Under these circumstances, the Appeals Chamber does not find that the Trial Chamber was compelled to conclude that these witnesses were all testifying to the same abduction, and more specifically, that of Mbasha's wife and children. 4311 4302 See Witness SS, T. 5 March 2003 p.

69. See also Trial Judgement, paras. 2210, 2250, 2285, 2305, 2733, 2734. 4303 See Witness TK, T. 20 May 2002 p. 63, T. 23 May 2002 p. 21; Witness SU, T. 14 October 2002 p.

35. See also Trial Judgement, paras. 2210, 2250, 2732. 4304 See Witness SU, T. 17 October 2002 p. 59 ("Q. [...] Now, the people who came from the economat, including the mother and her two twins, how many people accompanied them? A. [...] The people who were brought in from the economat were been conducted in a queue, they were in a single file. Amongst them were women, young girls, men, a young man and an old woman. With these individuals were also a tall person whose complexion was clear, I don't know whether he was a priest, he was balding, but this latter person was taken away, I don't know whether he is still alive or whether he is already dead. Let me add something else. This old man and that old lady who were brought in from the Economat were a couple, a man and his wife, they are still alive, but I do not know where they are now living. It was only those individuals."). 4305 See Ntahobali Appeal Brief, para.

695. See also ibid., Annex C. 4306 Compare Witness SU, T. 14 October 2002 p. 32 ("A. [...] She called them and ordered them to get the people aboard the vehicle, making a distinction between men and women. They immediately took a lady who had twins. I earlier on had seen people bring this lady and they brought her from the bursar's office, economa. When they when brought her from the accounts office, economa, there were other people who were brought together with her."), 35 ("A. This woman was taken from the economa or the bursar's office by people.") with Witness SS, T. 5 March 2003 p. 69 ("Q. Madam Witness, were - did these people not come from the Economat of the procureur? A. I don't know where they were coming from, because I myself did not know."). 4307 See Witness TK, T. 20 May 2002 pp. 90, 91, T. 22 May 2002 pp. 73, 74, 77, 103, 108. See also Trial Judgement, 2308 See Witness TK, T. 20 May 2002 p.

96. See also Trial Judgement, paras. 2213, 2214, 2717. 4309 See Witness SU, T. 14 October 2002 p. 36; Witness SS, T. 3 March 2003 p. 57, T. 5 March 2003 p.

65. See also Trial Judgement, paras. 2252, 2285, 2732, 2733. 4310 See Trial Judgement, paras. 2728, 2732, 2733. 4311 See also supra, Section IV.F.2(e)(iii)a. Case No. ICTR-98-42-A 14 December 2015

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19721/H 1841. Having dismissed Ntahobali's contentions that Witnesses SU, SS, and FAP must have testified about the abduction of Mbasha's wife and children, the Appeals Chamber also finds no merit in Ntahobali's contention that the Trial Chamber erred in its analysis of their evidence. Specifically, Ntahobali does not demonstrate with references that the fact that Witnesses TR, RE, and QJ did not refer to the abductions described by Witnesses SU, SS, and FAP, or vice versa, necessarily rendered their accounts incompatible. Moreover, his general argument that none of the witnesses discussed this abduction in their prior statements is unpersuasive and unsupported by any reference. Given the vague and insufficient nature of his argument as well as the fact that a trial chamber has the discretion to accept a witness's testimony notwithstanding inconsistencies between the said testimony and his previous statements,4312 the Appeals Chamber dismisses Ntahobali's undeveloped contention. (vi) General Inconsistencies 1842. The Trial Chamber determined that, regardless of whether refugees were taken to Rwabayanga, Kabutare, Mukoni, or the IRST, the only reasonable inference is that they were abducted from the Butare Prefecture Office to be killed. 4313 In coming to this conclusion, the Trial Chamber considered the evidence of, among others, Witnesses SU, RE, FAP, and QBQ, and

their hearsay accounts from survivors such as Annonciata and Semanyenzi. 4314 1843. Ntahobali submits that no reasonable trial chamber could have resolved, as the Trial Chamber did, inconsistencies in the evidence on where abducted refugees were taken and killed. 4315 Specifically, he notes that the witnesses testified that the victims were taken to four different locations - Kabutare, Rwabayanga, Mukono, and the IRST - but argues that this information came from two survivors of the abductions, Semanyenzi and Annonciata. 4316 In his view, it was absurd for the Trial Chamber to consider that refugees were taken to four different locations. 4317 Ntahobali adds that the Trial Chamber erred in finding that the abducted refugees were forcefully undressed and erred in using this to convict him, particularly since it determined elsewhere that there was insufficient evidence to sustain such a conviction. 4318 4312 Kanyarukiga Appeal Judgement, para. 121; Hategekimana Appeal Judgement, paras. 190, 198; Rukundo Appeal Judgement, para. 86: Kajelijeli Appeal Judgement, para.

96. See also Rutaganda Appeal Judgement, para. 443; Musema Appeal Judgement, para.

89. Trial Judgement, para. 2749. 4314 See Trial Judgement, paras. 2745-2748. 43IS Ntahobali Appeal Brief, para. 676, referring to Trial Judgement, paras. 2747-2749. 4316 Ntahobali Appeal Brief, para.

676. In this regard, Ntahobali also submits that the Trial Chamber failed to note the implausibility of Semanyenzi surviving both the abductions on the Night of Three Attacks and the trip to Nyange. See idem, referring to Trial Judgement, paras. 4072, 4175. 4317 Ntahobali Appeal Brief, para.

676. See also Ntahobali Reply Brief, para. 279. 4318 Ntahobali Appeal Brief, para.

678. See also ibid., para. 687. 645 Case No. ICTR-98-42-A 14 December 2015

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19720/H 1844. The Prosecution responds that the Trial Chamber reasonably considered divergent accounts on the locations where refugees were taken to be killed and that it properly assessed the evidence. *319 It also submits that the Trial Chamber's finding that some refugees were forced to undress was not a basis of Ntahobali's conviction and that his argument should be summarily dismissed. 4320 1845. The Appeals Chamber has already considered and rejected similar contentions raised by Nyiramasuhuko that the Trial Chamber erred in its assessment of the evidence related to the locations where abducted refugees were killed,432' Given that Ntahobali's submissions present no materially distinct argument and simply reflect his disagreement with the Trial Chamber's analysis without showing any error, the Appeals Chamber dismisses his contentions. Ntahobali's emphasis on the location of the killings also ignores that the evidence of principal significance - i.e. that the abducted refugees were killed - is entirely consistent. 322 The Appeals Chamber therefore finds that Ntahobali does not demonstrate that the Trial Chamber's consideration of the evidence on the killing sites was unreasonable." 4323 1846. The Appeals Chamber also dismisses Ntahobali's contention regarding the Trial Chamber's alleged contradictory findings on whether Tutsi refugees were forcefully undressed during

the Night of Three Attacks. In support of his argument, Ntahobali refers to a paragraph of the Trial Judgement where the Trial Chamber concluded that the Prosecution failed to adduce sufficient evidence to prove beyond reasonable doubt that Tutsis were forced to undress during attacks at the EER, which is in no way related to the Night of Three Attacks or events at the Butare Prefecture Office. 4324 While the Trial Chamber concluded that some abducted Tutsis were forced to undress during the Night of Three Attacks, 432S the Trial Chamber's finding that Ntahobali participated in the Night of Three Attacks is not dependent upon this conclusion.* 4326 1847. As a result, the Appeals Chamber dismisses Ntahobali's contentions in these respects. 4319 Prosecution Response Brief, para. 1052, referring to Trial Judgement, para.

2747. See also ibid., para. 1053. 4320 Prosecution Response Brief, para. 1055. 4321 See supra, Section IV.F.2(e)(vi). 4322 See Trial Judgement, para. 2749. 4323 The Appeals Chamber also finds that Ntahobali fails to demonstrate how Semanyenzi's survival from two different abductions is implausible or how evidence of this nature undermines the reasonableness of the Trial Chamber's conclusion. See supra, Section IV.F.2(e)(vi). Furthermore, the Appeals Chamber is not persuaded that the evidence of Witnesses QY and SJ was essential to the Trial Chamber's conclusion that refugees were abducted from the prefectoral ffice in order to be killed. See Trial Judgement, paras. 2743, 2746, 2747. Consequently, to the extent that the Tri: hamber erred in relying on this evidence, the Appeals Chamber does not find that it has occasioned a miscarriage c justisee Trial Judgement, paras. 6132, 6137. 4325 Trial Judgement, para. 5873. 4326 See Trial Judgement, paras. 5876, 6053, 6054, 6100, 6101, 6168, 6169. 646 Case No. ICTR-98-42-A 14 December 2015

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19719/H (vii) Conclusion 1848. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in relying on the evidence of Witnesses QY and SJ in support of its findings regarding the Night of Three Attacks but that this error has not occasioned a miscarriage of justice. The Appeals Chamber dismisses the remainder of Ntahobali's challenges in Ground 3.6 of his appeal as it concerns the assessment of evidence pertaining to the Night of Three Attacks. (e) First Half of June Attacks 1849. The Trial Chamber determined that Ntahobali, injured soldiers, and Interahamwe came to the Butare Prefecture Office in the first half of June 1994 to rape women and abduct refugees. 4327 It found in particular that during one of these attacks, Ntahobali handed Witness TA over to about seven Interahamwe to rape her 4328 The Trial Chamber convicted Ntahobali for aiding and abetting the rape of Witness TA during one of these attacks.4329 The Appeals Chamber has reversed Ntahobali's convictions for committing rapes during these attacks, 4330 The Appeals Chamber recalls that it has determined, Judge Khan dissenting, that Ntahobali was not convicted in relation to the killings that were perpetrated during the First Half of June Attacks. 331 However, for the reasons mentioned above, the Appeals Chamber will nonetheless address Ntahobali's challenges to the assessment of the evidence

concerning these attacks.4332 1850. Ntahobali submits that the Trial Chamber erred in its assessment of the evidence related to the rapes of Witness TA and the abductions and killings that occurred during the First Half of June Attacks.4333 (i) Rapes of Witness TA 1851. When first considering evidence that attacks occurred at the prefectoral office in the first half of June 1994, the Trial Chamber observed that Witness TA testified that Immaculée Mukagatare was raped during the "fourth attack" the witness observed, which corresponded to the first or second week of June 1994.433* It further noted that Witness QBP testified that she also observed the rape of a woman named Immaculée Mukagatare. 4335 The Trial Chamber concluded 4327 Trial Judgement, paras. 2773, 2781(v). 4328 Trial Judgement, para. 2773. 4329 See supra, Sections V.I.1(b), V.I.1(c). 4330 See supra, Sections V.I.1(b), V.I.1(c). 4331 See supra, Sections V.I.1 (a)(ii), V.I. 1(c). 4332 See supra, Section V.I.2. 1333 Ntahobali Appeal Brief, paras. 625, 627, 628, 634, 708-715. 334 Trial Judgement, para. 275 335 Trial Judgement, para. 275( 647 Case No. ICTR-98-42-A 14 December 2015

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19718/H that Witness TA's evidence "corresponds with the attack described by Witness QBP which allegedly occurred in June 1994.*4336 1852. The Trial Chamber later recalled Witness TA's evidence that, during an attack 18 to 20 days after the "first attack", a group of eight Interahamwe, including Ntahobali, arrived at the Butare Prefecture Office. 4337 It concluded that, on this occasion, Ntahobali handed Witness TA over to the Interahamwe and told them to be quick, after which seven Interahamwe raped her.3 The Trial Chamber further discussed Witness TA's evidence of Ntahobali raping Immaculée Mukagatare during the same attack, 4339 However, the Trial Chamber noted that "Witness TA later testified that the rape of Immaculée [Mukagatare] occurred on the fifth occasion that Ntahobali visited the [prefectoral officel, on which occasion Witness TA was not personally raped."4340 The Trial Chamber concluded that, given the traumatic nature of this incident and the amount of time that had passed since this rape, this discrepancy was not "serious or such as to undermine Witness TA's overall credibility as to this account. *4341 1853. The Trial Chamber convicted Ntahobali for aiding and abetting Witness TA's rapes at the prefectoral office on this basis.4342 It held that it would not convict Ntahobali for the crimes committed against Immaculée Mukagatare as a result of the Prosecution's

late disclosure of the name of this victim. 4343 1854. Ntahobali argues that the Trial Chamber unreasonably concluded that Witnesses QBP and TA testified to the same attack and that several errors related to the assessment of the evidence pertaining to the rape of Immaculée Mukagatare further undermine the Trial Chamber's reasoning. 4344 He contends that the Trial Chamber unreasonably failed to apply caution to the testimonies of Witnesses QBP and TA in light of their familial relationship and argues that the Trial Chamber erred in unreasonably rejecting Defence evidence raising doubt as to Witness QBP's presence at the prefectoral office.4345 He also contends that the Trial Chamber erred in its assessment of inconsistencies in Witness TA's evidence as to whether or not she was raped during the fourth or fifth attack she observed at the prefectoral office and whether she saw Ntahobali 4336 Trial Judgement, para. 2750. 4337 Trial Judgement, para. 2770. 4338 Trial Judgement, paras. 2770, 2781(v). 4339 Trial Judgement, para.

2770. See also ibid., para. 2185. 4340 Trial Judgement, para.

2770. See also ibid., para. 2185. 4341 Trial Judgement, para. 2770. 4342 See supra, Sections V.I.1(b), V.I.1(c). See also Trial Judgement, paras. 5874, 5875, 6094, 6184. 4343 Trial Judgement, para.

2172. See also supra, Section V.I.2(a)(ii). 4344 Ntahobali Appeal Brief, paras. 627, 628, 634, 709, 710. 4345 Ntahobali Appeal Brief, paras. 628, 710; Ntahobali Reply Brief, para. 307. 648 Case No. ICTR-98-42-A 14 December 2015

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19717/H raping Immaculée Mukagatare on the same occasion that she was raped 4346 Ntahobali further submits that the Trial Chamber failed to address Witness TA's inability to identify anyone at the prefectoral office, despite Witness QBP's testimony that they were related and that they were together at the prefectoral office.' 4347 He also points out that Witness QBP did not identify Witness TA as having been raped at the prefectoral office. 4348 Finally, Ntahobali submits that the Trial Chamber failed to consider sufficiently contradictory evidence from Witnesses QBP, SS, SJ, RE, and FAP that no other attacks occurred after the Night of Three Attacks and the testimonies of Witnesses FAP and QBQ that they did not see Ntahobali after the Night of Three Attacks.434g 1855. The Prosecution responds that Ntahobali fails to demonstrate any error in the Trial Chamber's assessment of the evidence relating to the First Half of June Attacks, arguing that the purported inconsistencies are addressed in the Trial Judgement or are too minor to undermine the Trial Chamber's reliance on Witness TA's evidence.4350 It further responds that Ntahobali's assertion that the Trial Chamber unreasonably concluded that attacks occurred at the prefectoral office after the Night of Three Attacks is incorrect. 4351 1856. The Appeals Chamber observes that the Trial Chamber's findings, as summarised above,

are unclear as to whether the Trial Chamber determined that Witness TA was handed over by Ntahobali to be raped on the same occasion that Immaculée Mukagatare was raped. Witness TA's evidence is unclear in this respect. 4352 However, regardless of whether Witness TA's account of being raped in the first half of June 1994 relates to the attack during which Immaculée Mukagatare was raped, Ntahobali does not demonstrate that any of the purported errors he points out regarding the assessment of the evidence related to the rape of Immaculée Mukagatare or to Witness QBP's evidence relating to this specific attack would undermine the Trial Chamber's conclusion that Ntahobali aided and abetted Witness TA's rape during an attack in the first half of June 1994.

1857. Ntahobali was not held responsible for the rape of Immaculée Mukagatare and the Trial Chamber did not rely on this aspect of the evidence with respect to any of Ntahobali's convictions. 4346 Ntahobali Appeal Brief, paras. 625, 627 4347 Ntahobali Appeal Brief, paras. 628, 750-752. 4348 Ntahobali Appeal Brief, para.

634. See also supra, Section V.I.2(c)(iv). 4349 Ntahobali Appeal Brief, paras. 706, 708, 714. See also Ntahobali Supplementary Submissions, para. 39 The Appeals Chamber notes that, during the appeals hearing, Ntahobali argued that the Trial Chamber's conclusion and evidence that gendarmes or soldiers were placed at the prefectoral office between 5-15 June 1994 raises the possibility that no attacks occurred after 5 June 1994, casting doubt on the Trial Chamber's findings in relation to the First Half of June Attacks. See AT. 15 April 2015 pp. 51, 52. This argument has been addressed above in Section V.I.2(d)(i). See also supra, Section IV.F.2(f). 4350 Prosecution Response Brief, paras. 982, 989, 1085, 1086. Ntahobali replies that the Prosecution erroneously refers to Witness QBQ as opposed to Witness QBP. See Ntahobali Reply Brief, para.

307. The Appeals Chamber notes that the Prosecution mistakenly refers to Witness QBQ in paragraphs 1084 and 1086 of its response brief. However, its references pertain to Witness QBP and the Appeals Chamber therefore considers it a typographical error. 4351 Prosecution Response Brief, para. 1083. 649 Case No. ICTR-98-42-A 14 December 2015 11

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19716/H Although the Trial Chamber stated that it found it established beyond reasonable doubt that "Ntahobali, injured soldiers and Interahamwe came to the [prefectoral office] in June 1994 to rape women and abduct refugees" based "on the testimony of Witnesses TA, QBP and TK",4353 a close examination of the Trial Chamber's analysis reveals that Witness QBP's evidence was not used to establish Ntahobali's role in aiding and abetting the rape of Witness TA or participating in any other rape as she did not testify to Ntahobali's presence during the attack she recounted. 4354 1858. In this context, the Appeals Chamber finds that the alleged inconsistencies within Witness TA's testimony, and between her testimony and that of Witness QBP, raised by Ntahobali concerning non-material features of Immaculée Mukagatare's rape and the attack during which it occurred4355 are immaterial to the Trial Chamber's consideration of the evidence implicating Ntahobali in the rapes of Witness TA committed by. Interahamwe during one of the attacks in the first half of June 1994.4356 Similarly, the Appeals Chamber considers that the Trial Chamber's alleged failure to treat Witnesses TA's and QBP's evidence on this incident with sufficient caution given their familial links and to assess properly Defence evidence that purported to undermine Witness QBP's testimony that she was present at the prefectoral office when Immaculée Mukagatare was raped are irrelevant to Ntahobali's convictions.

1859. Turning to Ntahobali's challenges to the reliability of Witness TA's evidence related to her rape by Interahamwe during the First Half of June Attacks, the Appeals Chamber observes that the Trial Chamber expressly addressed Witness TA's varying evidence as to whether she was raped during the fourth or fifth attack she observed at the prefectoral office and whether she saw Ntahobali raping Immaculée Mukagatare on the same occasion that she was raped. 4357 As noted above, given the traumatic nature of the incident and the amount of time that had passed, the Trial 4352 See Witness TA, T. 29 October 2001 pp. 8-27, T. 1 November 2001 pp. 36-48. 4353 Trial Judgement, para. 2773. 4354 Trial Judgement, paras. 2266-2269, 2763-2766, 2768, 2769. 4355 Ntahobali points out that: (i) Witness TA testified during examination-in-chief that she saw Ntahobali place logs on Immaculée Mukagatare's legs after having raped her, but stated during cross-examination that she did not see Ntahobali place the logs on Immaculée Mukagatare; (ii) Witness TA testified that after handing her over to the Interahamwe to be raped, Ntahobali told them to be quick because he was going away, but subsequently testified that after her rape she saw Ntahobali nearby raping Immaculée Mukagatare; (iii) Witness QBP testified that the women, including Immaculée Mukagatare, were raped behind the prefectoral office

during an attack at which Nyiramasuhuko was present whereas Witness TA testified that Immaculée Mukagatare was raped in the courtyard and did not mention Nyiramasuhuko's presence; (iv) Witness QBP testified that white people came to the prefectoral office and that Hutus were present whereas Witness TA did not mention white people and testified that there were no Hutus present; and (v) Witness TA testified that, after raping Immaculée Mukagatare, Ntahobali returned to the prefectoral office on four separate occasions, in each case after a number of days, which Ntahobali argues is implausible considering Witness QBP's testimony that the refugees left for Rango Forest a few days after the rape. See Ntahobali Appeal Brief, paras. 627, 709. See also supra, Section V.I.2(c)(iv). 4356 The samé reasoning applies to Ntahobali's argument that the Trial Chamber erred in its assessment of the evidence of Witnesses SS and SU as their evidence was not relied upon by the Trial Chamber to convict Ntahobali or corroborate the details of Witness TA's evidence concerning her rape during the First Half of June Attacks or Ntahobali's participation in any other rapes during those attacks. See Ntahobali Appeal Brief, para. 707. 650 Case No. ICTR-98-42-A 14 December 2015

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19715/H Chamber did not consider the discrepancy to be serious enough to undermine Witness TA's overall credibility as to her account of the attack. Ntahobali fails to show that the Trial Chamber erred in considering the impact of trauma on Witness TA's testimony. 4358 Recalling that the presence of inconsistencies in a witness's evidence does not, per se, require a reasonable trier of fact to reject it as unreliable,4359 the Appeals Chamber is also not persuaded that, given the numerous times Witness TA was attacked at the prefectoral office, any inconsistency as to whether she was raped by Interahamwe on the fourth or fifth attack she observed or whether Immaculée Mukagatare was raped on the same occasion or not prevented a reasonable trier of fact from relying on the fundamental features of Witness TA's evidence. The Appeals Chamber also reiterates that whether Interahamwe raped Witness TA during the fourth or fifth time she saw Ntahobali come to the prefectoral office or whether it occurred during the same attack during which Immaculée Mukagatare was raped is of no material importance to Ntahobali's convictions in light of the Trial Chamber's findings.

1860. With respect to the Trial Chamber's alleged failure to address the fact that Witness TA did not mention that Witness QBP, a relative, was present with her at the prefectoral office despite Witness QBP's evidence to this effect, the Appeals Chamber observes that, when Witness TA was asked if she met anyone at the prefectoral office or developed friendships with anyone, she responded that she did not.4360 However, Witness TA was not questioned as to whether she knew Witness QBP specifically and did not deny knowing her. 4361 Moreover, Ntahobali overstates the probativeness of Witness QBP's testimony that she was with Witness TA at the prefectoral office and the EER, as it does not reflect that they were with each other at all times at each location. 4362 In addition, as observed earlier, Ntahobali exaggerates the relationship between Witnesses QBP and TA, as Witness QBP stated that she did not know their exact relationship and was unsure as to how they were related. 4363 In light of this, the fact that Witness TA did not mention in her testimony that Witness QBP was present with her at the prefectoral office did not render the Trial Chamber's reliance on Witness TA's evidence unreasonable nor was the Trial Chamber required to address expressly this aspect of Witness TA's testimony in its deliberations.

1861. The Appeals Chamber likewise sees no error in the Trial Chamber's reliance on Witness TA's testimony that she was raped despite the fact that Witness QBP did not name her as a 4357 Trial Judgement, para.

2770. See supra, Sections V.I.2(a)(iv), V.I.2(c)(i). 4359 Ntawukulilyayo Appeal Judgement, para. 73; Kupreskié et al. Appeal Judgement, para.

31. See also Muvuny Appeal Judgement of 1 April 2011, para. 44; Karera Appeal Judgement, para.

174. Witness TA, T. 7 November 2001 p. 109. 4361 See supra, Section III.F. Witness TA was only specifically asked if she knew Witness SJ. See Witness TA, T. 7 November 2001 p. 114 (closed session). 4362 Witness QBP, T. 29 October 2002 pp. 46, 47 (closed session). See also supra, para. 1733. 651 Case No. ICTR-98-42-A 14 December 2015

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19714/H rape victim. Witness QBP expressly stated that she was unable to estimate the number of women who were taken behind the prefectoral office and raped, stressing the traumatic circumstances in which she was hiding and sought to survive. 4364 Furthermore, as discussed previously, it is not clear that Witness TA was raped on the same occasion as the attack discussed by Witness QBP, which involved the rape of Immaculée Mukagatare. 4365 1862. Similarly, the Appeals Chamber finds that Ntahobali fails to demonstrate any error on the part of the Trial Chamber regarding the assessment of the evidence of Witnesses QBP, SS, SJ, RE, and FAP that no other attacks occurred after the Night of Three Attacks or that Ntahobali was not seen at the prefectoral office after the Night of Three Attacks. The Trial Chamber assessed the evidence of Witnesses SS, SJ, RE, and FAP as it concerned the Night of Three Attacks in detail, 4366 Recalling that a trier of fact is not obliged to articulate every step of its reasoning436 and that it is to be presumed that it assessed and weighed the evidence presented to it, as long as there is no indication that it completely disregarded any particular piece of evidence, 4368 the Appeals Chamber is not persuaded that any discrepancy in their evidence was ignored.

1863. Furthermore, Ntahobali's reliance on the evidence of Witness QBP in this respect is misplaced since her testimony does not concern the Night of Three Attacks but a later attack in the first half of June 1994.4369 Ntahobali also does not substantiate his argument that Witness SS's testimony does not support that attacks occurred at the prefectoral office subsequent to the Night of Three Attacks.4370 As for Witnesses SJ, RE, and FAP, it was within the Trial Chamber's discretion to rely on the mutually corroborative evidence of Witnesses SS, SU, and QBP and, in particular, Witnesses TA and TK, who the Trial Chamber found particularly credible and reliable, 437 to find 4363 Witness QBP, T. 29 October 2002 pp. 42, 43 (closed session). See also supra, para. 1733. 4361 Witness QBP, T. 24 October 2002 pp. 85, 86 and 107 (closed session), T. 29 October 2002 pp. 12-14. 4365 See Trial Judgement, paras. 2763-2770. 4366 Trial Judgement, paras. 2654-2657, 2659-2661, 2663, 2664, 2672-2674, 2676, 2680, 2686-2690, 2694-2700, 2703, 2705, 2707-2712, 2719-2724, 2731-2738. See also supra, Section V.I.2(d). 4367 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 215; Ntabakuze Appeal Judgement, para. 161; Kanyarukiga Appeal Judgement, para. 114. 4368 See, e.g., Karemera and Ngirumpatse Appeal Judgement, paras. 215, 415; Ntabakuze Appeal Judgement, fn. 357; Kvocka et al. Appeal

Judgement, para. 23. 4369 See supra, paras. 894, 960, 1757. 4370 The Appeals Chamber observes that, in his appeal brief, Ntahobali refers to Witness SS's testimony to support his contention that Witness SS "testified that attacks occurred only on one day" and during the Night of Three Attacks. See Ntahobali Appeal Brief, para. 707, referring to Witness SS, T. 3 March 2003 pp. 47-56, 65-71, and 72, 73 (closed session). A reading of the relevant transcripts does not demonstrate that Witness SS's testimony is inconsistent with the Trial Chamber's finding that attacks occurred after the Night of Three Attacks, including one where Witness SU showed the Interahamwe her breasts in order to dissuade them from raping her. See Trial Judgement, para. 2757, referring to Witness SS, T. 3 March 2003 p. 74 (closed session). As observed by the Trial Chamber, Witness SU testified that this incident occurred after the Night of Three Attacks. See Trial Judgement, paras. 2753-2756. See also Witness SU, T. 14 October 2002 pp. 49-52, 60, 61. 4371 The Trial Chamber relied primarily on Witness TA to convict Ntahobali for his involvement in the Mid-May Attack and Last Half of May Attacks. See supra, Section V.I.2(c). The Trial Chamber also stated that it found Witness TK's testimony concerning the Night of Three Attacks "particularly convincing". See Trial Judgement, para. 2662. 652 Case No. ICTR-98-42-A 14 December 2015

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19713/H that attacks occurred after the Night of Three Attacks. Ntahobali merely states that Witness SJ testified to only one night of attacks and references the Trial Chamber's finding that the only attacks Witnesses RE and FAP testified to occurred on the Night of Three Attacks, but fails to demonstrate or provide any indication as to why the entirety of their testimonies renders it unreasonable for the Trial Chamber to have found that subsequent attacks occurred. 4372 1864. Accordingly, the Appeals Chamber concludes that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that, during one of the First Half of June Attacks, Ntahobali handed Witness TA to about seven Interahamwe, who then raped her. (ii) Killings 1865. In assessing Ntahobali's participation in killings in relation to attacks at the prefectoral office during the first half of June 1994, the Trial Chamber concluded that Witness TK "corroborated Witness TA's testimony regarding additional attacks" at the prefectoral office apart from the Night of Three Attacks.4373 The Trial Chamber accepted Witness TK's evidence that Ntahobali came to the prefectoral office "on a number of evenings, accompanied by Interahamwe or disabled soldiers", that he "committed crimes on each evening he came to the [Butare Prefecture Office], and that, on some occasions, Ntahobali "came to determine whether there

were any men left, who were then taken away to be killed" 4374 The Trial Chamber also relied on Witness TK's testimony that Ntahobali "would say to the Interahamwe, '[ble firm in your actions,' when he meant, 'kill all of them.'»4375 The Trial Chamber similarly relied on Witness TA's evidence that "a group of eight Interahamwe, including Shalom arrived at the [Butare Prefecture Office] in the same vehicle and attacked the refugees with machetes, hammers, Rwandan clubs and sticks»4376 that "[they killed some, wounded others and threw the dead and wounded into their vehicle" 4377 1866. Ntahobali submits that the Trial Chamber erred in finding that Witness TK corroborated Witness TA's evidence with respect to the occurrence of additional attacks at the prefectoral office after the Night of Three Attacks, 4378 Specifically, he contends that Witness TK's testimony was 4372 Ntahobali Appeal Brief, para. 708, referring to Trial Judgement, paras. 2654, 2655, 2657-2661. 4373 Trial Judgement, para. 2771. 4374 See Trial Judgement, para. 2771, referring to Witness TK, T. 20 May 2002 p. 100, T. 23 May 2002 p. 126. 4375 See Trial Judgement, para. 2771, referring to Witness TK, T. 20 May 2002 p. 109. 4376 Trial Judgement, para.

2770. See also ibid., para. 2184. 4377 Trial Judgement, para. 2184. 4378 Ntahobali also argues that "Witness TK rebutted Witness TA's evidence on the presence of Nyiramasuhuko on several occasions", but fails to provide any references to either the Trial Judgement or the transcripts in support of this argument. In the same paragraph of his appeal brief, he also argues that Witness TA only testified to Nyiramasuhuko's presence during the Mid-May Attack. See Ntahobali Appeal Brief, para.

711. As Ntahobali has not substantiated his vague and contradictory argument with a reference, the Appeals Chamber dismisses it without further consideration. 653 Case No. ICTR-98-42-A 14 December 2015

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19712/H insufficiently detailed to have any corroborative value. 4379 Moreover, he argues that, in contrast to Witness TK, Witness TA testified that Nyiramasuhuko was only present at the prefectoral office during the Mid-May Attack, did not discuss the Night of Three Attacks, including the abduction of the Mbashas, and did not testify about the presence of wounded soldiers or that Ntahobali "made a mockery of the refugees" during any of the First Half of June Attacks.4380 1867. Ntahobali further argues that the Trial Chamber erred in failing to address that Witness TK did not mention any attacks other than the Night of Three Attacks or any rapes committed by Ntahobali in her four prior statements.4381 He suggests that Witness TK's response during cross-examination as to the omission of rapes from the statements was vague. 4382 In addition, Ntahobali argues that the Trial Chamber unreasonably failed to consider the contradiction between Witness TK's testimony that Ntahobali came to the prefectoral office "very often" to commit crimes and the testimonies of Witnesses FAP and QBQ, who indicated that they did not see Ntahobali after the Night of Three Attacks. 4383 1868. Finally, in his supplementary submissions, Ntahobali contends that the Trial Chamber erred in failing to consider a BBC video admitted into evidence reflecting that there were refugees at the prefectoral office on

15 June 1994, which he claims contradicts Witness TK's testimony that he allegedly came to the prefectoral office to see whether there were any refugees left and that refugees were abducted during the first half of June 1994.4384 1869. The Prosecution responds that the Trial Chamber reasonably concluded that Witness TK corroborated Witness TA as to the existence of attacks after the Night of Three Attacks, emphasising that corroboration does not require that two credible testimonies be identical. 4385 It argues that the absence of reference to attacks other than the Night of Three Attacks in Witness TA's prior statement does not undermine her testimony. 4386 1870. The Appeals Chamber observes that the Trial Chamber's findings do not reflect that Witnesses TA and TK necessarily observed the same attack or attacks in the first half of 4379 Ntahobali Appeal Brief, para. 711. 4380 Ntahobali Appeal Brief, para. 711. 4381 Ntahobali Appeal Brief, para. 712. 4382 Ntahobali Appeal Brief, para. 712. 4383 Ntahobali Appeal Brief, para.

714. See also Ntahobali Supplementary Submissions, para. 39. 384 Ntahobali Supplementary Submissions, para. 42, referring to Exhibit D473 (Nsabimana Interview with Ferga <eane). Although in his supplementary submissions Ntahobali suggests that the video was taken on 17 June 1994 Ntahobali relies on the date of 15 June 1994 in his appeal brief and, during the appeals hearing, disputed that it was taken on 17 June 1994. See idem; Ntahobali Appeal Brief, paras. 649, 651; AT. 16 April 2015 p. 34 4385 Prosecution Response Brief, paras. 1087, 1088. 4386 Prosecution Response Brief, para. 1088. 654 Case No. ICTR-98-42-A 14 December 2015

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19711/H June 1994.438 Despite this lack of clarity, the Appeals Chamber is satisfied that a reasonable trier of fact could have found that the evidence of Witnesses TA and TK provided mutual circumstantial corroboration given the consistent fundamental features of their testimonies about attacks in the first half of June 19944388 The parallels in their evidence must also be considered in the context of the Trial Chamber's conclusions about Ntahobali's participation in the Mid-May Attack, the Last Half of May Attacks, and the Night of Three Attacks, which reflect that multiple attacks featuring the same characteristics as those described by Witnesses TA and TK were occurring at the prefectoral office during the time period that displaced Tutsis were seeking refuge there. As mentioned above, the Appeals Chamber has affirmed the Trial Chamber's findings about Ntahobali's involvement in these attacks. 4389 1871. In these circumstances, the Appeals Chamber is not persuaded that the evidence of Witness TK is too vague to corroborate Witness TA's evidence. Witness TK's testimony reflects first-hand observations of the conduct of Interahamwe and Ntahobali at a particular location - the Butare Prefecture Office4390 - and provides an approximate timeframe for the observations; namely, between the end of May or the beginning of June 1994 and the transfer of the refugees to Rango Forest in

mid-June 1994.4391 1872. The Appeals Chamber observes that neither Witness TA nor Witness TK implicated Nyiramasuhuko in the attacks at the prefectoral office in the first half of June 19944392 and recalls that it has already considered and rejected Ntahobali's contentions that the Trial Chamber erred in failing to consider that Witness TA did not testify about the Night of Three Attacks, including the abduction of the Mbashas. 4393 The Appeals Chamber therefore fails to see how any discrepancy between the evidence of Witnesses TA and TK about this previous event is material to the Trial Chamber's reliance on their subsequent observations of Ntahobali's participation in one or more later attacks at the prefectoral office. 4387 See Trial Judgement, paras. 2770, 2771, 2773, 2781(v). See also supra, Section IV.F.2(f). Accordingly, the Appeals Chamber dismisses Ntahobali's argument, raised during the appeals hearing, that the Prosecution considered all of the witnesses who testified to the First Half of June Attacks to be testifying about one attack and that there were major contradictions between their evidence. See Ntahobali Supplementary Submissions, para. 38. 4388 Trial Judgement, paras. 2184 (summary of Witness TA's testimony that "a group of eight Interahamwe, including Shalom arrived at the [prefectoral office] in the same vehicle. They attacked the refugees with machetes,

hammers, Rwandan clubs and sticks. They killed some, wounded others and threw the dead and wounded into their vehicle."), 2185, 2218 (summary of Witness TK's testimony that "[Ntahobali] came on a number of evenings, accompanied by Interahamwe or disabled soldiers who were staying at the Groupe Scolaire. [...] Shalom also came to determine whether there were any men left, who were then taken away to be killed. Shalom committed crimes on each evening he came to the [prefectoral office]."). 4389 See supra, Sections V.1.2(c), V.I.2(d). 4390 Trial Judgement, para. 2218, referring to Witness TK, T. 20 May 2002 p. 100, T. 23 May 2002 p. 88. 4391 Witness TK, T. 20 May 2002 pp. 98-101. 4392 Witness TA, T. 29 October 2001 pp. 7-27, T. 1 November 2001 pp. 36-48; Witness TK, T. 20 May 2002, p. 100, T. 23 May 2002 pp. 88, 126, 127. 4393 See supra, Section V.I.2(d)(iii). 655 Case No. ICTR-98-42-A 14 December 2015 Que

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19710/H 1873. With respect to Ntahobali's contention that the evidence of Witness TK varied from Witness TA's as the former testified that wounded soldiers were present during the attacks and that Ntahobali mocked the refugees, the Appeals Chamber recalls that two prima facie credible testimonies corroborate one another when one testimony is compatible with the other regarding the same fact or a sequence of linked facts.4394 The Appeals Chamber does not consider that Witness TK's testimony that Ntahobali was accompanied by Interahamwe "or disabled soldiers" and that Ntahobali "came to mock the refugees" is so distinctive that Witness TA's testimony is incompatible with Witness TK's because it does not contain such details. 4395 Ntahobali ignores that the fundamental features of the evidence of Witnesses TA and TK were consistent with the fact that Ntahobali was present and participated in attacks at the prefectoral office in the first half of June 1994, that he was accompanied by Interahamwe, and that he and Interahamwe attacked refugees at the prefectoral office as well as removed others for the purpose of killing them. 4396 1874. Turning to Ntahobali's contention that Witness TK's evidence is not credible because none of her four prior statements to Tribunal investigators refer to attacks subsequent to the Night of Three Attacks, the Appeals Chamber notes that Ntahobali did

not raise this issue in his cross-examination of Witness TK or in his closing submissions.4397 More importantly, having reviewed Witness TK's prior statements, the Appeals Chamber observes that three of them are not specific as to the date of the attacks she recalled and whether they occurred in one night, 4398 and the remaining statement focuses entirely on the Night of Three Attacks but does not give any indication that no attacks occurred after. 4399 Against this background, the Appeals Chamber finds no merit in Ntahobali's argument.

1875. Regarding the absence of mention of rapes in Witness TK's prior statements, the Appeals Chamber observes that Witness TK was questioned about these omissions and explained that her 4394 Nizeyimana Appeal Judgement, para. 96; Gatete Appeal Judgement, para. 125; Kanyarukiga Appeal Judgement, paras. 177, 220; Ntawukulilyayo Appeal Judgement, para. 121; Nahimana et al. Appeal Judgement, para. 428. 395 Trial Judgement, para. 2771, referring to Witness TK, T. 20 May 2002 p. 100, T. 23 May 2006 p. 126. 439 See Trial Judgement, paras. 2184, 2185, 2218. Moreover, the Trial Chamber noted that Witness QBP, who also testified about an attack occurring in the first half of June 1994, gave evidence that soldiers were involved. See ibid., of Three Attacks. See Witness TK, T. 20 May 2002 pp. 118-139, T. 21 May 2002 pp. 6-147, T. 22 May 2002 pp. 5-137, T. 23 May 2002 pp. Witness TK's four prior statements and of any mention of a Tutsi named Pierre, who was abducted from the prefectoral office. See Ntahobali Closing Brief, paras. 240, 520, 530. In his closing arguments, Ntahobali only highlighted that Witness TK's four prior statements did not mention him at all, which is inaccurate. See Ntahobali Closing Arguments, T. 23 April 2009 p. 18. 4398 Brkihit D45" (Witness TK's Statement, dated 17 December 1996) (confidential), Exhibit D46 (Witness TK's Statement, dated 14 November 1997) (confidential), Exhibit D47 (Witness TK's 1998 Statement). 4399 Exhibit D44 (Witness TK's November 1996 Statement). 656 Case No. ICTR-98-42-A 14 December 2015

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19709/H statements were based on the questions put to her during the available time. 4400 The Appeals Chamber also notes that her evidence about rapes during the First Half of June Attacks is not detailed. In these circumstances, the Appeals Chamber is not persuaded that Ntahobali has demonstrated that the Trial Chamber erred in relying on the other aspects of Witness TK's evidence concerning the First Half of June Attacks.

1876. The Appeals Chamber also rejects Ntahobali's argument that the Trial Chamber failed to provide a reasoned opinion by not considering the alleged contradiction between Witness TK's testimony that Ntahobali returned to the prefectoral office "very often" after the Night of Three Attacks and Witnesses FAP's and QBQ's testimonies that they did not see Ntahobali after that night. The Trial Chamber expressly noted that Witnesses FAP and QBQ only testified about the Night of Three Attacks and no others at the prefectoral office. 402 It bears noting that nothing in the testimonies of Witnesses FAP and QBQ referred to by Ntahobali4403 reflects that they testified that Ntahobali did not come to the prefectoral office after the Night of Three Attacks or categorically denied that additional attacks occurred. Both witnesses merely testified that they did not see Ntahobali after that night or observed other attacks, Witness QBQ specifying that "I wasn't paying attention [...] [you must understand that we were afraid, we were not concentrating on what we were looking at. We just expected to die at any minute without knowing when."4404 Given the prevailing circumstances at the prefectoral office 405 and in light of the corroborative evidence of Witnesses TA, SS, SU, and QBP that attacks were carried out on the prefectoral office after the Night of Three Attacks as well as Witness TA's

testimony that Ntahobali participated in one of these attacks, the Appeals Chamber sees no error in the Trial Chamber's reliance on Witness TK's testimony that subsequent attacks occurred at the prefectoral office, notwithstanding the evidence of Witnesses FAP and QBQ that they did not see Ntahobali after the Night of Three Attacks. 4406 1877. Finally, Ntahobali does not demonstrate that a BBC video reflecting the presence of refugees at the prefectoral office is incompatible with Witness TK's evidence that abductions occurred at the prefectoral office during the First Half of June Attacks, particularly because the 4400 Witness TK, T. 23 May 2002 p. 133. 4401 The Appeals Chamber recalls that it has reversed Ntahobali's convictions for committing rapes during the First Half of June Attacks entered on the basis of Witness TK's evidence due to its limited probative value. See supra, Sections V.I.1(b), V.I.1(c). 4402 Trial Judgement, paras. 2656, 2658. 4403 Ntahobali Appeal Brief, para. 714, referring to Witness FAP, T. 12 March 2003 p. 16, Witness QBQ, T. 3 February 2004 p. 90. we i do one at and try is was on i Trial say it ass 2o and refering in except of hey ranscript in which she states that the three occasions she saw Nyiramasuhuko at the prefectoral office occurred on th ame night), 2658 (stating that Witness QBQ testified to only one attack at the prefectoral office and that this attac involved the abduction and escape of Semanyenzi, and referring to excerpts of her testimony relating to Semanyenzi). 657 Case No. ICTR-98-42-A 14 December 2015

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19708/H video was created around 15 June 19944407 and that no evidence was provided that all refugees were abducted during these attacks.

1878. Consequently, the Appeals Chamber finds that Ntahobali has not demonstrated any error in the Trial Chamber's assessment of the evidence of Witnesses TK and TA pertaining to his involvement in the abductions and killings which occurred during the First Half of June Attacks. (iii) Conclusion 1879. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in relying on the evidence of Witnesses TA and TK concerning his participation in rapes and killings perpetrated during the attacks conducted in the first half of June 1994 at the prefectoral office. (f) Number of Refugees Abducted and Killed 1880. The Trial Chamber noted that it was "not disputed that there were a large number of refugees at the [Butare Prefecture Office] compound between April and June 1994.*4408 In determining in the "Factual Findings" section of the Trial Judgement the number of refugees abducted from the Butare Prefecture Office and killed, the Trial Chamber also stated the following: The Chamber notes that it was [...] difficult to estimate the number of refugees who were forced to board the pickup on each occasion when refugees were abducted from the [Butare Prefecture Office]. It was clear that the vehicle was full on each occasion. [...] [T]he Chamber has found that between mid-May and mid-June 1994, Nyiramasuhuko and Ntahobali came to the

[Butare Prefecture Office] with the pickup on at least seven occasions (once in mid-May; two additional times from mid-May to the beginning of June; three attacks during one night at the end of May or beginning of June; and another attack in June). Considering the pickup was nearly full on at least the Chamber is convinced beyond a reasonable doubt that hundreds of Tutsi In the "Legal Findings" section of the Trial Judgement, the Trial Chamber recalled that "[between mid-May and mid-June 1994 Nyiramasuhuko, Ntahobali, Interahamwe and soldiers went to the [prefectoral office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted [...]; and were killed in various locations throughout Butare préfecture."1410 However, in its conclusions, the Trial Chamber convicted Ntahobali for ordering killings of Tutsis seeking refuge at the prefectoral office, without identifying the precise number of victims. 4411 When deliberating upon 4406 See also supra, Section IV.F.2(1). 4407 See Trial Judgement, paras. 2384, 5077. 8 Trial Judgement, para. 262 09 Trial Judgement, para. 277 410 Trial Judgement, para. 5867 411 Trial Judgement, paras. 5876, 5971, 6053, 6100, 6168 658 Case No. ICTR-98-42-A 14 December 2015

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19707/H Ntahobali's sentence, the Trial Chamber also noted, with respect to the gravity of the crimes, the "seriousness and atrocity of crimes repetitively perpetrated at the [Butare Prefecture Office], where hundreds of Tutsis were abducted, raped and killed.»4412 However, the Trial Chamber also recalled that it found Ntahobali guilty of various crimes, including "the [...] killings of Tutsis at the Butare préfecture office", without providing the precise number of victims. 4413 1881. Ntahobali submits that the Trial Chamber erred in concluding that the fact that there was a large number of refugees at the prefectoral office between April and June 1994 was not disputed. 4414 He argues that the Prosecution's evidence concerning the number of Tutsi refugees at the prefectoral office was "extremely contradictory" and that the Trial Chamber erroneously discounted Defence evidence and made unsupported and contradictory findings, particularly regarding the period after refugees returned from the EER at the end of May 1994.4415 He submits that the Trial Chamber's findings concerning the Tutsi refugee population at the prefectoral office from the end of May to mid-June 1994 reflect that their numbers increased during this period, negating the reasonable possibility that Ntahobali committed any attacks on them during this period. 4416 1882. Ntahobali further argues that the Trial

Chamber erred in finding that hundreds of refugees were abducted from the prefectoral office based on an unsupported conclusion that the pickup truck used during the seven attacks was full of Tutsis on each occasion.' 4417 In his view, the Trial Chamber's estimation that hundreds of Tutsis were abducted and killed is undermined by the fact that no evidence demonstrates: (i) that the pickup truck was full on every occasion; or (ii) how many Tutsis the pickup truck could hold in addition to the Interahamwe guarding them. 4418 He argues that these errors warrant an acquittal for the events at the prefectoral office or a significant reduction in sentence. 4419 1412 Trial Judgement, para. 6217. 4413 Trial Judgement, para. 6216. 1414 Ntahobali Appeal Brief, para.

649. See also Ntahobali Notice of Appeal, para. 242; Ntahobali Reply Brief, p15 Natobali Appeal Brief, paras, 649, 651. See also Ntahobali Nolice of Appeal, para, 242; AT. 15 April 2015 pp. 50, Said Ntahobali Appeal Brief, paras. 650, 652. Ntahobali points to the Trial Chamber's findings that the number of refugees who returned to the Butare Prefecture Office from the EER around the end of May 1994 "well exceeded" 200 people, that in the first few days of June 1994 about 400 persons taken from the prefectoral office to Nyange were killed in attacks that Ntahobali was not involved in, and that the subsequent number of refugees who were finally sent to Rango Forest in mid-June totalled 250 to 300 people. See ibid., paras. 650, 651, referring to Trial Judgement, naras. 3938, 4192, 4195, 5077, 5080, 5932. See also AT. 15 April 2015 pp. 50, 51. 117 Ntahobali Appeal Brief, paras. 653, 654 4418 Ntahobali Appeal Brief, paras. 654, 655, referring to Witness SJ, T. 29 May 2002 pp. 64-66, Witness FAP, Г. 13 March 2003 pp. 36, 37 419 Ntahobali Appeal Brief, para. 656 659 Case No. ICTR-98-42-A 14 December 2015

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19706/H 1883. The Prosecution responds that the Trial Chamber reasonably concluded that there were a large number of refugees present based on the totality of the evidence, including the credible accounts of Witnesses TQ, TA, TK, SU, RE, and Nsabimana Defence Witness Alexandre Bararwandika.* 4420 The Prosecution did not specifically respond to Ntahobali's submission regarding the number of Tutsis abducted from the prefectoral office.

1884. The Appeals Chamber observes that the Trial Chamber did not specify the number of victims for which Ntahobali was held responsible in relation to his convictions for ordering killings of Tutsis who sought refuge at the prefectoral office. 421 The Appeals Chamber further considers that the Trial Chamber's determination that Ntahobali and Nyiramasuhuko participated in attacks that led to the abduction and killing of "hundreds of Tutsi refugees" principally relies on the Trial Chamber's conclusion that "the pickup was nearly full on at least seven occasions" during the attacks from mid-May to June 1994.4422 1885. However, the Appeals Chamber recalls that it has determined, Judge Khan dissenting, that Nahobali was not convicted on the basis of his conduct during the Night of Three Attacks or in relation to the killings which were perpetrated during the First Half of June Attacks. 4423 Likewise, the Appeals Chamber recalls that it has found that the Trial Chamber made no findings that Tutsis were abducted and killed during the Last Half of May Attacks or that Ntahobali was convicted for such conduct. 4424 Accordingly, the Appeals Chamber considers that no reasonable trier of fact could have determined the number of victims abducted and killed based on the seven occasions the pickup truck left the prefectoral office, as it included the Night of Three Attacks and the First Half of June Attacks for which Ntahobali was not convicted as well as the Last Half of May Attacks where it made no findings that abductions occurred 4425 Consequently, no basis exists to attribute criminal responsibility to Ntahobali for ordering killings during these attacks.

1886. As regards the remaining occasion when the pickup left the prefectoral office during the attacks for which Ntahobali was convicted for killings - namely the Mid-May Attack1426 - the Appeals Chamber observes that the Trial Chamber accepted Witness TA's evidence that Ntahobali ordered the Interahamwe to stop killing refugees because the number of dead people was "in excess 1420 Prosecution Response Brief, para. 991. 4421 Trial Judgement, paras. 5876, 5971, 6053, 6100, 6168. 4422 See Trial Judgement, paras. 2779, 5867. In light of this conclusion, the Appeals Chamber finds it unnecessary to consider Ntahobali's challenges as they concern alleged contradictory findings and evidence as to the number o efugees at the Butare Prefecture Office after many returned from the EER in the end of May and until the refugees a the prefectoral office were transferred to Rango Forest around mid-June 1994. 44231 See supra, Sections V.I.1(a) (iji), V.I.1(c). 4424 See supra, Section V.I.1(a)(ii). 1425 The Appeals Chamber notes that the Last Half of May Attacks are referred to in paragraph 2779 of the Tria Judgement as "two additional times from mid-May to the beginning of June" 660 Case No. ICTR-98-42-A 14 December 2015

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19705/H as to what could be loaded in the vehicle" 4427 This finding, however, is insufficient to attribute responsibility to Ntahobali for the killings of hundreds of Tutsi refugees abducted from the prefectoral office.

1887. Based on the foregoing, the Appeals Chamber considers that, although it affirmed Ntahobali's criminal responsibility for the killings of Tutsi refugees abducted during the Mid-May Attack, it also found that the Trial Chamber's apparent attribution of responsibility to Ntahobali for the killings of hundreds of Tutsi refugees abducted from the Butare Prefectoral Office is not sustained by the record or is based on findings for which Nahobali was not convicted by the Trial Chamber. The Appeals Chamber will consider the impact of this error, if any, in Section XII below.

3. Ordering Responsibility 1888. As recalled above, the Trial Chamber convicted Ntahobali of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for ordering killings of Tutsis seeking refuge at the Butare Prefecture Office, 428 It further convicted Ntahobali for rape as a crime against humanity and outrages upon personal dignity as a serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for, inter alia, ordering the rapes of Tutsi women seeking refuge at the prefectoral office. 4429 1889. Specifically, the Trial Chamber found Ntahobali responsible for ordering killings during the Mid-May Attack.4130 The Trial Chamber also determined that Ntahobali was responsible for ordering the rape of six women during the First Attack of the Last Half of May Attacks, which was conducted around seven days after the Mid-May Attack, as well as the rape of Witness TA during the Second Attack of the Last Half of May Attacks, which occurred four days later. 43l The Appeals Chamber, Judge Khan dissenting, has concluded that Ntahobali was not convicted for ordering killings during the Night of Three Attacks or the First Half of June Attacks.

1890. Nahobali submits that the Trial Chamber erred in law and in fact in finding him responsible for ordering killings and rapes during attacks at the prefectoral office and that he should therefore 426 See supra, Section V.1.2(c)(i) 27 Trial Judgement, para. 2628, referring to Witness TA, T. 29 October 2001 pp. 46, 49-51. See also ibid., para. 277 130 See supra, Section V.I.2(c)(i) 431 See supra, Section V.I.1(b) 661 Case No. ICTR-98-42-A 14 December 2015 TuL

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19704/H be acquitted. 432 The Appeals Chamber will address Ntahobali's challenges pertaining to his responsibility for ordering rapes after examining his challenges concerning his responsibility for ordering killings during the Mid-May Attack. (a) Ordering Killings 1891. The Trial Chamber found that, in mid-May 1994, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office in a camouflaged pickup truck and that Nyiramasuhuko pointed out Tutsi refugees to the Interahamwe, ordering them to force the refugees onto the pickup truck. 4433 The Trial Chamber found that "Ntahobali also gave the Interahamwe orders, telling them to stop loading the truck because it could not accept anymore dead."1434 The Trial Chamber concluded that "refugees" were taken to other locations in Butare and killed, and it found that "both Nyiramasuhuko and Ntahobali were responsible for ordering the killings of numerous Tutsi refugees who were forced on board the pickup."4435 1892. Ntahobali argues that the Trial Chamber erred in fact and in law in finding him responsible for ordering killings during the Mid-May Attack at the prefectoral office.4436 He submits that the only evidence used to support this finding was Witness TA's testimony that he told Interahamwe to stop putting refugees on a truck during this attack. 437 In his view, such evidence is insufficient to establish

that he ordered killings. 4438 Ntahobali also contends that there was no evidence to suggest that he exercised any authority over the Interahamwe who carried out the abductions, pointing out that Witness TA testified that Nyiramasuhuko was Ntahobali's superior and that Witness TA's testimony on his authority during that attack was solely based on impressions. 439 He further stresses that when questioned who had given orders at the prefectoral office, Witness TA never mentioned him.4440 Ntahobali adds that the Trial Chamber erred in concluding that he told 4432 Ntahobali Notice of Appeal, paras. 319-323; Ntahobali Appeal Brief, paras. 943-953, 960; Ntahobali Reply Brief, paras. 384-397. The Appeals Chamber will not entertain Ntahobali's submissions to the extent that they challenge his liability for ordering killings during the Night of Three Attacks and First Half of June Attacks as it has determined, Judge Khan dissenting, that Ntahobali was not convicted on this basis. See supra, Sections V.I. 1(a)(iii), V.I.1(c). 4433 Trial Judgement, para. 5867. 4434 Trial Judgement, para. 5867. 4435 Trial Judgement, para. 5867. 1436 Ntahobali Notice of Appeal, paras. 319-322; Ntahobali Appeal Brief, paras. 943, 960. 4437 Ntahobali Appeal Brief, para.

944. Cf. ibid., para. 949. 1438 Ntahobali Notice of Appeal, para. 321; Ntahobali Appeal Brief, paras. 945, 946; Ntahobali Reply Brief, parA: hobali Appeal Brief, para. 947, referring to Trial Judgement, para. 5880, Witness TA, T. 25 October 2001 p. 67, r. 29 October 2001 pp. 46, 47. See also Ntahobali Reply Brief, paras. 389, 392 Ntahobali Appeal Brief, para. 948, referring to Witness TA, T. 7 November 2001 p. 107 (French). 662 Case No. ICTR-98-42-A 14 December 2015

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19703/H Interahamwe who should be forced to board the pickup truck as the evidence of Witness TA cited by the Trial Chamber does not support this finding. 4141 1893. The Prosecution responds that Ntahobali's conviction for ordering killings at the prefectoral office during the Mid-May Attack was not based solely on Witness TA's testimony that Ntahobali ordered Interahamwe to stop loading the pickup truck. 442 It highlights other evidence from Witness TA indicating that Ntahobali and Nyiramasuhuko ordered killings, led the attack together, and that Interahamwe followed Ntahobali's orders to stop killing, 443 The Prosecution also points to evidence from Witness TK which, in its view, corroborates that Ntahobali ordered killings during his visits to the prefectoral office 444 Furthermore, the Prosecution contends that the testimonies of these witnesses demonstrate that Ntahobali had sufficient authority over the Interahamwe to incur responsibility for ordering killings. 445 It submits that, even if Nyiramasuhuko acted as Ntahobali's superior during the attack and issued similar orders to the Interahamwe, Ntahobali remains liable for the criminal orders that he gave. 4446 1894. In reply, Ntahobali disputes the Prosecution's contentions that the Trial Chamber relied upon the evidence of Witness TK to reach its conclusion, that this witness's evidence is relevant to this particular

attack, or that it is sufficiently reliable to prove his ordering responsibility. 4147 1895. The Appeals Chamber recalls that a person in a position of authority may incur responsibility under Article 6(1) of the Statute for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act. 4448 1896. The Appeals Chamber observes that, although the Trial Chamber concluded that Ntahobali ordered killings of Tutsis taken from the prefectoral office during the Mid-May Attack, 449 it did not refer to any express order to kill, identify a particular instruction that had a direct and substantial 4441 Ntahobali Appeal Brief, para. 950, referring to Trial Judgement, paras. 2178, 2628; Ntahobali Reply Brief, par prosecution Response Brief, paras. 1194, 1203. 4443 Prosecution Response Brief, paras. 1194, 1203, referring to Witness TA, T. 29 October 2001 pp. 46, 47, 49-51, Trial Judgement, paras. 2628, 2779, 5867, 5869, 5870, 5880. 4144 Prosecution Response Brief, paras. 1195, 1196. 4445 Prosecution Response Brief, para. 1204. 4446 Prosecution Response Brief, para. 1206. 4447 Ntahobali Reply Brief, paras. 389, 390. 4448 Ndindiliyimana et al. Appeal Judgement, paras. 291, 365; Hategekimana Appeal Judgement, para. 67; Renzaho Appeal Judgement, para. 315; Kamuhanda Appeal Judgement, paras. 75, 76. See also Semanza Appeal Judgement, para. 361; Kordié and Cerkez Appeal Judgement, para.

28. Responsibility for ordering is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. Ordering with such awareness has to be regarded as accepting that crime. See Blaskié Appeal Judgement, para.

42. See also Galic Appeal Judgement, para. 157; Kordié and Cerkez Appeal Judgement, para.

30. Trial Judgement, para. 5867. 663 Case No. ICTR-98-42-A 14 December 2015

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19702/H effect on the eventual killings of Tutsis forced to board the pickup truck, or state that it inferred as the only reasonable conclusion that Ntahobali ordered the killings. 4450 1897. The Appeals Chamber recalls that Article 22(2) of the Statute and Rule 88(C) of the Rules require the Trial Chamber to give a reasoned opinion, which includes the provision of clear, reasoned findings of fact as to each element of the crime charged. 45l With respect to this event, the Appeals Chamber finds that the Trial Chamber failed to make clear findings essential to establishing Ntahobali's responsibility for ordering under Article 6(1) of the Statute. The Appeals Chamber therefore finds that the Trial Chamber failed to provide a reasoned opinion and thereby erred in law.

1898. However, for the reasons that follow, the Appeals Chamber, Judge Liu dissenting, finds that this error does not invalidate the Trial Chamber's decision to convict Ntahobali for ordering killings during the Mid-May Attack. At the outset, the Appeals Chamber does not accept Ntahobali's contention that the only evidence supporting the Trial Chamber's conclusion that he ordered killings during this attack was Witness TA's testimony that Ntahobali directed Interahamwe to stop putting refugees on the pickup truck. 452 While the Trial Chamber highlighted this particular instruction before concluding that Ntahobali ordered the killing of Tutsis forced to board a pickup truck during the Mid-May Attack, it also stated that Ntahobali issued "orders"4453 and later, in relation to the same attack, recalled that "Interahamwe were acting under the orders of Ntahobali and Nyiramasuhuko to load the truck with people.»4454 It transpires from a comprehensive review of the Trial Judgement that these findings were based on the testimony of Witness TA. 45s 1899. Ntahobali contends that the evidence does not support the Trial Chamber's finding that he told the Interahamwe who should be forced to board the pickup truck. 4156 The Appeals Chamber 4450 Trial Judgement, paras. 5866-5871. The Trial Chamber's analysis of Ntahobali's responsibility for extermination and persecution as crimes against

humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II on the basis of this conduct provides no further information. Specifically, the Trial Judgement simply states that Ntahobali ordered the killing of Tutsis taking refuge at the Butare Prefecture Office without specifying the precise factual basis supporting this conclusion. See ibid., paras. 6053, 6100, 6168. Judgement, para. 60; Kordid anappeal Judgement, para 293; Renzaho Appeal Judgement, para, 320; Rajeliteli Appea erkez Appeal Judgement, para.

383. Cf. also Oric Appeal Judgement, para, 56 4452 Ntahobali Appeal Brief, para. 944. 4453 Trial Judgement, para. 5867. 4454 Trial Judgement, para. 5869. 445S Trial Judgement, para. 2178 ("Nyiramasuhuko and Ntahobali arrived together in the same Hilux pickup and told the Interahamwe who should be forced to board the bed of the pickup. [...] For example, Shalom ordered the Interahamwe to stop killing refugees, as the number of dead people was in excess of what could be loaded in the vehicle.") (internal references omitted). See also ibid., para. 2628 ("Nyiramasuhuko and Shalom arrived together in the same Hilux pickup and told the Interahamwe who should be forced to board the bed of the pickup. [...] Shalom ordered the Interahamwe to stop killing refugees, as the number of dead people was in excess as to what could be loaded in the vehicle.") internal references omitted). 1456 Ntahobali Appeal Brief, para. 950, referring to Trial Judgement, paras. 2178, 2628, 5869. 664 Case No. ICTR-98-42-A 14 December 2015

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19701/H observes that the transcripts cited by the Trial Chamber only refer to Witness TA expressly testifying that Nyiramasuhuko selected individuals to be placed on the vehicle." In addition, Witness TA's evidence indicates that she believed that Nyiramasuhuko was the superior of Ntahobali based on her role in selecting who should or should not be placed on the vehicle. 4458 However, the Appeals Chamber also notes that the witness's testimony indicates that Nyiramasuhuko and Ntahobali "were in charge of [the] assailants", that they "were leading the attack together", and that she described Nyiramasuhuko as "assisting her son" 4459 Witness TA's evidence also reflects that Ntahobali ordered the Interahamwe to stop loading the vehicle once he determined that it was full and that the Interahamwe complied with his order. 4460 1900. In the view of the Appeals Chamber, Judge Liu dissenting, the Trial Chamber's acceptance of Witness TA's evidence concerning this attack and its findings on Ntahobali's participation in other attacks on the prefectoral office for a period of over a month provided a reasonable basis for the Trial Chamber to consider as the only reasonable inference that Ntahobali ordered the killings of Tutsis who had been forced to board the pickup truck during the Mid-May Attack. Specifically, the Appeals Chamber observes that the Trial Chamber also noted Witness TA's

testimony that, in relation to the Mid-May Attack, Ntahobali "moved through the refugees cutting and slashing people with his machete", that he removed the witness's clothes, threatened to "kill her if she refused", raped her, and then "invited some eight other Interahamwe to rape her" 4461 The Trial Chamber 4457 See Trial Judgement, paras. 2178, 2628, 2630. See also Witness TA, T. 25 October 2001 p. 28 ("A. When I saw [Nyiramasuhuko] the second time, she was showing the Interahamwe the persons that were to be sorted out, to be put into the vehicle"); T. 29 October 2001 p. 46 ("A. No, they were not speaking to each other. Nyiramasuhuko was pointing out Tutsis to the Interahamwe who had come with them. This is this one, that one, and that one also. [...] Yes, my basis is that Nyiramasuhuko was pointing out people and those people were picked up and taken away."). 1458 See Witness TA. T. 29 October 2001 pp. 47-49. 4459 See Witness TA, T. 25 October 2001 pp. 66, 67 ("Q. Of those attackers on that occasion that you have just spoken, did anyone appear to be in charge? A. Well, I had the impression that it is Nyiramasuhuko and her son, that were in charge of those assailants."); T. 29 October 2001 pp. 46 ("Q. Who was leading the Interahamwe? A. It was Nyiramasuhuko and her son."), 47 ("A. The day on which I saw them, it was a safe [sic], they were leading the attack together. Q. What

made it seem to you that they were leading the attack together? A. I say so because they came on board the same vehicle. They ordered the killing of people and then they carried on board the vehicle, including those who were wounded. And when orders were issued, Nyiramasuhuko was assisting her son."). The Appeals Chamber observes that Ntahobali argues that the English transcript incorrectly asserts that Ntahobali and Nyiramasuhuko "ordered the killing of people" as the French version indicates "ils ont fait tuer les gens". See Ntahobali Reply Brief, paras. 384-386, referring to Witness TA, T. 29 October 2001 pp. 51, 53-56. While the translation from French to English is indeed not literal, Ntahobali does not persuade the Appeals Chamber that any differences in this regard are material and, of greater significance, he does not identify any error on the part of the Trial Chamber resulting from this 4160 See Witness TA, T. 29 October 2001 pp. 46, 47 ("Secondly, when [Ntahobali] [...] said "stop,' they stopped and they took the car and they went away."), 49 ("Q. A moment ago you testified that you heard Shalom say "stop' on that occasion. Can you describe that event and what you saw and heard? A. When Shalom saw that the number of deaths or dead people or injured people was in excess, was too much, he issued the order to stop."), 50, 51 ("Q. When you heard Shalom say 'stop,' meaning killing was in excess, in excess of what do you mean? A. Yes, in excess of the number allowed or that could be fitted into the vehicle. Q. Into which part of the vehicle? A. In the rear section of the vehicle."). 4461 Trial Judgement, para. 2631. 665 Case No. ICTR-98-42-A 14 December 2015

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19700/H accepted Witness TA's evidence that Ntahobali and Interahamwe raped her, 4462 and convicted him for committing rape on this basis. *63 The Appeals Chamber, Judge Liu dissenting, considers that Witness TA's evidence of Ntahobali's leading role in this attack, as well as the Trial Chamber's findings concerning Ntahobali's rape of Witness TA, support the Trial Chamber's conclusion that he ordered killings during the Mid-May Attack. In particular, the findings clearly reflect that the aim of the operation was to kill, rape, and terrorise those seeking refuge, that Ntahobali was an active participant in the operation, and that he was working in coordination with the Interahamwe.

1901. In addition, the Trial Chamber's analysis reveals that it considered the Mid-May Attack at the prefectoral office in the context of other attacks that led to the killing of Tutsis who took refuge there,4464 and expressly recalled evidence of Ntahobali's leading role in other such attacks. Specifically, when assessing the elements of genocide in relation to this particular attack, the Trial Chamber recalled that Interahamwe forced Tutsis to board "a Toyota Hilux" and that those "who refused were killed on the spot", that there was a pattern of killings at the prefectoral office itself and that Niahobali instructed Interahamwe to spare no one. 4465 A review of the Trial Judgement shows that these findings are principally supported by the evidence of Witness TK about Ntahobali's participation and leading role in separate attacks around the end of May or beginning of June 1994 at the prefectoral office. 466 The Appeals Chamber, Judge Liu dissenting, considers that this evidence supports the Trial Chamber's conclusion that Ntahobali ordered killings specifically during the Mid-May Attack. 4462 Trial Judgement, para. 2644. 4463 Trial Judgement, paras. 5868, 5877, 6085, 6086, 6094, 6184. 4464 See Trial Judgement, paras. 5867 ("Between mid-May and mid-June 1994, [...] Ntahobali [...] went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were

physically assaulted and raped; and were killed in various locations throughout Butare préfecture."), 5870 ("Furthermore, there was a pattern of killing at the [Butare Prefecture Office] itself."). Cf. ibid., para. 5868 ("This was the first of many such attacks from mid-May until mid-June 1994 during which Tutsi women, including Witness TA were raped [...]. Considering the brutality and repetitive nature of these attacks, the vulnerable nature of the population seeking refuge at the [Butare Prefecture Office] and the fact that they were Tutsis, there can be no question that the bodily and mental harm inflicted by Ntahobali and the Interahamwe on the Tutsi women at the [Butare Prefecture Office] was of such a serious nature as to threaten the destruction in whole or in part of the Tutsi ethnic group."). 1465 Trial Judgement, para. 5870. 4466 See Trial Judgement, paras. 2662 ("The Interahamwe forced refugees to board the Hilux truck and killed some of them on the spot."), 2681 ("Witness TK testified that upon arriving at the [Butare Prefecture Office], Shalom and some of the Interahamwe exclaimed that nobody should be spared or treated leniently."). The Appeals Chamber notes that the Prosecution also argues that Witness SJ's evidence also supports Ntahobali's ordering responsibility. See Prosecution Response Brief, para.

1197. Ntahobali contends that no reasonable trier of fact could have relied on Witness SJ for this purpose. See Ntahobali Appeal Brief, para. 668; Ntahobali Reply Brief, para.

391. The Appeals Chamber observes that Witness SJ provided evidence similar to Witness TK's of Ntahobali issuing orders to Interahamwe during an attack at the Butare Prefecture Office. See Trial Judgement, para. 2705, referring to Witness SJ, T. 29 May 2002 pp. 53, 54. However, the Appeals Chamber has determined that no reasonable trier of fact could have relied on the evidence of Witness SJ as it relates to the attack now referred to by the Prosecution. See supra, Sections IV.F.2(c)(ii)d, V.I.2(b)(iii)a.ii, V.I.2(d)(ii)a. Case No. ICTR-98-42-A 14 December 2015

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19699/H 1902. The Appeals Chamber further recalls the Trial Chamber's finding that this attack was one of several where Ntahobali and Nyiramasuhuko participated in the abduction of Tutsis from the prefectoral office who were then killed throughout Butare Prefecture. 4467 Although the Appeals Chamber, Judge Khan dissenting, has concluded that Ntahobali was not convicted for ordering killings during the Night of Three Attacks or the First Half of June Attacks, the record demonstrates that Ntahobali was involved in these attacks, which resulted in the abductions and killings of a large number of Tutsi refugees from the prefectoral office. 468 Given the record as a whole, the Appeals Chamber, Judge Liu dissenting, finds that a reasonable trier of fact could have concluded that Ntahobali ordered the killings of Tutsis who had been forced to board the pickup truck during the Mid-May Attack.

1903. Likewise, Ntahobali fails to demonstrate that the Trial Chamber erred in finding him responsible for ordering killings during the Mid-May Attack under Article 6(1) of the Statute on the ground that he did not exercise sufficient authority over the assailants who participated in the attack. The Appeals Chamber observes that the Trial Chamber generally concluded that Ntahobali wielded effective control over the Interahamwe at the prefectoral office throughout the events on the basis, notably, that the Interahamwe complied with the orders he issued and perpetrated the acts asked of them, which included killings. 4469 As regards the Mid-May Attack, the Appeals Chamber recalls that a comprehensive reading of the Trial Judgement reflects that the Trial Chamber relied on Witness TA's evidence as to the details of this attack before finding him responsible for ordering killings. 4470 Witness TA's testimony, as recalled by the Trial Chamber, reveals that the witness considered that both Nyiramasuhuko and Ntahobali were exercising control over the Interahamwe and issuing orders with which the Interahamwe complied. 4471 While the witness also testified that she thought Nyiramasuhuko was Ntahobali's superior, 4472 this evidence would not prevent a reasonable trier of fact from concluding that Ntahobali exercised sufficient authority over the assailants to incur responsibility for

ordering, particularly when considering the evidence of his leadership role vis-à-vis the Interahamwe during this and other attacks. 4473 1904. Moreover, Ntahobali's argument that it was unreasonable for the Trial Chamber to rely on Witness TA's "impressions" as to Ntahobali's authority ignores that the witness testified, and the 4467 Trial Judgement, paras. 2644, 2715, 2738, 2739, 2749, 2773, 2779, 2781(i)-(iv), 5866-5876. 4468 See supra, Sections V.I.2(d), V.I.2(e). 4469 Trial Judgement, para. 5884. 4170 See Trial Judgement, paras. 2628-2644, 2781(i), 5867-5869. 1471 Trial Judgement, para. 2178 (*Witness TA testified that it appeared to her that Nyiramasuhuko and her son were in arge of the Interahamwe and leading the attacks at the [Butare Prefecture Office] because Nyiramasuhuko pointed o ople who were then taken away, whereas when Ntahobali said 'stop', the Interahamwe took their car and left. See also ibid., paras. 2628, 2630 See Trial Judgement, para. 2178 4473 Cf. Boskoski and Tarculovski Appeal Judgement, para. 167. 667 Case No. ICTR-98-42-A 14 December 2015

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19698/H Trial Chamber found, that Ntahobali issued orders during this attack, and that the Trial Chamber relied upon evidence from other attacks of Ntahobali's leading role in them. 4474 The Appeals Chamber recalls that whether an accused possesses sufficient authority to incur ordering responsibility is a question of fact 475 and that trial chambers have full discretionary power in assessing the credibility of a witness and in determining the weight to be accorded to his testimony 476 Furthermore, the Appeals Chamber considers that Ntahobali's emphasis on the fact that Witness TA did not mention Ntahobali as an authority who issued orders to the Interahamwe at the prefectoral office is misplaced, as this evidence arose during an aspect of Witness TA's testimony that did not concern Ntahobali's involvements in attacks. 4477 1905. Based on the foregoing, the Appeals Chamber, Judge Liu dissenting, considers that Ntahobali has failed to demonstrate that, on the basis of the Trial Chamber's factual findings and relevant evidence, no reasonable trier of fact could have inferred as the only reasonable conclusion that Ntahobali ordered the killings of the Tutsis forced on board the pickup truck during the Mid-May Attack. 4478 1906. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its obligation to provide a reasoned opinion. However, the Appeals Chamber, Judge

Liu dissenting, concludes that this error does not invalidate the Trial Chamber's decision, as its findings and relevant evidence sustain its conclusion that Ntahobali is responsible under Article 6(1) of the Statute for ordering the killings of numerous Tutsi refugees who were forced on board the pickup truck during the Mid-May Attack at the Butare Prefecture Office. (b) Ordering Rapes 1907. The Trial Chamber found that Ntahobali ordered Interahamwe to rape Tutsi women during two attacks at the Butare Prefecture Office in late May 1994 based principally on Witness TA's testimony. 4479 Specifically, the Trial Chamber concluded that during the First Attack of the Last 4474 See supra, paras. 1900-1903. 4475 Semanza Appeal Judgement, para. 363. 4476 See, e.g., Nzabonimana Appeal Judgement, para. 45; Ndindiliyimana et al. Appeal Judgement, para. 331; Ndahimana Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 194. 4477 See Witness TA, T. 7 November 2001 pp. 93, 94. In particular, Witness TA's response came during an initial line of ine The Apes to Charcould issue OrderS ahobal argue that the Trial hamaly. ee tid, ar. as 10 whether he was convicted for killings that occurred at the prefectoral office or only for the killings of Tutsis removed from it during the Mid-May Attack. See Ntahobali Appeal Brief, para.

893. The Appeals Chamber observes that the Trial Chamber's legal findings pertaining to this attack expressly limit Ntahobali's convictions to ordering the killings of the "numerous Tutsis refugees who were forced to board the pickup." See Trial Judgement, para. 5867. 4479 Trial Judgement, paras, 2781(ii), 5872, 5877, 5884, 6086, 6184. 668 Case No. ICTR-98-42-A 14 December 2015

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19697/H Half of May Attacks, six Tutsi women were raped by Interahamwe following Ntahobali's orders, and that during the Second Attack, Ntahobali ordered Interahamwe to rape Witness TA. 4480 1908. Ntahobali argues that the Trial Chamber erred in fact and in law in convicting him of ordering Interahamwe to rape Tutsi women during the Last Half of May Attacks.*' In particular, Ntahobali contends that, during the First Attack, Witness TA did not testify about positive acts taken by Ntahobali that would support the conclusion that he ordered Interahamwe to rape any women. 4182 With respect to the Second Attack, Ntahobali submits that Witness TA's evidence concerning statements he made to Interahamwe fails to establish that he possessed sufficient authority over the Interahamwe, particularly in light of Witness TA's evidence that the Interahamwe were Ntahobali's "comrades" or "colleagues" 4483 1909. The Prosecution responds that the Trial Chamber reasonably found Ntahobali responsible for ordering rapes at the prefectoral office. 484 It highlights Witness TA's testimony implicating Ntahobali in ordering rapes during the Last Half of May Attacks as well as in raping her and ordering eight Interahamwe to rape her during the Mid-May Attack, and in having handed her over to Interahamwe to rape her during an attack in the first half of June 1994.4485 The Prosecution contends that this

evidence and the Trial Chamber's findings demonstrate that Ntahobali possessed authority over the Interahamwe, and that it makes no difference if the Interahamwe willingly followed Ntahobali's orders to rape. 4486 1910. Ntahobali replies that the evidence cited by the Prosecution is insufficient to conclude that he ordered rapes during attacks on the prefectoral office. 487 1911. The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a positive action by the person in a position of authority. 4488 However, ordering, like any 1480 Trial Judgement, paras. 2653, 2781(ii), 5872, 5877. 4481 Ntahobali Notice of Appeal, para. 397; Ntahobali Appeal Brief, paras. 943, 954, 960. 4482 Ntahobali Appeal Brief, para. 955, referring to Witness TA, T. 25 October 2001 pp. 52, 53. 4483 Ntahobali Appeal Brief, para. 956, referring to Witness TA, T. 31 October 2001 p.

105. Ntahobali reiterates that the Trial Chamber failed to consider that, when questioned as to who issued orders at the Butare Prefecture Office, Witness TA did not mention him. See ibid., para.

957. The Appeals Chamber has addressed and rejected this argument when discussing Ntahobali's responsibility for ordering killings at the prefectoral office. See supra, paras. 1892, 1904. 4484 Prosecution Response Brief, para. 1194. 4185 Prosecution Response Brief, paras. 1199-1202, referring to Witness TA, T. 25 October 2001 pp. 52, 53, 66, 67, 71, 75-77, 79, T. 29 October 2001 pp. 8, 10-12, T. 31 October 2001 pp. 72, 73, 79, 101, 105, T. 1 November 2001 pp. 39, 40, Trial Judgement, paras. 2630, 2631, 2644, 2646, 2648-2651, 2653, 2770, 2773, 2781 (ii), 2781(v), 5782, 5874. 4486 Prosecution Response Brief, paras. 1204, 1205. 4487 Ntahobali Reply Brief, para. 396. 4488 See Bagosora and Nsengiyumva Appeal Judgement, para. 277. 669 Case No. ICTR-98-42-A 14 December 2015

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19696/H other form of responsibility, can be inferred from circumstantial evidence, provided it is the only reasonable inference. 4489 1912. With respect to the rapes committed during the First Attack, the Trial Chamber relied on Witness TA's testimony that Ntahobali raped her and that Interahamwe raped six other women. **90 On this basis, and without reference to any other evidence, the Trial Chamber concluded in its factual and legal findings that the six other women were raped by "Interahamwe following the orders of Ntahobali" 449] However, the Trial Chamber's summary of Witness TA's evidence and a review of her testimony reflect that she did not expressly testify that Ntahobali ordered the Interahamwe to commit rapes. 4492 Rather, she simply testified that, while Ntahobali raped her, the Interahamwe who had accompanied him raped six Tutsi women nearby. 4493 The witness's evidence does not identify any instruction given by Ntahobali or any other positive act on his part that had a direct and substantial effect on the perpetration of these rapes. Moreover, and contrary to the Prosecution's submissions, Witness TA's evidence and the Trial Chamber's findings concerning Ntahobali's participation in other rapes at the prefectoral office do not support as the only reasonable inference that Ntahobali ordered the rapes committed by Interahamwe during the First Attack. 4194 1913. Accordingly, the Appeals Chamber concludes that no reasonable trier of fact could have found Ntahobali responsible for ordering rapes during the First Attack on the basis of Witness TA's evidence and that the Trial Chamber erred in finding that Ntahobali ordered rapes during this attack.

1914. In relation to the Second Attack, the Trial Chamber found, based on Witness TA's evidence, that Ntahobali ordered "about seven" Interahamwe to rape Witness TA.4495 The Trial Chamber referred to Witness TA's testimony that Ntahobali physically delivered the witness to the 4489 Ndindiliyimana et al. Appeal Judgement, para. 291; Bagosora and Nsengiyumva Appeal Judgement, para. 278; Hategekimana Appeal Judgement, para. 67; Renzaho Appeal Judgement, para. 318; Galié Appeal Judgement, para. 178. 4490 Trial Judgement, paras. 2645-2647, referring to Witness TA, T. 25 October 2001 pp. 67, 69, 71, T. 31 October 2001 p. 93-97, 101 ' Trial Judgement, paras. 2646, 2653, 2781(ii), 5872, 5877. 4492 Trial Judgement, para. 2182; Witness TA, T. 25 October 2001 pp. 71, 72, T. 31 October 2001 p. 101. 4493 Witness TA, T. 25 October 2001 pp. 67-71, T. 31 October 2001 pp. 91, 93-97, 99-101. 4494 The Appeals Chamber recalls that Ntahobali was not found responsible for the rapes of "at least two women" committed by Interahamwe at the Butare Prefecture Office during the Mid-May Attack, where, similar to this incident, the rapes were committed as Ntahobali was committing rape and where there was no evidence of Ntahobali instructing Interahamwe to commit rape. See supra, Section V.I.1(b). Moreover, even where there was credible evidence of Ntahobali prompting Interahamwe to commit rapes, the Trial

Chamber did not convict him of ordering rapes. See Trial Judgement, paras. 2631 (Ntahobali raped Witness TA and then "invited eight other Interahamwe to rape [Witness TA]" during the Mid-May Attack), 5868 (convicting Ntahobali of committing rape on the basis of this evidence but making no finding as to his responsibility for the rapes committed by eight Interahamwe), 5877. See also ibid., paras. 2770 (Ntahobali "again handed Witness TA over to the Interahamwe and told them to be quick, after which seven Interahamwe raped her"), 5874, 5875 (convicting Ntahobali only of aiding and abetting the rapes of Witness TA on the basis of this evidence). 4495 Trial Judgement, paras. 2653, 2781(i), 5872. 670 Case No. ICTR-98-42-A 14 December 2015

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19695/H Interahamwe who subsequently raped her, and that Ntahobali told them "to do it quickly so that the Inkotanyi would not get to a roadblock first" 4496 Ntahobali contends that the Trial Chamber erred in concluding that he possessed sufficient authority over the Interahamwe at the Butare Prefecture Office, particularly because Witness TA described the Interahamwe as Ntahobali's "colleagues" or "comrades" 4497 1915. The Appeals Chamber recalls that the actus reus of "ordering" is that a person in a position of authority instruct another person to commit an offence.449 No formal superior-subordinate relationship between the accused and the perpetrator is required. 449 It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused's order. 4500 1916. The Appeals Chamber rejects Ntahobali's argument that Witness TA's testimony that the Interahamwe were Ntahobali's "colleagues" or "comrades" demonstrates that the Trial Chamber erred in finding that Ntahobali possessed sufficient authority over these Interahamwe to incur ordering liability. With respect to this specific attack, Witness TA testified that "Shalom dragged me and handed me over to a group of Interahamwe assailants who were his comrades, his colleagues."4501 The Appeals Chamber fails to see how this description undermines the conclusion that Ntahobali possessed sufficient authority to compel the Interahamwe to rape Witness TA, particularly in light of the fact that they committed the rapes upon Ntahobali's prompting.

1917. Consequently, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in finding that he was liable for ordering Interahamwe to rape Witness TA during the Second Attack. (c) Conclusion 1918. Based on the foregoing, the Appeals Chamber, Judge Liu dissenting, finds that Ntahobali has not demonstrated that the Trial Chamber erred in finding him criminally responsible for ordering Interahamwe to commit killings during the Mid-May Attack. Likewise, the Appeals Chamber concludes that Ntahobali has failed to show that the Trial Chamber erred in finding him 449 Trial Judgement, para. 2648, referring to Witness TA, T. 25 October 2001 pp. 75-77, T. 31 October 2001 pp. 105, 108, 111. 4497 See Trial Judgement, para.

5884. Appeal Judgement, para.

28. Nzabonimana Appeal Judgement, para. 482; Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para. 361; Kordié and Cerkez Appeal Judgement, para. 28 1500 Nabonimana Appeal Judgement, para. 482; Setako Appeal Judgement, para. 240; Semanza Appeal Judgement bara. 361; Kordic and Cerkez Appeal Judgement, para. 28 501 Witness TA. T. 31 October 2001 p. 105 671 Case No. ICTR-98-42-A 14 December 2015

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19694/H criminally responsible for ordering Interahamwe to commit rapes during the Second Attack of the Last Half of May Attacks.

1919. The Appeals Chamber nevertheless finds that the Trial Chamber erred in finding Ntahobali responsible for ordering rapes during the First Attack of the Last Half of May Attacks. Consequently, the Appeals Chamber reverses the Trial Chamber's finding that Ntahobali is responsible for ordering rapes during the First Attack. The Appeals Chamber will discuss the impact of this conclusion, if any, in Section XII below.

4. Superior Responsibility 1920. The Trial Chamber found Ntahobali responsible pursuant to Article 6(3) of the Statute for the acts of the Interahamwe, including their perpetration of rapes and killings, against Tutsis who had sought refuge at the Butare Prefecture Office 4502 Specifically, the Trial Chamber recalled its findings that "Nyiramasuhuko and Ntahobali issued orders to Interahamwe and the Interahamwe complied with these orders and perpetrated the acts asked of them, which included abductions, rapes and killings."4503 On this basis, as well as "considering the evidence in its entirety", the Trial Chamber found that Nyiramasuhuko and Ntahobali were in a "superior-subordinate relationship over [the] Interahamwe at the [Butare Prefecture Office]" and wielded effective control over them. 4504 However, because the Trial Chamber had found Ntahobali criminally responsible for the rapes and killings of Tutsi refugees by Interahamwe pursuant to Article 6(1) of the Statute, it did not enter related convictions against him pursuant to Article 6(3) of the Statute, but stated that it would consider his superior responsibility for these actions in sentencing. 450s 1921. Ntahobali contends that the Trial Chamber erred in: i) failing to particularise the conduct and evidence supporting his superior responsibility, violating his right to a reasoned opinion; and (ii) its assessment of the evidence. 4506 The Appeals Chamber will address these contentions in turn. 4502 Trial Judgement, para.

5886. See also ibid., paras. 6056, 6086. The Appeals Chamber observes that the Trial Judgement states that Ntahobali is responsible pursuant to Article 6(3) of the Statute for "abductions" in addition to rapes and killings committed by Interahamwe during attacks committed at the Butare Prefecture Office. See ibid., para.

5886. However, the Trial Chamber did not convict Ntahobali on the basis of abductions of persons seeking refuge at the Butare Prefecture Office nor did it define such conduct as criminal. See ibid., paras. 5876, 5877, 6053, 6086, 6094, 6100, 6101, 6168, 6169, 6184, 6185. Read in the context of the entire Trial Judgement, the reference to "abductions" is not the identification of criminal conduct that individually supports Ntahobali's responsibility pursuant to Article 6(3) of the Statute, but a descriptive element that relates, in particular, to the manner in which killings were routinely carried out upon those who sought refuge at the Butare Prefecture Office. See, e.g., ibid., paras. 2715, 2738 2749, 2779, 2781(i), (iii), (iv), 5867, 5873, 5874. 4503 Trial Judgement, para. 5884. 4504 Trial Judgement, para. 5884. 4505 Trial Judgement, para.

5886. See also ibid., paras. 5652, 6056, 6086. 4506 See Ntahobali Notice of Appeal, paras. 312-318; Ntahobali Appeal Brief, paras. 927-942; Ntahobali Reply Brief, paras. 381-383. 672 Case No. ICTR-98-42-A 14 December 2015

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19693/H (a) Imprecise Findings 1922. Ntahobali argues that the Trial Chamber erred in fact and in law in finding him responsible pursuant to Article 6(3) of the Statute for all the rapes and killings committed by Interahamwe against Tutsis who had sought refuge at the Butare Prefecture Office 4507 In this regard, Ntahobali contends that the Trial Chamber failed to explain how he exercised effective control over Interahamwe who committed rapes and killings based on Nyiramasuhuko's orders, or over Interahamwe who committed crimes in his absence. 4508 He submits that by establishing his effective control over Interahamwe based on unspecified orders as well as "the evidence in its entirety", the Trial Chamber violated his right to a reasoned opinion. 4509 1923. The Prosecution responds that the jurisprudence allowed the Trial Chamber to consider the evidence in its entirety when making findings pursuant to Article 6(3) of the Statute 4510 It also contends that Ntahobali incorrectly asserts that he was held responsible for all "actions by the Interahamwe" at the prefectoral office as he was instead found responsible on the basis of orders he issued that led to criminal conduct. 4511 1924. The Appeals Chamber observes that, in determining Ntahobali's superior responsibility for the crimes committed against Tutsis who had sought refuge at the prefectoral office, the Trial Chamber

specifically referred to the orders he issued to Interahamwe and the fact that the Interahamwe complied with such orders and perpetrated the acts asked of them, including rapes and killings. 4512 This, in the view of the Appeals Chamber, indicates that Ntahobali was held responsible as a superior on the basis of the crimes perpetrated by the Interahamwe who followed his orders. 4513 1925. The Appeals Chamber also notes that the Trial Chamber stated that it would not convict Ntahobali pursuant to Article 6(3) of the Statute on the basis of rapes and killings committed by 4507 Ntahobali Appeal Brief, paras. 927, 931. See also ibid., paras. 929, 939; Ntahobali Reply Brief, para. 382. 4508 Ntahobali Appeal Brief, paras. 936, 938, 939. Ntahobali also argues that the Trial Chamber failed to: (i) determine whether "Kazungu" was a soldier, a body guard, or an Interahamwe when engaging his responsibility for the conduct of Kazungu during the Night of Three Attacks; and (ii) sufficiently differentiate Ntahobali's responsibility for the conduct of Interahamwe or soldiers during the First Half of June Attacks, thereby failing to limit the scope of his liability. See ibid., paras. 896, 897. The Appeals Chamber finds it unnecessary to address these contentions as it has determined, Judge Khan dissenting, that Ntahobali was not convicted on the basis of his conduct during the Night of Three

Attacks or in relation to the killings that were perpetrated during the First Half of June Attacks. See supra, Sections V.I.1(a)(iii), V.I.1(c). 4509 Ntahobali Appeal Brief, paras. 928, 929, 932. 4510 Prosecution Response Brief, para. 1189. 4511 Prosecution Response Brief, para. 1191. 4512 Trial Judgement, para. 5884. 4513 The Appeals Chamber observes that paragraph 6086 of the Trial Judgement, read in isolation, could suggest that Ntahobali bears superior responsibility for the rapes committed by Interahamwe that he aided and abetted. However, this paragraph provides no analysis of the elements of superior responsibility. Moreover, such a reading of paragraph 6086 would be contrary to the Trial Chamber's analysis in paragraphs 5884 through 5886 of the Trial Judgement, which limits Ntahobali's effective control over Interahamwe to those who acted upon his orders. 673 Case No. ICTR-98-42-A 14 December 2015

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19692/H Interahamwe during or following attacks at the prefectoral office as it concluded that Ntahobali had already been found criminally responsible pursuant to Article 6(1) of the Statute for these actions. 4514 The Trial Judgement, therefore, clearly reflects that the Trial Chamber limited Ntahobali's responsibility under Article 6(3) of the Statute only to conduct that supports his convictions pursuant to Article 6(1) of the Statute for crimes committed by Interahamwe against Tutsis who had sought refuge at the prefectoral office, and only the conduct that resulted from Interahamwe who followed his orders.' 4515 While superior responsibility pursuant to Article 6(3) of the Statute can be incurred without evidence of any orders issued by the superior, the Trial Judgement shows that, in the present case, the Trial Chamber held Ntahobali responsible as a superior only of those crimes that he ordered and for which he was convicted under Article 6(1) of the Statute.

1926. Bearing this in mind, Ntahobali's contention that he was held responsible under Article 6(3) of the Statute for all crimes committed by Interahamwe at the prefectoral office is without merit. Consequently, his arguments that the Trial Chamber failed to explain how he exercised effective control over Interahamwe who committed rapes and killings based on Nyiramasuhuko's orders or over Interahamwe who committed these crimes in his absence are moot as he was not found to have ordered them.

1927. Turning to Ntahobali's contention that the Trial Chamber violated his right to a reasoned opinion in failing to identify the orders that were essential to demonstrate his superior responsibility, the Appeals Chamber finds that, read as a whole, the Trial Judgement sufficiently identified the orders Ntahobali issued to Interahamwe during attacks at the prefectoral office that were central to the Trial Chamber's finding that he bore superior responsibility for the crimes committed by Interahamwe who followed them. 4516 The Appeals Chamber finds no merit in Ntahobali's reliance on the Trial Chamber's statement in paragraph 5884 of the Trial Judgement that it "consider[ed] the evidence in its entirety" when assessing Ntahobali's superior responsibility, as it is clear that the Trial Chamber merely intended to indicate that it reached its findings beyond reasonable doubt on the basis of the totality of the evidence adduced. This is consistent with the jurisprudence of the Tribunal, 4517 Ntahobali's argument that the Trial Chamber failed to provide a reasoned opinion is therefore dismissed. 4514 Trial Judgement, para.

5886. See also ibid., paras. 6053, 6056, 6086. 4515 Trial Judgement, paras. 5884-5886. 4516 See infra, Section V.I.4(b). 4517 See Bagosora and Nsengiyumva Appeal Judgement, para, 450; Nahimana et al. Appeal Judgement, para. 789; Ntagerura et al. Appeal Judgement, paras. 172-175, 399. 674 Case No. ICTR-98-42-A 14 December 2015

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19691/H 1928. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contentions that the Trial Chamber erred in failing to particularise the conduct and evidence supporting his superior responsibility in relation to the crimes committed against Tutsi refugees who had sought refuge at the Butare Prefecture Office and in violating his right to a reasoned opinion. (b) Assessment of Evidence 1929. The Appeals Chamber recalls that the Trial Chamber found Ntahobali responsible pursuant to Article 6(1) of the Statute for ordering: (i) killings of "Tutsis forced to board the pickup" truck during the Mid-May Attack; (ii) the rapes of six Tutsi women during the First Attack of the Last Half of May Attacks; and (iii) the rape of Witness TA during the Second Attack of the Last Half of May Attacks. 4518 1930. Considering these conclusions, and recalling that Ntahobali was held responsible as a superior on the basis of the crimes perpetrated by the Interahamwe who followed his orders, 4519 the Trial Judgement reflects that Ntahobali was found to bear superior responsibility over Interahamwe who killed "Tutsis forced to board the pickup" truck during the Mid-May Attack and who raped Witness TA and six other women during the Last Half of May Attacks.

1931. Ntahobali contends that a superior's authority to issue orders does not automatically establish that superior's effective control. 4520 In this regard, he argues that the only orders the Trial Chamber could have relied upon in establishing his effective control over Interahamwe were a single order to stop loading refugees onto the pickup truck during the Mid-May Attack and his orders to rape during the Last Half of May Attacks.452) Furthermore, he submits that the impressions of Witness TA and other witnesses that he was the leader of the attacks do not suffice to establish his effective control over the Interahamwe. 4522 1932. In addition, Ntahobali contends that the Trial Chamber erred in its analysis as it failed to consider evidence that Interahamwe were at times "under the orders" of Nteziryayo and the Chamber, therefore, rejects the Prosecution's contention to the contrary. See Prosecution Response Brief, paras. 1191, 1202. 4519 See supra, para. 1925. 4520 Ntahobali Appeal Brief, para. 929. 4521 Ntahobali Appeal Brief, paras. 930, 931. 1522 Ntahobali Appeal Brief, paras. 930, 934. Ntahobali argues that Witness TA's evidence further reflects the witness' impression that Nyiramasuhuko was his superior but that the Trial Chamber found this insufficient to establish he effective control over him. See idem. 675 Case No. ICTR-98-42-A 14 December 2015

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19690/H President of the Interahamwe, Robert Kajuga, and its own findings that Nsabimana had issued orders to Interahamwe who were present at the prefectoral office, and that Kanyabashi later issued orders to the same Interahamwe at Rango Forest. 4523 He further highlights that the Prosecution alleged that Interahamwe collaborated with the Interim Government. 4524 In his view, the Trial Chamber also erred as it failed to consider that the term "Interahamwe" was used to designate any person participating in killings of looting and not the official Interahamwe of the MRND.4525 Finally, Ntahobali contends that the fact that he issued orders is insufficient to demonstrate that he knew or had reason to know that crimes were about to be committed at the prefectoral office. 4526 1933. The Prosecution responds that Ntahobali's leadership position and the fact that he issued orders which were followed by the Interahamwe are strong indicators that he exercised effective control over them.4527 It submits that the relevant evidence does not reflect impressions of Ntahobali's authority, but direct evidence of him ordering Interahamwe to commit crimes. *28 The Prosecution also contends that, even if the evidence and findings identified by Ntahobali were to establish that others had effective control over Interahamwe at the prefectoral office, this would not nullify Nahobali's effective

control over them. 4S2' In this regard, the Prosecution submits that it was unnecessary for the Trial Chamber to determine whether the attackers were part of the official Interahamwe.4530 It also contends that Ntahobali had the requisite knowledge to establish his superior responsibility because he ordered the specific killings and rapes. 4531 1934. The Appeals Chamber recalls that "[indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent [or] punish."4532 A superior's ability to issue binding orders that are complied with by subordinates is one of the indicators of effective control generally relied upon in the jurisprudence of the Tribunal. 4533 1935. The Appeals Chamber recalls that it has overturned the Trial Chamber's conclusion that Ntahobali ordered Interahamwe to rape six women during the First Attack of the Last Half of May 4523 Ntahobali Notice of Appeal, para. 316; Ntahobali Appeal Brief, paras. 935, 936, 937. 4524 Ntahobali Appeal Brief, para. 935. 4525 Ntahobali Notice of Appeal, para. 316; Ntahobali Appeal Brief, para. 940. 4526 Ntahobali Notice of Appeal, para. 313; Ntahobali Appeal Brief, para. 941. 4527 Prosecution Response Brief, para. 1190. 4528 Prosecution Response Brief, para. 1191. 4529 Prosecution Response Brief, para. 1192. 4530 Prosecution Response Brief, para. 1193. 4531 Prosecution Response Brief, para. 1191. 4532 Ndahimana Appeal Judgement, para. 53, referring to Blaskic Appeal Judgement, para. 69. 4533 See Ndahimana Appeal Judgement, para. 54, fn. 139; Rajelijeli Appeal Judgement, paras. 90, 91; Kayishema and zindana Appeal Judgement, para.

299. See also Strugar Appeal Judgement, para. 256; Hadzihasanovié and Kubu ppeal Judgement, para. 199; Halilovié Appeal Judgement, paras. 204, 20 676 Case No. ICTR-98-42-A 14 December 2015

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19689/H Attacks. 4534 Because the Trial Chamber used this conclusion to support its findings that Ntahobali bore superior responsibility for these rapes, 4535 the Appeals Chamber reverses the Trial Chamber's findings of Ntahobali's responsibility pursuant to Article 6(3) of the Statute based on this conduct.

1936. However, bearing in mind the evidence and findings that support Ntahobali's convictions for ordering killings during the Mid-May Attack4536 as well as the finding that he ordered about seven Interahamwe to rape Witness TA during the Second Attack of the Last Half of May Attacks, 4537 the Appeals Chamber, Judge Liu dissenting, finds that it was within the discretion of the Trial Chamber to conclude that Ntahobali possessed effective control over the Interahamwe who committed these crimes on the basis of his orders. The temporal proximity and serial nature of these attacks, which repeatedly involved Ntahobali and Interahamwe, as well as the credible evidence of Ntahobali's leading role in them provided sufficient basis for the Trial Chamber to conclude that Ntahobali possessed the material ability to prevent the crimes and punish the Interahamwe who committed them based on his orders. In this respect, the Appeals Chamber recalls that it has already rejected Ntahobali's contention that Witness TA simply provided impressions of Ntahobali's authority over Interahamwe, as her evidence demonstrates that he repeatedly issued orders to Interahamwe and was viewed as an authority figure by them. *38 1937. Furthermore, the Appeals Chamber finds no merit in Ntahobali's contention that the Trial Chamber erred in failing to consider evidence that others issued orders to

Interahamwe. Specifically, the Appeals Chamber does not see the material relevance of evidence that Interahamwe under the orders of Kajuga and Nteziryayo committed crimes during different time periods in other locations.4539 Moreover, the Trial Chamber considered some of the evidence highlighted by Ntahobali on appeal and the leadership roles Kajuga and Nteziryayo held with respect to Interahamwe elsewhere in the Trial Judgement. 4540 1938. Likewise, the Appeals Chamber finds no inconsistency in the Trial Chamber's analysis of evidence that Nsabimana and Kanyabashi issued orders to Interahamwe4541 and its conclusion that 4534 See supra, Sections V.I.3(b), V.I.3(c). 4535 See Trial Judgement, paras. 5884-5886. 4536 See supra, Section V.1.3(a). As determined previously, The Appeals Chamber recalls that it has found, Judge Khan dissenting, that the Trial Chamber did not convict Ntahobali for ordering killings during the Night of Three Attacks and the First Half of June Attacks. See supra, Sections V.I.1(a)(iii), V.I.1(c). 4537 Trial Judgement, para. 5872. 4538 See supra, Section V.1.3(a). 4539 Cf. Kanyarukiga Appeal Judgement, para.

127. See also Kalimanzira Appeal Judgement, para. 195; Kvocka et al. Appeal Judgement, para.

23. See Trial Judgement, para. 3995, fn. 10878. See also ibid., paras. 3982-3985, 3993-3997. Furthermore, the Trial Judgement reflects general consideration of Witness FAM's evidence as it related to Nteziryayo's responsibility for the attacks on the Tutsi refugees by the Interahamwe and civilians at Kabakobwa Hill. See, e.g., ibid., paras. 1741-1748. See also ibid., paras. 1517-1529. 4541 See Ntahobali Appeal Brief, paras. 936, 937, referring to Trial Judgement, paras. 2899, 2900, 5108, 5941. 677 Case No. ICTR-98-42-A 14 December 2015

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19688/H Ntahobali exercised effective control over Interahamwe to whom he issued orders to commit various crimes at the prefectoral office. The Appeals Chamber recalls that effective control need not be exclusive and can be exercised by more than one superior, whose criminal responsibility is not excluded by the coexisting responsibility of others. 4542 1939. The Appeals Chamber also finds no relevance in Ntahobali's argument that the Prosecution alleged that the Interim Government collaborated with or had effective control over the Interahamwe, as he points to allegations rather than findings of the Trial Chamber that would be inconsistent with the Trial Chamber's conclusions that he exercised effective control over a select group of Interahamwe. Ntahobali also fails to demonstrate that it was necessary for the Trial Chamber to determine whether the Interahamwe over whom he was found to exercise superior responsibility were officially part of the MRND party.

1940. Finally, the Appeals Chamber rejects Ntahobali's contentions that the orders underpinning his responsibility under Article 6(3) of the Statute were insufficient to establish that he knew or had reason to know that Interahamwe were about to commit crimes. As discussed above, Judge Liu dissenting with respect to the killings during the Mid-May Attack, the rapes and killings flowed directly from his orders and Ntahobali does not develop any argument to show that these crimes were committed without his knowledge or in circumstances that would have undermined his ability to know.

1941. Accordingly, the Appeals Chamber concludes that the Trial Chamber erred in finding Ntahobali responsible under Article 6(3) of the Statute on the basis of rapes committed by Interahamwe following his orders during the First Attack of the Last Half of May Attacks. However, the Appeals Chamber, Judge Liu dissenting, concludes that Ntahobali has not demonstrated any other error in the Trial Chamber's assessment of the evidence relevant to his responsibility as a superior for crimes committed by Interahamwe on the basis of his orders at the Butare Prefecture Office. (c) Conclusion 1942. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contentions that the Trial Chamber erred in failing to particularise the conduct and evidence supporting his superior responsibility in relation to crimes committed at the Butare Prefecture Office and in violating his right to a reasoned opinion. 18t See BApca at Me, para: 197, 19gl Judgement, para 495. Se also Nizeyimana Appeal Judgemen, para. 316: 678 Case No. ICTR-98-42-A 14 December 2015

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19687/H 1943. The Appeals Chamber concludes that the Trial Chamber erred in finding Ntahobali responsible pursuant to Article 6(3) of the Statute on the basis of the rapes committed by Interahamwe following his orders during the First Attack of the Last Half of May Attacks. However, the Appeals Chamber, Judge Liu dissenting, finds that Ntahobali has not demonstrated any other error in the Trial Chamber's assessment of the evidence relevant to his responsibility as a superior for the crimes committed by Interahamwe on the basis of his orders during the Mid-May Attack and the Second Attack of the Last Half of May Attacks at the Butare Prefecture Office. The Appeals Chamber will discuss the impact of these findings, if any, in Section XII below.

5. Conclusion 1944. Based on the foregoing, the Appeals Chamber reverses Ntahobali's convictions pursuant to Article 6(1) of the Statute for: (i) ordering the rapes of six women during the First Attack of the Last Half of May Attacks; and (ii) committing rapes during the First Half of June Attacks. The Appeals Chamber further concludes that the Trial Chamber erred in finding that Ntahobali bore superior responsibility pursuant to Article 6(3) of the Statute on the basis of the rapes of six women committed by Interahamwe following his orders during the First Attack of the Last Half of May Attacks. The Appeals Chamber will consider the impact of these conclusions, if any, in Section XII below.

1945. However, the Appeals Chamber, Judge Liu dissenting with respect to Ntahobali's responsibility for ordering killings during the Mid-May Attack, affirms Ntahobali's convictions pursuant to Article 6(1) of the Statute for: (i) ordering killings during the Mid-May Attack; (ii) committing the rape of Witness TA during the Mid-May Attack and the First Attack of the Last Half of May Attacks; (iii) ordering the rape of Witness TA during the Second Attack of the Last Half of May Attacks; and (iv) aiding and abetting the rapes of Witness TA during one of the First Half of June Attacks. The Appeals Chamber further concludes, Judge Liu dissenting, that Ntahobali has not demonstrated that the Trial Chamber erred in finding that he bore superior responsibility pursuant to Article 6(3) of the Statute for: (i) killings committed by Interahamwe on the basis of his orders during the Mid-May Attack; and (ii) the rapes of Witness TA committed by Interahamwe following his orders during the Second Attack of the Last Half of May Attacks. 679 Case No. ICTR-98-42-A 14 December 2015

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19686/H J. École Évangeliste du Rwanda (Grounds 3.5, 4.1, 4.2, and 4.3 in part) 1946. The Trial Chamber convicted Ntahobali of genocide, extermination and persecution as crimes against humanity as well as violence to life, health and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il for aiding and abetting the killing of Tutsi refugees abducted from the EER between mid-May and the beginning of June 1994.4543 The Trial Chamber also found that Ntahobali was responsible as a superior pursuant to Article 6(3) of the Statute for the killings committed by the Interahamwe at or near the EER and considered this as an aggravating factor when determining Ntahobali's sentence. 4544 1947. Ntahobali submits that the Trial Chamber erred in: (i) making imprecise findings in relation to the crimes committed at the EER, violating his right to a reasoned opinion; (ii) its assessment of the evidence relating to these events; (iii) its assessment of his responsibility for aiding and abetting; and (iv) finding that he was responsible as a superior for these crimes. The Appeals Chamber will assess these contentions in turn.

1. Imprecise Findings 1948. In the "Factual Findings" section of the Trial Judgement, the Trial Chamber reached the following conclusion: utsi refugees in the woods near the BER school complex. However, the Chamber does not find i established beyond a reasonable doubt that Ntahobali led the soldiers to the BER. 454 1949. In the "Legal Findings" section of the Trial Judgement, the Trial Chamber concluded as follows: The Chamber also recalls Ntahobali's prior conduct in working alongside Interahamwe and oldiers in abducting hundreds of refugees from the [Butare Prefecture Office] who we hysically assaulted and raped and thereafter killed in various locations throughout Ngon 680 Case No. ICTR-98-42-A 14 December 2015

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19685/H with his prior conduct, leads the Chamber to conclude that Ntahobali's conduct at the EER amounted to his sanctioning of the acts of the Interahamwe and soldiers, and thereby substantially contributed to the commission of these crimes. [...] Recalling that those who took refuge at the EER were predominantly Tutsis, the Chamber thus finds it proven beyond a reasonable doubt that Ntahobali committed the actus reus of aiding and abetting genocide, through the acts of killing members of the group. Viewing these attacks in the context of the widespread killing of Tutsis occurring throughout Rwanda, the Chamber finds beyond a reasonable doubt that the soldiers and Interahamwe who participated in various killings at or near the EER did so with the intent to destroy, in whole or in substantial part, the Tutsi group. Having regard to the events that surrounded the abductions, and the situation in Rwanda generally, the Chamber is also satisfied that Ntahobali must have known of the soldiers' and Interahamwe's intent and knew that he was substantially assisting them in the commission of their crimes. 4546 1950. Ntahobali submits that the imprecision of the Trial Judgement regarding his convictions for the crimes committed at the EER violates his right to a reasoned opinion. 4547 Specifically, he contends that, despite convicting him for aiding and abetting the crimes at the EER

through his presence, the Trial Chamber failed to indicate when he was present at the EER, which, in his view, is an essential element of the offence. *548 According to him, because he was convicted based on his presence at the EER and the Trial Chamber found that some attacks occurred in his absence, the Trial Chamber should have specified the attacks during which he was present since they were the only attacks for which he could have been held responsible. 4549 Ntahobali argues that the Trial Chamber's factual findings do not allow him to understand when he was found to have been present, pointing out the discrepancies as to the timing of his presence in the witnesses' testimonies relied upon by the Trial Chamber.* 4550 1951. Ntahobali further contends that the Trial Chamber violated his right to a reasoned opinion by failing to specify when the attacks of the Interahamwe and soldiers took place or identify the evidence it relied upon for its conclusions, in particular given the inconsistent and contradictory evidence. 4551 He points to inconsistencies in the evidence as to the identity of the attackers, his presence at the EER, and the timing of the attacks that, he submits, the Trial Chamber should have expressly discussed 4552 He also argues that the Trial Chamber failed to distinguish the attacks 4546 Trial Judgement, paras. 5912-5915 (internal references omitted). 4547 Ntahobali Notice of Appeal, paras. 304, 305, 307-309; Ntahobali Appeal Brief, paras. 861, 862, 881. 4548 Ntahobali Appeal Brief, paras. 872, 873, 875, referring, inter alia, to Trial Judgement, paras. 5912-5916, Brdanin Appeal Judgement, para.

273. Ntahobali Appeal Brief, paras. 875, 876. See also ibid., paras. 854-859. 45S0 Ntahobali Notice of Appeal, para. 300; Ntahobali Appeal Brief, paras. 858, 874. 4551 Ntahobali Appeal Brief, para. 378. 4552 In particular, Ntahobali contends that: (i) Witnesses TA and RE were imprecise about the timing of these attacks, with the latter also testifying that they occurred in Ntahobali's absence; (ii) Witnesses RE and SJ could not have been describing the same group of Interahamwe as, according to Witness RE, the Interahamwe donned banana leaves, while Witness SJ recalled them wearing the same uniforms as soldiers; and (ili) he is unable to determine whether the Trial Chamber relied on the evidence of Witness SX since the witness's testimony does not accord with the Trial Chamber's findings regarding the length of the stay of the refugees at the BER and the location they were taken to be killed as well 681 Case No. ICTR-98-42-A 14 December 2015

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19684/H committed by the Interahamwe from those committed by the soldiers despite finding him responsible as a superior only for the crimes committed by the Interahamwe 4553 1952. Ntahobali submits that the imprecision of the Trial Judgement in these respects prevented him from knowing exactly what he was found responsible for and from raising a comprehensive appeal. 4554 For these reasons, Ntahobali requests that the Appeals Chamber acquit him of all charges relating to the EER. 4555 1953. The Prosecution responds that the Trial Chamber provided reasons for its conclusion that Ntahobali aided and abetted killings through his tacit approval and sanctioning of the killings of the Tutsi refugees at or near the EER. 4556 It contends that the Trial Chamber found that Ntahobali aided and abetted the killings at the EER through his past conduct in addition to his presence at the scene and that, in any event, presence at the crime scene need not coincide with the commission of the crimes or be continuous. 45S? The Prosecution also argues that the Trial Chamber accepted that Ntahobali was present at the EER several times during the relevant period, that the inconsistencies in the evidence highlighted by Ntahobali were minor, and that their assessment did not require detailed findings. It adds that it was unnecessary for the Trial Chamber to distinguish the crimes committed by the

soldiers from those committed by the Interahamwe since Ntahobali was not held responsible for the crimes committed by the soldiers at the EER.4559 The Prosecution further suggests that Ntahobali was not held accountable as a superior for all the crimes committed by the Interahamwe at the EER, but only for the specific crimes established by the evidence of Witnesses QY, SX, and RE.4560 1954. The Appeals Chamber recalls that Article 22(2) of the Statute and Rule 88(C) of the Rules require trial chambers to provide a reasoned opinion, 4561 which includes the provision of clear, reasoned findings of fact as to each element of the crime charged. 4562 However, a trial chamber is as exceeded the scope of the relevant paragraph of the Indictment. See Ntahobali Appeal Brief, paras. 878, 879. See also Ntahobali Reply Brief, para. 354 Ntahobali Notice of Appeal, paras. 300, 305; Ntahobali Appeal Brief, para.

880. See also Ntahobali Reply Brief, par Nahobali Notice of Appeal, paras, 307, 308; Niahobali Appeal Brief, para. 881. 4555 Ntahobali Notice of Appeal, para. 309; Ntahobali Appeal Brief, para. 881. 4556 Prosecution Response Brief, para.

1165. See also ibid., para. 1166. 4557 Prosecution Response Brief, paras. 1152, 1165, 1666. 4558 Prosecution Response Brief, paras. 1153, 1167. 4559 Prosecution Response Brief, paras. 1152, 1154, 1158. 4560 Prosecution Response Brief, para. 1187. 4561 See, e.g., Bizimungu Appeal Judgement, para. 18; Nchamihigo Appeal Judgement, para. 165; KrajiJnik Appeal Judgement, para. 139. so gent pair on, Kard den Appeal, arm 2n, Ra 2a0 C, a Judge pere, aura 30, parties Appeal 682 Case No. ICTR-98-42-A 14 December 2015

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19683/H not required to articulate in its judgement every step of its reasoning in reaching particular findings. 4563 1955. The Appeals Chamber recalls that the actus reus of aiding and abetting "consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime" and the mens rea is "the knowledge that these acts assist the commission of the offense" 4564 The Appeals Chamber has further explained that an individual can be found liable for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime. 4565 When this form of aiding and abetting has been a basis for a conviction, "it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered with his prior conduct, which all together allow the conclusion that the accused's conduct amounts to official sanction of the crime and thus substantially contributes to it.»4566 1956. The Appeals Chamber observes that the Trial Chamber's conclusion regarding Ntahobali's responsibility for the killings of Tutsi refugees at or near the EER was premised on its findings that during the refugees' stay at the EER between mid-May and the beginning of June 1994, Ntahobali was present at the EER

and, together with the Interahamwe and soldiers, involved in the attacks on and the abductions of the refugees from the EER, who were subsequently killed in the woods near the EER complex. 4567 The Trial Chamber noted that "[t]here was no direct evidence that Ntahobali was personally responsible for killing any of the abducted refugees" but was "satisfied that his presence alongside Interahamwe and soldiers at the EER amounted to tacit approval and encouragement of the acts of Interahamwe and soldiers at the EER."4568 The Trial Judgement therefore clearly shows that his conviction is predicated on the criminal conduct of Interahamwe and soldiers that took place during attacks conducted in his presence and that he was not convicted of the crimes committed in his absence. Contrary to the Prosecution's position, the Trial Judgement 4563 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 215; Ntabakuze Appeal Judgement, para. 161; vocka et al. Appeal Judgement, para. 23. 564 Sainovié et al. Appeal Judgement, para.

1649. See also ibid., paras. 1626-1648, 1650; Popovié et al. Appea Judgement, para. 1758; Blaskié Appeal Judgement, para. 46. 4565 Ndahimana Appeal Judgement, para. 147; Kalimanzira Appeal Judgement, para. 74; Muvunyi Appeal Judgement of 29 August 2008, para. 80. 4566 Ndahimana Appeal Judgement, para. 147, citing Kalimanzira Appeal Judgement, para.

74. See also Muvunyi Appeal Judgement of 29 August 2008, para. 80; Kayishema and Ruzindana Appeal Judgement, paras. 201, 202. Trial Judgement, paras. 3946-3950, 3965. See also ibid., paras. 3856, 3858, 3867-3869, 3878, 3951-3964. 4568 See Trial Judgement, para. 5912. 683 Case No. ICTR-98-42-A 14 December 2015

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19682/H reflects that Ntahobali was held responsible for aiding and abetting the killings of Tutsi refugees committed by both the Interahamwe and soldiers. 4569 1957. A holistic reading of the pertinent sections of the Trial Judgement, including the summary of testimonial evidence considered in the Trial Chamber's deliberations, shows that the Trial Chamber concluded that Ntahobali was present at the EER during the relevant time period. The Appeals Chamber observes that the evidence of Witnesses RE, QY and SX, deemed credible by the Trial Chamber, demonstrates, irrespective of the inconsistencies underscored by Ntahobali, that he was indeed at the EER on several occasions when the refugees were attacked and abducted by the principal perpetrators. 4570 1958. To the extent that the Trial Judgement reflects the instances where Ntahobali's presence at the EER coincided with the attacks on and the abductions of the refugees by the principal perpetrators, the Appeals Chamber considers that, despite the discrepancies in the evidence pointed out by Ntahobali, the Trial Chamber was not required to address with greater precision the timing of every attack perpetrated by the Interahamwe and soldiers in making legal findings regarding Ntahobali's responsibility. Contrary to Ntahobali's contention, the Trial Chamber expressly cited the testimonies of Witnesses RE, SJ, and TA in support of

its finding that "Interahamwe committed attacks at the EER»4571 and the testimonies of Witnesses RE, QY, SJ, and QBQ in concluding that "apart from Interahamwe, soldiers came to the EER and variously abducted and killed the refugees."4512 The Appeals Chamber is not persuaded that it was incumbent on the Trial Chamber to demarcate with more precision the attacks committed by soldiers as opposed to those committed by the Interahamwe as a prerequisite for finding Ntahobali responsible as a superior for the attacks committed by the latter.* 4573 1959. The Appeals Chamber is therefore of the view that the factual findings made by the Trial Chamber and the evidence relied upon in making these findings, together with the corresponding legal findings, as set out above, establish with sufficient precision the basis of Ntahobali's conviction for aiding and abetting the killing of Tutsi refugees at or near the EER through his tacit approval and sanctioning of the acts of the principal perpetrators. 4569 See Trial Judgement, para. 5912 (Ntahobali's "presence alongside the Interahamwe and soldiers at the BER amounted to tacit approval and encouragement of the acts of Interahamwe and soldiers at the EER.") (emphasis added). See also ibid., paras. 3965, 5913, 5915 1 chance at arent of i dri 8. Sealin i presen 38 st, 38 8.

3848. Natal alines to the Sections V.J.2(b), V.J.2(c) below. 4571 Trial Judgement, para.

3945. See also ibid., para. 3944. 684 Case No. ICTR-98-42-A 14 December 2015

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19681/H 1960. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contention that the Trial Chamber erred by making imprecise findings with respect to his convictions for aiding and abetting the killing of Tutsi refugees at or near the EER.

2. Assessment of Evidence 1961. As noted above, the Trial Chamber concluded as follows: the Chamber finds it established beyond a reasonable doubt that between mid-May and the beginning of June 1994: soldiers escorted and beat the refugees on the way to the EER; Ntahobali was involved in and led Interahamwe in attacks against, and abductions of, Tutsi refugees during their stay at the EER; soldiers, both alone and accompanied by Ntahobali, came to the EER and were also involved in abductions of refugees during the same period; soldiers raped women and young girls at or near the BER school; Ntahobali, Interahamwe and soldiers killed the abducted Tutsi refugees in the woods near the EER school complex. However, the Chamber [did] not find it established beyond a reasonable doubt that Ntahobali led the soldiers to the EER.457à 1962. Ntahobali submits that the Trial Chamber erred in its assessment of the evidence relating to the events at the EER. 4575 In support of his contention, Ntahobali argues that the Trial Chamber: (i) reversed the burden of proof and erroneously discredited or disregarded exculpatory evidence; (ii) erred in its assessment of identification evidence; (iii) erred in its assessment of Prosecution evidence concerning the attacks; and (iv) improperly relied on expert evidence. The Appeals Chamber will examine these contentions in turn. (a) Reversal of Burden of

Proof and Assessment of Exculpatory Evidence 1963. After recalling that the Prosecution evidence concerning the attacks at the EER was credible and reliable and considering that most of the Defence witnesses who testified in this respect were either relatives or friends of Ntahobali, resided in the hotel belonging to Maurice Ntahobali, and therefore may have had a motive to lie, the Trial Chamber found that the testimonies presented by Defence witnesses that no attacks occurred at the EER was not credible. 4576 1964. The Trial Chamber also concluded that the number of refugees at the EER during late-May 1994 well exceeded 200.457 It based its conclusion on Nsabimana's estimate that about 200 refugees returned to the Butare Prefecture Office from the EER in the last days of May 1994, the fact that many refugees at the EER were crowded into classrooms, and the fact that the number of refugees at the prefectoral office around 15 June 1994 after they had returned from the BER may 4572 Trial Judgement, para.

3952. Ntahobali's challenges to the Trial Chamber's assessment of the evidence as it relate: to the participation of Interahamwe and soldiers in the attacks at the BER have been addressed and dismissed below See infra, Section V.J.2(c). 1573 See infra, paras. 2107, 2108. 4574 Trial Judgement, para. 3965. 4575 Ntahobali Notice of Appeal, paras. 218, 239; Ntahobali Appeal Brief, paras. 571, 572. 4576 Trial Judgement, para. 3964. 685 Case No. ICTR-98-42-A 14 December 2015

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19680/H have been around 200 considered in light of its previous findings that many dozens if not hundreds of the refugees had been killed before that time. 4578 1965. Ntahobali submits that the Trial Chamber misapplied the burden of proof in its assessment of evidence related to the events at the EER.4579 In support of this contention, he argues that the Trial Chamber reversed the burden of proof by first assessing whether the Prosecution's evidence was credible and reliable before analysing the Defence evidence, notably concerning his presence at the EER and the existence of attacks at the EER, which resulted in the inevitable rejection of the latter. 4580 In his view, it was incumbent on the Trial Chamber to instead begin with the assessment of the Defence evidence, which, if believed, would have led to an acquittal or at least would have raised a reasonable doubt. 4581 Ntahobali contends that the reversal of the burden of proof invalidates the Trial Chamber's findings concerning his involvement in the events at the EER. 4582 1966. According to Ntahobali, the Trial Chamber further erred in failing to provide a reasoned opinion for its finding that the relevant Defence evidence was not credible in its entirety, as the fact that some Defence witnesses were "relatives or friends" did not automatically indicate that their evidence was not credible or "determine the fate" of the

remainder of the Defence evidence. 4583 In particular, he submits that the Trial Chamber failed to take into consideration the Defence evidence reflecting that no crimes were likely to have been committed at the EER since Defence Witnesses H1B6, NMBMP, WCNJ, WUNBJ, CEM, WBUC, Céline Nyiraneza as well as Denise and Maurice Ntahobali did not hear about or see any crime, nor heard gunshots or screams at the EER. 4584 Ntahobali also argues that in its rejection of the Defence evidence, the Trial Chamber failed to consider the contradictory accounts of the Prosecution witnesses. 4585 In this respect, he highlights that some Prosecution witnesses did not hear gunfire during the attacks at the EER and testified that the refugees were killed with traditional weapons,4586 and others did not mention hearing screams or gunshots during the attacks at the EER.4587 Ntahobali contends that these testimonies undermined the credibility of Prosecution Witnesses TG and QI, who respectively 4577 Trial Judgement, para. 3938. 4578 Trial Judgement, paras. 3937, 3938. 4579 Ntahobali Notice of Appeal, para. 217; Ntahobali Appeal Brief, para. 506. 4580 Ntahobali Appeal Brief, paras. 507, 508, referring, inter alia, to Trial Judgement, paras. 3943-3949, 3951, 3953, 3954, 3958, 3964, R. v. Geddes (Canada, 2011), paras. 14-16, R. v. W. (D.) (Canada, 1991), R. v. C.L.Y. (Canada, 2008), paras.

24-30 Ntahobali Appeal Brief, para. 508 4582 Ntahobali Appeal Brief, para. 508. 4583 Ntahobali Appeal Brief, paras. 506, 509, fn. 885, referring, inter alia, to Trial Judgement, paras. 3902, 3906, 3908. See also Ntahobali Notice of Appeal, para. 217. 4584 Ntahobali Appeal Brief, para. 509, referring to Trial Judgement, paras. 3901, 3905, 3907, 3912-3915, 3917, 3918. 4585 Ntahobali Appeal Brief, para. 509. 4586 Ntahobali Appeal Brief, para. 509, referring to Witness RE, T. 24 February 2003 pp. 12, 13, Witness SJ, T. 4 June 2002 pp. 64-67. 4587 Ntahobali Appeal Brief, para. 509, referring to Witnesses QY, SX, QBQ, QBP, and SD. 686 Case No. ICTR-98-42-A 14 December 2015

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19679/H recounted hearing screams and gunfire as well as seeing a gun-wielding policeman, and reinforced Defence evidence regarding the absence of gunshots and screams. 4588 1967. In addition, Ntahobali submits that in concluding that Defence witnesses attested to seeing only a small number of the refugees at the EER because they were unable to see inside the building, the Trial Chamber disregarded the testimonies of Defence Witnesses WCMNA and WCNMC, who were not his relatives or friends and testified about seeing the refugees inside the classrooms at the EER. 4589 Ntahobali argues that the Trial Chamber acted unreasonably in finding that the number of the refugees "well exceeded 200" without considering the contradictory testimonies of Witnesses RE, SX, and SJ as to their number at the EER. 4590 1968. The Prosecution responds that the Trial Chamber assessed the totality of the evidence before making findings on Ntahobali's involvement in the attacks at the EER, which is consistent with the Tribunal's jurisprudence.

459) It also submits that the Trial Chamber assessed the Defence evidence and that Ntahobali himself, while contesting his presence, recognised that the evidence indicated that several abductions were committed at the EER. 4592 1969. As correctly noted by the Trial Chamber, the burden of proving each and every element of the offences charged against the accused beyond reasonable doubt rests solely on the Prosecution and never shifts to the Defence. 4593 The Appeals Chamber finds that the manner in which the Trial Chamber organised its assessment of the evidence in the Trial Judgement in no way reflects a failure to properly apply the applicable burden or proof. 4594 1970. The Appeals Chamber is similarly not persuaded by Ntahobali's argument that the Trial Chamber's analysis of the Prosecution evidence before finding that the Defence evidence that no attacks occurred at the EER was not credible evinces a shift in the burden of proof. 4588 Ntahobali Appeal Brief, para. 509. 4589 Ntahobali Appeal Brief, para. 509. 4590 Ntahobali Appeal Brief, para.

509. Ntahobali adds that the Trial Chamber failed to consider Witness FA's testimony, who attested to the absence of the refugees from classrooms at the BER and broadly asserts that the number of refugees stationed at the EER "had an obvious impact" on the number of those killed at the Butare Prefecture Office and the EER. See idem. The Appeals Chamber is not persuaded that the Trial Chamber was under an obligation to discuss expressly Witness FA's vague testimony that there was no one at the EER during the war since she did not testify that she personally saw inside the BER buildings. The witness also testified that people were killed at the BER. See Witness FA, T. 1 July 2004 pp. 75, 76 (closed session). 4591 Prosecution Response Brief, para.

958. The Prosecution adds that the Canadian jurisprudence cited by Ntahobali is not binding on the Tribunal. See idem. Nahobali replies that even though the Tribunal is not bound by national jurisprudence, the Appeals Chamber has recognised its utility. See Ntahobali Reply Brief, para. 228, referring to Kupreskié et al. Appeal Judgement, paras. 34-41. Prosecution Response Brief, para. 959. 4593 See Trial Judgement, para. 162. 4594 Since pursuant to Rule 89(A) of the Rules a Trial Chamber is not bound by national rules of evidence, the Appeals Chamber does not find Ntahobali's reliance on Canadian jurisprudence persuasive. See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577. 687 Case No. ICTR-98-42-A 14 December 2015

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19678/H The Trial Chamber provided a detailed analysis of the evidence regarding the attacks at the EER adduced by the Prosecution and found it credible and reliable. 4595 Although the Trial Chamber did not expressly detail its assessment of individual credibility of the Defence witnesses in this respect, its conclusions indicate that it did not find their evidence that no attacks occurred at the EER credible in light of the "credible and reliable" evidence presented by the Prosecution as well as the fact that most of the Defence witnesses who testified to that effect were either relatives or friends of Ntahobali, were residing in the hotel belonging to Maurice Ntahobali, and, as a result may have had a motive to lie. 4596 The Appeals Chamber recalls that it is settled jurisprudence that a witness's close personal relationship to an accused is one of the factors which a trial chamber may consider in assessing the witness's evidence. 4597 It was therefore within the Trial Chamber's discretion to take that factor into account when weighing the Defence evidence with that of the Prosecution. In the view of the Appeals Chamber, this does not amount to a reversal of the burden of proof but a finding that the Prosecution proved beyond reasonable doubt that the attacks occurred at the EER. 4598 The Appeals Chamber is therefore satisfied that the Trial Chamber did not misapply the burden of proof.

1971. Contrary to Ntahobali's contention, the Trial Chamber did consider the Defence evidence that no attacks occurred, noting in particular the relevant parts of the testimonies of Witnesses H1B6, NMBMP, WCNJ, WUNBJ, CEM, WBUC, Nyiraneza, as well as Denise and Maurice Ntahobali as regards their perception of the conditions at the EER, including the absence of gunshots and screams. 459º In addition, while the Trial Judgement indicates that some Prosecution witnesses did not hear or did not mention gunshots and screams, 4600 and others did hear them or saw a gun-wielding policeman, 4601 these witnesses' evidence is consistent on the fact that attacks occurred at the EER and therefore do not support the Defence evidence to the contrary. 4602 The purported inconsistencies between the testimonies of Prosecution witnesses pointed out by Ntahobali simply reflect that different people in different vantage points saw and heard different 4595 See Trial Judgement, paras. 3943-3964. 4596 See Trial Judgement, para. 3964. 4597 See, e.g., Kanyarukiga Appeal Judgement, para. 121; Bikindi Appeal Judgement, para. 117; Karera Appeal Judgement, para. 137. 4598 See, e.g., Trial Judgement, para. 3965. 5% Sec That demen, paras:201, 312, 397, 39/2.3916, 391, 3918. 4601 See Trial Judgement, paras. 3865, 3892. a eT on eating en, rens 43e E. oes oe or rel: Chexpes consider in of the test haies or maless e and SD, the Trial Chamber specifically noted elsewhere in the Trial Judgement that these witnesses testified that thes went to the EER. See ibid., paras. 2265, 2312. In addition, the review of Witness QBP's evidence reveals that the witness testified that people were killed at the EER. See Witness QBP, T. 28 October 2002 p.

42. As for Witness SD. she merely recounted her whereabouts during the events. See Witness SD, T. 17 March 2003 p. 8, T. 17 March 200 . 37 (closed session). The Appeals Chamber, therefore, is not persuaded that the testimonies of these witnesse 688 Case No. ICTR-98-42-A 14 December 2015

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19677/H things and are not material when viewed in the context of the fundamental consistency of the witnesses' accounts that attacks occurred at the EER. Recalling that, as a general rule, a trial chamber is not required to articulate every step of its reasoning for each finding it makes, 4603 the Appeals Chamber is satisfied that the Trial Chamber was not required to discuss these alleged inconsistencies in its analysis of the evidence in relation to the EER. The Appeals Chamber also recalls that, when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible. 4604 1972. With respect to Ntahobali's contention that the Trial Chamber disregarded the evidence of Witnesses WCNMC and WCNMA when determining the number of refugees present at the EER at the relevant time, the Appeals Chamber observes that these witnesses' evidence that they saw refugees inside the classrooms at the EER rather than from Hotel Ihuliro was duly noted by the Trial Chamber in the summary of their evidence. 4605 The Appeals Chamber finds no error in the fact that the Trial Chamber did not discuss this particular aspect of their evidence in its deliberations4606 in light of the overwhelming evidence that the number of the refugees exceeded the Defence witnesses' estimates. 4607 1973. In addition, the Appeals Chamber notes

that, contrary to Ntahobali's assertion, the Trial Chamber carefully assessed the contradictory aspects of the Prosecution evidence regarding the number of refugees, taking into account the variances within and between the testimonies of Witnesses RE, SX, and SJ and the explanations for it. 4608 The Appeals Chamber therefore finds that Ntahobali fails to demonstrate that the Trial Chamber acted unreasonably when it determined the number of the refugees at the EER.

1974. Accordingly, Appeals Chamber finds that the Trial Chamber did not err in its application of the burden of proof, nor did it disregard exculpatory evidence when assessing the evidence related to events at the EER. undermine the credibility of other Prosecution witnesses and does not find that the Trial Chamber was required to refer to their testimonies in assessing evidence concerning the events at the EER. 4603 Appeal Judgement, para.

23. See, e,g., Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29 ("Where testimonies are divergent, it is the duty of the [trial [chamber, which heard the witnesses, to decide which evidence it deems to be more probative, and to choose which of the two divergent versions of the same event it may admit.") (internal reference omitted). 4605 See Trial Judgement, paras. 3906, 3908. 4606 The Appeals Chamber notes that the Trial Chamber subsequently erred in its analysis of the evidence concerning the number of refugees at the EER in referring to Witness WCNMC as one of the witnesses who only observed the refugees in the courtyard from Hotel Ihuliro. See Trial Judgement, para.

3937. The Appeals Chamber, however, considers that this error has not occasioned a miscarriage of justice for the reason developed below. 4607 See Trial Judgement, paras. 3935-3938. 4608 See Trial Judgement, paras. 3935, 3936. See also ibid., paras. 3877, 3881, 3885, 3935-3937. 689 Case No. ICTR-98-42-A 14 December 2015

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19676/H (b) Identification Evidence 1975. Ntahobali submits that the Trial Chamber erred in finding that the evidence of Witnesses RE, QY, SX, and TB identifying him at the EER was credible and reliable. 1609 (i) Witness RE 1976. The Trial Chamber noted that Witness RE was among the several witnesses who testified about Ntahobali's presence at the EER. 610 It recalled that the witness referred to Ntahobali as "Shalom" and observed that, although she did not know him prior to the events, others had identified him.4611 The Trial Chamber found that this testimony, despite being hearsay evidence, was corroborative of the identification of Ntahobali. 612 The Trial Chamber further recalled that Witness RE misidentified Ntahobali in court but did not consider that it undermined the credibility or reliability of her identification of Ntahobali as the man who attacked the refugees at the EER, given the time that had elapsed since the events and the detailed and consistent nature of her overall testimony regarding the events at the EER.4613 The Trial Chamber concluded that the witness had adequate conditions in which to observe Ntahobali at the EER. 4614 1977. Ntahobali contends that the Trial Chamber erred in crediting identification evidence of Witness RE, in particular by concluding that it was not undermined by the witness's misidentification of him. 4615 In his view, the

misidentification could not have been explained by the passage of time and should have raised reasonable doubt as to whether someone other than him, such as Nteziryayo, was present at the EER.4616 1978. Ntahobali further submits that, since Witness RE did not identify him, the Trial Chamber erred in finding that his identification by this witness was corroborated by hearsay evidence from unknown persons who informed her of Ntahobali's identity. 4617 He argues that the Trial Chamber 4609 Ntahobali Notice of Appeal, para. 219; Ntahobali Appeal Brief, paras. 573-597. See also AT. 15 April 2015 pp. 42, 43, 45. Ntahobali further submits that the Trial Chamber failed to apply sufficient caution when assessing identification evidence consisting of hearsay from witnesses with no prior knowledge of him, arguing that it was inappropriate for the Trial Chamber to rely on jurisprudence affirming the use of hearsay identification evidence, given the material differences between the evidence used to identify him and the convicted person in another case. See Ntahobali Appeal Brief, paras. 577-579, 593. The Appeals Chamber recalls that Ntahobali's arguments about the Trial Chamber's erroneous reliance on inapplicable jurisprudence when assessing identification evidence from witnesses with no prior knowledge of him have already been addressed and rejected. See supra, Section V.I.2(b)(i)a. 4610 Trial Judgement, para.

3946. See also ibid., para. 3856. 4611 Trial Judgement, para.

3946. See also ibid., para. 3856. 4612 Trial Judgement, para. 3946. 4613 Trial Judgement, para.

3948. See also ibid., para. 3862. 4614 Trial Judgement, para. 3946. 4615 Ntahobali Appeal Brief, para. 574, referring to Trial Judgement, para.

3948. See also AT. 15 April 2015 pp. 42, 43; AT. 16 April 2015 p. 35. 4616 Ntahobali Appeal Brief, paras. 575, 576. 1617 Ntahobali Appeal Brief, para. 577, referring to Trial Judgement, para.

3946. See also AT. 15 April 2015 p. 42. 690 Case No. ICTR-98-42-A 14 December 2015

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19675/H failed to specify which identification evidence corroborate Witness RE's. 4618 He also highlights that the unknown hearsay sources who identified him for Witness RE were from a commune remote 4619 from Butare Town.

1979. In addition, Ntahobali argues that the Trial Chamber erred in law in failing to treat identification evidence of Witness RE with sufficient caution despite the difficult conditions under which she made the identification at the EER. 620 In particular, he submits that, in concluding that Witness RE "had adequate conditions in which to observe and identify Ntahobali", the Trial Chamber failed to consider that the witness saw him at the EER only once at night, when Ntahobali was wearing a military uniform and was surrounded by soldiers while it was too dark to distinguish the uniforms, and made these observations from a distant corner in a heavy rain. 4621 Ntahobali adds that the Trial Chamber erred in concluding that sufficient lighting was present for Witness RE to identify him, disregarding the witness's own testimony that there was no electricity or lighting at the EER. 4622 1980. Finally, Ntahobali argues that the Trial Chamber erred in relying on the detailed and consistent nature of Witness RE's as well as Witness QY's overall testimonies concerning the events at the EER to find their identification evidence credible and reliable. 4623 Ntahobali submits that the credibility of these witnesses' testimonies about the events at the EER is an issue distinct from the reliability and credibility of their identification evidence, which does not revolve around honesty. 4624

According to him, since these witnesses were unable to identify him and their testimonies were "mutually inconsistent", the Trial Chamber failed to provide a reasoned opinion for finding their testimonies "consistent" 4625 1981. The Prosecution responds that the Trial Chamber reasonably found that, in light of the detailed and consistent nature of the overall testimonies of Witnesses RE and QY, Witness RE's identification evidence was credible and that the Trial Chamber cautiously assessed her evidence. 4626 4618 Ntahobali Notice of Appeal, para. 225; Ntahobali Appeal Brief, para. 577. 4619 See Ntahobali Appeal Brief, para. 578. 4620 Ntahobali Appeal Brief, para.

580. See also AT. 15 April 2015 p.

43. Ntahobali posits that no reasonable trier of fact could have found Witness RE's identification of him credible or reliable. See Ntahobali Appeal Brief, para. 581. 4621 Ntahobali Appeal Brief, para.

580. See also AT. 15 April 2015 p. 43. v3a Nahobali Apel Brief, para. 580, realis id. paragemen, para. 9 ral Judgement, para. 3949. 4625 Ntahobali Appeal Brief, para. 590. 4626 Prosecution Response Brief, paras. 971, 978. See also AT. 16 April 2015 p. 9. 691 Case No. ICTR-98-42-A 14 December 2015

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19674/H 1982. The Appeals Chamber recalls that Ntahobali's challenges regarding the general import of Witness RE misidentifying Ntahobali as Nteziryayo have already been addressed and rejected in a previous section of this Judgement. 627 Furthermore, in assessing the witness's evidence implicating Ntahobali in the attacks at the EER, the Trial Chamber not only concluded that the misidentification did not undermine the reliability of Witness RE's identification evidence in light of the "nearly nine years" that had passed since the attacks, but also considered the circumstances of her identification of Ntahobali at the EER as well as the overall context of her testimony regarding the events, including its detailed and consistent nature. 628 In the view of the Appeals Chamber, Ntahobali, who simply repeats the arguments he raised at trial, 4629 merely disagrees with the Trial Chamber's conclusion without demonstrating that the in-court misidentification could not have reasonably been attributed to the passage of time.

1983. The Appeals Chamber similarly sees no merit in Ntahobali's argument that the Trial Chamber erred in relying on hearsay evidence through which he was identified to Witness RE to corroborate Ntahobali's identification at the EER. While Witness RE's ability to identify Ntahobali was based on the information provided by others who identified him as "Shalom", 4630 the Appeals Chamber recalls that it has already addressed and dismissed Ntahobali's challenges to the Trial Chamber's general reliance on hearsay identification evidence.4631 Moreover, since Witness RE's evidence of Ntahobali's presence at the EER was supported by evidence of other witnesses who attested to seeing Niahobali, albeit on separate occasions, 4632 the Appeals Chamber is satisfied that a reasonable trier of fact could have concluded that Witness RE's hearsay evidence corroborated Ntahobali's identification at the EER. 4633 Finally, contrary to Ntahobali's contention, the summary of Witness RE's evidence reflects that Ntahobali was identified to her by "others from Butare", 4634 1984. As for Ntahobali's argument that the Trial Chamber overlooked the difficult conditions in which he was identified by Witness RE at the EER on the first night, the Appeals Chamber notes that, contrary to Ntahobali's contention, Witness RE did not testify that she saw Ntahobali at night 4627 See supra, para. 1624. 4628 See Trial Judgement, paras. 3946, 3948. See also ibid., para. 3856. 4629 See Ntahobali Closing Brief, para. 114. 4630 See Trial Judgement, paras. 3856, 3946. 4631 See supra, Section V.I.2(b) (i)a. 4632 See infra, Sections V.J.2(c)(ii)b, V.J.2(c)(ii)c. 4633 Trial Judgement, para.

3946. See also ibid., paras. 3947-3949. 692 Case No. ICTR-98-42-A 14 December 2015

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19673/H or that it was too dark to distinguish the uniforms. 4635 Instead, Witness RE testified that Ntahobali and the accompanying soldiers came in the evening between 5:30 and 6:00 p.m., while it was still relatively bright. 4636 In recounting Witness RE's testimony about her encounter with Ntahobali on the first night, the Trial Chamber referred to this excerpt of the witness's evidence, 4637 Furthermore, having reviewed Witness RE's evidence describing the circumstances of her encounter with Ntahobali, 4638 the Appeals Chamber is not persuaded that other factors listed by Ntahobali, which were expressly noted by the Trial Chamber, 4639 undermine the reasonableness of the Trial Chamber's reliance on this witness's identification evidence.

1985. With respect to Ntahobali's contention that the Trial Chamber erred in relying on the detailed and consistent nature of Witnesses RE's and QY's overall testimonies concerning the events at the EER to find their identification evidence reliable, the Appeals Chamber notes that Ntahobali's challenges related to the inconsistencies between the testimonies of Witnesses RE and QY are discussed and dismissed later in this Judgement. 640 The Appeals Chamber further recalls that general credibility of witnesses and the reliability of witness testimonies are among the relevant factors that a trier of fact is entitled to take into account when assessing identification evidence, 4641 The Appeals Chamber therefore finds no error in the Trial Chamber's consideration of these factors.

1986. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated an error in the Trial Chamber's reliance on Witness RE's identification evidence as it relates to his presence at the EER. (ii) Witness QY 1987. The Trial Chamber noted that Witness QY had seen Ntahobali on two occasions before the events at the EER, at the Butare University Hospital and the Butare Prefecture Office, respectively. 4642 It further recalled that Witness QY stated that she would not be able to identify Ntahobali in court but considered that it did not undermine the credibility or reliability of her 4635 The Appeals Chamber observes that the excerpt of Witness RE's testimony relied upon by Ntahobali in support of this contention details the circumstances in which the witness encountered Ntahobali at the Butare Prefecture Office rather than at the EER. See Ntahobali Appeal Brief, para. 580, referring to Witness RE, T. 26 February 2003 pp. 24, 25 ("Q. Madam Witness, when you said you saw Shalom and Kazungu come to the prefecture, in what way was he dressed? A. When they arrived, Shalom was dressed - was wearing a military uniform. Q. Are you able to describe the military uniform, since you did say that you knew some military uniforms? A. Yes, I did say that I know the uniforms worn by our soldiers, but I am saying that when they came it was night and I could not distinguish the uniform."). 4636 See Witness RE, T. 24 February 2003 p. 11, T. 26 February 2003 pp. 8, 9. 4637 See Trial Judgement, para. 3856, fns. 10397, 10399, referring to Witness RE, T. 24 February 2003 p. 11, T. 26 February 2003 pp. 8, 9. See also ibid., para.

3943. See Witness RE, T. 24 February 2003 pp. 11, 38, T. 26 February 2003 pp. 8-10. 4639 See Trial Judgement, paras. 3856, 3946. 4640 See infra, paras. 2038, 2039. 4641 See Niyitegeka Appeal Judgement, paras. 100, 101; Kayishema and Ruzindana Appeal Judgement, para. 327. 4642 Trial Judgement, para.

3947. See also ibid., para. 3875. 693 Case No. ICTR-98-42-A 14 December 2015

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19672/H identification of Ntahobali as the man who attacked the refugees at the EER given the time that had elapsed since the events and the detailed and consistent nature of her overall testimony regarding the events. 4643 1988. Ntahobali contends that the Trial Chamber erred in crediting Witness QY's identification evidence, which ought to have been approached with caution.** In particular, he argues that the Trial Chamber erroneously relied on the evidence of two prior sightings of him by the witness at locations other than the EER, while finding that he was not present at these locations. 4645 Specifically, he underlines that the Trial Chamber concluded that it had not been established beyond reasonable doubt that he went to the Butare University Hospital, rejecting Witness QY's identification evidence due to its hearsay nature and the witness's inability to identify Ntahobali in court. 4646 Ntahobali adds that the Trial Chamber failed to mention that Witness QY learned from an unknown hearsay source that the attacker's name was "Sharomo" 4647 Similarly, he emphasises that the Trial Chamber also rejected Witness QY's identification evidence of him at the prefectoral office. 4648 1989. Ntahobali further submits that the Trial Chamber failed to exercise caution in finding Witness QY's identification evidence credible and reliable despite her failure to identify him in court,

her admission that she lied to the court, and the Trial Chamber's conclusion that her sighting of him prior to her seeing him at the EER was not reliable. 449 In his view, the Trial Chamber failed to provide a reasoned opinion for finding Witness QY credible and reliable despite the adverse credibility findings made by the Trial Chamber concerning this witness as regards other events. 1050 1990. The Prosecution responds that the Trial Chamber reasonably found that, by the time the refugees were transferred from the prefectoral office to the EER in mid-May 1994, Witness QY had seen Ntahobali on two occasions.

465) In this context, it submits that the Trial Chamber acted within its discretion in finding that Witness QY's inability to identify Ntahobali in court did not undermine 4643 Trial Judgement, para.

3948. See also ibid., para. 3875. 4644 Ntahobali Appeal Brief, paras. 582, 586-588. See also Ntahobali Notice of Appeal, para. 224. 4645 Ntahobali Appeal Brief, paras. 583-586, referring to Trial Judgement, paras. 2141, 2142, 2616, 3947, 3948 See also AT. 15 April 2015 pp. 42-44. 646 Ntahobali Appeal Brief, para. 584, referring to Trial Judgement, paras. 2141, 2142. See also AT. 15 April 2015 4648 Niahobali Appeal Brief, para. 585, referring to Trial Judgement, para.

2616. See also Ntahobali Notice of Appeal, para. 224; AT. 15 April 2015 pp. 43, 44 2619 Ntahobali Appeal Brief, paras. 587, 588, referring, inter alia, to Trial Judgement, paras. 200-203. See also AT. 15 April 2015 p. 44. 4650 tahobali Appeal Brief, para. 588, referring to Trial Judgement, paras. 2141, 2616, 2620-2626, 3960-3963, 4210. 4651 Prosecution Response Brief, para. 973. 694 Case No. ICTR-98-42-A 14 December 2015

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19671/H her credibility or the reliability of her identification evidence, particularly as her account was corroborated. 4652 1991. The Trial Chamber noted that Witness QY had seen Ntahobali on two prior occasions, at the prefectoral office and the Butare University Hospital, before seeing him at the EER. 4653 However, the Appeals Chamber observes that, elsewhere in the Trial Judgement, the Trial Chamber unequivocally rejected Witness QY's evidence implicating Ntahobali in the attacks at the Butare Prefecture Office in late April or early May 1994 due, in part, to the unreliable nature of her identification evidence.454 Moreover, the Appeals Chamber has previously determined that the Trial Chamber erred in relying on the evidence of Witness QY with respect to the presence of Ntahobali during the attacks at the prefectoral office around the end of May or the beginning of June 1994.4655 Similarly, regarding the events at the Butare University Hospital between April and May 1994, the Trial Chamber also concluded that Witness QY's identification evidence - the only evidence implicating Ntahobali - raised a doubt about Ntahobali's presence during the events. 4656 Accordingly, the Appeals Chamber finds that the Trial Chamber erred in relying on Witness QY's prior sightings of Ntahobali on two occasions in support of the witness's identification of him at the EER. 4657 1992. However,

the Appeals Chamber considers that this error has not occasioned a miscarriage of justice. In particular, the Appeals Chamber observes that Witness QY not only referred to Ntahobali as "Shalom" but also specified that he was the son of Nyiramasuhuko and that she did not know anyone else in Butare by that name, which contradicts Ntahobali's contention that the witness was referring to another person.4658 The Appeals Chamber is therefore of the view that the Trial Chamber's erroneous reliance on Witness QY's prior sightings of Ntahobali does not undermine its reliance on Witness QY's evidence in identifying him during the events at the EER.

1993. Turning to Witness QY's inability to identify Ntahobali in court, the Appeals Chamber recalls that the failure to identify an accused in court can be a reason for declining to rely on the evidence of an identifying witness but it does not necessarily prevent a reasonable trier of fact from relying on that witness's testimony, 465 In the current instance, the Trial Chamber acknowledged Witness QY's admission that she would not be able to identify Ntahobali in court but considered 4652 Prosecution Response Brief, para. 978. 1653 See Trial Judgement, para. 3947. 4654 See Trial Judgement, paras. 2615, 2616, 2626. 465S See supra, paras. 1686, 1687. See Trial Judgement, para.

2141. See also ibid., para. 2142. 4657 See Trial Judgement, para. 3947. 4658 See, e.g., Witness QY, T. 19 March 2003 pp. 13, 14, 65. See also Trial Judgement, para. 3875. 4659 See Lukic and Lukié Appeal Judgement, para.

503. See also Rukundo Appeal Judgement, para. 71; Limaj et al. Appeal Judgement, fn. 68, referring to Kvocka et al. Appeal Judgement, para. 473. 695 Case No. ICTR-98-42-A 14 December 2015

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19670/H that, in view of the consistent and detailed nature of her overall testimony and the time that elapsed since the events, it did not undermine the credibility or reliability of her identification of Ntahobali as the man who attacked the refugees at the EER. 4660 The Appeals Chamber is therefore satisfied that the Trial Chamber exercised sufficient caution when assessing this aspect of Witness QY's evidence.

1994. With respect to Ntahobali's arguments related to Witness QY lying to the Trial Chamber, the Appeals Chamber recalls that they have already been addressed and dismissed in a prior section of this Judgement. 4661 The Appeals Chamber finds Ntahobali's contention that the Trial Chamber provided insufficient explanation for its reliance on Witness QY's identification evidence in light of its credibility findings regarding this witness in relation to other events unpersuasive. Recalling that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony, 4662 the Appeals Chamber observes that the Trial Chamber not only articulated its reasons for accepting Witness QY's identification evidence with respect to the EER, including, inter alia, the detailed and consistent nature of her overall testimony, but also for its decision not to credit her evidence in relation to other events. 4663 1995. Under these circumstances, the Appeals Chamber considers that Ntahobali has not demonstrated that a reasonable trier of fact could not have relied on Witness QY's identification of him at the EER. (iii) Witness SX 1996. The Trial Chamber noted that Witness SX learned Ntahobali's identity through a third person at the roadblock in front of Nyiramasuhuko's house. 4664 It further noted that Witness SX had several opportunities to observe Ntahobali at

the EER and, recalling its findings about the lighting conditions at the EER, found Witness SX's testimony to be reliable and corroborative of Ntahobali's involvement in the attacks at the EER. 4665 1997. Ntahobali contends that, in relying on Witness SX's testimony about the lighting conditions at the EER, the Trial Chamber failed to discuss that Witness SX initially testified that he could not recall whether there was lighting at the EER before indicating that light emanated from the lamps 4660 Trial Judgement, para.

3948. See also ibid., para. 3875. 4661 See supra, Section III.J.3. Na see, la, ima sa emeal Juda, 155, Marya Kas; Apeasora eat Ne para. TO Appeal Judgement, para, 243; 4663 See supra, paras. 1991-1993 4664 Trial Judgement, para.

3949. See also ibid., para. 3880. 4665 Trial Judgement, para.

3949. See also ibid., paras. 3878, 3879, 3946. 696 Case No. ICTR-98-42-A 14 December 2015 au

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19669/H on the building across the road. 4666 In his view, it was unreasonable for the Trial Chamber to rely on Witness SX's evidence when considering the circumstances under which he was observed at the EER by Witness RE on the first night, since the latter testimony denotes that the veranda where Witness RE was located was not lit.467 Ntahobali also points out that, according to Witness RE, there was no light or electricity available at the EER. 4668 1998. The Prosecution responds that, based on the several opportunities that he had to observe Ntahobali under adequate lighting, the Trial Chamber reasonably found that Witness SX's testimony was reliable and corroborative of Ntahobali's involvement in the EER attacks. 4669 1999. The Appeals Chamber observes that the Trial Chamber relied on Witness SX's testimony that there was lighting at the EER school itself, but not in the classrooms. 4670 Contrary to Ntahobali's contention, Witness SX not only mentioned the lights on the building on the other side of the road that shed light onto the EER but also indicated that there were lights on the buildings of the EER school, except in the classrooms. 4671 2000. Regarding Ntahobali's contention that the Trial Chamber erred in relying on the evidence about lighting at the EER from Witness SX when finding that Witness RE was able to identify Ntahobali, the Appeals Chamber observes that

Witness RE testified that there was no electricity or lighting at the EER. 4672 However, the Appeals Chamber finds that Ntahobali places undue emphasis on this purported contradiction between the evidence of Witnesses SX and RE. While Witness SX was asked numerous questions and provided a detailed description of the positioning of lights at the EER and its surroundings, Witness RE broadly indicated that there was no lighting or electricity when discussing the overall conditions at the EER. 4673 The Appeals Chamber is of the view that any 1666 Ntahobali Appeal Brief, para. 580, referring to Witness SX, T. 30 January 2004 p. 49 (closed session). See also ibid., para. 592, referring to Trial Judgement, para. 3949. 1667 Ntahobali Appeal Brief, para. 580, referring to Witness RE, T. 26 February 2003 pp. 18, 19. See also AT. 15 April 2015 p. 43. 4668 Ntahobali Appeal Brief, para.

580. See also ibid., para. 592, referring to Trial Judgement, para.

3949. Ntahobali, repeating that the testimony of Witness SX drastically diverged from the testimonies of Witnesses RE and QY as well as the Trial Chamber's own findings, further argues that it was unreasonable for the Trial Chamber to rely on his identification evidence concerning the attacks at the EER in general or to corroborate the evidence of Witnesses RE and QY. See ibid., para.

594. These challenges are addressed and dismissed above and below. See supra, Section V.G.4(b); infra, Section V.J.2(c)(ii). Ntahobali also submits that the Trial Chamber erred in failing to assess Witness SX's identification evidence with caution even though he did not know Ntahobali prior to the events of 1994 and that the witness's evidence that he "appear[ed]... to resemble" the attacker at the EER was insufficient to establish a positive identification beyond reasonable doubt. See Ntahobali Appeal Brief, para.

591. See also AT. 15 April 2015 p.

44. The Appeals Chamber has addressed and rejected these arguments when addressing Ntahobali's submissions pertaining to the rape and murder of a Tutsi girl at the Hotel Ihuliro roadblock. See supra, Section V.G.4(b). Prosecution Response Brief, para. 974, referring to Trial Judgement, para. 3949, Renzaho Appeal Judgement, Bar Trial Judgement, para, 3946. See also ibid., paras. 3879, 3949. 4671 See Witness SX, T. 30 January 2004 p. 49 (closed session). 4672 See Witness RE, T. 26 February 2003 p. 18. 4673 Compare Witness SX, T. 30 January 2004 p. 49 (closed session) with Witness RE, T. 26 February 2003 p. 18. 697 Case No. ICTR-98-42-A 14 December 2015

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19668/H inconsistency between the two testimonies would not have prevented a reasonable trier of fact from relying on Witness SX's evidence about the lighting conditions at the EER. Furthermore, when reviewing the Trial Chamber's findings as to the conditions under which Witness RE observed Ntahobali at the EER, the Appeals Chamber considers that Witness SX's evidence regarding the availability of lighting at the EER was not essential to the Trial Chamber's conclusion that Witness RE identified Ntahobali since she observed Ntahobali at the EER in the early evening while it was still relatively bright. 4674 2001. In light of the foregoing, the Appeals Chamber rejects Ntahobali's submissions concerning the Trial Chamber's assessment of Witness SX's identification evidence as it relates to Ntahobali's presence at the EER. (iv) Witness TB 2002. The Trial Chamber found that the sighting of Ntahobali at the EER church compound by Witness TB, who was not at the EER, contradicted Ntahobali's testimony that he never entered the EER complex, and further corroborated the presence of Ntahobali at the EER. 4675 2003. Ntahobali submits that the Trial Chamber erred in concluding that Witness TB's evidence corroborated his presence at the EER.4676 In particular, he argues that Witness TB's testimony that she saw a man called "Sharoumou" at a location different from the EER, at an unspecified

time, does not corroborate the evidence of Witnesses RE, QY, and SX about his presence at the EER. 4677 2004. The Prosecution responds that Witness TB identified Ntahobali in court and gave the names of Ntahobali's parents. 4678 2005. The Appeals Chamber considers that, assuming that the recording of Witness TB's testimony would reveal that the witness referred to Ntahobali as "Sharoumou" rather than "Shalom", this would not constitute a material variance requiring express analysis by the Trial Chamber. A review of the transcripts cited by Ntahobali reflects that Witness TB referred to 4674 See Trial Judgement, para, 3946. See also supra, para. 1984. 4676 Ntahobali Appeal Brief, para. 595, referring to Trial Judgement, para. 3950. 4678 Prosecution Response Brief, para. 972. 698 Case No. ICTR-98-42-A 14 December 2015

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19667/H Ntahobali as "Shalom"4679 and provided biographical information about Ntahobali demonstrating her ability to identify Ntahobali and that she was referring to him and not to someone else. 4680 2006. The Appeals Chamber also observes that the Trial Chamber expressly noted that Witness TB was not at the EER but found that her testimony that she saw Ntahobali at the EER church compound nevertheless contradicted Ntahobali's assertion that he never entered the EER complex. 4681 Ntahobali does not challenge this finding. Recalling that corroboration may exist even some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony, 4682 the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in relying on Witness TB's testimony to corroborate other evidence reflecting Ntahobali's presence at the EER. (v) Conclusion 2007. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of the identification evidence relating to his presence at the EER. (c) Evidence Concerning Attacks 2008. Ntahobali challenges the Trial Chamber's assessment of the Prosecution evidence as it relates to: (i) the timing of the events at the EER and number of

refugees; (ii) his presence and involvement in attacks at the EER; and (ili) the killings during such attacks. 4883 (i) Timing of Events and Number of Refugees 2009. The Trial Chamber accepted Nsabimana's estimation that refugees at the Butare Prefecture Office were transferred to the EER between 15 and 20 May 1994 and stayed there 4679 See, e.g., Witness TB, T. 4 February 2004 p. 42. 4680 See Witness TB, T. 4 February 2004 p. 42 (identifying Ntahobali as the son of Maurice Ntahobali and Pauline no see Till Judgement, para, 3950. See also ibid., para. 3881; Witness TB, T. 4 February 2004 p.

50. The Appeals Chamber considers that, since Witness TB was not at the EER, the fact that she did not testify about the presence of the refugees does not render her testimony incompatible with the remainder of the evidence concerning the events at the EER. 4682 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Setako Appeal Judgement, para. 31; Hategekimana Appeal Judgement, para. 82; Nahimana et al. Appeal Judgement, para.

428. See also Ndahimana Appeal Judgement, para. 93 ("The Appeals Chamber also recalls that two prima facie credible testimonies need not be identical in all aspects in order to be corroborative and that corroboration may exist even when some details differ."). 4683 See Ntahobali Notice of Appeal, paras. 217, 218, 228-234; Ntahobali Appeal Brief, paras. 510-571 ; Ntahobali Reply Brief, paras. 229-242. 699 Case No. ICTR-98-42-A 14 December 2015

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19666/H until approximately 31 May 1994 when they returned to the prefectoral office. 4684 The Trial Chamber concluded that this was corroborated by the evidence of Witnesses RE, SX, Bararwandika, and H1B6.4685 2010. Specifically, the Trial Chamber considered Witness RE's evidence that she was one of the refugees transferred to the EER from the prefectoral office based on Nsabimana's orders and found that she arrived there in mid-May 1994, 4686 It also concluded that Witness SJ's testimony about her visits to the EER concerned "approximately the same time period, i.e. mid-May 1994."4087 Having regard to Witness SX's evidence, which reflected that refugees stayed at the EER for a longer period of time than that estimated by Witnesses RE and SJ, the Trial Chamber also concluded that "the refugees must have started arriving at the EER around the start or middle of May 1994»4688 Finally, the Trial Chamber, having considered the evidence of Witnesses RE, SJ, SX, Nsabimana, and Exhibit P27, which was contrasted by several Defence witnesses; concluded that the "number of refugees at the EER during late-May 1994 well exceeded 200."4689 2011. Ntahobali challenges the assessment of Prosecution evidence underpinning these conclusions. 4690 Specifically, he contends that the Trial Chamber erred in finding that Witness RE was at the EER "sometime around mid-May 1994", as the witness's

evidence reflects that she was at the EER from 15 to 22 April 1994.469! He further submits that Witness RE's testimony that more than 300 refugees at the EER materially contradicts her prior statement that there were 4,000.4692 2012. Ntahobali also contends that Witness SJ's evidence that the refugees were shuttled between the prefectoral office and the EER and did not stay at the EER except for three or four non-consecutive days contradicts the evidence of other witnesses and the Trial Chamber's findings that refugees remained at the EER. 4693 4684 See Trial Judgement, para. 3934, referring to Nsabimana, T. 9 October 2006 pp. 71, 73, 75. 4685 Trial Judgement, para. 3934. 4686 Trial Judgement, para. 3935. 4687 Trial Judgement, para. 3936. 4688 Trial Judgement, para. 3936. 4689 Trial Judgement, paras. 3935-3938, referring, inter alia, to Exhibit P27 (Videotape of views of the Butare Prefecture Office and the EER). 4690 Ntahobali Appeal Brief, para. 509. 4691 Ntahobali Appeal Brief, para. 534, referring to Trial Judgement, para. 3935. 4692 Ntahobali Appeal Brief, para.

531. See also ibid., para. 509. 4693 Ntahobali Appeal Brief, paras. 566, 567. Ntahobali adds that Witness SJ's evidence should have been dismissed in light of her confessed falsehood and because she was unable to recognize the "EER schools" in a photograph. See ibid., paras. 568, 569. The Appeals Chamber recalls, however, that it has already dismissed Ntahobali's contention that the Trial Chamber should have rejected all of Witness SJ's evidence in light of her having falsely denied knowing other witnesses while testifying before the Tribunal. See supra, Section III.J.3. Likewise, Appeals Chamber does not consider that Witness SJ's inability to identify a photograph of the EER school made it unreasonable for the Trial Chamber to rely on her evidence given the short and turbulent period in which she testified she was at the complex. 700 Case No. ICTR-98-42-A 14 December 2015 тии

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19665/H 2013. Finally, Ntahobali argues that Witness SX's testimony that the refugees were at the EER for approximately two months, from "a short while after" 21 April 1994 to "shortly before 20 June 1994", is materially inconsistent with the Trial Chamber's conclusions that refugees did not start arriving from the prefectoral office until between 15 and 20 May 1994 and only stayed until around 31 May 1994.4694 In his view, this material inconsistency should have led to the rejection of Witness SX's evidence concerning the events at the EER. 4695 2014. The Prosecution did not specifically respond to these arguments.

2015. With respect to the timing of Witness RE's arrival at the EER, the Appeals Chamber observes that the Trial Chamber extensively recalled her evidence as to her whereabouts, which, based on her estimation, could have placed her transfer from the prefectoral office to the EER in April 1994.4696 However, after considering the corroborative evidence of Witnesses H1B6 and Bararwandika, the Trial Chamber determined that she was at the EER sometime around mid-May 1994.4697 As noted above, Nsabimana testified that refugees at the prefectoral office were transferred around mid-May 1994,4698 and Witness RE testified that she was one of those refugees. 4699 2016. The Appeals Chamber recalls that it is open for a trial chamber "to make factual findings on the date of the events by examining the evidence as a whole and, [that] indeed, this may be particularly necessary when determining dates, as often witnesses may not recall an exact date but describe the timing of the event in relation to other variable.»4700 Notably, Witness RE also emphasised that she could only provide estimates as to the dates when she was in Butare. 4701 Under these circumstances, Ntahobali does not demonstrate that the Trial Chamber's assessment of Witness RE's evidence as to the timing of her arrival at the EER was unreasonable.

2017. With respect to the alleged contradiction between Witness RE's testimony and prior statement as to the number of refugees she saw at the EER, the Trial Chamber recalled that Witness RE's prior statement indicated that there were 4,000 refugees at the EER whereas her testimony reflected that there were more than 300.4702 it further noted her explanation that she had 4694 Ntahobali Appeal Brief, para. 560 (emphasis omitted). See also AT. 15 April 2015 p. 45. 4695 Ntahobali Appeal Brief, paras. 560, 919. 4696 See Trial Judgment, para.

3935. See also Witness RE, T. 24 February 2004 p. 9, T. 25 February 2004 p. 4. 4697 Trial Judgement, para. 3935. ch Sec That dement, para 3020. Se diso tid. para 3936. no Set Wither A T. 1 a 205 - 1. 251 or 20 e). 4702 Trial Judgement, paras. 3861, 3935. 701 Case No. ICTR-98-42-A 14 December 2015

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19664/H never given a precise number but only indicated that there were many refugees. 4703 Ntahobali fails to demonstrate the materiality of this contradiction or that the explanation provided by the witness was unreasonable. He also does not show how any error in Trial Chamber's assessment of it would result in a miscarriage of justice given other evidence supporting its conclusion that the number of refugees at the EER during late-May 1994 well exceeded 200.4704 2018. As regards Ntahobali's contention that Witness SJ's evidence about refugees not being continuously present at the EER contradicts the evidence of Witness RE and the Trial Chamber's findings that refugees remained there, the Trial Chamber recalled Witness SJ's evidence that, during the time she was at the prefectoral office, she went to the EER on three or four non-successive days.4705 The transcripts cited by Ntahobali reveal that Witness SJ was only testifying about her own presence at the prefectoral office and the EER rather than that of the refugees in general. 4706 In the view of the Appeals Chamber, no contradiction therefore exists. 4707 2019. Concerning Ntahobali's challenges that Witness SX's evidence is inconsistent with the conclusion that refugees from the prefectoral office arrived in mid-May 1994 and returned at the end of the month, the Appeals Chamber notes that Witness SX did not specify that

the refugees he identified came from the prefectoral office.4708 Furthermore, he explained that he could only estimate dates as to the refugees' arrival at and departure from the EER. 4709 Ntahobali does not demonstrate that the Trial Chamber acted unreasonably in relying on Witness SX's evidence to conclude that "refugees must have started arriving at the EER around the start or middle of May 1994.*4710 4703 See Trial Judgement, para. 3861. 4704 See Trial Judgement, paras. 3936-3938. 4705 See Trial Judgement, para.

3884. The Trial Chamber also acknowledged that, according to Witness SJ's Statement, (Witness SJ's Statement). 4706 See, e,g., Witness SJ, T. 30 May 2002 p. 78 ("A. [...] I think I was there for four days"). While Witness SJ indicated at one point that "we usually would not remain for several days", she did not specify whether she was talking about all the refugees or a few. See Witness SJ, T. 4 June 2002 p. 66. 4707 The Appeals Chamber has previously rejected Ntahobali's contention that the Trial Chamber's conclusions about the transfer of refugees from the prefectoral office to the EER were contradictory to its findings concerning the attacks at the Butare Prefecture Office in May 1994 as well as his challenges to the Trial Chamber's reliance on the evidence of Witness TA concerning the attacks at the prefectoral office. See supra, Section V.I.2(c)(iii). 4708 See Trial Judgement, para. 3934; Witness SX, T. 30 January 2004 p. 50 (closed session). 4709 More specifically, Witness SX testified that he could not remember precisely when the refugees started arriving, estimating that it was one or two weeks after his arrival in Butare and indicating that he was living at the EER around two weeks after the President's death. See Trial Judgement, para. 3877, referring to Witness SX, T. 27 January 2003 p. 15, T. 30 January 2004 p. 50 (closed session). Witness SX similarly testified that the date he gave for the evacuation of the refugees was an approximation, placing it towards the end of the war. See Witness SX, T. 30 January 2004 p. 52, 55 'Trial Judgement, para. 3936 702 Case No. ICTR-98-42-A 14 December 2015

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19663/H 2020. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in its assessment of the evidence regarding the timing of the refugees' arrival at the EER or their number. (ii) Presence and Involvement of Ntahobali During Attacks 2021. The Trial Chamber, without citation to supporting evidence, concluded that "Ntahobali was involved in and led Interahamwe in attacks against, and abductions of, Tutsi refugees during their stay at the EER" and that "soldiers, both alone and accompanied by Ntahobali, came to the EER and were also involved in abductions of refugees during the same period" 4711 A comprehensive reading of the Trial Judgement, as set forth in greater detail below, reflects that these conclusions are based on direct evidence from Witnesses RE, QY, and SX of Ntahobali's presence and participation in attacks at the EER with Interahamwe and/or soldiers. 4712 2022. Ntahobali contends that the accounts of Witnesses RE, QY, and SX - the only witnesses who testified of seeing him committing crimes at the EER - were materially inconsistent and that the Trial Chamber erred in failing to assess these differences. 4713 In particular, Ntahobali submits that these three witnesses all described Ntahobali participating in attacks on the "first day" - i.e. the day refugees from the prefectoral office arrived at the EER -

and contends that the Trial Chamber failed to draw negative inferences based on the differences among their evidence. *714 2023. Ntahobali also argues that the Trial Chamber failed to consider the evidence of Witnesses TA, SJ, QBQ, QBP, and SD, who testified about attacks at the EER, yet never mentioned Ntahobali's presence even though they implicated him in attacks at the prefectoral office. *715 Ntahobali highlights that the evidence of Witness QY reflects that she and Witness QBQ were always together at the EER and that Witness RE similarly testified about always being together with Witness SJ.4716 2024. The Prosecution, emphasising aspects of the testimonies of Witnesses RE, QY, and SX that Ntahobali was present and participated in the attacks at the EER, submits that it was for the Trial Chamber to determine whether the inconsistencies in their accounts were sufficient to cast doubt on 4711 Trial Judgement, para. 3965. 4712 See Trial Judgement, para.

3946. The Appeals observes that the Trial Chamber also identified Witness TB as a witness who supported the conclusion that Ntahobali was present at the EER. See idem. However, the Trial Chamber relied on Witness TB's evidence to the limited extent that Ntahobali was present at the EER's church compound with a man named Kazungu but not to conclude that Ntahobali was present during the attacks at the EER. See ibid., para.

3950. See also ibid., para. 3881 713 Ntahobali Appeal Brief, paras. 518, 522, 546 4714 See Ntahobali Appeal Brief, paras. 512, 520, 522, 564. 4715 See Ntahobali Appeal Brief, paras. 519, 520, 528, 530, 536, 538, 540, 596. 4716 See Ntahobali Appeal Brief, paras. 519, 537, 547. 703 Case No. ICTR-98-42-A 14 December 2015

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19662/H their credibility and that Ntahobali's arguments fail to demonstrate that the Trial Chamber erred in exercising its broad discretionary power.4717 2025. Having reviewed the findings of the Trial Chamber, the summary of the evidence referred to by it, and the references provided by Ntahobali, the Appeals Chamber is satisfied that Witness RE testified to Ntahobali's participation in an attack on the EER the night she and other refugees arrived at the EER from the prefectoral office.4718 While the Trial Chamber, when crediting Witness RE's evidence about this attack found that it was "variously corroborated" by evidence from Witness QY,4719 the Appeals Chamber is not persuaded that the Trial Chamber found that Witness QY testified to Ntahobali's presence during an attack on the evening refugees arrived from the prefectoral office 720 nor that her evidence dictates this conclusion. 472l Likewise, neither the Trial Chamber's summary of, or deliberations on, Witness SX's evidence, 1722 nor a review of his evidence dictates that he testified about Ntahobali's presence specifically during an attack on the night the refugees first arrived from the prefectoral office 423 In light of these conclusions, the Appeals Chamber rejects as meritless Ntahobali's direct comparisons between these witnesses' evidence as to, for example, the specific identity of the perpetrators who accompanied Ntahobali or the timing of his presence. 4724 2026. The Appeals Chamber is also not persuaded by Ntahobali's contention that the Trial Chamber disregarded evidence of Witnesses TA, SJ, QBQ, QBP, and SD since the Trial Chamber set forth and considered the evidence of Witnesses TA, SJ, and QBQ in relation to the events at the 4717 Prosecution Response Brief, para.

960. See also ibid., paras. 966, 968; AT. 16 April 2015 pp. 8, 9. 4718 See Trial Judgement, paras. 3854-3856, 3946; Witness RE, T. 24 February 2004 pp. 10-12, T. 26 February 2004 4719 Trial Judgement, para.

3943. In particular, the Trial Chamber noted that "[djetails referring to the rain, some classroom doors being locked and seeking shelter on the veranda and the attack on the first night were variously corroborated" by, inter alios, Witness QY. See idem (internal references omitted). 4720 In particular, in summarising Witness QY's evidence, the Trial Chamber noted that soldiers and Interahamwe came to the EER to beat refugees on the evening she and other refugees arrived there from the prefectoral office as well as that Ntahobali was not with them. See Trial Judgement, paras. 3866, 3867. 4721 See Witness QY, T. 19 March 2003 pp. 52-59, T. 24 March 2003 pp. 35, 36 4722 See Trial Judgement, para.

3878. Indeed, the Trial Chamber did not rely on Witness SX's evidence in relation to Witness RE's evidence of an attack on the night refugees arrived from the prefectoral office, nor do Ntahobali's references to elements in Witness SX's evidence demonstrate that his testimony concerns that attack. See Trial Judgement, para. 3943 (referring only to the testimonies of Witnesses RE, QY, SJ, and QBQ when crediting the former witness's account of an attack on the first evening). 4723 See Witness SX, T. 30 January 2004 p. 56. 4724 In particular, the Appeals Chamber dismisses without further consideration Ntahobali's contentions: (i) relating to Witness SX in paragraphs 515, 520 of his appeal brief; (ii) concerning the discrepant nature of the testimonies of Witnesses RE, QY, and SX as to the "status' of the attackers", as well as the fact that Witnesses QY and SX did not testify about Presidential Guard wearing red berets and white belts in paragraph 532 of his appeal brief; and (iji) relating to the alleged general inconsistencies in the testimonies of Witnesses QY and RE as to the presence of Ntahobali, Interahamwe, and soldiers as developed in paragraph 546 of his appeal brief. 704 Case No. ICTR-98-42-A 14 December 2015

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19661/H EER4725 and, in another part of the Trial Judgement, noted the testimonies of Witnesses QBP and SD that they went to the EER.4726 2027. Moreover, contrary to Ntahobali's contention, Witness RE did not claim that she was always with Witness SJ at the EER, but instead testified that they were not together all the time as this was not possible. 427 Similarly, a review of Witness QY's testimony reveals that she mentioned being with Witness QBQ at the prefectoral office and at the EER, without specifying that they were always together. 4728 2028. Bearing in mind the conclusion that the direct comparisons between witnesses' evidence is inapposite, as well as the fact that Ntahobali's criminal liability is linked only to attacks where he was present and not attacks at the BER in general,472) the Appeals Chamber will now assess the merits of his challenges as they relate, respectively, to the Trial Chamber's reliance on the evidence of Witnesses RE, QY, and SX about Ntahobali's presence and participation in various attacks at the EER. a. Ntahobali's Presence During the Attack Described by Witness RE 2029. Witness RE's evidence, as summarised and assessed by the Trial Chamber, reflects that she was among the refugees transferred from the Butare Prefecture Office to the EER in mid-May 1994 upon Nsabimana's orders.4730 The Trial Chamber noted that she testified that, on the

evening following this transfer, soldiers, including some from the Presidential Guard, "accompanied by an Interahamwe called Shalom" came to EER and that "[t]hey took away men and boys to a nearby forest" and that the witness believed that "they had been executed because they never came back."4731 The Trial Chamber noted Witness RE's testimony that, during the following days, Interahamwe returned to the EER to take away people and killed them and that "Shalom" was their leader. 4732 2030. When discussing the relevant evidence, the Trial Chamber recalled Witness RE's testimony concerning the transfer of refugees from the prefectoral office to the effect that an attack occurred on the evening of this transfer and found Witness RE's evidence "to be credible" 4733 The Trial Chamber found that Witness RE's evidence was "variously corroborated" by Witnesses QY, SJ, 4725 See Trial Judgement, paras. 3884-3891, 3893, 3894, 3943-3945. 4726 See Trial Judgement, paras. 2265, 2312. 4727 See Witness RE, T. 24 February 2003 p. 56 (closed session). 4728 See Witness QY, T. 23 February 2009 pp. 40, 41 (closed session). 4729 See supra, para. 1956; infra, para. 2082. 4730 See Trial Judgement, paras. 3854, 3855, 3935, 3943. 4731 Trial Judgement, para.

3856. See also ibid., para. 3857. 4732 Trial Judgement, paras. 3858, 3859. 705 Case No. ICTR-98-42-A 14 December 2015

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19660/H and QBQ.4734 It also noted Witness RE's evidence "that Interahamwe, including their leader named Shalom, came to the EER, picked out young men and took them to the nearby forest to be killed»4735 and relied on her account that Interahamwe committed attacks at the EER and that Ntahobali was present at the EER. 4736 The Trial Chamber also found that Witness RE corroborated other evidence that soldiers came to the EER to abduct and kill refugees. 4737 2031. Ntahobali contends that, contrary to the Trial Chamber's finding, Witness RE's evidence does not indicate that he was present at the EER with Interahamwe during attacks as the witness only testified to him being present with soldiers. 4738 He also argues that the witness's evidence is replete with material contradictions with her prior statement to Tribunal investigators in relation to the attack during which he was allegedly present and that the Trial Chamber erred in failing to address them.*739 2032. Ntahobali also argues that the Trial Chamber erred in crediting Witness RE's evidence that he was present during an attack on the evening refugees arrived from the prefectoral office and in finding that it was "variously corroborated" by Witnesses QY, SJ, and QBQ.4740 He contends that, aside from Witness RE, none of these witnesses testified that Ntahobali was present during such an attack. 4741 Ntahobali also asserts

that Witness RE only testified about soldiers being present during this attack, whereas Witness QY testified that the attack was carried out by soldiers and Interahamwe. 4742 He points to further differences between the evidence of Witnesses RE and QY as to whether the refugees arrived at the EER in the afternoon or the evening as well as whether the refugees were confined to the verandas as the school doors were locked or whether some sought refuge in classrooms. 4743 2033. As regards Witness SJ, Ntahobali emphasises that Witness RE spoke of a single attack that only involved Ntahobali and soldiers, whereas Witness SJ testified about an attack during the day and another in the night by soldiers and Interahamwe. 474* He submits that Witness SI's evidence 4733 Trial Judgement, para. 3943. 4734 Trial Judgement, para. 3943. 4735 Trial Judgement, para. 3944. 4736 Trial Judgement, paras. 3945, 3946, 3948. 4737 Trial Judgement, para.

3952. See also ibid., para. 3953. 4738 See Ntahobali Appeal Brief, paras. 513, 520, 524, 525, 531. 4739 Ntahobali Appeal Brief, para. 531. 4740 Ntahobali Appeal Brief, paras. 520, 535, referring to Trial Judgement, paras. 3943, 3944. 4741 Ntahobali Appeal Brief, paras. 519, 520, 530, 536, 538, 539. Ntahobali also appears to argue that Witness QY testified that Ntahobali was present during an attack on the evening refugees arrived at the BER from the prefectoral office. See ibid., paras. 544-546. The Appeals Chamber has dismissed Ntahobali's interpretation of the Trial Judgement and the evidence in this respect below. See infra, paras. 2054, 2055. 4743 Ntahobali Appeal Brief, para.

520. Ntahobali adds that Witness SJ testified that the school doors were locked on the first evening. See idem. 4744 Ntahobali Appeal Brief, para. 538. 706 Case No. ICTR-98-42-A 14 December 2015

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19659/H did not corroborate Witness RE's concerning the participation of Interahamwe as they gave conflicting descriptions of what they wore. 4745 Ntahobali also argues that Witness QBQ did not testify about an "attack on the first night" and never mentioned the presence of Interahamwe 4746 2034. The Prosecution responds that Ntahobali does not demonstrate that the Trial Chamber erred in relying on Witness RE's evidence, much of which was corroborated by other evidence. 4747 2035. With respect to Ntahobali's contention that, contrary to the Trial Chamber's finding, Witness RE did not testify that he was present at the EER with Interahamwe, the Appeals Chamber notes that the Trial Chamber's statement that "Interahamwe, including their leader named Shalom, came to the EER, picked out young men and took them to the nearby forest to be killed" may give the misleading impression that Witness RE testified that Ntahobali participated in attacks at the EER with Interahamwe. 4748 Witness RE, however, only testified about seeing Niahobali at the BER during one attack in the evening of the refugees' arrival at the EER from the prefectoral office, that he was accompanied by soldiers on this occasion, and that persons were abducted and killed during this attack." 4749 2036. While the language employed by the Trial Chamber is confusing, a review of the Trial Chamber's summary of Witness RE's

evidence and remaining discussion of her evidence nonetheless shows that the Trial Chamber did not misconstrue the witness's testimony. The Trial Chamber only relied on it to the extent that it established Ntahobali's participation in an attack at the EER with soldiers and that Interahamwe participated in subsequent attacks on the EER,4750 corroborating Witness SJ's evidence that Interahamwe committed attacks there, 475l and reflected the witness's understanding that Ntahobali was the leader of the Interahamwe.4752 Witness RE's testimony on the latter issue shows that she considered Ntahobali as the leader of the Interahamwe 4745 Ntahobali Appeal Brief, paras. 525, 526. Specifically, Ntahobali contends that Witness RE testified that the Interahame wore banana leaves, while Witness SJ testified that they wore civilian clothes at night and military uniforms during the day. He also argues that no reasonable trier of fact would have relied on Witness SI's identification of Interahamwe simply because she named them, particularly because her prior statement contains no reference to Interahamwe at the EER and in light of her spurious explanation that she did not have time to mention them. See ibid., paras. 525-527. Given the Trial Chamber's acknowledgement that the Interahamwe and soldiers may have been interchangeable for Witness SJ because they both wore uniforms, the Appeals Chamber considers that the distinction concerning their attire is inapposite. See Trial Judgement, para.

3945. Likewise, apart from impugning the Trial Chamber's reliance on Witness SJ's testimony that named specific Interahamwe and the witness's explanation for omissions from her prior statement, Ntahobali does not explain why it was unreasonable for the Trial Chamber to rely on this aspect of the witness's testimony in support of its conclusion that the Interahamwe committed attacks at the EER. 4746 Ntahobali Appeal Brief, para.

536. Ntahobali adds that the Trial Chamber failed to consider that Witness QBQ did not mention that killings or rapes occurred in her prior statement. See idem. 4747 Prosecution Response Brief, paras. 955, 960-964. 4748 Trial Judgement, para. 3944. 4749 See Witness RE, T. 24 February 2003 pp. 11, 12, 38, T. 26 February 2003 pp. 9, 10, 12-15. 4750 Trial Judgement, paras. 3856-3858, 3952, 3953. 4751 Trial Judgement, para. 3945. 707 Case No. ICTR-98-42-A 14 December 2015

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19658/H not because she saw him participating in attacks at the EER with them but because of the subsequent observations the witness made at the prefectoral office. 4753 2037. The Appeals Chamber also notes that the Trial Chamber expressly referred to several inconsistencies highlighted by Ntahobali between Witness RE's prior statement and her testimony concerning the attack on the evening of her arrival from the prefectoral office as well as to the witness's explanations for them 754 The Appeals Chamber observes that Witness RE also provided an explanation for the variance between her prior statement and testimony, which the Trial Chamber did not expressly discuss, as to whether Ntahobali and the members of the Presidential Guard entered the building or stayed outside as it was locked. 4755 Ntahobali does not establish that no reasonable trier of fact could have accepted the witness's explanations for the discrepancies. Likewise, Ntahobali does not demonstrate that the Trial Chamber erred in not expressly discussing other minor variances in Witness RE's evidence he points out, none of which go to the material aspects of the witness's evidence upon which the Trial Chamber relied to convict him. 4756 2038. As regards to purported differences between the evidence of Witness RE, on one hand, and that of Witnesses QY, SJ, and QBQ, on the other hand, the Appeals Chamber observes

that the Trial Chamber concluded as follows: The Chamber notes that Witness RE provided numerous details about the day the refugees arrived, including the fact that when the refugees arrived, the doors of the classroom were locked and the refugees were forced to seek shelter from a torrential rain on the veranda. Details referring to the rain, some classroom doors being locked and seeking shelter on the veranda and the attack on the first night were variously corroborated by Witnesses QY, SJ and QBQ. Based on these details and corroboration, the Chamber finds Witness RE to be credible. 4757 Ntahobali emphasises that Witnesses QY, SJ, and QBQ did not identify him as being present during the attack that occurred on the evening of the day refugees arrived at the EER from the prefectoral office as described by Witness RE. However, the analysis above reflects that the Trial Chamber was well aware of this, as it did not find that they corroborated Witness RE on this aspect of her 4752 Trial Judgement, para. 3951. 4753 See Witness RE, T. 24 February 2003 p. 13, T. 26 February 2003 pp. 10, 14, 15. 475A In particular, the Trial Chamber noted that: (i) Witness RE explained that even though her statement only referred to people being taken away the day after the rain, the abductions occurred every day, including on the day of the rain; and (ii) there was a discrepancy between Witness RE's

prior statement and her testimony about the number of refugees a he EER and her explanation that, in her prior statement, she merely indicated that the refugees were many in numbe without giving exact figures; and (iii) Witness RE's explanation that she mentioned the presence of both Presidential Guards and ordinary soldiers but that the latter was left out of her prior statement. See Trial Judgement, paras. 3857, 3861, 3935, 3953. 4755 Witness RE explained that the person who wrote down her statement made a mistake in writing that Ntahobali anc the Presidential Guards entered the building. See Witness RE, T. 26 February 2003 p.

14. See also T. 24 February 2003 P/. 11, 12; Witness RE's Statement, p. 3. $ See, e.g., Ntahobali Appeal Brief, para. 531. 4757 Trial Judgement, para. 3943 (internal references omitted). 708 Case No. ICTR-98-42-A 14 December 2015

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19657/H evidence.4758 Ntahobali does not show that this difference renders their evidence incompatible. The Appeals Chamber considers that, given the consistent evidence from Witnesses RE and QY that refugees were violently transferred to the EER from the prefectoral office*s as well as evidence from Witnesses RE and QY that attacks on the refugees started less than 24 hours after their arrival at the EER, 4760 it would be expected for witnesses to have different view points as well as varying recollections of events. While it would have been preferable for the Trial Chamber to note and expressly assess these differences as to Ntahobali's presence during an attack on the evening refugees arrived at the EER from the prefectoral office, the Appeals Chamber is not persuaded that the absence of any discussion constitutes an error.

2039. Furthermore, the Appeals Chamber finds that the differences between the evidence of Witnesses RE and QY identified by Ntahobali as to whether refugees arrived from the prefectoral office to the EER in the afternoon or the evening as well as whether the refugees were confined to the verandas as the school doors were locked or whether some sought refuge in classrooms are not material and did not require express consideration. Likewise, differences among the evidence of Witnesses RE, QY, and SJ as to whether the attacks involved only soldiers or soldiers and Interahamwe would not prevent a reasonable trier of fact from relying on Witness RE's evidence of Ntahobali being present during an attack that evening with soldiers.

2040. Similarly Witness SJ's evidence that an attack occurred during the day and night, as opposed to just the evening as reflected in Witness RE's evidence, is not material in this context. Moreover, the Appeals Chamber is not convinced that simply because Witness QBQ did not testify concerning an attack or the presence of Interahamwe or soldiers the evening that refugees arrived at the EER from the prefectoral office renders the Trial Chamber's reliance on Witness RE's evidence that one occurred and that Ntahobali was present unreasonable.

2041. Accordingly, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in relying on the evidence of Witness RE about his presence and participation in an attack on the EER. b. Ntahobali's Presence During the Attack Described by Witness QY 2042. Witness QY's evidence, as summarised and assessed by the Trial Chamber, reflects that she was among the refugees who were transferred from the Butare Prefecture Office to the EER on 4758 Indeed, the Trial Chamber's summaries of the evidence of Witnesses QY, SJ, and QBQ also reflect that they did not testify that Ntahobali was present during an attack at the EER on the night refugees arrived from the prefectoral office. See Trial Judgement, paras. 3866-3876, 3884-3891. See Trial Judgement, paras. 3855, 3866, 3952. 4760 See Trial Judgement, paras. 3856, 3867. 709 Case No. ICTR-98-42-A 14 December 2015

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19656/H Nsabimana's orders.4761 The Trial Chamber noted that she testified seeing "Shalom" on two occasions at the EER, the first being in the evening following her arrival there and that, later that night, soldiers and Interahamwe returned to the EER without "Shalom" and started beating refugees. *762 2043. The Trial Judgement further sets forth Witness QY's evidence as reflecting that when she saw Ntahobali for a second time, "Shalom came in a group with people in military uniforms and others in civilian clothes."4763 The Trial Chamber observed that the witness testified that the "soldiers in military uniform and civilian clothes took the young people, but Shalom directed the attack."4764 It also recalled her evidence that women were selected to be raped and details her account of being raped by a soldier during this attack. 4765 2044. The Trial Chamber relied on Witness QY's evidence to find that Ntahobali was present at the EER4766 as well as on her testimony that "soldiers who were in military uniform and civilian clothes [...] took the young people, but that it was Shalom who directed the attack" in concluding that the "Interahamwe were led by Ntahobali."4767 It further noted that Witness QY's evidence corroborated other accounts that soldiers came to the EER and variously abducted and killed the refugees. 4768 2045. In the course of its deliberations, the Trial Chamber

also noted that Witness QY's evidence of women being raped was corroborated by other Prosecution evidence and found that inconsistencies in the witness's evidence and prior statements about her rape during the attack at the EER and another incident in Kibeho did not undermine the reliability of her testimony with respect to her rape at the EER. 4769 However, the Trial Chamber concluded that it would not make any findings as to Ntahobali's alleged role in the rape of Witness QY at or near the EER due to lack of notice of the allegation. 4770 2046. Ntahobali contends that no reasonable trier of fact could have relied on Witness QY's evidence in light of the fact that she "lied" before the Tribunal and the Trial Chamber's findings that she lacked credibility with respect to the events at the Butare University Hospital, Butare 4761 Trial Judgement, para. 3866. 4762 Trial Judgement, para. 3867. 4763 Trial Judgement, para. 3868. 4764 Trial Judgement, para. 3868. 4765 Trial Judgement, para. 3868. 769 Trial Judgement, paras. 3959-396. 770 See Trial Judgement, para.

3845. See also ibid., paras. 3842-384 710 Case No. ICTR-98-42-A 14 December 2015

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19655/H Prefecture Office, and Nyange as well as regarding her rape at Kibeho.47' In addition, Ntahobali submits that the antagonistic attitude exhibited by the witness during her entire testimony, which was not observed by Judge Bossa and which the Trial Chamber did not take into consideration, should have led to the same conclusion. 4772 Likewise, Ntahobali argues that the Trial Chamber failed to address Witness QY's "spurious explanations" when confronted with inconsistencies. 4773 2047. Concerning Witness QY's testimony about the EER generally, Ntahobali contends that the Trial Chamber erred in failing to consider that the witness was unable to provide an estimate for the duration of her stay at the EER, despite indicating in her prior statement that she was there for a month. 4774 He argues that the Trial Chamber erred in not drawing a negative inference from an implausible explanation provided by the witness for this discrepancy, 47s 2048. As regards Witness QY's specific evidence of Ntahobali's presence and involvement in an attack at the EER, Ntahobali contends that she "seriously contradicted herself" on the timing of her second sighting of Ntahobali at the EER, highlighting that she testified that she could not recall how many days passed between her first sighting of him and the second occasion, while also testifying that both sightings occurred on the day that

refugees had arrived from the prefectoral office. 4776 Ntahobali also contends that Witness QY gave contradictory evidence as to whether soldiers in military and civilian clothes came to the EER and he directed the attack or whether Interahamwe participated in the attack and he was not with them.477 He adds that Witness QY never mentioned the Interahamwe being present at the EER in her previous statements to Tribunal investigators. 4778 Ntahobali also contends that the Trial Chamber erred in failing to: (i) assess inconsistencies in Witness QY's account of her rape at the EER concerning, inter alia, from where she was abducted, its exact location, the perpetrator, and the number of times it occurred; 4779 ii) discredit the witness due to her failure to confront her rapist during his proceeding in Rwanda;4780 and (iji) draw adverse 4771 Ntahobali Notice of Appeal, paras. 224, 228-230; Ntahobali Appeal Brief, para.

541. See also Ntahobali Appeal Brief, para. 598. 4772 Ntahobali Appeal Brief, para.

542. In particular, Ntahobali highlights that Witness QY blamed the investigator who took her statement, whom she called a "drunkard", for noting in her prior statement that she was raped at Kibeho prior 10 going to the EER, and declined to answer questions on this issue. See ibid., para.

554. Ntahobali Appeal Brief, para. 556. 4774 Ntahobali Appeal Brief, para. 548. 4775 Ntahobali Appeal Brief, para.

548. In particular, Ntahobali highlights the witness's explanation that a day seemed like a month and a night like two. See idem. 4776 Ntahobali Appeal Brief, para. 545. 4777 Ntahobali Appeal Brief, para.

544. Ntahobali further suggests that Witness QY testified that she was unable to see if the attackers were Interahamwe. He also points to Witness QY's evidence that the refugees dispersed when they saw the attackers coming and questions how she was then capable of seeing him, arguing that her evidence that she was then apprehended on the veranda is doubtful. See idem. Ntahobali Notice of Appeal, para. 230; Ntahobali Appeal Brief, para. 544, 549, 552-554. 4779 Ntahobali Appeal Brief, paras. 549, 551, 552, 555, referring, inter alia, to Trial Judgement, paras, 3960-3963. 4780 Ntahobali Appeal Brief, para. 553. 711 Case No. ICTR-98-42-A 14 December 2015

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19654/H inferences from its analysis of inconsistencies concerning this rape and Witness QY's evidence about being raped on a separate occasion in Kibeho. 4781 2049. The Prosecution responds that the Trial Chamber exercised sufficient caution when assessing Witness QY's evidence and did not err in finding her credible and reliable notwithstanding its decision not to rely on her testimony about the prefectoral office. 4782 2050. With respect to Ntahobali's general challenges to Witness QY's credibility, the Appeals Chamber recalls its previous determination that it was not inconsistent or unreasonable for the Trial Chamber to reject parts of Witness QY's testimony relating to the prefectoral office while accepting other aspects of her testimony relating to Ntahobali's participation in attacks at the EER. 4783 Similarly, the Appeals Chamber is not persuaded by Ntahobali's contention that the Trial Chamber was precluded from relying on Witness QY's testimony about the EER because it rejected other elements of her evidence related to Ntahobali's presence at the Butare University Hospital, Kanyabashi's presence in Nyange, and the witness's alleged rape at Kibeho.4784 2051. In addition, the Appeals Chamber observes that, contrary to Ntahobali's argument, the Trial Chamber considered many of the inconsistencies within Witness QY's evidence as well as between it and her prior

statements concerning her rape at the EER. 4785 It further considered the fact that Witness QY "had not confronted her attacker during his trial in Rwandan courts" 4786 Ntahobali has not shown that the Trial Chamber abused its discretion in its express assessment of these inconsistencies or that it was required to address all the purported inconsistencies he raises on appeal, particularly because he was not convicted on the basis of Witness QY having been raped at the EER. 4787 2052. Ntahobali's arguments with respect to the absence of references in the Trial Judgement to certain behaviours of witnesses, including that of Witness QY, have also already been dismissed. 4788 Finally, having reviewed the references provided by Ntahobali, the Appeals Chamber also finds that his contention that Witness QY provided "spurious explanations" when confronted 4781 See Ntahobali Notice of Appeal, para. 230; Ntahobali Appeal Brief, paras. 549, 553, 554, referring, inter alia, to Trial Judgement, paras. 3960-3963, Witness QY, T. 24 March 2003 pp. 58-66, 69-77 (closed session), Exhibit D123 (Witness OY's Statement, dated 24 July 2000) (confidential) ("Witness QY's 2000 Statement"). Ntahobali incorporates bye Force On unspon Briet, Briet, Parts. 62, 963, 96, 917, 978. See also AT. 16 April 2015 p. 10. 4783 See supra, Section III.J.3. 478 See Trial Judgement, paras. 200-203, 2141, 2622, 3962, 4210. 4785 See Trial Judgement, paras. 3960-3963. 4786 See Trial Judgement, para.

3962. See, e.g., Trial Judgement, para.

6090. See also ibid., para. 5911. 4788 See supra, para.

163. The Appeals Chamber recalls its finding that the Trial Judgement generally reflects a detailed and careful assessment of the evidence and the fact that the Trial Chamber did not explicitly discuss the factors 712 Case No. ICTR-98-42-A 14 December 2015

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19653/H with inconsistencies fails to demonstrate that the Trial Chamber abused its discretion in its assessment of her evidence. 4789 2053. The Appeals Chamber also does not consider that the purported inconsistencies between . Witness QY's prior statement and evidence as to the duration of her stay at the EER undermine the Trial Chamber's reliance on her evidence generally about the conditions at the EER given that it found broad corroboration from several other witnesses. 4790 2054. Turning to Ntahobali's challenges as they relate to his presence and involvement in an attack at the EER, the Appeals Chamber rejects Ntahobali's interpretation of the Trial Judgement and Witness QY's evidence as suggesting that the second occasion that she saw him - i.e. the time when he was present during an attack - was the evening refugees arrived at the EER from the prefectoral office. This interpretation is neither plain from a reading of the relevant aspects of the Trial Judgement, nor from Witness QY's testimony.4791 Ntahobali does not demonstrate that Witness QY's evidence is materially inconsistent as to the timing of his presence during an attack at the EER or the identity of the assailants who accompanied him, as his arguments are based on this erroneous interpretation.

2055. Indeed, a review of Witness QY's evidence reflects uncertainty as to when she precisely saw Ntahobali on the second occasion. 4792 In the view of the Appeals Chamber, the ambiguity is not highlighted by Ntahobali does not indicate that the Trial Chamber did not properly assess the credibility and reliability of the witnesses, including Witness QY. See idem. 4789 Exhibit D121 (Witness OY's Statement, dated 18 September 1997) (confidential): Exhibit D122 (Witness OY's Statement, dated 11 March 1998 and 13 March 1998) (confidential); Witness QY's 2000 Statement; Exhibit D124 Witness QY's 1997 Statement and List of Omissions) (confidential). 1790 See Trial Judgement, paras. 3856, 3866, 3885, 3943. 4791 See Trial Judgement, paras. 3867, 3868; Witness QY, T. 19 March 2003 pp. 52-60, T. 24 March 2003 pp. 34-38 In this respect, Ntahobali suggests that Witness QY's evidence that she saw Ntahobali on the same day that she was raped reflects that she testified that she was raped on the day that refugees arrived at the EER from the prefectoral office. This reading of the witness's evidence is not persuasive. See Witness QY, T. 19 March 2003 pp. 53, 54. T. 24 March 2003 pp. 36, 37. Indeed, in describing the first occasion upon which she saw Ntahobali and the attack that followed that evening - both occurring the same day as the refugees' arrival from the prefectoral office - the witness repeatedly testified that Ntahobali did nothing on the occasion she first saw him and that he was not present for the attack that followed. See Witness QY, T. 19 March 2003 pp. 57-59, T. 24 March 2003 p.

35. Moreover, the witness specified that, when she first saw Ntahobali, he was alone, whereas she gave evidence to the effect that he was accompanied by soldiers on the occasion she was raped. Compare Witness QY, T. 19 March 2003, p. 60 with ibid., to, 53, 54, T. 24 March 2003 p.

37. See, in particular, Witness QY, T. 24 March 2003 pp. 36 ("Q. The second time that you saw the person called Shalom, how many days was that after you arrived at the EER? A. I do not know the number of days I had spent there. Q. Madam Witness, the day that you saw the person called Shalom at the EER, was it the same day - was it during the same day that you were raped? A. Yes."), 37 ("Q. Madam, at the moment when the soldier took you away to rape you, am I right to understand that the person named Shalom had left with the young people and other soldiers to take them to the woods, as you said? A. That is correct."). See also Witness QY, T. 19 March 2003 pp. 53, 54 (describing an attack conducted by Ntahobali and soldiers in military uniform and civilian clothes and specifying that she was raped on this occasion, without testifying as to when this occurred in relation to her arrival at the BER), 57 (not specifying when the second occasion upon which she saw Ntahobali was in relation to the arrival of refugees at the EER from the prefectoral 713 Case No. ICTR-98-42-A 14 December 2015

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19652/H unreasonable in light of her testimony, as summarised by the Trial Chamber: (i) about her forcible transfer to the EER with other refugees from the prefectoral office; (i1) that refugees were attacked at the EER on the evening of their arrival; and (iii) that she was raped during the attack which occurred on the second occasion that she saw Ntahobali. 4793 Likewise, in light of the witness's description of the assailants who accompanied Ntahobali, as "soldiers who were in military uniforms and others in civilian clothes", 4794 Ntahobali does not show that Witness QY provided materially inconsistent evidence as to whether soldiers or Interahamwe accompanied him, or that any omission about Interahamwe at the EER in the witness's prior statements is inconsistent with her evidence concerning the attackers. 4795 Witness QY's evidence, as summarised in the Trial Judgement, implicated Interahamwe in the attack that occurred the evening refugees arrived at the EER when Ntahobali was not present. *796 2056. In light of the above, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in relying on the evidence of Witness QY about Ntahobali's presence during an attack at the EER. c. Ntahobali's Presence During the Attacks Described by Witness SX 2057. The Trial Chamber noted that Witness SX testified that he saw "Shalom come to the EER a number

of times with Interahamwe at night" using "a Hilux pickup truck" 4797 It also observed that the witness testified that "Shalom continued to come and take away refugees from the moment the refugees arrived at the EER until they left the complex and he usually came at night.»4798 The Trial Chamber further recalled Witness SX as testifying that, "[o]n the first night that Shalom came to take the refugees, some of them were staying inside the EER buildings, while others were outside" and that Ntahobali "selected five people from among the adults and took them away with him."4799 2058. The Trial Chamber identificd Witness SX as one of several witnesses to testify that Ntahobali was present at the EER4800 and recalled his testimony that "Ntahobali came to the EER a 4793 See Trial Judgement, paras. 3866-3868. See also Witness QY, T. 24 March 2003 p. 37. 4794 See Witness QY, T. 19 March 2003 p.

57. See also ibid., pp. 53, 54, T. 24 March 2003 pp. 36, 37; Trial Judgement, ara, 3868. Nowhere in his closing submissions did Ntahobali argue the clear relevance and importance of Witness QY's omission to mention the presence of Interahamwe at the EER in her prior statements. Moreover, the Trial Chamber referred to all the evidence Ntahobali now cites to on appeal. See Trial Judgement, para. 3867, referring to Witness QY, T. 19 March 2003 pp. 58, 59, T. 24 March 2003 p.

35. See Trial Judgement, para. 3867; Witness QY, T. 19 March 2003 pp. 57, 59. See also Witness QY, T. 24 March 2003 p. 35 (testifying that on the first evening she was unsure if the attack was conducted by Interahamwe in addition to soldiers as she and other refugees dispersed upon seeing the "attackers"). 4797 Trial Judgement, para. 3878 (internal reference omitted). 4798 Trial Judgement, para. 3878. 4799 Trial Judgement, para. 3878 (internal references omitted). 4800 Trial Judgment, para. 3946. 714 Case No. ICTR-98-42-A 14 December 2015

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19651/H number of times with Interahamwe at night in a Hilux pickup truck belonging to someone else and on the first night took away five adults."4801 The Trial Chamber concluded that Witness SX's testimony was "reliable and corroborative of Ntahobali's involvement in the EER attacks.»4802 2059. Ntahobali submits that the Trial Chamber erred in concluding that Witness SX testified that Ntahobali abducted five persons on one occasion as the witness's evidence reflects, only in "general terms", that Ntahobali could abduct five or seven persons. 4803 2060. Ntahobali further contends that the witness's testimony should have been treated with caution as he is the only witness testifying to Ntahobali's participation in crimes after the "first night" 4804 He also emphasises that only Witness SX testified that refugees were taken away in a Hilux vehicle 4805 In his view, this testimony is unbelievable as no "motorable road" led from the EER to the woods and is inconsistent with other evidence and the Trial Chamber's findings that refugees were killed in the woods adjoining the EER. 4806 2061. The Prosecution responds that the Trial Chamber did not err in assessing Witness SX's evidence or credibility. 4807 2062. The Appeals Chamber observes that Witness SX testified that Ntahobali could take five or seven people and take them away.4808 However, Ntahobali fails to demonstrate that it

was unreasonable for the Trial Chamber to rely on the witness's testimony to conclude that "on the first night [Ntahobali] took away five adults", 4809 since the witness specified that he was indeed "giving [..] an account of what happened the first night" he saw Ntahobali and that Ntahobali "continued doing this later on."4810 2063. Furthermore, the Appeals Chamber recalls that "the testimony of a single witness, even as to a material fact, may be accepted without the need for corroboration", 48l1 and finds no merit in Ntahobali's argument that the Trial Chamber was required to treat Witness SX's evidence with caution because he was the only witness to testify to Ntahobali's participation in multiple 4801 Trial Judgement, para. 3949 (internal references omitted). 4802 Trial Judgement, para. 3949. 4803 Ntahobali Appeal Brief, para. 562 (emphasis omitted). 4804 Ntahobali Appeal Brief, para. 559. 4805 Ntahobali Appeal Brief, para.

515. See also AT. 15 April 2015 p. 45. 480 Ntahobali Appeal Brief, para.

561. See also ibid., para. 520. 4807 Prosecution Response Brief, paras. 960, 961, 963, 966. 4808 See Witness SX, T. 30 January 2004 p. 56 (French). 4809 See Trial Judgement, para. 3949. 4810 Witness SX, T. 30 January 2004 p. 56. 4811 Kupreskié et al. Appeal Judgement; para.

33. See also Nizeyimana Appeal Judgement, para. 135; Nchamihigo Appeal Judgement, para. 246; Ntakirutimana Appeal Judgement, para. 132. 715 Case No. ICTR-98-42-A 14 December 2015

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19650/H attacks.4812 Ntahobali also provides no supporting reference demonstrating that there was no passable road between the EER and the adjacent woods and does not show that no reasonable trier of fact could have found that the refugees abducted by him in a Hilux vehicle were taken to the woods to be killed.

2064. Based on the foregoing, the Appeals Chamber finds that Ntahobali has not demonstrated that the Trial Chamber erred in its assessment of Witness SX's evidence of Ntahobali's presence and involvement in attacks at the EER. (ili) Killings 2065. Without citation to the record or prior findings, the Trial Chamber concluded that "Ntahobali, Interahamwe and soldiers killed the abducted Tutsi refugees in the woods near the EER school complex."4813 Earlier in its deliberations, however, the Trial Chamber specified that Witness RE's testimony that refugees were taken to a nearby forest to be killed was corroborated by Witnesses TG, QY, and TA as well as Witness SJ's testimony that "she hid from the Interahamwe in the woods where she came across the bloated and decapitated bodies of persons who had been killed.»4814 Furthermore, in a section entitled "Killings at the EER" the Trial Chamber acknowledged that no Prosecution witness observed the killing of abducted refugees but recalled the evidence of Witnesses RE and SJ as follows: Witness RE believed the men and boys that the Interahamwe took to a nearby forest had been executed because they never came back. While she did not personally see any killings of abducted refugees, she learned they had been killed with bludgeons. Witness RE also testified that some people who managed to escape and returned to the EER informed the others

that those taken away had been killed with clubs and machetes and that this had been done while they were naked. Witness SJ also testified that persons taken from the EER compound were killed in the nearby forest. While Witness SJ also did not personally see the refugees being killed, she testified that while seeking respite from the conditions at the EER in the woods, they saw skulls in addition to a hole that had been dug; in these narrow holes they sometimes saw bodies with bloated stomachs or that were decapitated. *81S The Trial Chamber found the evidence of Witnesses RE and SJ "to be mutually consistent" and determined "that the only reasonable conclusion available from the evidence is that the refugees abducted from the EER were killed in the nearby woods. "4816 4812 See Trial Judgement, paras. 3867, 3868, 3947. 4813 Trial Judgement, para. 3965. 4814 See Trial Judgement, para. 3944. 4815 Trial Judgement, paras. 3956, 3957 (internal references omitted). at ted it fee were kited ith die and machine whit the ved i heady a diet er ice o Re has so that some bodies were decapitated." See idem. 716 Case No. ICTR-98-42-A 14 December 2015

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19649/H 2066. Ntahobali argues that the Trial Chamber erred in finding that the accounts of Witnesses TG, QY, SJ, and TA corroborated each other. 817 He contends that Witness TG did not testify about killings of refugees at the EER but rather about events at a certain roadblock and recounted hearing screams of the victims being shot, while Witness RE testified that she did not hear any gunshots. 4818 Ntahobali also contrasts Witness SJ's testimony about hiding from the Interahamwe in the forest near the EER with the testimony of Witness RE that no one could go into the forest and the Trial Chamber's finding that the killings occurred there. 4819 2067. The Prosecution did not specifically respond to these arguments.

2068. The Appeals Chamber considers that Ntahobali does not demonstrate that a reasonable trier of fact could not have concluded that Witness RE's evidence that the refugees were taken to the nearby forest to be killed was corroborated by that of Witness TG since the latter witness testified that he observed people taken from a certain roadblock to the primary school buildings and killed in the forest near there. 4820 Likewise, the discrepancy as to gunshots and screams of the victims merely indicates that different people in different vantage points saw and heard different things and is not material when viewed in the context of the fundamental consistency of the witnesses' accounts that refugees were killed near the EER.

2069. The Appeals Chamber further observes that a review of the relevant evidence reflects that Witness RE did not testify that the refugees could not go into the woods, but instead that the refugees did not go into the woods near the EER since going there would amount to putting their lives at risk as "[e]veryone who had to be killed was taken to that small woods."4821 While Witness RE's testimony appears to suggest that refugees did not go into the woods adjacent to the EER as it was dangerous, in contrast with Witness SJ's claim that she hid there from Interahamwe, it is nevertheless not incompatible with Witness SJ's account of coming across corpses there. 1822 It similarly accords with the Trial Chamber's conclusion that testimonial evidence, including that of 4817 Ntahobali Appeal Brief, para. 540. 4818 Ntahobali Appeal Brief, para. 540, referring to Witness TG, T. 30 March 2004 pp. 69-71, Witness RE, present for three full days". See ibid., para. 566. 4820 Trial Judgement, para. 3865, referring to Witness TG, T. 30 March 2004 p. 70 4821 See Witness RE, T. 26 February 2003 p. 17. 4822 See Trial Judgement, para. 3944; Witness SJ, T. 29 May 2002 pp. 110-112. 717 Case No. ICTR-98-42-A 14 December 2015

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19648/H Witness SJ, indicates that the refugees abducted from the EER were taken to these woods to be killed. 4823 2070. Accordingly, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of the evidence relating to the killings of the refugees taken from the EER. (iv) Conclusion 2071. In light of the above, the Appeals Chamber dismisses Ntahobali's arguments related to the timing of the events at the EER and the number of refugees, the presence and involvement of Nahobali in attacks at the EER, and the killings during such attacks. (d) Expert Evidence 2072. The Trial Chamber found that Nsabimana's testimony regarding the rationale for transferring the refugees from the Butare Prefecture Office to the EER was corroborated by the testimony of Prosecution Expert. Witness Des Forges. 4824 The Trial Chamber also found that her testimony corroborated other testimonial evidence that rapes occurred at the BER. 4825 2073. Ntahobali submits that portions of the testimony of Witness Des Forges fell outside the scope of her expertise as recognised by the Trial Chamber, constituting facts rather than opinion. 4826 He further argues that the Trial Chamber erred in using her testimony for proscribed purposes in order to sustain purely factual findings,4827 In Ntahobali's view, the portions of Witness Des Forges's testimony which

constituted facts rather than opinions or which went beyond the scope of her expertise should be excluded from the assessment of the evidence in relation to the EER. 4828 2074. The Prosecution responds that Ntahobali's assertion is undeveloped, contains no reference to the record, and accordingly should be summarily dismissed, 4829 4823 See Trial Judgement, paras. 3956-3958. Moreover, the Appeals Chamber concludes that, in light of consistent evidence of attacks occurring at the EER as testified to by Witness SJ and other Prosecution witnesses, Ntahobali does not demonstrate how Witness SJ's evidence regarding the presence of soldiers for "three full days" is necessarily incompatible with other evidence on the record. 4824 See Trial Judgement, paras. 3931-3933. 4825 See Trial Judgement, para. 3959. 4826 Ntahobali Notice of Áppeal, para. 237, referring to Trial Judgement, paras. 3835, 3895-3897, 3931, 3933. See also ibid., para. 238. 4827 Ntahobali Notice of Appeal, para. 235; Ntahobali Appeal Brief, para. 601, referring to Trial Judgement, 718 Case No. ICTR-98-42-A 14 December 2015 Tue

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19647/H 2075. The Appeals Chamber recalls that the role of expert witnesses is to assist the trial chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. 4830 In the present case, the Appeals Chamber is not persuaded that the Trial Chamber, by relying on Witness Des Forges's opinion to corroborate other evidence concerning the reason for the transfer of the refugees to the EER and occurrence of rapes therein, ignored the limitations imposed on expert evidence. In particular, the Appeals Chamber considers that Ntahobali's undeveloped reference to paragraphs of the Trial Judgement does not substantiate his claim that certain aspects of Witness Des Forges's testimony constituted facts rather than opinion and exceeded the scope of her expertise. 4831 Likewise, apart from making references to paragraphs of the Trial Judgement and to jurisprudence on the scope of expert testimony, Ntahobali does not advance any argument to substantiate his assertion that the Trial Chamber erred in relying on Witness Des Forges's evidence in support of factual findings, 432. In any event, the Appeals Chamber observes that Ntahobali's convictions for the crimes committed at the EER do not rely on the Trial Chamber's findings he impugns, 4833 2076. The Appeals Chamber therefore concludes that Ntahobali has not demonstrated that Witness Des Forges testified beyond the scope of her expertise or that the Trial Chamber made improper use of her testimony concerning the events at the EER. (e) Conclusion 2077. Based on the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its overall assessment of the evidence relating to the events at the EER.

3. Aiding and Abetting Responsibility 2078. As noted above, in finding Ntahobali responsible for aiding and abetting the killing of Tutsi refugees at or near the EER, the Trial Chamber made the following findings: There was no direct evidence that Ntahobali was personally responsible for killing any of the abducted refugees. The Chamber is nevertheless satisfied that his presence alongside Interahamwe and soldiers at the EER amounted to tacit approval and encouragement of the acts of Interahamwe and soldiers at the EER. 4830 Bagosora and Nsengiyumva Appeal Judgement, fn. 503; Nahimana et al. Appeal Judgement, para.

509. See also Nahimana et al. Appeal Judgement, para. 212. i See Nahal Aped Are a, a 35 ernie Tra demen, paras 3835, 35951395,3932, 393 Appeal Judgement, para.

288. See Ntahobali Appeal Brief, para. 601, referring to Trial Judgement, paras. 3895, 3931, 3959. See also Trial Judgement, paras. 3965, 5909-5917. 719 Case No. ICTR-98-42-A 14 December 2015

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19646/H The Chamber also recalls Ntahobali's prior conduct in working alongside Interahamwe and soldiers in abducting hundreds of refugees from the [Butare Prefecture Office] Who were physically assaulted and raped and thereafter killed in various locations throughout Ngoma commune, and that he personally committed genocide at the Hotel Ihuliro roadblock [...]. As such, Ntahobali's presence at the EER alongside Interahamwe and soldiers, when considered together with his prior conduct, leads the Chamber to conclude that Ntahobali's conduct at the EER amounted to his sanctioning of the acts of the Interahamwe and soldiers, and thereby substantially contributed to the commission of these crimes. [...j4834 2079. Ntahobali submits that the Trial Chamber erred in finding that his presence alongside Interahamwe and soldiers at the EER, considered together with his prior conduct, substantially contributed to the commission of the crimes perpetrated at or near the EER. In particular, Ntahobali contends that the Trial Chamber erred in: (i) convicting him for crimes committed in his absence; (ii) relying on alleged prior criminal conduct; and (iii) failing to analyse his authority over the Interahamwe and soldiers who committed the crimes at or near the EER. The Appeals Chamber will address these contentions in turn. (a) Absence from the Crime Scene 2080. Ntahobali submits that, despite

correctly acknowledging that a conviction for aiding and abetting by tacit approval requires the presence of the accused at or near the crime scene, the Trial Chamber erred in convicting him of all the crimes committed at or near the EER, including those committed in his absence. 4835 He argues that it was incumbent on the Trial Chamber to enumerate the specific instances when he was present, in light of contradictory evidence that did not establish his presence at the EER for the duration of all the attacks. 4836 Ntahobali adds that, since crimes were committed in his absence, it was also unreasonable on the part of the Trial Chamber to conclude that his presence at the EER substantially contributed to the crimes committed in his presence. 4837 2081. The Prosecution responds that Ntahobali's continuous presence at the EER was not required to convict him for aiding and abetting the commission of the crimes. 4838 2082. The Appeals Chamber recalls its finding that the Trial Judgement clearly reflects that Ntahobali's conviction is predicated on the attacks conducted in his presence and that he was not 4834 Trial Judgement, paras. 5912, 5913. 4835 Ntahobali Appeal Brief, paras. 852, 853, 858. See also Ntahobali Reply Brief, para. 378. 4837 Ntahobali Appeal Brief, para. 859. 4838 Prosecution Response Brief, para. 1152. 720 Case No. ICTR-98-42-A 14 December 2015

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19645/H convicted of the crimes committed in his absence." 4839 Ntahobali's claim that he was convicted for all the crimes committed at or near the EER, including those committed in his absence, is ill-founded.

2083. The Appeals Chamber also sees no merit in Ntahobali's argument that commission of crimes in his absence indicated that he did not substantially contribute to the crimes committed when he was present. The Appeals Chamber recalls its well-established jurisprudence "that proof of a causal relationship, in the sense of a conditio sine qua non, between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition to the commission of the crime, is not required" as long as "the support of the aider and abettor has a substantial effect upon the perpetration of the crime."4840 In the view of the Appeals Chamber, the fact that crimes were also committed in Ntahobali's absence does not therefore impact the finding that he substantially contributed to the commission of crimes at or near the EER when he was 4841 present there.

2084. In light of the foregoing, the Appeals Chamber rejects Ntahobali's arguments related to his absence from the crime scene. (b) Reliance on Prior Conduct 2085. Ntahobali submits that no reasonable trier of fact could have relied on his prior conduct relating to events at the Hotel Ihuliro roadblock and the Butare Prefecture Office to conclude that he substantially contributed to the commission of the crimes at or near the EER. 4842 In particular, he contends that, absent any evidence that the soldiers or the Interahamwe who committed the crimes at the EER were aware that he personally committed genocide at the Hotel Thuliro roadblock, his conduct at the roadblock could not be used to infer his substantial contribution to the crimes committed at the EER. 4843 He further contends that the Trial Chamber erred in taking into account the entirety of the attacks on the prefectoral office as only the attacks that preceded the events at the EER could have been relied upon as prior conduct.484 Ntahobali also challenges the Trial Chamber's reliance on its finding that he was working alongside "soldiers in abducting hundreds of 4839 See supra, para. 1956. 4843 Ntahobali Appeal Brief, para. 850. 4841 Ntahobali Notice of Appeal, para. 301; Ntahobali Appeal Brief, paras. 845-847, 849. 721 Case No. ICTR-98-42-A 14 December 2015

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19644/H refugees" from the prefectoral office as it did not conclude that soldiers participated in attacks at the prefectoral office before the refugees were transferred to the EER. 4845 2086. The Prosecution responds that the Trial Chamber correctly used Ntahobali's prior conduct at the prefectoral office to infer the requisite intent for aiding and abetting genocide and that the remainder of Ntahobali's arguments should be dismissed as obscure and undeveloped. 4846 2087. The Trial Chamber concluded as follows with respect to Ntahobali's prior conduct: The Chamber also recalls Ntahobali's prior conduct in working alongside Interahamwe and soldiers in abducting hundreds of refugees from the [Butare Prefecture Office] who were physically assaulted and raped and thereafter killed in various locations throughout Ngoma commune, and that he personally committed genocide at the Hotel Ihuliro roadblock (3.6.19.4.11; 4.2.2.3.11; 4.2.2.3.13). As such, Ntahobali's presence at the EER alongside Interahamwe and soldiers, when considered together with his prior conduct, leads the Chamber to conclude that Ntahobali's conduct at the EER amounted to his sanctioning of the acts of the Interahamwe and soldiers, and thereby substantially contributed to the commission of these crimes." 2088. The Appeals Chamber observes that in reaching this finding, the Trial Chamber did not make a determination

that the principal perpetrators of the crimes witnessed or knew of Ntahobali's prior criminal conduct at the Hotel Thuliro roadblock or the prefectoral office. A contextual reading of the Trial Chamber's factual findings similarly does not reveal any evidence to allow for such conclusion to be drawn.4848 Absent such evidence, the Appeals Chamber considers that no reasonable trier of fact could have relied on Ntahobali's prior criminal conduct in support of its finding that Ntahobali's presence at the EER alongside the Interahamwe and soldiers substantially contributed to the commission of the crimes at the EER. In these circumstances, the Appeals Chamber finds it unnecessary to assess Ntahobali's remaining arguments regarding the Trial Chamber's reliance on his prior conduct. 4849 2089. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in considering Ntahobali's prior conduct at the Hotel Ihuliro roadblock and the Butare Prefecture Office when determining whether Ntahobali's conduct had a substantial effect on the commission of the crimes by Interahamwe and soldiers at the EER. The Appeals Chamber will assess the impact of this error, if any, after examining Ntahobali's challenges to the Trial Chamber's finding about his authority over Interahamwe and soldiers. 4845 Ntahobali Appeal Brief, para. 848 (emphasis omitted), referring to Trial

Judgement, paras. 2627-2653, 5913. 4846 Prosecution Response Brief, paras. 1155, 1156. 4847 Trial Judgement, para. 5913. 4848 See Trial Judgement, Section 3.6.36. 4849 The Appeals Chamber notes that elsewhere in this Judgement it rejected Ntahobali's contention that the Trial Chamber's conclusions about the transfer of refugees from the prefectoral office to the EER were contradictory with its findings concerning the attacks at the Butare Prefecture Office in May 1994 as well as his challenges to the Trial Chamber's reliance on the evidence of Witness TA concerning the attacks at the prefectoral office. See supra, Section V.I.2(c)(iii). 722 Case No. ICTR-98-42-A 14 December 2015

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19643/H (c) Authority over Interahamwe and Soldiers 2090. Ntahobali argues that the Trial Chamber erred in failing to analyse his authority over the Interahamwe and soldiers who committed the crimes at or near the EER. 4850 He points to case law reflecting that analysis of such authority is essential since aiding and abetting the commission of crimes through their sanctioning is premised on the confluence of authority and presence at the crime scene.*851 With respect to the Interahamwe, he argues that position of authority alone is insufficient to establish that the presence of an accused at the crime scene encouraged the commission of an offence. 4852 In addition, referring to the Trial Chamber's finding that he did not lead the soldiers to the EER, Ntahobali contends that, absent any evidence that he exercised authority over them, the Trial Chamber erred in law and in fact in finding that his mere presence at the EER, even combined with his previous conduct, could amount to substantial contribution to the crimes committed by the soldiers.* 4853 2091. The Prosecution responds that Ntahobali was not convicted for the crimes perpetrated by the soldiers but for aiding and abetting the crimes committed by the Interahamwe and for his involvement in the attacks and killings of the Tutsi refugees, 1854 It contends that the Trial Chamber was not required to find that Ntahobali had

authority or superior responsibility over the principal perpetrators of the crimes since it was sufficient to establish that his acts as an aider and abettor substantially contributed to the commission of the crimes. 4855 2092. The Appeals Chamber recalls the requisite elements of aiding and abetting by tacit approval as set out previously in this Judgement 4856 The Appeals Chamber further recalls that the authority envisaged by the impugned category of aiding and abetting merely connotes an accused whose "status was such that his presence had a significant legitimising or encouraging effect on the principals". 4857 4850 Ntahobali Notice of Appeal, para. 299. 4851 Ntahobali Appeal Brief, para. 842, referring to Muvunyi Appeal Judgement of 29 August 2008, para. 80, Zigiranyirazo Trial Judgement, para. 386, Seromba Trial Judgement, para. 308, Bagilishema Trial Judgement, para. 34, Kalimanzira Appeal Judgement, para.

74. See also Ntahobali Notice of Appeal, para. 299. 4852 Ntahobali Appeal Brief, para. 844, referring to Kamuhanda Trial Judgement, para.

600. See also Ntahobali Notice of Appeal, para.

299. Ntahobali Appeal Brief, para. 843, referring to Trial Judgement, para.

3965. Ntahobali adds that it was equally unreasonable for the Trial Chamber to conclude that he exercised any authority over the Presidential Guard. See idem. See also Ntahobali Notice of Appeal, para.

299. However, since Ntahobali was not held responsible for the crimes committed by the Presidential Guard, the Appeals Chamber declines to address Ntahobali's contention in this respect. See Trial Judgement, paras. 5912-5917. 4854 Prosecution Response Brief, para.

1151. See also ibid.., paras. 1154, 1158. 4855 Prosecution Response Brief, para. 1151. 4856 See supra, para. 1955. 4857 See Brdanin Appeal Judgement, para. 277, citing Furundzija Trial Judgement, para.

232. See also, e.g., Ndahimana Appeal Judgement, paras. 144, 148; Rutaganda Appeal Judgement, para. 529; Kayishema and Ruzindana Appeal Judgement, paras. 201, 202. 723 Case No. ICTR-98-42-A 14 December 2015

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19642/H 2093. The Appeals Chamber notes, as recalled in more detail above, that in holding Ntahobali responsible for aiding and abetting the killings of the Tutsi refugees at or near the EER, the Trial Chamber concluded that Ntahobali's "presence alongside Interahamwe and soldiers at the EER amounted to tacit approval and encouragement of the acts of Interahamwe and soldiers at the EER"4858 and that his "conduct at the EER amounted to his sanctioning of the acts of the Interahamwe and soldiers" 4859 The Appeals Chamber reiterates that, contrary to the Prosecution's position, the Trial Judgement reflects that Ntahobali was held responsible for aiding and abetting the killings of the Tutsi refugees perpetrated by both the Interahamwe and soldiers. 4860 While the Trial Chamber did not make an express finding that Ntahobali wielded authority over the principal perpetrators of the abductions and subsequent killings of the Tutsi refugees, Ntahobali's submissions in this regard fail to appreciate the broader context of the Trial Chamber's findings concerning his involvement in the events at the EER. In particular, the Appeals Chamber notes that the Trial Chamber considered extensive evidence pointing to Ntahobali's leadership role and authoritative conduct during some of the attacks on the refugees, including that he was the leader of the Interahamwe and that he was feared and obeyed

by them. 4861 The Trial Chamber also relied on evidence that Ntahobali was the leader of the Interahamwe involved in the attacks. 862 The Trial Chamber further concluded that Ntahobali had de facto authority and bore superior responsibility over the Interahamwe for the killings of the refugees at or near the EER pursuant to Article 6(3) of the Statute.* 4863 2094. In addition, the Trial Chamber set forth witness testimony reflecting that the soldiers were accompanied by Ntahobali on one occasion when they abducted refugees from the EER4864 and that Ntahobali directed an attack by the soldiers against the refugees on another occasion. 4865 While the Trial Chamber concluded that it was not established beyond a reasonable doubt that Ntahobali led the soldiers to the EER, 4866 the Appeals Chamber does not consider that this conclusion negates the evidence that Ntahobali exerted a level of influence over the soldiers. 1867 4858 Trial Judgement, para. 5912. 4859 Trial Judgement, para. 5913. 4860 See supra, para. 1956. 4861 Trial Judgement, paras. 3878, 3951. 4862 Trial Judgement, paras. 3951, 3965. 4863 See Trial Judgement, para.

5917. See also ibid., para. 5971. 4864 Trial Judgement, para. 3856, referring to Witness RE, T. 24 February 2003 pp. 10-12, 38, T. 26 February 2003 Pa: Til. Judgement, para. 3868, referring to Witness QY T. 19 March 2003 p.

57. See also ibid, para. 3951. 4866 See Trial Judgement, para. 3965. 4867 The Trial Chamber did not make a finding with respect to Ntahobali's responsibility as a superior for the crimes committed by the soldiers at or near the EER. See Trial Judgement, para.

5917. The Appeals Chamber notes, however, that the Trial Chamber concluded that there was insufficient evidence to find Ntahobali responsible as a superior for the crimes committed by the soldiers at two other locations, namely at the Hotel Ihuliro roadblock and the Butare Prefecture Office. See ibid., paras. 5846, 5887. 724 Case No. ICTR-98-42-A 14 December 2015

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19641/H 2095. In light of the foregoing, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in failing to analyse his authority over the Interahamwe and soldiers who committed the crimes at or near the EER. (d) Conclusion 2096. For the above reasons, the Appeals Chamber finds that the Trial Chamber erred in relying on Ntahobali's prior conduct at the Hotel Ihuliro roadblock and the Butare Prefecture Office to establish his criminal responsibility for aiding and abetting the killings perpetrated by Interahamwe and soldiers at or near the EER. However, the Appeals Chamber finds that this error does not invalidate the Trial Chamber's decision to convict Ntahobali for aiding and abetting these killings in light of the Trial Chamber's factual findings and the relevant evidence it relied upon concerning his authority over the Interahamwe and soldiers during the attacks on the BER. Consequently, the Appeals Chamber concludes that Ntahobali has not demonstrated that the Trial Chamber erred in finding him responsible for aiding and abetting by tacit approval and encouragement the killings of Tutsi refugees perpetrated by Interahamwe and soldiers at or near the EER during attacks conducted in his presence.

4. Superior Responsibility 2097. Recalling its finding that Ntahobali had de facto authority over Interahamwe, the Trial Chamber concluded that Ntahobali was also responsible as a superior pursuant to Article 6(3) of the Statute for the same criminal acts committed at or near the EER.4868 However, because the Trial Chamber had found Ntahobali criminally responsible for the killings of Tutsi refugees by Interahamwe pursuant to Article 6(1) of the Statute, it did not enter related convictions against him pursuant to Article 6(3) of the Statute, but stated that it would consider his superior responsibility for these acts in sentencing. 4869 2098. Ntahobali submits that the Trial Chamber erred in holding him responsible for all the attacks committed by the Interahamwe at the EER, despite the evidence that the attacks took place in his absence. 4870 In this respect, he contends that there was no evidence that he had effective control over all the Interahamwe present in Butare Prefecture or over those involved in the attacks at the EER. 4871 He further argues that the Trial Chamber's conclusion about his de facto authority, which 4868 Trial Judgement, para. 5917. 4869 Trial Judgement, para.

5917. See also ibid., paras. 5652, 5971, 6056. 4870 Ntahobali Notice of Appeal, para. 313; Ntahobali Appeal Brief, para. 923. 4871 Ntahobali Notice of Appeal, para. 312; Ntahobali Appeal Brief, para.

915. Ntahobali also submits that the Trial Chamber erred in failing to consider evidence reflecting that the Interahamwe present at the EER were not the official MRND militia, but instead an ill-defined group, opposing the RPF and participating in killings, which comprised 725 Case No. ICTR-98-42-A 14 December 2015

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19640/H did not reference underlying findings, was vague and imprecise, and violated his right to a reasoned opinion. 4872 In his view, the Trial Chamber also erred in limiting its analysis to his de facto authority over the Interahamwe without considering and specifically determining whether he possessed effective control over the Interahamwe involved in the attacks at the EER. 4873 2099. Ntahobali also challenges the Trial Chamber's finding that "the Interahamwe were led" by him, pointing to various discrepancies in the testimonies of Witnesses RE, SX, and QY that were not considered by the Trial Chamber. 4874 In particular, he contends that the testimony of Witness QY, according to whom he directed an attack at the EER, contained discrepancies regarding whether the attack was perpetrated by soldiers alone or together with the Interahamwe as well as with respect to his presence during the attack, which were not considered by the Trial Chamber. 4875 He adds that mere assertion that he directed an attack was insufficient to establish effective control over the Interahamwe." 4876 2100. Moreover, Ntahobali asserts that Witness SX's testimony that he was the leader of the Interahamwe, ordered them around, and was feared by them, does not establish effective control, 4877 He highlights that the Trial Chamber did not make a finding that he issued any orders to the Interahamwe at the

EER. 4878 Ntahobali further posits that Witness SX's perception that he inspired fear, which was at best indicative of a degree of influence, was subjective and speculative, and was merely based on the witness's belief that he was the leader of the Interahamwe. 4879 According to Ntahobali, the latter belief was in itself subjective and speculative, given that Witness SX merely mentioned orders not proven to have been issued by him and that the Interahamwe consulted him when they had something to discuss and calling him by his first name. 4880 soldiers or even civilians, as was done by the Trial Chamber in relation to Kanyabashi. See Ntahobali Appeal Brief, sara. 925: Ntahobali Reply Brief, paras. 379, 380 1872 Ntahobali Appeal Brief, para. 912 4873 Ntahobali Appeal Brief, paras. 914, 915. Ntahobali adds that the Trial Chamber could not have relied on its finding elsewhere in the Trial Judgement to conclude that he had de facto control over the Interahamwe because the Trial Chamber's findings do not reflect that the same group of Interahamwe was involved in the events at all the crime scenes. See ibid., para. 915. 4874 Ntahobali Appeal Brief, paras. 916-922, referring, inter alia, to Trial Judgement, para. 3951. 4875 Ntahobali Appeal Brief, para. 917, referring to Witness QY, T. 19 March 2003 pp. 55-60, T. 24 March 2003 pp. 35-36. Ntahobali adds that Witness QY also testified that, even though the soldiers were not led by anyone, Ntahobali directed the attack. See idem, referring to Witness QY, T. 19 March 2003 pp. 52, 53, 55-57. See also Ntahobali Reply Brief, para. 377. 4876 Ntahobali Appeal Brief, para.

918. Ntahobali again posits that the Trial Chamber failed to consider inconsistencies in this witness's testimony, including as to the presence of the Interahamwe during the impugned attack. See ibid., paras. 917, 918. Ntahobali Appeal Brief, para. 919. 4878 Ntahobali Appeal Brief, para.

919. See also Ntahobali Reply Brief, para. 373. 4879 Ntahobali Appeal Brief, para. 919, referring to Mucié Trial Judgement, paras. 803-806, Karera Trial Judgement, para. 564, Nahimana et al. Appeal Judgement, para. 882, Ntagerura et al. Trial Judgement, para. 628 1880 Ntahobali Appeal Brief, para. 919, referring to Witness SX, T. 27 January 2004 pp. 25, 26. 726 Case No. ICTR-98-42-A 14 December 2015

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19639/H 2101. Ntahobali further contests the Trial Chamber's reliance on the testimony of Witness RE in support of the conclusion that he led the Interahamwe since the attacks by the Interahamwe recounted by the witness took place in Ntahobali's absence.4881 He points out that Witness RE only testified about one occasion when he saw Ntahobali at the EER when he was the only Interahamwe accompanying the soldiers, but that the witness learnt that Ntahobali was the leader of the Interahamwe on a later occasion. 4882 Ntahobali reiterates that a mere assertion that he was the leader of the Interahamwe was insufficient to establish effective control over them. 4883 2102. Finally, Ntahobali submits that the Trial Chamber erred in failing to determine whether he had knowledge of the crimes committed during the attacks in his absence. 4884 He also avers that the Trial Chamber failed to discuss any evidence establishing his failure to prevent or punish the crimes committed by the Interahamwe at or near the EER. 4885 2103. The Prosecution responds that the Trial Chamber correctly found that Ntahobali had de facto authority and superior responsibility over the Interahamwe for the killings committed at or near the BER. 4886 It submits that Ntahobali fails to consider all the relevant parts of the Trial Judgement and that, contrary to his claims, the evidence of Witnesses QY, SX, and RE

established that he had effective control over the Interahamwe and that he failed to prevent their criminal acts.4887 The Prosecution points to their evidence that Ntahobali: (i) had influence over and was feared by the Interahamwe; (ii) was the leader of those who abducted the refugees from the EER; (iti) issued orders to arrest and abduct the refugees that were followed; and (iv) directed the attacks by the Interahamwe 4888 It contends that a holistic reading of the Trial Judgement reflects consideration of the totality of the evidence by the Trial Chamber to determine Ntahobali's responsibility as a superior, such as its findings that Ntahobali had effective control over the Interahamwe at the Butare Prefecture Office and Hotel Ihuliro roadblock. 4889 2104. In addition, the Prosecution argues that: (i) the attack by the soldiers in Ntahobali's absence recounted by Witness QY was not the same attack which was directed by Ntahobali, according to 4881 Ntahobali Appeal Brief, para. 921. 4882 Ntahobali Appeal Brief, para, 920, referring to Trial Judgement, para. 3951, Witness RE, T. 24 February 2003 pp. 10-13, T. 26 February 2003 pp. 9, 10. 83 Ntahobali Appeal Brief, para. 921, referring to Semanza Trial Judgement, paras. 414-416 4884 Ntahobali Notice of Appeal, para. 313; Ntahobali Appeal Brief, para. 923, referring to Oric Appeal Judgement, para ahobali Notice of Appeal, para.

313; Nahobali Appeal Brief, para, 924. 4886 Prosecution Response Brief, para. 1181. 4887 Prosecution Response Brief, para. 1182. 4888 Prosecution Response Brief, paras. 1182, 1184, 1186, referring, inter alia, to Trial Judgement, paras. 3944, 3951, Witness SX, T. 27 January 2004 pp. 25, 26, T. 30 January 2004 p. 55, Witness RE, T. 24 February 2003 pp. 13-15, T. 26 February 2003 p. 10, Witness QY, T. 19 March 2003 pp. 57-59. 4889 Prosecution Response Brief, para. 1183. 727 Case No. ICTR-98-42-A 14 December 2015

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19638/H this witness;* and ii) it was not unreasonable for Witness RE to infer that Ntahobali was the leader of the Interahamwe on the basis of her subsequent observations of Ntahobali training the Interahamwe at other locations, where they called him their chief.4891 The Prosecution further submits that Ntahobali had the requisite knowledge for superior responsibility by virtue of his participation in the attacks and abductions of refugees with his subordinates, as witnessed by Witnesses QY, SX, and RE.4892 2105. The Appeals Chamber observes that, in determining Ntahobali's superior responsibility for the crimes committed at or near the EER, the Trial Chamber specifically referred to the "same underlying acts of genocide committed at or near the EER"4893 In the view of the Appeals Chamber, this indicates that Ntahobali was only held responsible as a superior on the basis of the killings perpetrated by the Interahamwe that he tacitly approved and encouraged by his presence alongside them. 4894 Such a consideration is supported by the fact that the Trial Chamber stated that it will not convict Ntahobali pursuant to Article 6(3) of the Statute on the basis of acts committed by Interahamwe at the EER as it concluded that he had already been found criminally responsible pursuant to Article 6(1) of the Statute for these acts. 4895 The Appeals Chamber therefore considers that Ntahobali's contention that he was held responsible for all crimes committed by the Interahamwe at the EER is without merit. Accordingly, Ntahobali's arguments regarding the absence of evidence that he exercised effective control over all the Interahamwe involved in the attacks at the EER or those in the Butare Prefecture as well as the precise composition of the Interahamwe are moot.

2106. As to Ntahobali's contention that the Trial Chamber violated his right to a reasoned opinion in making a vague finding regarding his de facto authority over the Interahamwe, the Appeals Chamber considers that the Trial Judgement read as a whole provides sufficient basis for its finding that Ntahobali had de facto authority over the Interahamwe when he was present alongside them during the attacks at the EER. 4896 Ntahobali's submissions on this issue fail to appreciate the broader context of the Trial Chamber's findings concerning his role at the EER, including extensive evidence considered by it indicating that he had a leadership role among the Interahamwe 4897 Ntahobali's argument that the Trial Chamber failed to provide a reasoned opinion is therefore dismissed. 4890 Prosecution Response Brief, para. 1186, referring to Witness QY, T. 19 March 2003 pp. 57-59, T. 24 March 2003 Bi prosecution Hesponse Brict, para, 1185, referring to Witnéss RE, T. 26 February 2003 pp. 9, 10. 4892 Prosecution Response Brief, para.

1187. See also ibid., para. 1182. 4893 Trial Judgement, para. 5917. 4894 See Trial Judgement, paras. 5912, 5914. 4895 Trial Judgement, para, 5917. See also ibid., paras, 5652, 5971, 6056. 728 Case No. ICTR-98-42-A 14 December 2015

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19637/H 2107. The Appeals Chamber similarly considers that, while the Trial Chamber did not make an express finding that Ntahobali exercised effective control over the Interahamwe, such a finding is implicit in its factual finding that Ntahobali led the Interahamwe as well as in its conclusion that he had de facto authority over them.*» In the view of the Appeals Chamber, the Trial Chamber's finding that Ntahobali "led Interahamwe in attacks against, and abductions of, Tutsi refugees during their stay at the EER'4899 and the evidence accepted by the Trial Chamber concerning Ntahobali's general role during these attacks at the EER reasonably supports a finding that Ntahobali exercised effective control over the Interahamwe during these attacks.

2108. Turning to Ntahobali's challenges to the Trial Chamber's conclusion that "the Interahamwe were led by Ntahobali" and its reliance on the relevant evidence of Witnesses QY, SX, and RE, the Appeals Chamber observes that in reaching this conclusion the Trial Chamber considered Witness QY's evidence that the soldiers in military uniform and civilian clothes took the young people, "but it was Shalom who directed the attack."4900 The Appeals Chamber considers that while, in this particular instance, it was soldiers rather than the Interahamwe who took away the refugees, the Trial Chamber relied on Witness QY's testimony to highlight Ntahobali's authoritative conduct in directing the attack. The Appeals Chamber recalls that the remainder of Ntahobali's challenges as they relate to the Trial Chamber's assessment of various discrepancies in Witness QY's account of the events at the EER, including concerning Ntahobali's presence during the attacks recounted by Witness QY, have already been addressed and rejected in another section of this Judgement. 4901 Although Ntahobali is correct in suggesting that a mere assertion that he directed an attack was insufficient to establish effective control over the Interahamwe, he overlooks that, as discussed above, this was not the only element taken into account by the Trial Chamber when reaching its conclusion about effective control.

4902 2109. Ntahobali further fails to demonstrate any error in the Trial Chamber's consideration of his leadership role and influence over the Interahamwe, as reflected in the testimony of Witness SX, in concluding that the Interahamwe were led by Ntahobali. The Appeals Chamber recalls that "[i]ndicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent (or] punish."4903 A superior's ability to issue binding orders that are complied with by his subordinates is but one 489 See supra, para.

1959. See also infra, paras. 2108-2111. 4897 See Trial Judgement, paras. 3858, 3878, 3951, 3965. 4898 See Trial Judgement, paras. 3951, 3965, 5917. 4899 Trial Judgement, para.

3965. See also ibid., para. 3951. 4900 See Trial Judgement, para.

3951. See also ibid., para. 3868. 4901 See supra, Section V.J.2(c)(ii). 4902 See supra, paras. 2106, 2107. 4903 Ndahimana Appeal Judgement, para. 53, referring to Blaskic Appeal Judgement, para. 69. 729 Case No. ICTR-98-42-A 14 December 2015

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19636/H indicator of effective control relied upon in the jurisprudence of the Tribunal.4904 The Appeals Chamber therefore is not persuaded that a finding that Ntahobali issued binding orders was necessary for the Trial Chamber to conclude that Ntahobali exercised effective control over the Interahamwe who committed attacks at the EER.

2110. The Appeals Chamber further observes that the Trial Chamber noted Witness SX's evidence that the Interahamwe feared and obeyed "Shalom" 4905 As acknowledged by Ntahobali, Witness SX's testimony reflects that his belief that Ntahobali was the leader of the Interahamwe was grounded in his observations that Ntahobali ordered them around, including ordering to arrest people, that he was consulted on issues that required consultation, and that the Interahamwe were fearful of Ntahobali because he was their boss.4906 The Appeals Chamber considers that a reasonable trier of fact could have relied on this evidence, in conjunction with other related evidence, to establish that Ntahobali exercised effective control over the Interahamwe who perpetrated attacks in his presence. 4907 2111. The Appeals Chamber is likewise not convinced by Ntahobali's argument that the Trial Chamber erred in relying on Witness RE's testimony that he was the leader of the Interahamwe to find that the Interahamwe were led by Ntahobali. The Trial Chamber did not address all the details of Witness RE's testimony regarding how she came to learn about Ntahobali's leadership role.4908 However, the Trial Chamber's summary of Witness RE's evidence correctly reflects the witness's testimony that when Ntahobali came to the EER on the day of the refugees' arrival he was accompanied by soldiers, that the Interahamwe

came on other occasions during the days to take away the refugees, and that their leader was Ntahobali. 4909 While other parts of Witness RE's testimony suggest that the witness only later deduced that Ntahobali was the leader of the Interahamwe, the Appeals Chamber is not persuaded that no reasonable trier of fact could have relied on Witness RE's testimony, in conjunction with other evidence, to conclude that Niahobali exercised effective control over the Interahamwe who participated in attacks in his presence. 4910 4904 Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fn. 139; Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appea va 199. Halto % pedia Semen, parace 4 2omen, para. 256; Hadthasanovi and Kubura Appeal Judgemen See Trial Judgement, para. 3951, referring to Witness SX, T. 27 January 2004 p. 2 0 See Witness SX, T. 27 January 2004 p.

26. See also Trial Judgement, para. 387 730 Case No. ICTR-98-42-A 14 December 2015

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19635/H 2112. Finally, recalling that Ntahobali's contention that he was held responsible for all the crimes committed by Interahamwe at the EER has been rejected above, the Appeals Chamber does not consider it necessary to discuss Ntahobali's knowledge of the crimes committed in his absence. Furthermore, since Ntahobali was present during several attacks at the EER, as discussed in more detail above, the Appeals Chamber considers that the Trial Chamber's findings reasonably support the conclusion that Ntahobali failed to take necessary and reasonable measures to prevent or punish the crimes committed by his subordinate during such attacks.

2113. Accordingly, the Appeals Chamber finds no error in the Trial Chamber's conclusion that Ntahobali was also responsible as a superior pursuant to Article 6(3) of the Statute for the killings committed by the Interahamwe at or near the EER.

5. Conclusion 2114. For the foregoing reasons, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in convicting him pursuant to Article 6(1) of the Statute for aiding and abetting the killings of Tutsi refugees abducted from the EER between mid-May and the beginning of June 1994 and in concluding that he bore superior responsibility under Article 6(3) of the Statute for the above killings committed by the Interahamwe. Accordingly, the Appeals Chamber dismisses Grounds 3.5 and 4.1 as well as the relevant parts of Grounds 4.2 and 4.3 of Ntahobali's appeal. 731 Case No. ICTR-98-42-A 14 December 2015

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19634/H K. Nexus Between Crimes and Armed Conflict (Ground 4.8) 2115. The Trial Chamber found a nexus between the violations of Article 4 of the Statute and the armed conflict and convicted Ntahobali of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 4911 2116. Ntahobali submits that the Trial Chamber erred in finding that a nexus existed between the crimes and the non-international armed conflict and requests the Appeals Chamber to overturn the convictions entered against him pursuant to Article 4 of the Statute, 4912 2117. The Prosecution did not respond to this contention. 4913 2118. Considering that Nahobali did not substantiate his submission, the Appeals Chamber dismisses Ground 4.8 of his appeal without further consideration. 4911 Trial Judgement, paras. 6159, 6168, 6169, 6184, 6185. See also ibid., paras. 6153-6158. 4912 Ntahobali Notice of Appeal, paras. 335, 336. Ntahobali explained that he could not develop Ground 4.8 in his appeal brief due to the word limit. See Ntahobali Appeal Brief, para.

981. The Prosecution explained that it considers that, by not presenting arguments in his appeal brief, Nahobali had abandoned Ground 4.8. See Prosecution Response Brief, para. 1219. 732 Case No. ICTR-98-42-A 14 December 2015 ти

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19633/H L. Crime of Extermination (Ground 4.9) 2119. The Trial Chamber convicted Ntahobali of extermination as a crime against humanity on the basis of killings perpetrated at the Hotel Ihuliro roadblock, including the killing of a "Tutsi girl" and Ruvurajabo, at a location near the IRST, and at or near the EER as well as on the basis of the killing of Tutsis abducted from the Butare Prefecture Office and of the Rwamukwaya family. 4914 The Trial Chamber found that "these killings, taken by themselves or collectively, occurred on a large scale."4915 2120. Ntahobali challenges the Trial Chamber's finding that the killings perpetrated at the Hotel Ihuliro roadblock and the killing of the Rwamukwaya family, "considered individually or collectively", support the conclusion that they were committed on a large scale and that they reach the threshold for a conviction for extermination as a crime against humanity. 4916 He contends that the acts underpinning his convictions with respect to the Hotel Ihuliro roadblock and the Rwamukwaya family cannot in any way support the finding that they contributed to the killing of a large number of people. 4917 Ntahobali argues that the reasoning adopted in the Bagosora and Nsengiyumva Appeal Judgement should apply in this case and that his convictions for extermination as a crime against humanity should be reversed. 4918 2121. The Prosecution

responds that this ground should be dismissed as it is undeveloped and because merely citing case law is insufficient to establish that the Trial Chamber erred. 4919 2122. The Appeals Chamber considers that Ntahobali's ground of appeal, although not developed in his appeal brief beyond the reliance on the Bagosora and Nsengiyumva Appeal Judgement, was sufficiently substantiated in his notice of appeal to allow for appellate review. 4920 The Appeals Chamber will therefore examine Ntahobali's contention. However, because it has reversed Ntahobali's conviction for extermination as a crime against humanity based on the killing of the Rwamukwaya family,4921 the Appeals Chamber considers that Ntahobali's allegation of error related to this killing has become moot. While it has also reversed Ntahobali's convictions for extermination as a crime against humanity for committing killings of Tutsis at the Hotel Ihuliro 4914 See supra, para. 14. 4915 Trial Judgement, para. 6054. 4916 Ntahobali Notice of Appeal, heading "Motif 4.9" at p. 3152/A (Registry pagination) (French), paras. 338 (emphasis omitted), 339. 4917 Ntahobali Notice of Appeal, para. 339. 4918 Ntahobali Notice of Appeal, para. 340; Ntahobali Appeal Brief, para. 982, referring to Bagosora and Nsengiyumvo Appeal Judgement, paras. 395-397. Ntahobali explained that he could not develop Ground 4.9 any further in his appea brief due to the word limit. See idem. 4919 Prosecution Response Brief, para. 1220. 4920 See supra, para. 30. 492? See supra, Section V.H. 733 Case No. ICTR-98-42-A 14 December 2015

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19632/H roadblock beyond the killing of the Tutsi girl,4>2 the Appeals Chamber considers that Ground 4.9 of Ntahobali's appeal is not moot to the extent that it relates to the killing of the Tutsi girl and Ruvurajabo at the roadblock.

2123. The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale.*23 This is what distinguishes the crime of extermination from the crime of murder. 4924 The Appeals Chamber further recalls that "large scale" does not suggest a strict numerical approach with a minimum number of victims.4925 The assessment of "large scale" is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. 4926 Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity. 4927 2124. There can be no dispute that, "taken by themselves", the individual killings of the Tutsi girl and Ruvurajabo at the Hotel Ihuliro roadblock in late April 1994 do not meet the "large scale" requirement. The Appeals Chamber, however, is not persuaded that the Trial Chamber erred in finding that these two killings, taken collectively with the other killings for which Ntahobali was convicted, "occurred on a large scale".

2125. In the Bagosora and Nsengiyumva Appeal Judgement, the Appeals Chamber considered that "the Trial Chamber was unreasonable to conclude that the "large scale' requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months."4928 The Appeals Chamber observes that, by contrast, the two killings perpetrated at the Hotel Ihuliro roadblock were perpetrated in the same commune, in similar circumstances, by the same category of perpetrators, and approximately at the same time as the numerous killings perpetrated at the locations near the IRST, at or near the EER, and the killings of Tutsis abducted from the Butare Prefecture Office. 4929 For all these events, the Trial Chamber concluded that the 4922 See supra, paras. 1394, 1503. 4923 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 660; Lukié and Lukié Appeal Judgement, para. 536; Bagosora and Nsengiyumva Appeal Judgement, para. 394; Ntakirutimana Appeal Judgement, para.

516. See, e.g., Lukié and Lukié Appeal Judgement, para. 536; Stakié Appeal Judgement, para. 260, referring to Ntakirutimana Appeal Judgement, para. 516. 4925 See, e.g.. Lukit and Lukic Appeal Judgement, para. 537; Rukundo Appeal Judgement, para. 185; Ntakirutimana Appeal Judgement, para.

516. See also Bagosora and Nsengiyumva Appeal Judgement, fn. 924. • Lukié and Lukié Appeal Judgement, para. 538 and references cited therein. 4927 Lukié and Lukié Appeal Judgement, para. 538 and references cited therein. 4928 Bagosora and Nsengiyumva Appeal Judgement, para.

396. See also Karemera and Ngirumpatse Appeal Judgement, pr See supra, Sections V.F, V.,G.3, V.6.4, V.I, V.J. 734 Case No. ICTR-98-42-A 14 December 2015

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19631/H victims were all or predominantly of Tutsi ethnicity and were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis. 4930 2126. In the circumstances of this case, the Appeals Chamber finds no error in the Trial Chamber's collective consideration of the events in relation of which Ntahobali was convicted to find him guilty of extermination as a crime against humanity for the killings perpetrated at the Hotel Ihuliro roadblock and all other killings for which he remains convicted. Accordingly, the Appeals Chamber dismisses Ground 4.9 of Ntahobali's appeal. 930 Trial Judgement, paras. 5783, 5784, 5844, 5852, 5854, 5870-5873, 5914, 5915. The Appeals Chamber is mindfu hat there is no genocidal intent requirement for the crime of extermination as a crime against humanity. However, th Appeals Chamber finds that the Trial Chamber's findings with respect to the perpetrators' and Ntahobali's genocidal intent are relevant in this case to establish that the killings were directed against Tutsis as a collective group rather than victims in their individual capacities. 735 Case No. ICTR-98-42-A 14 December 2015

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19630/H M. Crime of Persecution (Ground 4.6) 2127. The Trial Chamber found that Ntahobali was responsible for committing, ordering, and aiding and abetting the killings of Tutsis between April and June 1994.493' In the "Legal Findings" section of the Trial Judgement concerning the count of persecution as a crime against humanity, the Trial Chamber noted that "the enumerated grounds of discrimination for persecution in Article 3(h) of the Statute do not expressly include ethnic grounds, which is included in the list of discriminatory grounds for the attacks contained in the chapeau of Article 3."4932 The Trial Chamber stated that, nonetheless, "the Appeals Chamber in the Nahimana et al. case held that discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape."4933 The Trial Chamber then concluded that "Ntahobali and the principal perpetrators acted with discriminatory intent" 4934 Accordingly, the Trial Chamber convicted Ntahobali of committing, ordering, and aiding and abetting persecution as a crime against humanity. 49335 2128. Ntahobali submits that the Trial Chamber erred in law in finding that he and the principal perpetrators acted with discriminatory intent and that discrimination on ethnic grounds could constitute persecution as a crime against humanity pursuant to

Article 3(h) of the Statute. 4936 In particular, Ntahobali contends that Article 3(h) of the Statute does not include ethnicity among the listed discriminatory grounds and that the Trial Chamber therefore violated the principle of legality and went beyond the intention of the drafters of the Statute, who limited the scope of persecution to political, racial, and religious grounds. 4937 Moreover, Ntahobali argues that the Trial Chamber misinterpreted the Nahimana et al. Appeal Judgement which, contrary to the interpretation given in the Bagosora et al. Trial Judgement, did not include ethnicity among the listed discriminatory grounds for persecution, but simply affirmed the Nahimana et al. Trial 4931 Trial Judgement, para.

6100. Specifically, the Trial Chamber found that "Ntahobali killed Tutsis at the Hotel Ihuliro roadblock, including a Tutsi girl who he first raped; that he ordered the killing of a Tutsi named Léopold Ruvurajabo, the killing of about 200 Tutsis at the IRST, and the killing of Tutsis taking refuge at the Butare préfecture office; and that he aided and abetted the killing of the Rwamukwaya family and of Tutsis abducted from the EER." See idem. 4932 Trial Judgement, para. 6097. 4933 Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. 4934' Trial Judgement, para. 6101. 4935 Trial Judgement, paras. 6101, 6121, 6186. 4936 Ntahobali Notice of Appeal, paras. 328, 329; Ntahobali Appeal Brief, para.

972. The Appeals Chamber notes that, in his notice of appeal, Ntahobali also argues that the Trial Chamber erred in fact in finding him guilty of persecution as a crime against humanity. See Ntahobali Notice of Appeal, para.

329. However, the Appeals Chamber notes that Ntahobali did not develop this allegation in his appeal brief. The Appeals Chamber therefore finds that Ntahobali has abandoned this allegation of error. Rome Statute of the International Criminal Court ("Rome Statute" and "ICC", respectively) lists ethnicity among the refers to the holding in the Semanza Trial Judgement that the "enumerated grounds of discrimination for persecution [...] do not include national or ethnic grounds". See ibid., para. 978, referring to Semanza Trial Judgement, para. 350. 736 Case No. ICTR-98-42-A 14 December 2015

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19629/H Judgement, which itself refers to "persecution on political grounds of an ethnic character" 4938 Ntahobali submits that, in the present case, there is no evidence to support a similar conclusion. 4939 In light of these alleged errors, Ntahobali submits that the Appeals Chamber should overturn the Trial Chamber's findings and acquit him of persecution as a crime against humanity. 4940 2129. The Prosecution responds that Ntahobali misunderstands the current state of the law on persecution as a crime against humanity and that the Trial Chamber correctly defined this crime in line with the Appeals Chamber's jurisprudence as "an act or omission which discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law, and was carried out deliberately with the intention to discriminate on one of the protected grounds."494l It contends that the fact that Ntahobali "acted with discriminatory intent, discriminating on ethnic grounds] [...] constitutes the crime of persecution as a crime against humanity" 4942 2130. At the appeals hearing, in response to the Appeals Chamber's invitation to "discuss whether the relevant factual findings of the Trial Chamber and the evidence contained in the record would support the conclusion that Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje committed persecution as a

crime against humanity on political or racial grounds", 4943 the Prosecution argued that Tutsis were targeted on racial and political grounds. 4944 It added that, "[targeting the Tutsi ethnic group means targeting a group on racial grounds, because "racial grounds' in Article 3(h) of the [S]tatute includes ethnic grounds."4945 It also argued that the Trial Chamber took judicial notice that Tutsis are an ethnic group, which under customary international law also made them a racial group and that, in the Nahimana et al. Appeal Judgement, the Appeals Chamber found that "genocidal intent to destroy the Tutsi group necessarily implies the discriminatory intent required for persecution against Tutsis", 4946 4940 Ntahobali Notice of Appeal, para. 329; Ntahobali Appeal Brief, para. 979. 4941 Prosecution Response Brief, para. 1217, quoting Trial Judgement, para. 6096 and referring to Nahimana et al Appeal Judgement, para.

985. Prosecution Response Brief, para. 1217. 4943 25 March 2015 Order, p. 1 (emphasis added). 4944 AT. 14 April 2015 p. 50. 4945 AT. 14 April 2015 p. 50, referring to Dordevié Appeal Judgement, paras. 892, 930, Dordevic Trial Judgement, paras. 1758; 2230, International Convention on the Elimination of All Forms of Racial Discrimination, adopted by General Assembly Resolution 2106(XX), UN Doc. A/RES/20/2106, 21 December 1965, entered into force on 4 January 1969 ("CERD"), Article 1.1. See also AT. 16 April 2015 p. 12. 4946 AT. 14 April 2015 p. 51, referring to Nahimana et al. Appeal Judgement, para.

1010. See also AT. 16 April 2015 737 Case No. ICTR-98-42-A 14 December 2015

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19628/H 2131. The Prosecution further argued that "Defence and Prosecution experts agreed [that] the government's policy was to commit genocide against the Tutsis" and that "[this genocidal policy discriminated on political grounds based on ethnicity or race" 4947 According to the Prosecution, "Nyiramasuhuko and the principal perpetrators subscribed to this policy" and "Nyiramasuhuko issued directives specifically targeting Tutsis, she agreed with calls for killing of Tutsis on the 19th of April, and then implemented this policy at the préfecture office by ordering them to be killed."4948 With respect to Ntahobali, the Prosecution submitted that the Trial Chamber's findings support the conclusion that the "victims of Ntahobali's crimes[...] were targeted on the basis of racial and political motives" 4949 2132. Nahobali replied that the Trial Chamber did not conclude that he committed persecution on political or racial grounds and that it did not rely on the evidence that the Tutsis were a different racial group from the Hutus. 4950 He argued that the existence of a genocidal government policy does not establish discrimination on political grounds and that there is no evidence that Ntahobali committed persecution on racial or political grounds.*»1 Ntahobali reiterated that the Statute distinguishes between race and ethnicity. 4952 Nsabimana joined Ntahobali's arguments.

4»33 2133. Ndayambaje similarly argued that the Trial Chamber erred in finding that he possessed the requisite discriminatory intent and that there is no evidence in the record that he possessed the intent to discriminate on political or racial grounds.*»* Ndayambaje submitted that, by listing political, religious, and racial grounds, the language of the Statute specifically excludes ethnic and national grounds and that the Trial Chamber erred in impermissibly expanding these grounds by relying on ethnicity. 4955 2134. The Appeals Chamber notes that the Trial Chamber did not expressly state on which discriminatory ground Ntahobali was found to have acted when finding him guilty of persecution as a crime against humanity in paragraph 6101 of the Trial Judgement. However, from a reading of this paragraph in the context of the section on persecution in the Trial Judgement, which does not 4947 AT. 14 April 2015 p. 51, referring to Trial Judgement, paras. 656, 806, Nahimana et al. Trial Judgement, para, 1071, Nahimana et al. Appeal Judgement, para, 996. AT. 14 April 2015 p. 51. 4949 AT. 16 April 2015 pp. 11, 12. See also ibid., p. 13. 4949 AT. 16 April 2015 p. 27. 4950 AT. 16 April 2015 p. 27. 4951 AT. 16 April 2015р. 27. 4952 AT. 16 April 2015 p.

27. Similarly, Ntahobali submitted that Articles 4, 5, and 7 of the CERD distinguish between race and ethnicity. See ibid. 4953 AT. 16 April 2015 p.

64. Nyiramasuhuko and Kanyabashi did not specifically respond to the Prosecution's oral arguments. AT. 21 April 2015 pp. 64, 65. 738 Case No. ICTR-98-42-A 14 December 2015 qui

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19627/H enumerate or discuss any other discriminatory ground than ethnicity, it is clear that the Trial Chamber convicted Ntahobali of persecution as a crime against humanity on ethnic grounds. 4956 2135. Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows: The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: [...] (h) Persecutions on political, racial and religious grounds[.] 2136. The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds. 4957 While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that "it [was] open to the Security Council - subject to respect for peremptory norms of international law (jus cogens) - to adopt definitions of crimes in the Statute which deviate from customary international law.*4958 Whether or not the Security Council may have defined the crime of

persecution as a crime against humanity more narrowly than necessary under expanded by relying on international conventions. See ibid., para. 65. al 5-5097, 610 See ibed, part. pretation of the Statute has to be strict and cannot be Chamber did not expressly state on which discriminatory ground Nyiramasuhuko, Nsabimana, Ndayambaje were found to have acted when finding them guilty of persecution as a crime against humanity in paragraphs 6099, 6103, 6106, and 6108 of the Trial Judgement, respectively. However, from a reading of these paragraphs in the context of the section on persecution in the Trial Judgement, which does not enumerate or discuss any other discriminatory ground than ethnicity, it is clear that the Trial Chamber convicted them of persecution as a crime against humanity on ethnic grounds. See ibid., paras. 6095-6097, 6098, 6099, 6102, 6103, 6105-6108, 6120, 6122, 6124, 6125. Cf. Tadié Appeal Judgement, para. 284; Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 ("Tadié Appeal Decision on Jurisdiction"), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of

discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: "For the purpose of this Statute, 'crimes against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: [...] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court". The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone ("SCSL"), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL. 4958 Tadié Appeal Judgement, para.

296. See also Tadié Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadié Appeal Judgement, paras. 249, 251. Case No. ICTR-98-42-A 14 December 2015

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19626/H customary international law, the Tribunal's jurisdiction is limited to persecution on political, racial, and religious grounds. 4959 2137. As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the "racial" ground. The Appeals Chamber recalls that, while the Statute "is legally a very different instrument from an international treaty" 4960 it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law. 4961 In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes "ethnicity" from "race" in the listed discriminatory grounds for the attack against a civilian population 4962 The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it

clear that "ethnicity" cannot be encapsulated in "race". Indeed, interpreting the discriminatory ground of "race" in Article 3(h) of the Statute as including "ethnicity" would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous. 4963 According to a textual 4959 Cf. Tadic Trial Judgement, para. 711 ("There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.") internal references omitted) 1960

Tadic Appeal Judgement, para. 282 4961 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 ("Vienna Convention"). See also Tadié Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: f them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology et out in the 1969 Vienna Convention on the Law of Treaties."); Celebiéi Appeal Judgement, para. 67 and reference: cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisié Appeal Judgement, para. 35 ("Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose', within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969." (alteration in the original)). 4962 See supra, para. 2135. 4963 The Appeals Chamber recalls that "it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements." See Tadié Appeal Judgement, para.

284. The Appeals Chamber further observes that the distinction between "race" and "ethnicity" is also clearly 740 Case No. ICTR-98-42-A 14 December 2015

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19625/H and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that "ethnicity" cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, "the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea)."4964 Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber's holding, did not extend it to include "ethnicity" as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that "discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape", the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement. 4965 However, the Appeals Chamber observes that the Trial Chamber's reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is

misplaced. 4966 Contrary to the Trial Chamber's finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus - and not the mens rea - of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact. 4967 2139. Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that "discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape."4968 It therefore applied an incorrect legal standard in convicting Ntahobali of persecution as a crime established in the definition of genocide given in Article 2 of the Statute ("Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group [...]."). 4964 Nahimana et al. Appeal Judgement, para.

985. See also, e.g., Kvocka et al. Appeal Judgement, para. 320; Kordic and Cerkez Appeal Judgement, para. 101; Blaskié Appeal Judgement, para. 131; Krojelac Appeal Judgement, pora. 181 Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement. 4966 See Trial Judgement, para. 6097. 4967 See Nahimana et al. Appeal Judgement, para.

986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement's finding that "the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character", noting that "RTLM, Kangura and CDR [...] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity." See Nahimana et al. Trial Judgement, para.

1071. This finding was not challenged on appeal. 741 Case No. ICTR-98-42-A 14 December 2015

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19624/H against humanity on the basis that he acted with discriminatory intent on ethnic grounds. 4969 The Trial Chamber applied a similar incorrect legal standard in convicting Nyiramasuhuko, Nsabimana, Kanyabashi, and Ndayambaje of persecution as a crime against humanity on the basis that they acted with discriminatory intent on ethnic grounds.4970 Where the Appeals Chamber finds an error of law in the trial judgement arising from the application of an incorrect legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.

2140. After a careful review of the Trial Judgement, the Appeals Chamber, Judge Agius dissenting, finds that the Trial Chamber's factual findings do not support the conclusion that Ntahobali as well as Nyiramasuhuko, Nsabimana, Kanyabashi, and Ndayambaje committed persecution as a crime against humanity on one of the three discriminatory grounds enumerated in Article 3(h) of the Statute, namely on political, racial, or religious grounds. The Appeals Chamber notes that the Prosecution has failed to refer to Trial Chamber's findings or evidence to the contrary.

2141. In light of the above, the Appeals Chamber, Judge Agius dissenting, grants Ground 4.6 of Ntahobali's appeal and reverses his convictions for persecution as a crime against humanity. The Appeals Chamber, Judge Agius dissenting, proprio motu, further reverses Nyiramasuhuko's, Nsabimana's, Kanyabashi's, and Ndayambaje's convictions for persecution as a crime against humanity. The Appeals Chamber will examine the impact of these findings, if any, in Section XI below. 4968 Trial Judgement, para. 6097. 4969 Trial Judgement, paras. 6100, 6101, 6121. 4970 Trial Judgement, paras. 6098, 6099, 6102, 6103, 6105-6108, 6120, 6122, 6124, 6125. 742 Case No. ICTR-98-42-A 14 December 2015