KALIMANZIRA v. THE PROSECUTOR (APPEAL JUDGMENT)

KALIMANZIRA v. THE PROSECUTOR (APPEAL JUDGMENT)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2010-10-20 - Case/document no.: ICTR-05-88-A - Collection: International Tribunal for Rwanda

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UNITED NATIONS

NATIONS UNIES

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron, Presiding Judge Mehmet Güney Judge Fausto Pocar Judge Andrésia Vaz Judge Carmel Agius

Registrar:

Judgement of:

Mr. Adama Dieng

20 October 2010

CALLIXTE KALIMANZIRA

v.

THE PROSECUTOR

Case No. ICTR-05-88-A

JUDGEMENT

Counsel for Callixte Kalimanzira:

Mr. Arthur Vercken Ms. Anta Guissé

The Office of the Prosecutor:

Mr. Hassan Bubacar Jallow Mr. Alphonse Van Ms. Charity Kagwe-Ndungu Mr. François-Xavier Nsanzuwera Ms. Florida Kabasinga Ms. Jane Mukangira

Tribunal pénal international pour le Rwanda International Criminal Tribunal for Rwanda

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i I. INTRODUCTION .......................................................................................................................... 1 A. BACKGROUND .............................................................................................................................. 1 B. THE APPEALS ............................................................................................................................... 2 II. STANDARDS OF APPELLATE REVIEW ............................................................................... 3 III. APPEAL OF CALLIXTE KALIMANZIRA ............................................................................ 5 A. ALLEGED VIOLATIONS OF FAIR TRIAL RIGHTS (GROUND 1) ........................................................ 5 1. Rule 68 of the Rules ................................................................................................................. 5 2. Equality of Arms .................................................................................................................... 10 3. Late Disclosure of Material Used in Cross-Examination ...................................................... 13 4. Conclusion ............................................................................................................................. 14 B. ALLEGED ERRORS IN ASSESSING AUTHORITY AND INFLUENCE (GROUND 2)

............................. 15 1. Alleged Defects in the Form of the Indictment ..................................................................... 15 2. Alleged Errors in the Trial Chamber’s Assessment of Evidence .......................................... 17 3. Conclusion ............................................................................................................................. 18 C. ALLEGED ERRORS IN ASSESSING THE ALIBI (GROUND 4) ........................................................... 19 1. Notice of Alibi ....................................................................................................................... 19 2. Alleged Errors in the Assessment of Evidence ...................................................................... 21 3. Conclusion ............................................................................................................................. 25 D. ALLEGED ERRORS RELATING TO THE INAUGURATION OF ÉLIE NDAYAMBAJYE (GROUND 5) ..... 26 E. ALLEGED ERRORS RELATING TO KABUYE HILL (GROUNDS 3 AND 6) ......................................... 29 1. Alleged Errors in Determining Whether Kalimanzira Aided and Abetted Genocide ........... 30 2. Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence

................................................................................... 33 3. Alleged Errors Relating to Events at Gisagara Marketplace (April Event) ........................... 37 4. Alleged Errors Relating to Events at Kabuye-Gisagara Road ............................................... 40 5. Alleged Errors Relating to Kalimanzira’s Presence and Actions at Kabuye Hill .................. 41 6. Conclusion ............................................................................................................................. 45 F. ALLEGED ERRORS RELATING TO THE BUTARE-GISAGARA ROADBLOCK (GROUND 7) ................ 46 G. ALLEGED ERRORS RELATING TO THE JAGUAR AND KAJYANAMA ROADBLOCKS (GROUNDS 8 AND 9) ...................................................................................................................................... 54 H. ALLEGED ERRORS RELATING TO THE NYABISAGARA FOOTBALL FIELD (GROUND 10) .............. 61 I. ALLEGED ERRORS RELATING TO THE GISAGARA MARKETPLACE (MAY EVENT) (GROUND 11) .. 70 IV. APPEAL OF THE PROSECUTION ....................................................................................... 76 A. ALLEGED ERRORS RELATING TO THE FORM OF CRIMINAL RESPONSIBILITY (GROUND 1) .......... 76 1. Alleged Failure to Make Findings on Modes of Liability Other Than Aiding and Abetting 76 2. Alleged Errors Relating to Kalimanzira’s Conviction

for Aiding and Abetting Genocide at Kabuye Hill ......................................................................................................................... 77 3. Conclusion ............................................................................................................................. 82 B. ALLEGED ERRORS RELATING TO THE SENTENCE (GROUND 2) ................................................... 83 1. Alleged Error in Assessing the Gravity of the Crimes .......................................................... 83 2. Alleged Error in Giving Undue Weight to Irrelevant Considerations ................................... 84 3. Alleged Error in “Reserving” Life Imprisonment for a Certain Class of Offenders ............. 85 4. Conclusion ............................................................................................................................. 87 V. IMPACT OF THE APPEALS CHAMBER’S FINDINGS ON KALIMANZIRA’S SENTENCE ............................................................................................................................... 88 VI. DISPOSITION ........................................................................................................................... 89

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ii VII. PARTIALLY DISSENTING AND SEPARATE OPINIONS OF JUDGE POCAR ........... 1 A. PARTIALLY DISSENTING OPINION ................................................................................................ 1 1. Alleged Errors Relating to the Inauguration of Élie Ndayambajye ......................................... 2 2. Alleged Errors Relating to the Events at the Gisagara-Kabuye Road ..................................... 5 3. Alleged Errors Relating to the Butare-Gisagara Roadblock .................................................... 7 4. Alleged Errors Relating to the Nyabisagara Football Field ..................................................... 9 5. Alleged Errors Relating to the Gisagara Marketplace (May Event) ...................................... 11 6. Conclusion ............................................................................................................................. 15 B. SEPARATE OPINION .................................................................................................................... 15 VIII. ANNEX A – PROCEDURAL HISTORY .............................................................................. 1 A. NOTICES OF APPEAL AND BRIEFS ................................................................................................. 1 1. Kalimanzira’s Appeal

.............................................................................................................. 1 2. Prosecution’s Appeal ............................................................................................................... 1 B. ASSIGNMENT OF JUDGES .............................................................................................................. 2 C. MOTION RELATED TO THE ADMISSION OF ADDITIONAL EVIDENCE .............................................. 2 D. HEARING OF THE APPEALS ........................................................................................................... 3 IX. ANNEX B – CITED MATERIALS AND DEFINED TERMS ............................................... 4 A. JURISPRUDENCE ........................................................................................................................... 4 1. ICTR ........................................................................................................................................ 4 2. ICTY ........................................................................................................................................ 6 B. DEFINED TERMS AND ABBREVIATIONS ......................................................................................... 9

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1 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 seized of appeals by Callixte Kalimanzira (“Kalimanzira”) and the Prosecutor (“Prosecution”) against the Judgement rendered by Trial Chamber III of the Tribunal (“Trial Chamber”) on 22 June 2009 in the case of The Prosecutor v. Callixte Kalimanzira (“Trial Judgement”).1 I. INTRODUCTION A. Background 2. Kalimanzira was born in 1953 in Muganza Commune, Butare Prefecture, Rwanda.2 He is an agronomist by training.3 Starting in 1986, Kalimanzira held various positions in the Rwandan government. These included serving as a sub-prefect of Butare and Byumba Prefectures, as an official in the Ministry of Agriculture and Livestock, and as the director of Rural Development for the Rwandan President’s office.4 He joined the Ministry of Interior in January 1992 as secretary general and served as directeur de cabinet, the ministry’s second most senior official, from September of that year through the relevant events of 1994.5 3. The Trial Chamber convicted

Kalimanzira for instigating and aiding and abetting genocide at the Butare-Gisagara roadblock around 22 April 1994, and for aiding and abetting genocide at Kabuye hill on 23 April 1994 and at the inauguration of Élie Ndayambaje as bourgmestre of Muganza Commune on 22 June 1994.6 In addition, it convicted Kalimanzira for committing direct and public incitement to commit genocide at the Jaguar roadblock in middle to late April 1994, at the Kajyanama roadblock in late April 1994, at the Gisagara marketplace at the end of May 1994, and at the Nyabisagara football field in late May or early June 1994.7 Kalimanzira was sentenced to a single term of 30 years of imprisonment.8

1 For ease of reference, two annexes are appended: Annex A – Procedural History and Annex B – Cited Materials and Defined Terms. 2 Trial Judgement, paras. 7, 79. 3 Trial Judgement, paras. 79, 80. 4 Trial Judgement, paras. 82-84. 5 Trial Judgement, paras. 85, 87, 90. 6 Trial Judgement, paras. 293, 393, 474, 739, 745. 7 Trial Judgement, paras. 562, 589, 614, 729, 739, 745. 8 Trial Judgement, para. 756.

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2 B. The Appeals 4. Kalimanzira presents 11 grounds of appeal challenging his convictions and requests the Appeals Chamber to release him.9 The Prosecution responds that all grounds of Kalimanzira’s appeal should be dismissed.10 The Prosecution presents two grounds of appeal challenging the legal qualification of Kalimanzira’s conviction for genocide in relation to Kabuye hill and the Butare- Gisagara roadblock as well as his sentence.11 It requests the Appeals Chamber to change the forms of responsibility for these incidents to ordering and committing and to impose a sentence of life imprisonment.12 Kalimanzira responds that the Prosecution’s appeal should be dismissed.13 5. The Appeals Chamber heard oral submissions regarding these appeals on 14 June 2010.

9 Kalimanzira Notice of Appeal. 10 Prosecution Response Brief, paras. 1, 264. 11 Prosecution Notice of Appeal. 12 Prosecution Notice of Appeal, paras. 12-14, 26. 13 Kalimanzira Response Brief, paras. 11, 16.

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3 II. STANDARDS OF APPELLATE REVIEW 6. The Appeals Chamber recalls the applicable standards of appellate review pursuant to Article 24 of the Statute. The Appeals Chamber reviews only errors of law which invalidate the decision of the trial chamber and errors of fact which have occasioned a miscarriage of justice.14 7. Regarding errors of law, the Appeals Chamber has stated: Where a party alleges that there is an error of law, that party must advance arguments in support of the submission and explain how the error invalidates the decision. However, if the appellant’s arguments do not support the contention, that party does not automatically lose its point since the Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.15 8. 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.16 In so doing, the Appeals Chamber not only corrects the legal error, but, when 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.17 9. Regarding errors of fact, it is well established that the Appeals Chamber will not lightly overturn findings of fact made by the 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.18 10. 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

14 Nchamihigo Appeal Judgement, para. 7; Bikindi Appeal Judgement, para. 9; Zigiranyirazo Appeal Judgement, para.

8. See also Boškoski and Tarčulovski Appeal Judgement, para. 9. 15 Ntakirutimana Appeal Judgement, para. 11 (internal citation omitted). See also Nchamihigo Appeal Judgement, para. 8; Bikindi Appeal Judgement, para. 10; Zigiranyirazo Appeal Judgement, para. 9; Boškoski and Tarčulovski Appeal Judgement, para.10. 16 Nchamihigo Appeal Judgement, para. 9; Bikindi Appeal Judgement, para. 11; Zigiranyirazo Appeal Judgement, para.

10. See also Boškoski and Tarčulovski Appeal Judgement, para. 11. 17 Nchamihigo Appeal Judgement, para. 9; Bikindi Appeal Judgement, para. 11; Zigiranyirazo Appeal Judgement, para.

10. See also Boškoski and Tarčulovski Appeal Judgement, para. 11. 18 Krstić Appeal Judgement, para. 40 (internal citations omitted). See also Nchamihigo Appeal Judgement, para. 10; Bikindi Appeal Judgement, para. 12; Zigiranyirazo Appeal Judgement, para. 11; Boškoski and Tarčulovski Appeal Judgement, para. 13.

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4 intervention of the Appeals Chamber.19 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.20 11. 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.21 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.22 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.23

19 Nchamihigo Appeal Judgement, para. 11; Bikindi Appeal Judgement, para. 13; Zigiranyirazo Appeal Judgement, para.

12. See also Boškoski and Tarčulovski Appeal Judgement, para. 16. 20 Nchamihigo Appeal Judgement, para. 11; Bikindi Appeal Judgement, para. 13; Zigiranyirazo Appeal Judgement, para.

12. See also Boškoski and Tarčulovski Appeal Judgement, para. 16. 21 Practice Direction on Formal Requirements for Appeals from Judgement, 15 June 2007, para. 4(b). See Nchamihigo Appeal Judgement, para. 12; Bikindi Appeal Judgement, para. 14; Zigiranyirazo Appeal Judgement, para.

13. See also Boškoski and Tarčulovski Appeal Judgement, para. 17. 22 Nchamihigo Appeal Judgement, para. 12; Bikindi Appeal Judgement, para. 14; Zigiranyirazo Appeal Judgement, para.

13. See also Boškoski and Tarčulovski Appeal Judgement, para. 17. 23 Nchamihigo Appeal Judgement, para. 12; Bikindi Appeal Judgement, para. 14; Zigiranyirazo Appeal Judgement, para.

13. See also Boškoski and Tarčulovski Appeal Judgement, para. 17.

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5 III. APPEAL OF CALLIXTE KALIMANZIRA A. Alleged Violations of Fair Trial Rights (Ground 1) 12. Kalimanzira submits that the Trial Chamber violated his right to a fair trial.24 In this section the Appeals Chamber considers three principal questions: (1) whether the Trial Chamber erred in its consideration of the Prosecution’s alleged violation of its disclosure obligations pursuant to Rule 68 of the Rules; (2) whether the Trial Chamber violated the principle of equality of arms in conducting the case; and (3) whether the Trial Chamber erred in allowing the Prosecution to examine Defence witnesses based on material which was not disclosed prior to the commencement of cross- examination.

1. Rule 68 of the Rules 13. In the Trial Judgement, the Trial Chamber considered whether the Prosecution violated its disclosure obligations under Rule 68 of the Rules with respect to transcripts from the Nyiramasuhuko et al. case as well as any files concerning its witnesses from Rwandan Gacaca proceedings.25 Kalimanzira submits that the Trial Chamber erred in finding that the Prosecution did not violate its disclosure obligations.26 14. The Appeals Chamber considers each category of material in turn, bearing in mind that, as such decisions relate to the general conduct of trial proceedings, this is a matter that falls within the discretion of the Trial Chamber.27 A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.28 (a) Nyiramasuhuko et al. Transcripts 15. On 16 July 2008, after the close of its case, the Prosecution disclosed the trial transcripts of seven witnesses who testified in the Nyiramasuhuko et al. case, but not in Kalimanzira’s, about the attack on Kabuye hill in Butare Prefecture.29 On 9 February 2009, Kalimanzira sought to exclude

24 Kalimanzira Notice of Appeal, paras. 6-12; Kalimanzira Appeal Brief, paras. 8-47. 25 Trial Judgement, paras. 42-60. 26 Kalimanzira Appeal Brief, paras. 9-24. 27 The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006, para. 6 (“Bagosora et al. Appeal Decision of 25 September 2006”). 28 Bagosora et al. Appeal Decision of 25 September 2006, para. 6. 29 Trial Judgement, paras. 51, 52.

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6 the evidence relating to this attack provided by Prosecution Witnesses BXG, BDK, BDC, BWO, BCF, BBO, and BXK or, in the alternative, to recall them for further cross-examination based on the Prosecution’s failure to timely disclose the trial transcripts from the Nyiramasuhuko et al. case.30 On 13 February 2009, the Trial Chamber admitted the transcripts into evidence and denied Kalimanzira’s request.31 16. Kalimanzira renewed his objections in his Final Trial Brief and closing arguments.32 In the Trial Judgement, the Trial Chamber held that there was no reason to reconsider its decision of 13 February 2009 on this issue.33 It reiterated that the Prosecution did not violate its disclosure obligations because Kalimanzira did not demonstrate that the material in question was prima facie exculpatory.34 The Trial Chamber ultimately convicted Kalimanzira for aiding and abetting genocide based on his role in the Kabuye hill incident.35 17. Kalimanzira submits that the Trial Chamber erred in finding that the Prosecution did not violate its disclosure obligations when it delayed handover of the Nyiramasuhuko et al. material and requests that the Appeals Chamber reverse his conviction based on the attack on Kabuye hill or alternatively remand the case for a new trial.36 Kalimanzira contends that the transcripts were exculpatory and emphasizes that, given the overlap in the factual

basis of the two trials, they would have been useful during cross-examination.37 18. Rule 68 of the Rules provides, inter alia, that the Prosecution “shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”38 The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.39 The Appeals Chamber has always interpreted this obligation

30 Trial Judgement, paras. 50, 51. 31 Trial Judgement, paras. 48, 53. See also T. 13 February 2009 pp. 8-11. 32 Trial Judgement, para. 48, referring to Kalimanzira Closing Brief, paras. 1178-1196, T. 20 April 2009 pp. 29, 30. 33 Trial Judgement, paras. 49, 60. 34 Trial Judgement, para. 58. 35 Trial Judgement, paras. 393, 739. 36 Kalimanzira Appeal Brief, paras. 10-20. 37 Kalimanzira Appeal Brief, paras. 12, 13, 17, 18. 38 Rule 68(A) of the Rules (emphasis added). 39 The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 9 (“Karemera et al. Appeal Decision of 30 June 2006”); The Prosecutor v. Édouard Karemera et al., Case No. 98-44- AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 7 (“Karemera et al. Appeal Decision of 28 April 2006”); The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41- AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 44; Kordi} and Čerkez Appeal Judgement, paras. 183, 242; Blaški} Appeal Judgement, para. 264; Krsti} Appeal Judgement, para. 180; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure

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7 broadly.40 To establish a violation of the Rule 68 disclosure obligation, the defence must establish that additional material is in the possession of the Prosecution and present a prima facie case that the material is exculpatory.41 If the defence satisfies the trial chamber that the Prosecution has failed to comply with its Rule 68 obligations, then the trial chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.42 19. The Trial Chamber determined that the material at issue was in the possession of the Prosecution, but that Kalimanzira did not demonstrate that it was exculpatory.43 Although the Trial Chamber correctly articulated the test for assessing disclosure violations,44 the Appeals Chamber finds that it inappropriately applied an elevated standard in assessing whether the material was exculpatory within the meaning of Rule 68 of the Rules. Specifically, the Trial Chamber noted that the witnesses in the Nyiramasuhuko et al. case did not mention seeing Kalimanzira at Kabuye hill.45 It observed that no questions were asked about him, and the transcripts, thus, “[did] not contradict the evidence adduced in the Kalimanzira trial,”46 asserting that the failure “to make mention of Kalimanzira’s presence at Kabuye hill during the period at issue does not mean that Kalimanzira could not have been

there.”47 20. The Trial Chamber’s analysis appears to focus on the potentially low probative value of the Nyiramasuhuko et al. evidence. While that is certainly a relevant consideration in assessing whether an accused was prejudiced by late or non-disclosure of Rule 68 material, the Appeals Chamber recalls that the defence does not bear the burden of “contradict₣ingğ” the Prosecution’s evidence.48 It need only raise a reasonable doubt as to the accused’s participation in a crime.49 In addition, in order to establish a violation of disclosure obligations under Rule 68 of the Rules, the defence need

Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Appeal Decision of 7 December 2004”). 40 Karemera et al. Appeal Decision of 30 June 2006, para.

9. See also Blaški} Appeal Judgement, paras. 265, 266; Krsti} Appeal Judgement, para. 180. 41 Kajelijeli Appeal Judgement, para.

262. See also Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 36 (“Rutaganda Review Decision”); Karemera et al. Appeal Decision of 28 April 2006, para. 13. 42 See Kajelijeli Appeal Judgement, para. 262; Krsti} Appeal Judgement, para. 153. 43 Trial Judgement, paras. 57, 58. 44 Trial Judgement, para. 56. 45 Trial Judgement, para. 58. 46 Trial Judgement, para. 58. 47 Trial Judgement, para. 58. 48 Cf. Zigiranyirazo Appeal Judgement, para. 19 (“The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must ‘negate’ the Prosecution evidence, ‘exonerate’ himself, or ‘refute the possibility’ that he participated in a crime indicates that the Trial Chamber misapplied the burden of proof.”) (internal citations omitted); Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”). 49 Cf. Zigiranyirazo Appeal Judgement, para. 17.

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8 only show that the material is prima facie or “potentially” exculpatory.50 The Appeals Chamber considers that Kalimanzira did demonstrate that the absence of any reference to him in the relevant Nyiramasuhuko et al. testimony is potentially exculpatory. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in assessing whether the transcripts were in fact exculpatory in order to determine if a breach of the disclosure obligations under Rule 68 of the Rules occurred.

21. The Appeals Chamber is not convinced, however, that this error invalidated the Trial Chamber’s decision. Notably, Kalimanzira did receive the material during the course of the trial, albeit after the close of the Prosecution’s case. The question therefore becomes whether the Prosecution provided the material “as soon as practicable,” as required by Rule 68(A) of the Rules. The Appeals Chamber has recognized that the voluminous nature of materials “in the possession” of the Prosecution may give rise to delays in disclosure.51 There is no indication that the Prosecution acted in bad faith in disclosing the relevant material after the close of its case. Accordingly, the Appeals Chamber is not convinced that the timing of the Prosecution’s disclosure violated Rule 68 of the Rules.

22. In any event, the Appeals Chamber further notes that, beyond asserting that this material would have been useful for cross-examination, Kalimanzira has not clearly demonstrated how he would have used any particular part of this material to discredit the Prosecution witnesses. The Trial Chamber reasonably determined that this type of evidence carried limited probative value.52 In these circumstances, the Appeals Chamber is not convinced that Kalimanzira was prejudiced by the Trial Chamber’s decision not to exclude Prosecution witnesses or recall them for further cross- examination.

50 Karemera et al. Appeal Decision of 28 April 2006, para.

13. Rule 68(A) of the Rules states (emphasis added): “The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.” The Appeals Chamber routinely construes the Prosecution’s disclosure obligations under the Rules broadly in accord with their plain meaning. See Bagosora et al. Appeal Decision of 25 September 2006, para. 8, citing Karemera et al. Appeal Decision of 30 June 2006, paras. 9-13, Krsti} Appeal Judgement, para. 180, Blaški} Appeal Judgement, paras. 265, 266. 51 Karemera et al. Appeal Decision of 30 June 2006, n. 33, citing Blaški} Appeal Judgement, para. 300 (“[…] ₣Tğhe voluminous nature of the materials in the possession of the Prosecution may result in delayed disclosure, since the material in question may be identified only after the trial proceedings have concluded.”), Krsti} Appeal Judgement, para. 197 (“The Appeals Chamber is sympathetic to the argument of the Prosecution that in most instances material requires processing, translation, analysis and identification as exculpatory material. The Prosecution cannot be expected to disclose material which – despite its best efforts – it has not been able to review and assess. Nevertheless, the Prosecution did take an inordinate amount of

time before disclosing material in this case, and has failed to provide a satisfactory explanation for the delay.”) (internal citation omitted). 52 See Trial Judgement, para. 387 (“The body of evidence reveals that there were thousands upon thousands of refugees suffering battle and massacre from an indeterminate number of attackers over a large landscape and time span; no witness alone could amply describe everything that transpired or identify everyone who was present. The Chamber finds the Defence evidence raises no reasonable doubt on eyewitness accounts that Kalimanzira was at Kabuye hill.”).

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9 (b) Gacaca Material 23. The Trial Chamber held that the Defence did not demonstrate that the Prosecution was in possession of documents from Rwandan Gacaca proceedings related to its witnesses and thus found no violation of the Prosecution’s disclosure obligations.53 The Trial Chamber also noted that it had offered its assistance to the Defence in obtaining such material, but that Kalimanzira never acted on this proposal.54 24. Kalimanzira submits that the Trial Chamber erred in finding that the Prosecution did not violate its disclosure obligations with respect to the Gacaca documents of its witnesses.55 He contends that the Prosecution refused his requests for assistance to obtain this material.56 According to Kalimanzira, the Prosecution should have assisted him even though he did not file a formal request.57 He emphasizes that the Prosecution has superior facilities to obtain such documents and was able to do so in connection with the cross-examination of Defence witnesses.58 25. The Appeals Chamber has previously held that the Prosecution has no obligation to obtain judicial material related to its witnesses from Rwanda.59 As Kalimanzira has not shown that the Prosecution was in possession of this material, the Appeals Chamber finds no merit in his assertion that it violated its disclosure obligations. Bearing this in mind, the Appeals Chamber also considers that the

Prosecution had no obligation to assist the Defence in obtaining these documents.60 Although many trial chambers, in the exercise of their discretion, have asked the Prosecution to use its good offices to assist defence counsel in obtaining such material,61 a review of the record reflects that Kalimanzira never made a request to this effect, notwithstanding the Trial Chamber’s express willingness to assist in procuring these documents.62

53 Trial Judgement, para. 44. 54 Trial Judgement, para. 47. 55 Kalimanzira Appeal Brief, paras. 21-24. 56 Kalimanzira Appeal Brief, para. 21, citing T. 20 May 2008 pp. 17, 18 (French), T. 21 May 2008 p. 27 (French). 57 Kalimanzira Appeal Brief, para. 22. 58 Kalimanzira Appeal Brief, paras. 22, 23. 59 Rutaganda Review Decision, para.

45. See also Kajelijeli Appeal Judgement, para. 263. 60 The alleged disparity in resources between the Prosecution and Defence teams is addressed below. See infra para. 34. 61 Rutaganda Review Decision, para. 46, citing The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on Matters Related to Witness KDD’s Judicial Dossier, 1 November 2004, paras. 11, 15. 62 Trial Judgement, para. 47 (“In the present case, the issue of procuring Gacaca records arose early in the trial during the cross-examination of a Prosecution witness, and the Chamber offered to assist the Defence. The Defence indicated its intention to file a written motion to specify what documents it would request the Prosecution to disclose or seek assistance to obtain. However, no such motion was ever filed.”) (internal citation omitted).

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10 2. Equality of Arms 26. In this sub-section, the Appeals Chamber considers two main submissions: (a) whether the Trial Chamber violated Kalimanzira’s rights by not postponing the commencement of the trial due to the unforeseeable absence of his lead counsel; and (b) whether the Prosecution’s strategy of reducing the number of allegations and witnesses during the course of the trial prejudiced the preparation of the Defence.63 (a) Absence of Kalimanzira’s Lead Counsel during the First Trial Session 27. On 19 March 2008, the President of the Tribunal scheduled the opening of the trial in this case for 28 April 2008.64 On 14 April 2008, Kalimanzira filed a motion to postpone the commencement of the trial until 10 May 2008 in light of the timing of the Prosecution’s disclosure of unredacted witness statements.65 During a status conference on 30 April 2008, the Presiding Judge granted this motion in part, and set the opening date of the trial for 5 May 2008.66 After this oral decision was issued, Kalimanzira’s co-counsel, Ms. Anta Guissé, informed the Presiding Judge that Kalimanzira’s lead counsel, Mr. Arthur Vercken, had been hospitalized on 21 April 2008 and requested a further postponement of the trial until Mr. Vercken’s recovery and arrival in Arusha.67 Ms. Guissé explained that Mr. Vercken was currently prohibited from traveling, but that he might be able to travel during

the week of 12 May 2008.68 28. After hearing the parties, the Presiding Judge decided not to postpone the commencement date.69 He observed that Ms. Guissé appeared “articulate and competent” and that co-counsel were normally selected based on qualifications that would allow them to proceed in the absence of lead counsel.70 In addition, he noted that the trial would be heard in half-day sessions, which would allow additional time for preparation.71 During the course of further confidential discussions,72

63 Kalimanzira also submits that the Trial Chamber was not impartial in its examination of the witnesses for each party. See Kalimanzira Appeal Brief, paras. 40-42. However, he does not support this argument under this ground of appeal and instead notes that it is developed in each individual ground. Consequently, the Appeals Chamber will address this argument in the grounds where it is specifically developed. 64 The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-PT, Scheduling Order Regarding the Commencement of the Trial, 19 March 2008, p. 2. 65 The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-I, Motion on Behalf of Callixte Kalimanzira Seeking a Postponement of the Commencement of Trial, 14 April 2008. 66 Trial Judgement, Annex I, para.

771. See also T. 30 April 2008 p.

4. The trial did not start on 28 April 2008 as originally intended due to a change in the composition of the Bench. See Trial Judgement, Annex I, para. 770. 67 T. 30 April 2008 pp. 4-6. 68 T. 30 April 2008 p. 6. 69 T. 30 April 2008 p. 9. 70 T. 30 April 2008 p. 9. 71 T. 30 April 2008 p. 9. 72 T. 30 April 2008 p. 9 (“I think it might be reasonable to allow confidential discussion of this matter, so I will propose to adjourn the status conference now and to invite counsel on both sides to the Judges' lounge to discuss those matters

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11 Ms. Guissé requested that cross-examination of Prosecution witnesses be postponed until Mr. Vercken’s return.73 The Presiding Judge granted this request in part, but noted that if Mr. Vercken had not returned by 12 May 2008, Kalimanzira’s co-counsel would be expected to proceed with cross-examination.74 29. During the week of 5 May 2008, the Trial Chamber heard the direct examination of Prosecution Witnesses BCF, BWO, BXK, BWK, and BDC. On 9 May 2008, Ms. Guissé informed the Trial Chamber that Mr. Vercken’s condition had deteriorated and that he would not be able to attend trial proceedings on 12 May 2008 as initially projected.75 Mr. Vercken did not ultimately attend any day of the first trial session, which lasted from 5 to 22 May 2008. Ms. Guissé therefore cross-examined the five initial witnesses between 12 and 20 May 2008. From 20 to 22 May 2008, the Trial Chamber also heard Prosecution Witnesses BDK, BWI, BXG, and BXH, whom Ms. Guissé cross-examined immediately following their examination-in-chief. Mr. Vercken was present in Arusha for the second trial session commencing on 16 June 2008. The Presiding Judge acknowledged his understandable absence during the first session and noted that “[Ms. Guissé] acquitted herself creditably in [Mr. Vercken’s] absence.”76 30. Kalimanzira submits that the Trial Chamber violated his right to equality of arms by refusing to delay the

trial in Mr. Vercken’s medically justified absence.77 He notes that Ms. Guissé had only been assigned to the case for a short time (from 22 November 2007) prior to the commencement of trial.78 According to Kalimanzira, her role as co-counsel was to act under the authority of his lead counsel, which was not possible when Mr. Vercken was hospitalized in Europe.79 31. According to Kalimanzira, the opening of the trial was the most important part of the case, particularly because this was when the Prosecution presented most of its witnesses relating to the most serious charge of genocide.80 He submits that proceeding in the absence of Mr. Vercken

which you have suggested should not be discussed in the public domain. So we will rise now and adjourn to the Judges' lounge.”). 73 T. 5 May 2008 p. 5 (“I would like to renew the exceptional request that was made before – that is, that the Defence start its cross-examination when Mr. Vercken comes. And as I said at the beginning of the hearing, he would probably be with us next week – maybe Monday [12 May 2008]. And also considering the calendar of activities for this week, we request that we only start our cross-examination in the presence of the lead counsel.”). 74 T. 5 May 2008 p. 6. 75 T. 9 May 2008 pp. 1, 2. 76 T. 16 June 2008 p. 2. 77 Kalimanzira Appeal Brief, paras. 25-32. 78 Kalimanzira Appeal Brief, para. 25. 79 Kalimanzira Appeal Brief, paras. 25, 27, 28, citing Directive on the Assignment of Defence Counsel, 14 March 2008, Article 15(E). 80 Kalimanzira Appeal Brief, paras. 26, 29.

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12 prejudiced the preparation of the defence because investigative resources had to be diverted from the field to assist Ms. Guissé, who otherwise was not supported by other staff in Arusha; this further compounded the difficulties created by the Prosecution’s late disclosure of unredacted statements.81 To highlight the disparity, he notes that the Prosecution was represented by three prosecutors during this period.82 32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.83 33. Significantly, Kalimanzira does not allege that Ms. Guissé’s performance was ineffective. Indeed, as noted above, the Trial Chamber acknowledged her competence both at the outset of the session and after its conclusion. Furthermore, the record indicates that Ms. Guissé was in fact in consultation with Mr. Vercken during the first trial session and sought his instruction.84 Kalimanzira also did not seek the recall of any of the witnesses for further cross-examination on the basis of Ms. Guissé’s performance after Mr. Vercken’s return.

34. As to the disparity between the Prosecution and the Defence teams during this period, the Appeals Chamber has held that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”85 This principle does not require, however, material equality between the parties in terms of financial or human resources.86 Therefore, there is no merit in Kalimanzira’s submission that his rights were violated simply because the Prosecution had a larger team of lawyers during this period.

81 Kalimanzira Appeal Brief, paras. 30, 31. 82 Kalimanzira Appeal Brief, para. 25. 83 See supra paras. 28, 29. 84 See T. 20 May 2008 p. 59 (“Mr. President, at this point, I have a motion. And it's almost 5 p.m. I know under what special circumstances I find myself, and I would like to make use of the break, between today and tomorrow, to forward the transcripts of the hearings to my lead counsel so that he can send his observations to me. This is a witness who is testifying to a number of facts about Mr. Kalimanzira. And given the importance of this testimony, I pray you to grant this motion. And on the second point, maybe on a humanitarian – from a humanitarian standpoint, and to consider the work that the Defence has done over the past two days, and, Mr. President, sir, to grant me this half hour that I'm asking from the Chamber, once more, in view of the exceptional circumstances in which Mr. Kalimanzira Defence team [sic] finds itself, and to get the observations of my lead counsel, who is the one who is heading Mr. Kalimanzira's Defence, to repeat myself.”). 85 Nahimana et al. Appeal Judgement, para. 173. 86 Nahimana et al. Appeal Judgement, para.

220. See also Kayishema and Ruzindana Appeal Judgement, para. 69.

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13 35. Finally, although Kalimanzira submits that his investigations were prejudiced by the re- allocation of resources to assist his co-counsel, he does not substantiate this claim and there is no indication that he raised this as a problem to the Trial Chamber or sought additional resources or time to compensate for any prejudice. (b) The Prosecution’s Trial Strategy 36. Kalimanzira submits that he had inadequate time and resources to prepare his defence when compared with the preparation invested in the Prosecution case.87 In this respect, he emphasizes the significant resources he devoted to investigating the large number of allegations which were not pursued, as well as the proposed Prosecution witnesses who were not called.88 He again highlights the fact that his Defence investigators were diverted from investigations during the first trial session to assist his co-counsel during his lead counsel’s absence.89 Kalimanzira also contends that the Prosecution deployed a large team involving 35 different investigators which investigated him between 1999 and 2008. He contrasts this effort with the resources of the Defence, which he asserts was only able to deploy two investigators for about two and a half months of effective work from the conclusion of the first trial session on 22 May 2008 to the filing of the Defence Pre-Trial Brief in September 2008.90 37. The Appeals Chamber is not convinced that Kalimanzira’s Defence team lacked sufficient resources to prepare its defence. As noted above, the principle of equality of arms does not require material equality between the parties.91 Kalimanzira’s arguments are only general in nature. They do not demonstrate that the preparation of his defence was prejudiced by the Prosecution’s efforts to limit the scope of its case.

3. Late Disclosure of Material Used in Cross-Examination 38. In the Trial Judgement, the Trial Chamber considered Kalimanzira’s challenge to the Prosecution’s disclosure of certain material intended for use in cross-examination only after cross- examination had commenced.92 The Trial Chamber noted that it had “encouraged” the parties to provide each other with the documents they intended to use before cross-examining a witness.93 It

87 Kalimanzira Appeal Brief, paras. 35-39. 88 Kalimanzira Appeal Brief, para.

34. See also Kalimanzira Reply Brief, paras. 7, 8. 89 Kalimanzira Appeal Brief, para. 35. 90 Kalimanzira Appeal Brief, paras. 36-39. 91 Nahimana et al. Appeal Judgement, para.

220. See also Kayishema and Ruzindana Appeal Judgement, para. 69. 92 Trial Judgement, paras. 37-41. 93 Trial Judgement, para. 38.

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14 also noted, however, that there was no binding rule to this effect.94 The Trial Chamber identified at least six instances when the Prosecution provided documents to the Defence after it had already begun cross-examining the Defence witness.95 The Trial Chamber recalled that it had warned the Prosecution on five occasions to observe its instruction to distribute the materials in advance and, in each case, considered whether the late distribution caused prejudice and found that it did not.96 Consequently, it concluded that Kalimanzira’s right to a fair trial was not violated in this respect.97 39. Kalimanzira submits that the Trial Chamber erred in finding no violation of his right to a fair trial.98 He notes that the Trial Chamber was especially influenced by the delayed disclosure of cross-examination materials in its consideration of Defence Witness Sylvestre Niyonsaba, where it relied on a late-disclosed document to discredit the witness.99 40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.100 In this case, the Trial Chamber stated its preference for disclosure prior to cross- examination, and, when this did not occur, it assessed

any possible prejudice to Kalimanzira.101 The Appeals Chamber can identify no error in the Trial Chamber’s approach. In any event, there is no indication that the Trial Chamber based its finding that Witness Niyonsaba was a possible fugitive on the impugned document since his possible criminality equally followed from Prosecution evidence describing his actions at a roadblock.102 4. Conclusion 41. Accordingly, the Appeals Chamber dismisses Kalimanzira’s First Ground of Appeal.

94 Trial Judgement, para. 38. 95 Trial Judgement, para. 40. 96 Trial Judgement, paras. 40, 41. 97 Trial Judgement, para. 41. 98 Kalimanzira Appeal Brief, paras. 43-46. 99 Kalimanzira Appeal Brief, paras. 44, 45, citing Trial Judgement, para. 559; Kalimanzira Reply Brief, para. 9. 100 See Bagosora et al. Appeal Decision of 25 September 2006, para. 12. 101 Trial Judgement, paras. 38, 40, 41. 102 Trial Judgement, paras. 538, 540, 542, 559.

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15 B. Alleged Errors in Assessing Authority and Influence (Ground 2) 42. In sentencing Kalimanzira, the Trial Chamber considered as an aggravating circumstance the influence he derived from his “prominence and high standing in Butare society” based on his prior positions and good works in the prefecture as well as his “important status within the Ministry of the Interior.”103 Kalimanzira submits that the Trial Chamber erred in fact and in law in assessing his authority and influence in Butare Prefecture.104 In this section, the Appeals Chamber considers two principal questions: (1) whether Kalimanzira’s influence was properly pleaded in view of the omission of de facto authority in the French version of the Indictment; and (2) whether the Trial Chamber erred in assessing his influence in Butare Prefecture.

1. Alleged Defects in the Form of the Indictment 43. Paragraph 2 of the Indictment alleges that Kalimanzira was “a senior civil servant” and lists a number of his previous positions, including his service as sub-prefect of Butare and Byumba Prefectures, coordinator of Agricultural Services for Kigali Prefecture, director of the Rural Development Section at the Presidency, secretary general of the Ministry of Interior, and directeur de cabinet of the Ministry of Interior, and his prominent role within the MRND. Sub-part (vii) of the English version of paragraph 2 of the Indictment concludes by stating: Consequently, [Kalimanzira] exercised in Butare préfecture, de jure and de facto authority over bourgmestres, conseillers de secteur, cellule officials, the nyumbakumi (head of each group of 10 houses), administrative staff, gendarmes, communal police, the Interahamwe, militiamen and civilians, in that he could order these persons to commit or refrain from committing unlawful acts and discipline or punish them for their unlawful acts or omission (sic).

44. The original French version of the same sub-part (vii) of paragraph 2 of the Indictment, however, omits any reference to de facto authority.105 In view of this, the Trial Chamber concluded that the omission of de facto authority from the original French version of the Indictment constituted a defect.106 The Trial Chamber, however, reasoned that the omission did not cause Kalimanzira any prejudice because the Defence Pre-Trial Brief discussed “the Prosecution’s position on Kalimanzira’s alleged control in Butare préfecture as including both de jure and de facto authority.”107 Consequently, the Trial Chamber concluded that “[t]he Defence was clearly aware long ago that Kalimanzira’s alleged de facto authority over the people of Butare was an issue

103 Trial Judgement, para. 750. 104 Kalimanzira Notice of Appeal, paras. 13-16; Kalimanzira Appeal Brief, paras. 48-57. 105 Paragraph 2(vii) of the French version of the Indictment reads in pertinent part: “[p]ar conséquent [Kalimanzira] exerçait dans la préfecture de Butare un contrôle de droit et [sic] sur les bourgmestres, […]. ” 106 Trial Judgement, para. 13.

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16 in this trial and formed part of the Prosecution’s case.”108 Furthermore, it noted that “Kalimanzira’s de facto authority [was] not in serious contention” because “Kalimanzira’s defence is premised on his high-standing and good reputation throughout Butare society.”109 45. Kalimanzira submits that the Trial Chamber erred in finding that this defect was cured based solely on its mention in the Defence Pre-Trial Brief.110 He argues that this error resulted in prejudice since the Trial Chamber aggravated his sentence based on his influence in Butare Prefecture.111 46. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused.112 In reaching its judgement, a trial chamber can only convict the accused of crimes that are charged in the indictment.113 The Appeals Chamber has also held that “for sentencing purposes, a Trial Chamber may only consider in aggravation circumstances pleaded in the Indictment.”114 An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges.115 47. The Appeals Chamber finds that Kalimanzira has not demonstrated

that any alleged error on the part of the Trial Chamber with respect to the pleading of his de facto authority invalidated the verdict. The allegation that Kalimanzira possessed de facto authority does not underpin any of his convictions for instigating or aiding and abetting genocide or for committing direct and public incitement to commit genocide.116 It is clear that a finding of general influence is not the same as de facto authority,117 even though the Trial Chamber and the Prosecution, at times, appeared to

107 Trial Judgement, para. 14, citing Defence Pre-Trial Brief, para.

10. The Appeals Chamber notes that while the Trial Chamber refers to the Pre-Trial Brief in the text, it erroneously references Kalimanzira’s Final Trial Brief. 108 Trial Judgement, para. 14. 109 Trial Judgement, para. 14. 110 Kalimanzira Appeal Brief, para. 51. 111 Kalimanzira Appeal Brief, para. 50, citing Trial Judgement, para. 750. 112 Muvunyi Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16. 113 Muvunyi Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvo~ka et al. Appeal Judgement, para. 33. 114 Simba Appeal Judgement, para. 82. 115 Muvunyi Appeal Judgement, para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para.

49. See also Nchamihigo Appeal Judgement, para. 338; Ntagerura et al. Appeal Judgement, paras. 28, 65. 116 Trial Judgement, paras. 292, 293, 392, 393, 473, 474, 562, 589, 613, 614, 728, 729, 739. 117 See, e.g., Delali} et al. Appeal Judgement, para. 266.

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17 conflate these two issues.118 In any event, the Trial Chamber’s findings concerning Kalimanzira’s authority in Butare Prefecture focus exclusively on his influence.119 Likewise, the Trial Chamber found Kalimanzira’s abuse of his influence to be an aggravating sentencing factor, but did not make the same finding with respect to his de facto authority.120 2. Alleged Errors in the Trial Chamber’s Assessment of Evidence 48. The Trial Chamber found that it was “not disputed” that Kalimanzira was “well-liked, even loved, and highly respected” in Butare Prefecture.121 In reaching this conclusion, it noted that Kalimanzira was “part of Butare’s intelligentsia and his efforts at sustainable development in his time as an agronomist were much appreciated.”122 It further noted his prior service as a sub-prefect in Butare Prefecture as well as his “rise to a senior national governmental position.”123 The Trial Chamber concluded that these factors implied “an increased level of reverence from and influence over the population” in the prefecture.124 49. Kalimanzira submits that the Trial Chamber erred in fact in finding that he had any influence in Butare Prefecture in 1994.125 He argues that this finding is unreasonable given that he had not worked there since 1988.126 According to Kalimanzira, the fact that he was one of the few

118 Trial Judgement, paras. 14 (“Kalimanzira’s defence is premised on his high-standing and good reputation throughout Butare society. Kalimanzira’s de facto authority is therefore not in serious contention […].”), 95 (“The Prosecution further submits that Kalimanzira’s de facto authority derived from his general stature as a prominent member of Butare society, with his power and influence flowing from having served as sous-préfet and then acting préfet of Butare, as well as his position with the Ministry of the Interior.”). 119 Trial Judgement, para. 99 (“With respect to his influence in Butare préfecture in particular, it is not disputed that Kalimanzira was well-liked, even loved, and highly respected. Several witnesses, both Defence and Prosecution, affirmed this. He formed part of Butare’s intelligentsia and his efforts at sustainable development in his time as an agronomist were much appreciated. His prior service as a sous-préfet was well-remembered and his rise to a senior national governmental position was known and admired. In a hierarchical society such as Rwanda’s, Kalimanzira’s high standing and good reputation, not to mention the incrementally important governmental positions he held throughout his career, would undeniably imply an increased level of reverence from and influence over the population of Butare préfecture.”). 120 Trial Judgement, para. 750 (“The

Chamber notes Kalimanzira’s prominence and high standing in Butare society as a former sous-préfet and the fact that he was one of only three people from his area and of his generation to have received a university education. He was loved and appreciated for his efforts at empowering his community by contributing to the agricultural development of his native region. The influence he derived from this and his important status within the Ministry of the Interior made it likely that others would follow his example, which is an aggravating factor.”). The Appeals Chamber has held that this formulation indicates that the Trial Chamber implicitly considered an accused’s abuse of influence. See Simba Appeal Judgement, para.

285. The Appeals Chamber notes that the basis of Kalimanzira’s influence is clearly pleaded in paragraph 2 of the Indictment, which refers to the various senior positions he held in Rwanda. 121 Trial Judgement, para. 99. 122 Trial Judgement, para. 99. 123 Trial Judgement, para. 99. 124 Trial Judgement, para. 99. 125 Kalimanzira Appeal Brief, paras. 53-57. 126 Kalimanzira Appeal Brief, para.

54. See also Kalimanzira Reply Brief, para. 10.

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18 educated persons from that area also does not permit the conclusion that he was well-known.127 In his view, since the prefecture’s population was mostly made up of farmers, the only known authorities in the area would have been local officials such as bourgmestres, conseillers, and sub- prefects.128 Kalimanzira also highlights the testimony of four Prosecution witnesses who were uncertain as to or incorrectly identified his position in 1994.129 50. The Appeals Chamber is not convinced that Kalimanzira has demonstrated that the Trial Chamber’s findings concerning his influence in Butare Prefecture were unreasonable. His arguments are effectively limited to disagreeing with the conclusions of the Trial Chamber and advancing his own unsubstantiated interpretation of the evidence. Although he does specifically identify four Prosecution witnesses who were unfamiliar with his specific position,130 he does not explain how this evidence undermines the reasonable conclusions that the Trial Chamber reached after considering the undisputed evidence of his various official positions and activities.131 Furthermore, he fails to appreciate that, while these witnesses may not have known his exact position, their testimonies still generally corroborate the Trial Chamber’s conclusion that he was known among the local population.

3. Conclusion 51. Accordingly, the Appeals Chamber dismisses Kalimanzira’s Second Ground of Appeal.

127 Kalimanzira Appeal Brief, para. 55. 128 Kalimanzira Appeal Brief, para. 55. 129 Kalimanzira Appeal Brief, para. 56, citing T. 9 May 2008 p. 38 (French) (Witness BDC), T. 20 May 2008 p. 41 (French) (Witness BDC), T. 19 May 2008 p. 14 (French) (Witness BWO), T. 22 May 2008 p. 6 (French) (Witness BXG), T. 16 June 2008 p. 81 (French) (Witness AZM). 130 T. 9 May 2008 p. 34 (“Q. And what was [Kalimanzira]? A. He was a civil servant, but I can’t tell you what his occupation was, exactly.”) (Witness BDC); T. 20 May 2008 p. 34 (“Q. And at the time, what was Mr. Kalimanzira’s occupation? A. I did not try to know what his occupation was at the time. And I’m not in a position to tell you what it was.”) (Witness BDC); T. 19 May 2008 p. 12 (“Q. Would you know the duties [Kalimanzira] held at that time? A. I simply heard that he lived in Kigali, but I don’t know the post or the position he held at that time.”) (Witness BWO), T. 22 May 2008 p. 6 (“Q. Witness, do you know a person called Callixte Kalimanzira? A. Yes, I know him. Q. Did you know what position he held in 1994? A. In 1994, I heard people say that Callixte Kalimanzira was a sous-préfet.”) (Witness BXG); T. 16 June 2008 p. 64 (“Q. And what was Kalimanzira’'s specific position before April 1994? A. I don’t know the specific position he occupied. He is someone I used to see. I never had the opportunity to sit down with him and have a chat with him. I knew he worked in the ministry that I’ve mentioned to you, but I did not know the specific position he had.”) (Witness AZM). 131 See Trial Judgement, paras. 79-99.

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19 C. Alleged Errors in Assessing the Alibi (Ground 4) 52. The Trial Chamber convicted Kalimanzira for instigating and aiding and abetting genocide at the Butare-Gisagara roadblock around 22 April 1994, for aiding and abetting genocide at Kabuye hill on 23 April 1994, and for aiding and abetting genocide by his presence at the inauguration of Élie Ndayambaje as bourgmestre of Muganza Commune on 22 June 1994.132 In addition, it convicted Kalimanzira for direct and public incitement to commit genocide at the Jaguar roadblock in middle to late April 1994, the Kajyanama roadblock in late April 1994, the Gisagara marketplace at the end of May 1994, and the Nyabisagara football field in late May or early June 1994.133 53. In respect of each of these allegations, Kalimanzira presented an alibi, placing him, for the most part, at his home in Kigali from 6 to 14 April 1994, working with the interim government in Murambi, Gitarama Prefecture, between 14 April and 30 May 1994, and at his home in Butare Prefecture from 31 May until 30 June 1994.134 Kalimanzira submits that the Trial Chamber erred in rejecting his alibi.135 In this section, the Appeals Chamber addresses two principal questions: (1) whether the Trial Chamber erred in taking into account the lack of his notice of alibi; and (2) whether the Trial Chamber erred in assessing the underlying alibi evidence.

1. Notice of Alibi 54. The Trial Chamber found that Kalimanzira did not provide adequate notice of his intent to rely on an alibi defence as prescribed in Rule 67(A)(ii)(a) of the Rules.136 The Trial Chamber observed that the lack of notice “may suggest that the Defence has tailored the alibi evidence to fit the Prosecution’s case.”137 It therefore decided to take this into consideration in assessing the alibi,138 noting that this “may diminish its probative value as it raises the question of whether the alibi was recently invented to fit the [Prosecution case].”139 In particular, the Trial Chamber ultimately concluded that the “sudden and belated introduction” of specific alibi evidence in

132 Trial Judgement, paras. 293, 393, 474, 739. 133 Trial Judgement, paras. 562, 589, 614, 729, 739. 134 Trial Judgement, paras. 101-111, 114, 280, 295, 459, 537, 564, 591, 718. 135 Kalimanzira Notice of Appeal, paras. 18-20, 22; Kalimanzira Appeal Brief, paras. 59-91. Kalimanzira has abandoned his second sub-ground of appeal, which contends that the Trial Chamber failed to consider the entire Defence evidence. See Kalimanzira Notice of Appeal, para. 21; Kalimanzira Appeal Brief, para.

62. See also Trial Judgement, paras. 136, 287, 357, 464, 548, 577, 606, 723. 136 Trial Judgement, paras. 65, 113. 137 Trial Judgement, para. 66. 138 Trial Judgement, para. 66. 139 Trial Judgement, para. 113.

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20 relation to the Kabuye hill attack “strongly suggests rehearsal and tailoring to fit the Prosecution case” and the failure to disclose it “support[ed] the inference of recent fabrication.”140 55. Kalimanzira argues that the Trial Chamber acted unreasonably in faulting him for not providing more specific notice of his alibi while at the same time acknowledging numerous defects in the Indictment, which made it difficult to do so.141 To illustrate, he notes that the Indictment and the Prosecution Pre-Trial Brief situated the massacres at Kabuye hill between April and the beginning of June 1994.142 Given such broad time-frames, he contends that he did not have the ability to investigate and to advance a more detailed alibi.143 56. Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. As the Trial Chamber noted, Kalimanzira intimated at his initial appearance and in his Pre-Trial Brief that he was in Gitarama Prefecture for much of the period covered by the Indictment.144 However, as the Trial Chamber correctly determined,145 this information did not conform to Rule 67(A)(ii)(a) of the Rules, which requires that “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.” The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.146 Therefore, it was within the Trial Chamber’s discretion to take this into account in assessing the alibi evidence in this case.

57. Kalimanzira does not dispute that he did not provide the notice required under the Rules. He also does not challenge the possible impact that this failure might have on the assessment of his evidence. Instead, he contests the application of the requirements to him in the circumstances of this case, noting the Trial Chamber’s finding that a number of the allegations in the Indictment were defective and that the date ranges for key events were overly broad.

58. The Appeals Chamber is not convinced that Kalimanzira has shown any error in the Trial Chamber’s consideration of his alibi notice. For the most part, Kalimanzira’s alibi is general, namely that he spent large portions of time at his home in Kigali, at his office in Gitarama

140 Trial Judgement, para. 119. 141 Kalimanzira Appeal Brief, paras. 63-67. See also Kalimanzira Reply Brief, para. 12. 142 Kalimanzira Appeal Brief, para. 65. 143 Kalimanzira Appeal Brief, para. 65. 144 Trial Judgement, para. 62. 145 Trial Judgement, paras. 62, 64. 146 Rutaganda Appeal Judgement, para. 242; Musema Appeal Judgement, para. 201.

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21 Prefecture, and at his home in Butare Prefecture. Furthermore, with respect to Kalimanzira’s specific discussion of the broad time-frame provided by the Prosecution with respect to the massacre at Kabuye hill, the Appeals Chamber observes that paragraphs 9 and 10 of the Indictment provide a precise date range of “[o]n or about 23 April 1994.” Therefore, the Appeals Chamber is not satisfied that any vagueness in the date ranges provided in the Indictment meaningfully impacted Kalimanzira’s ability to provide notice of his alibi.

2. Alleged Errors in the Assessment of Evidence 59. Kalimanzira presented evidence of an alibi that consisted of three principal phases.147 First, Kalimanzira claimed that he was at his home in Kigali from 6 to 14 April 1994 until he relocated with the interim government to Murambi in Gitarama Prefecture, an assertion that was supported by his wife, Defence Witness Salomé Mukantwali, in her testimony.148 Second, Kalimanzira testified that he remained in Murambi, for the most part, from 14 April to 30 May 1994, overseeing the administration functions of the Ministry of Interior, principally related to the payment of salaries for employees.149 During this period, he acknowledged traveling to Kibungo Prefecture on 21 April 1994 to install the newly appointed prefect, Anaclet Rudakubana.150 He claimed to have spent the night there and to have returned to Murambi on the evening of 22 April 1994.151 This phase of the alibi was supported by testimony from a former staff member of the Ministry of Interior, Defence Witness Marc Siniyobewe.152 Third, Kalimanzira testified that, from 31 May until 30 June 1994, he primarily remained at his home in Butare Prefecture, an assertion which was supported by Witness Mukantwali’s testimony.153 60. The Trial Chamber accepted that Kalimanzira remained in Kigali until he relocated to Gitarama Prefecture with the interim government.154 It also found that he attended the installation ceremony for Prefect Rudakubana in Kibungo Prefecture on 21 April 1994.155 However, the Trial Chamber was not convinced that Kalimanzira remained in Kibungo Prefecture on the night of 21

147 Trial Judgement, para. 114. 148 Trial Judgement, paras. 101-103, 114-117. 149 Trial Judgement, paras. 104-108, 114, 118-128. 150 Trial Judgement, para. 106. 151 Trial Judgement, para. 106. 152 Trial Judgement, paras. 104, 106, 118. 153 Trial Judgement, paras. 108-111, 114, 129-133. 154 Trial Judgement, para. 134. 155 Trial Judgement, paras. 127, 134.

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22 April 1994, traveled to Murambi on 22 April, spent the night there,156 and returned to work on the morning of 23 April.157 61. The Trial Chamber considered Kalimanzira and Witness Siniyobewe’s accounts of his presence in Murambi on 23 April 1994 to be a “recent fabrication.”158 It expressed concern about Witness Siniyobewe’s “feigned ignorance” of the extremist nature of RTLM’s broadcasts, especially given his ownership of shares in the organization.159 The Trial Chamber ultimately found Witness Siniyobewe’s testimony “unconvincing.”160 62. The Trial Chamber did not accept that Kalimanzira remained in Gitarama Prefecture at all other times between 14 April and 30 May 1994.161 In this respect, it noted that he “lied about attending a Butare Prefectural Security Council meeting on 16 May 1994” and that he had access to vehicles and fuel.162 Therefore, the Trial Chamber concluded that this evidence raised no reasonable doubt in the testimony of witnesses who saw Kalimanzira at Kabuye hill and elsewhere in Butare Prefecture during this period.163 63. The Trial Chamber also did not accept the third phase of Kalimanzira’s alibi, namely that he remained primarily at his home in Butare Prefecture after 31 May 1994.164 In this respect, it noted that, after being shown transcripts of a Radio Rwanda broadcast, “he could no longer deny having attended a civil defence and security

meeting in Gikongoro préfecture on 3 June 1994.”165 The Trial Chamber also recalled that Kalimanzira “admitted to the possibility that he may have forgotten about other occasions when he might have left his house during this period.”166 It considered that Witness Mukantwali’s support of Kalimanzira’s account had “little probative value” in view of their marital relationship and the fact that she was not always at home because she worked at a hospital during this period.167 64. Kalimanzira submits that the Trial Chamber erred in its assessment of his alibi evidence.168 He first argues that the Trial Chamber shifted the burden of proof and failed to appreciate relevant

156 Trial Judgement, para. 127. 157 Trial Judgement, paras. 106, 121, 127, 134. 158 Trial Judgement, para. 134. 159 Trial Judgement, para. 120. 160 Trial Judgement, para. 120. 161 Trial Judgement, para. 134. 162 Trial Judgement, para. 134. 163 Trial Judgement, para. 134. 164 Trial Judgement, para. 135. 165 Trial Judgement, para. 135. 166 Trial Judgement, para. 135. 167 Trial Judgement, para. 133. 168 Kalimanzira Appeal Brief, paras. 68-91.

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23 circumstantial evidence in relation to his presence in Kibungo Prefecture on the night of 21 April 1994.169 In particular, he points to the Trial Chamber’s statement that it did not “believe” his version of the events as evidence that it required him to prove his alibi beyond reasonable doubt.170 Furthermore, Kalimanzira contends that the Trial Chamber unreasonably discounted the extreme danger of traveling at night given the RPF’s advance.171 65. In addition, Kalimanzira argues that the Trial Chamber’s consideration of his testimony is both unreasonable and biased.172 Specifically, he points to the particular language employed by the Trial Chamber in rejecting his testimony.173 Kalimanzira further submits that the Trial Chamber unreasonably discredited his evidence after misconstruing his testimony related to his presence at certain meetings in Butare Prefecture.174 He also disputes the Trial Chamber’s description of his testimony on his activities in Gitarama Prefecture as “evasive” and his concern with RPF infiltration as “irrational.”175 In particular, he asserts that the Trial Chamber’s rejection of the explanation of his daily tasks in Gitarama Prefecture, as well as of his concern regarding the RPF, failed to sufficiently account for the difficult circumstances under which he was working at the time, the evidence which corroborated his actions, and the realities of

the war.176 66. Finally, Kalimanzira challenges the basis for the Trial Chamber’s rejection of Witness Siniyobewe’s testimony.177 In particular, he disputes the Trial Chamber’s characterization of Witness Siniyobewe as a family friend, noting that the witness was simply a work colleague.178 In addition, Kalimanzira contends that it was unreasonable to discount the witness’s testimony based on his lack of knowledge about RTLM broadcasts or his ownership of shares in the organization.179 He also challenges the Trial Chamber’s observation that Witness Siniyobewe testified precisely with respect to the dates surrounding the attack on Kabuye hill and more generally about other time periods.180 In his view, the Trial Chamber failed to appreciate the witness’s explanation for this.181

169 Kalimanzira Appeal Brief, paras. 69-73. 170 Kalimanzira Appeal Brief, para. 71, quoting Trial Judgement, para.

127. Kalimanzira quotes the French version of the Trial Judgement which uses the following formulation: “La Chambre n’est pas convaincue que Kalimanzira ait passé la nuit du 21 avril 1994 dans la préfecture de Kibungo.” (emphasis added). 171 Kalimanzira Appeal Brief, paras. 72, 73. 172 Kalimanzira Appeal Brief, paras. 75-82. 173 Kalimanzira Appeal Brief, para. 76, citing Trial Judgement, paras. 117, 122, 125-127, 129, 130, 134. 174 Kalimanzira Appeal Brief, paras. 77, 78. 175 Kalimanzira Appeal Brief, paras. 79-82. 176 Kalimanzira Appeal Brief, paras. 79-82. 177 Kalimanzira Appeal Brief, paras. 83-89. 178 Kalimanzira Appeal Brief, para. 84. 179 Kalimanzira Appeal Brief, paras. 85-88. 180 Kalimanzira Appeal Brief, para. 89. 181 Kalimanzira Appeal Brief, para. 89.

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24 67. The Appeals Chamber is not convinced that the Trial Chamber shifted the burden of proof in assessing Kalimanzira’s alibi. The Appeals Chamber observes that the Trial Chamber correctly stated that “an accused need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case” and that “[t]he alibi does not carry a separate burden.”182 In addition, the Trial Chamber noted that “the burden of proving the facts charged beyond reasonable doubt […] always remains squarely on the shoulders of the Prosecution.”183 This approach is consistent with the settled jurisprudence for assessing an alibi.184 Moreover, the Appeals Chamber cannot identify any error in the Trial Chamber’s conclusion that it did not “believe” Kalimanzira’s alibi185 or in its use of various other formulations relating to this assessment.186 These formulations simply underscored the Trial Chamber’s conclusion that it did not find the alibi evidence sufficiently credible to raise a reasonable doubt in the Prosecution’s case.

68. The Appeals Chamber is also not satisfied that Kalimanzira has demonstrated any error in the Trial Chamber’s rejection of his claim that he stayed in Kibungo Prefecture on the night of 21 April 1994. After discussing the evidence that he remained in Kibungo due to security concerns related to the RPF advance,187 the Trial Chamber found that “[h]aving been assigned two gendarmes to accompany him on this trip, it makes no sense that Kalimanzira would have waited until an already precarious situation became so dangerous that others started leaving before he or his protective escorts decided it was safe for him to leave.”188 Beyond disagreeing with this conclusion, Kalimanzira points to no evidence in the record, other than his own testimony, to substantiate his claim that it was more dangerous to travel at night than to wait until just hours before the area fell to the RPF.

69. Kalimanzira has also not demonstrated any error in the Trial Chamber’s decision not to accept that he remained primarily in Murambi, Gitarama Prefecture, between 14 April and 30 May 1994 and at his home in Butare Prefecture from 31 May onwards. In particular, the Trial Chamber found Kalimanzira’s description of his activities in Murambi, which primarily focused on the payment of salaries, to be vague, in contradiction with other evidence as to how civil servants were

182 Trial Judgement, para. 112. 183 Trial Judgement, para.

112. See also Trial Judgement, para. 136. 184 See Zigiranyirazo Appeal Judgement, paras. 17, 18. 185 Trial Judgement, para. 136. 186 See Kalimanzira Appeal Brief, para. 76 (“The Chamber's vocabulary is characterized by bias. The Chamber talks of ‘feigning ignorance’, ‘compulsive, irrational’ fears of RPF infiltrations, ‘caught having lied’, finding Kalimanzira's version repeatedly ‘unbelievable ’, ‘inconceivable ’, ‘peculiar ’. It blamed him for ‘trivializing the situation’ when he testified that he attempted to save some Tutsi as thousands of others were being ‘slaughtered’ elsewhere[.] The use of these words was out of place.”) (emphasis in original), citing Trial Judgement, paras. 117, 122, 125-127, 129, 130, 134. 187 Trial Judgement, paras. 106, 127. 188 Trial Judgement, para. 127.

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25 paid, and, more importantly, inconsistent with his position and attendance at prominent meetings, in particular in the context of an ongoing war.189 This last factor was also key to the Trial Chamber’s rejection of Kalimanzira’s claim to have mostly stayed at home while in Butare Prefecture.190 In this context, the Appeals Chamber finds that it was within the scope of the Trial Chamber’s discretion to consider as unpersuasive both his claim to have focused entirely on payment matters while in Murambi and his claim that he stayed at home in Butare Prefecture, out of contact with local officials.191 70. Finally the Appeals Chamber is not convinced that Kalimanzira has shown that the Trial Chamber’s assessment of Witness Siniyobewe’s evidence was unreasonable. Even if the Trial Chamber incorrectly characterized Witness Siniyobewe as a friend rather than a former subordinate,192 the Appeals Chamber considers that a degree of caution would still apply to Witness Siniyobewe’s testimony. The Appeals Chamber notes that the Trial Chamber’s analysis of Witness Siniyobewe’s claimed lack of knowledge concerning the content of RTLM’s broadcasts, and his ownership of shares in RTLM, fell within the bounds of its discretion. In any event, these issues do not appear to be the main reasons for discrediting Witness Siniyobewe. The Appeals Chamber recalls that the Trial Chamber found Witness

Siniyobewe’s account of Kalimanzira’s presence in Murambi, Gitarama Prefecture, on the morning of 23 April 1994 to be unconvincing. In this respect, the Trial Chamber contrasted the “sudden and belated introduction” of Kalimanzira’s specific alibi evidence for 23 April 1994, the date of the attack on Kabuye hill, with the more general evidence he gave with respect to the rest of his time in Murambi.193 3. Conclusion 71. Accordingly, the Appeals Chamber dismisses Kalimanzira’s Fourth Ground of Appeal.

189 Trial Judgement, paras. 122-124. 190 Trial Judgement, para. 132. 191 See Trial Judgement, paras. 122-124, 132. 192 See T. 4 February 2009 pp. 14, 54. 193 Trial Judgement, para. 121.

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26 D. Alleged Errors Relating to the Inauguration of Élie Ndayambajye (Ground 5) 72. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his presence at the 22 June 1994 inauguration of Élie Ndayambaje as bourgmestre of Muganza Commune, Butare Prefecture, during which Ndayambaje instigated the killing of Tutsis.194 The Trial Chamber found that, by his presence, Kalimanzira offered moral support to Ndayambaje’s call to kill Tutsis during the ceremony and thereby aided and abetted subsequent killings.195 In making these findings, the Trial Chamber relied on Witnesses BBB and BCA, who attended the ceremony, observed Kalimanzira’s presence, and testified about subsequent killings.196 73. Kalimanzira submits that the Trial Chamber erred in convicting him in relation to this incident.197 In this section, the Appeals Chamber will consider whether the Trial Chamber erred in the assessment of the evidence of the killings. In this respect, Kalimanzira contends that there is insufficient evidence demonstrating that killings in fact followed the ceremony.198 The Prosecution responds generally that Kalimanzira’s arguments lack merit, but does not address the sufficiency of the evidence relating to the killings.199 74. The Appeals Chamber recalls that “an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral

support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.”200 The Appeals Chamber has explained that “[a]n accused can be convicted 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.”201 Where this form of aiding and abetting has been a basis of 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 together 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.”202 75. In view of Kalimanzira’s position as directeur de cabinet of the Ministry of Interior, it was reasonable for the Trial Chamber to determine that his silent presence during Ndayamabaje’s

194 Trial Judgement, paras. 291-293, 739. 195 Trial Judgement, paras. 292, 293. 196 Trial Judgement, para. 291. 197 Kalimanzira Notice of Appeal, paras. 23-29; Kalimanzira Appeal Brief, paras. 92-161. 198 Kalimanzira Appeal Brief, paras. 117-119, 135, 136. 199 Prosecution Response Brief, paras. 75-90. See also T. 14 June 2010 pp. 32-37. 200 Muvunyi Appeal Judgement, para.

79. See also Seromba Appeal Judgement, para. 44; Blagojevi} and Joki} Appeal Judgement, para. 127. 201 Br|anin Appeal Judgement, para.

273. See also Br|anin Appeal Judgement, para. 277.

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27 inflammatory speech would have offered tacit approval of its message. The basis of Kalimanzira’s conviction, however, rests on the Trial Chamber’s conclusion that Kalimanzira’s tacit approval not only sanctioned Ndayambaje’s message, but in fact substantially contributed to killings which occurred after the ceremony.203 76. As the Trial Chamber noted, Witnesses BBB and BCA attest to killings occurring after the meeting.204 Their accounts regarding these crimes are vague and devoid of any detail. In particular, the extent of Witness BBB’s description of the killings is that “after the speech, people went to sweep their houses, that is to say, to kill those persons.”205 Witness BCA’s account is similarly brief: “As was noticed later on, it meant that [Tutsis and Hutus who opposed the government] who had been hidden had to be taken out of their hiding so that they should be killed as well.”206 77. The Appeals Chamber, Judge Pocar dissenting, considers that it is unclear from either account whether the witnesses had first-hand knowledge of the killings or whether their evidence was hearsay. They refer to no particular incident, provide no approximate time-frame for the killings, and do not give any identifying information concerning the assailants or victims. In such circumstances, the Appeals Chamber finds, Judge Pocar dissenting, that it is impossible to determine with any reasonable certainty whether any killings in fact occurred following the meeting and, if so, the degree to which they were related to the ceremony.

78. In the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that “contain[ed] no detail on any specific incident or the frequency of the attacks.”207 The Appeals Chamber, Judge Pocar dissenting, can identify no material distinction between the quality of the evidence in the Muvunyi case and that provided by Witnesses BBB and BCA here with respect to the occurrence of killings.

79. Consequently, the Appeals Chamber, Judge Pocar dissenting, is not persuaded that the Trial Chamber acted reasonably in relying on the evidence of Witnesses BBB and BCA about the subsequent killings. No reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony in circumstances where it heard no evidence about even a single incident. Therefore, the Trial Chamber erred in fact in finding that the evidence showed that Kalimanzira’s

202 Br|anin Appeal Judgement, para. 277. 203 Trial Judgement, para. 292. 204 Trial Judgement, para.

291. See also T. 16 June 2008 p. 20; T. 18 June 2008 pp. 50, 51. 205 T. 16 June 2008 p. 20. 206 T. 18 June 2008 pp. 50, 51. 207 Muvunyi Appeal Judgement, para.

69. See also Muvunyi Appeal Judgement, paras. 68, 70-72.

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28 presence at the inauguration substantially contributed to subsequent acts of genocide. As a result, the Appeals Chamber need not address Kalimanzira’s other arguments under this ground of appeal.

80. For the forgoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s Fifth Ground of Appeal and reverses his conviction for aiding and abetting genocide based on this event.

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29 E. Alleged Errors Relating to Kabuye Hill (Grounds 3 and 6) 81. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his involvement in the massacre of Tutsi civilians at Kabuye hill in Butare Prefecture on 23 April 1994.208 In particular, the Trial Chamber found that, sometime before noon on that day, Kalimanzira became angry while at the Mukabuga roadblock after learning that Tutsis at the hill had successfully defended themselves, which demonstrated his knowledge of the attack and his intention for Tutsis to be killed there.209 The Trial Chamber further found that, later that day, Kalimanzira was present when Sub-Prefect Dominique Ntawukulilyayo instructed Tutsis at the Gisagara marketplace to seek refuge at Kabuye hill.210 According to the Trial Chamber, Kalimanzira’s presence showed tacit approval of, and gave credence to, the sub-prefect’s false assurances of safety.211 The Trial Chamber determined that, in a similar fashion, Kalimanzira stopped Tutsis on the Kabuye-Gisagara road and told them to go to Kabuye hill, promising them safety.212 Finally, the Trial Chamber found that Kalimanzira then went to Kabuye hill along with armed soldiers and policemen who, using their firearms, massacred Tutsis there, resulting in an “enormous human tragedy.”213 The Trial Chamber concluded that “Kalimanzira’s role in luring Tutsis to Kabuye hill

and his subsequent assistance in providing armed reinforcements substantially contributed to the overall attack.”214 The Trial Chamber further concluded that his actions demonstrated his genocidal intent.215 82. Kalimanzira contests his conviction, citing a number of alleged errors.216 In this section, the Appeals Chamber considers whether the Trial Chamber erred in: (1) determining that Kalimanzira aided and abetted genocide; (2) assessing witness credibility and identification evidence; (3) its findings relating to the Gisagara marketplace; (4) its findings relating to the Kabuye-Gisagara road; and (5) its findings relating to Kalimanzira’s presence at Kabuye hill.

208 Trial Judgement, paras. 392, 393, 739. 209 Trial Judgement, paras. 376, 378, 392. 210 Trial Judgement, paras. 367, 392. 211 Trial Judgement, para. 392. 212 Trial Judgement, paras. 371, 392. 213 Trial Judgement, para. 393. 214 Trial Judgement, para. 393. 215 Trial Judgement, para. 393. 216 Kalimanzira Notice of Appeal, paras. 17, 30-43; Kalimanzira Appeal Brief, paras. 162-341. In his Appeal Brief, Kalimanzira addresses his Third Ground of Appeal relating to alleged errors concerning the Trial Chamber’s assessment of his genocidal intent in connection with his Sixth Ground of Appeal. See Kalimanzira Appeal Brief, para. 58.

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30 1. Alleged Errors in Determining Whether Kalimanzira Aided and Abetted Genocide 83. The Trial Chamber found that Kalimanzira substantially contributed to the massacre on Kabuye hill on 23 April 1994 by convincing Tutsis to seek refuge there and by providing armed reinforcements for subsequent attacks on them.217 The Trial Chamber also explicitly concluded that Kalimanzira possessed genocidal intent based on several factors.218 First, the Trial Chamber concluded that, on 23 April 1994, Kalimanzira became enraged on learning that the Tutsis at Kabuye hill successfully defended themselves and had not been killed and that he asked to be shown where the Tutsis were.219 Second, it found that he demonstrated “tacit approval of [Sub- Prefect] Ntawukulilyayo’s expulsion of Tutsis from the Gisagara marketplace to Kabuye hill.”220 Third, it concluded that Kalimanzira assisted the massacre on Kabuye hill by providing armed reinforcements to facilitate the killings.221 Finally, the Trial Chamber also took into account Kalimanzira’s conduct in relation to the attack along with other actions during the relevant time period and concluded that these factors demonstrated his intent to destroy the Tutsi group.222 84. Kalimanzira contends that the Trial Chamber erred in its assessment of whether he aided and abetted genocide. First, he asserts that no action he took could constitute a

“substantial” contribution to the massacre at Kabuye hill.223 Specifically, Kalimanzira notes that none of the Prosecution or Defence witnesses who were part of the attacking forces reported seeing him at Kabuye hill except for Prosecution Witness BBO, whose testimony the Trial Chamber did not find credible.224 Taking his absence from Kabuye hill as a given, Kalimanzira reasons that he could not have influenced those who were attacking Tutsis there and thus that he could not have substantially contributed to the massacre.225 85. Kalimanzira further contends that the Trial Chamber failed to adequately justify its finding that he possessed the required mens rea for aiding and abetting genocide.226 He maintains that the Trial Chamber did not adequately explain how it concluded that he knew of the genocidal intent of the principal perpetrators, or that he was aware that his acts contributed to the principal

217 Trial Judgement, para. 393. 218 Trial Judgement, para.

393. See also Trial Judgement, paras. 733, 734. 219 See Trial Judgement, para.

733. See also Trial Judgment, paras. 321-324. 220 Trial Judgement, para.

734. See also Trial Judgement, para. 367. 221 Trial Judgement, para.

734. See also Trial Judgement, para. 393. 222 Trial Judgement, paras. 393, 732-738. 223 Kalimanzira Appeal Brief, para. 196. 224 Kalimanzira Appeal Brief, paras. 197, 198. See also Kalimanzira Reply Brief, para. 24. 225 Kalimanzira Appeal Brief, paras. 199-201. 226 Kalimanzira Appeal Brief, paras. 202-221.

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31 perpetrators’ criminal plan.227 Kalimanzira also asserts that the Trial Chamber erred in discussing his mens rea for genocide in a separate section of the Trial Judgement applicable to all relevant counts of the Indictment.228 He asserts that this section improperly analyzes multiple separate incidents and also focuses only on genocidal intent, rather than the specific mens rea required for aiding and abetting.229 86. The Appeals Chamber has explained that an “aider and abettor commit₣sğ acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support ha[s] a substantial effect on the perpetration of the crime.”230 Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”; such assistance need not “serve as condition precedent for the commission of the crime.”231 With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “₣tğhe requisite mental element ₣...ğ is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”232 Specific intent crimes such as genocide require that “the aider and abettor must know of the principal perpetrator’s specific intent.”233 87. Kalimanzira’s contention that the Trial Chamber erred in finding that he made a substantial contribution to the killings at

Kabuye hill is not convincing. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there. Kalimanzira’s assertion that he did not substantially aid the assault on Kabuye hill rests on his claim that no credible witnesses who were also principal perpetrators placed him there.234 However, this claim does not take into account the evidence provided by Tutsi survivors of the attacks. It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April 1994.235 The Appeals Chamber recalls that it is not necessary for a principal perpetrator to be aware of the aider and abettor’s contribution.236 It further recalls the Trial Chamber’s finding that the attacks at Kabuye hill involved a large number of individuals over a broad terrain and long period of time.237 In this context, it was reasonable for the Trial Chamber to conclude that Kalimanzira provided

227 Kalimanzira Appeal Brief, paras. 213-215. 228 Kalimanzira Appeal Brief, paras. 204-209. 229 Kalimanzira Appeal Brief, paras. 206, 218-220. 230Seromba Appeal Judgement, para.

44. See also Muvunyi Appeal Judgement, para. 79; Blagojevi} and Joki} Appeal Judgement, para. 127. 231 Blagojevi} and Joki} Appeal Judgement, para. 134. 232 Muvunyi Appeal Judgement, para. 79. 233 Blagojevi} and Joki} Appeal Judgement, para. 127. 234 See Kalimanzira Appeal Brief, paras. 196-201. See also Kalimanzira Reply Brief, para. 24. 235 See Trial Judgement, paras. 379-383, 393. 236 See Tadić Appeal Judgement, para. 229.

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32 substantial assistance to the massacre at Kabuye hill even if this assistance was not known to principal perpetrators who testified before it.238 88. Kalimanzira is equally unconvincing insofar as he contends that the Trial Chamber erred in separating its discussion of mens rea from the assessment of factual issues relating to Kabuye hill. Contrary to Kalimanzira’s suggestion, the Trial Chamber specifically addressed his intent with respect to the events at Kabuye hill in a separate section of the Trial Judgement and incorporated those findings into its analysis regarding Kabuye hill.239 The Appeals Chamber can identify no error in the structure of this approach.

89. The content of the Trial Chamber’s mens rea analysis, however, is problematic. The Trial Chamber limited its analysis to discussing Kalimanzira’s specific intent to destroy the Tutsi group. It did not make specific findings on the mens rea of the principal perpetrators or of his knowledge of their intent,240 which, as noted above, is required to sustain a conviction for aiding and abetting genocide.241 The Appeals Chamber considers however that the evidence before the Trial Chamber was sufficient to support a finding that the principal perpetrators acted with genocidal intent in view of how the attack unfolded and the context in which it occurred.

90. The Trial Chamber’s findings also support its implicit conclusion that Kalimanzira knew of the principal perpetrators’ genocidal intent. Even before the massacre at Kabuye hill, the anger Kalimanzira demonstrated at the Mukabuga roadblock when informed that the Tutsis at Kabuye hill had successfully defended themselves and had not been killed strongly suggested that he was aware of the principal perpetrators’ genocidal plans.242 This conclusion is confirmed by Kalimanzira’s personal observation of the siege at Kabuye hill, which involved significant numbers of armed individuals surrounding and shooting at Tutsi refugees who had been told that Kabuye hill was a place of safety.243 These findings compel the conclusion that Kalimanzira knew that the armed reinforcements which he provided would aid in the destruction, in whole or in part, of the Tutsi ethnic group.

237 See Trial Judgement, paras. 386, 387. 238 The Appeals Chamber further recalls that “the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.” Blaški} Appeal Judgement, para.

48. See also Blagoje Simi} Appeal Judgement, para. 85. 239 See Trial Judgement, paras. 393, 733, 734. 240 See Trial Judgement, paras. 733, 734. See also Trial Judgement, paras. 392, 393. 241 The Appeals Chamber reiterates that in order to enter a conviction for aiding and abetting genocide it is not necessary to prove that the aider and abettor himself had genocidal intent. See Ntakirutimana Appeal Judgement, para. 501; Krstić Appeal Judgement, para. 140. 242 Trial Judgement, paras. 376, 392. 243 Trial Judgement, para. 734.

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33 91. For the foregoing reasons, the Appeals Chamber is not convinced that the Trial Chamber erred in its analysis of the requirements needed to convict for aiding and abetting genocide. Accordingly, this sub-ground of appeal is dismissed.

2. Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence 92. The Trial Chamber found that both Defence and Prosecution witnesses agreed on the broad outlines of the assault on Kabuye hill and on certain elements of events at the Gisagara marketplace.244 It also noted that in the context of these two events, Defence witnesses’ failure to see Kalimanzira did not preclude his presence.245 With regard to the identification of Kalimanzira, the Trial Chamber questioned Prosecution Witness BBO’s explanation of how he met Kalimanzira, and doubted his ability to identify Kalimanzira at Kabuye hill. It determined that it would not rely on his testimony without corroboration by reliable evidence.246 The Trial Chamber also noted that Prosecution Witness BWO had met Kalimanzira on multiple occasions prior to 23 April 1994 and, partly on this basis, found that he would have been able to identify Kalimanzira.247 The Trial Judgment did not refer to identification evidence when assessing the testimony of Prosecution Witnesses BDC, BCF, or BWK.248 93. Kalimanzira asserts that the Trial Chamber erred in its analysis of witnesses’ testimony by focusing on the suffering of Prosecution witnesses, but not on that of Defence witnesses.249 He suggests that this demonstrates that the Trial Chamber inappropriately excused contradictions

and weaknesses in Prosecution witnesses’ testimony on the basis of their past suffering.250 He also asserts that the Trial Chamber erred in accepting Defence witnesses’ testimony regarding the events in question, but not taking into account their testimony that they did not see Kalimanzira.251 94. Kalimanzira further asserts that the Trial Chamber’s analysis of identification evidence was flawed and incomplete. He suggests in his Appeal Brief, and states in his Reply Brief, that the identifications at issue were made under difficult circumstances and thus should have been the subject of careful analysis by the Trial Chamber.252 He submits that the Trial Chamber was unduly

244 See Trial Judgement, paras. 365, 386. 245 Trial Judgement, paras. 365, 387. 246 Trial Judgement, para. 375. 247 Trial Judgement, para. 383. 248 See Trial Judgement, paras. 372-391. 249 Kalimanzira Appeal Brief, paras. 166-168. 250 Kalimanzira Appeal Brief, paras. 169, 170. See also Kalimanzira Reply Brief, para. 19. 251 Kalimanzira Appeal Brief, para. 174. 252 See Kalimanzira Appeal Brief, para. 179; Kalimanzira Reply Brief, para. 20.

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34 influenced by the Prosecution’s practice of having its witnesses identify him from the witness stand and thus did not discuss identification evidence in the Trial Judgment.253 Kalimanzira also provides specific analysis of the identification evidence provided by Witnesses BBO, BCF, BDC, BWK, and BWO in their testimony.254 Kalimanzira focuses especially on Witness BWK, noting that she testified to meeting him only once prior to 23 April 1994, when he was identified by a third party. Kalimanzira also observes that she again required assistance in order to identify him on 23 April 1994.255 95. The Prosecution responds that the Trial Chamber gave careful consideration to the testimony of survivor witnesses for both the Prosecution and the Defence. It contends that differences in the Trial Chamber’s description of these witnesses did not amount to an error.256 It also suggests that the Trial Chamber appropriately chose to accept aspects of the Defence witnesses’ testimony without finding that it undermined the testimony of Prosecution witnesses.257 The Prosecution further contends that the Trial Chamber acted within its discretion in not specifically discussing the identification evidence of certain witnesses. The Prosecution asserts that there were no difficult circumstances with regard to identification that would require a more rigorously reasoned opinion on this issue.258

With regard to Witness BWK, it notes that she provided “detailed evidence” regarding her first encounter with Kalimanzira, and notes that her meeting with him on 23 April 1994 “must have been clearly memorable to her.”259 96. The Appeals Chamber recalls that in assessing witness testimony, “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”260 A trial chamber “is ₣…ğ not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”261 In addition, “neither the Rules nor the jurisprudence of the Tribunal oblige₣ğ [a] Trial Chamber to require a particular type of identification evidence.”262 However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events,263 require careful and cautious analysis by a trial chamber.264 In addition, in-court

253 Kalimanzira Appeal Brief, paras. 176-178. 254 Kalimanzira Appeal Brief, paras. 182-192. See also Kalimanzira Reply Brief, paras. 21, 22. 255 Kalimanzira Appeal Brief, paras. 188-190. 256 Prosecution Response Brief, paras. 93, 94. 257 Prosecution Response Brief, para. 95. 258 Prosecution Response Brief, paras. 97-99, 106. The Prosecution also provides specific analysis of the identification evidence provided by Witnesses BWO, BDC, BCF, BBO, and BWK, and concludes that their identifications were reliable. See Prosecution Response Brief, paras. 100-105. 259 Prosecution Response Brief, para. 104. 260 Rutaganda Appeal Judgement, para. 207. 261 Muhimana Appeal Judgement, para. 176. 262 Kamuhanda Appeal Judgement, para. 298. 263 See, e.g., Kupre{ki} Appeal Judgement, para. 40.

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35 identification evidence should be assigned “little or no credence” given the signals that can identify an accused aside from prior acquaintance.265 The Appeals Chamber further recalls that “₣ağ Trial Chamber has the discretion to cautiously consider hearsay evidence and has the discretion to rely on it.”266 However, “the weight and probative value to be afforded to that evidence will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross- examined.”267 97. Kalimanzira provides no relevant evidence or analysis to support his contention that the Trial Chamber inappropriately excused weaknesses in Prosecution witnesses’ testimony on the basis of their past suffering. The Appeals Chamber also finds that the Trial Chamber acted within its discretion in accepting Defence witnesses’ testimony regarding events at Gisagara marketplace and Kabuye hill, while also concluding that their failure to see Kalimanzira did not preclude his presence at these locations. Large numbers of individuals were involved in these two events, and the Trial Chamber’s conclusions regarding Kabuye hill – that “no witness alone could amply describe everything that transpired or identify everyone who was present” – applies to the events at Gisagara marketplace with equal force.268 98. The Appeals Chamber notes that Kalimanzira points to no evidence

and provides no analysis in relation to his assertion that identifications occurred under difficult circumstances. Therefore, this contention is summarily dismissed. The Appeals Chamber further notes that Kalimanzira appears to contradict himself by claiming that the in-court identification by Prosecution witnesses led the Trial Chamber to ignore the issue of identification evidence, while at the same time referring to Trial Chamber analysis of such identification evidence relating to Witnesses BBO and BWO.269 In any event, the evaluation in the Trial Judgement of individual witness testimonies demonstrates that, for the most part, the Trial Chamber reasonably discussed identification evidence when this was relevant to assessing a witness’s credibility. Thus, analysis of identification evidence was reasonably used both to explain the Trial Chamber’s caution in accepting Witness BBO’s evidence, and to help justify the finding that Witness BWO was credible. The absence of any analysis of identification evidence with respect to Witnesses BDC and BCF from the Trial Judgement is also reasonable. Both testified that they had seen Kalimanzira more

264 See, e.g., Bagilishema Appeal Judgement, para.

75. See also Kupre{ki} Appeal Judgement, para. 39. 265 Kamuhanda Appeal Judgement, para. 243. 266 Karera Appeal Judgement, para. 39 (internal citations omitted). 267 Karera Appeal Judgement, para. 39. 268 Trial Judgement, para.

387. See also Muhimana Appeal Judgement, para. 113 (noting the limited probative value of claims by witnesses who did not see an accused during large scale attacks). 269 Compare Kalimanzira Appeal Brief, para. 178, with Kalimanzira Appeal Brief, paras. 185, 191.

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36 than once prior to 23 April 1994, and their testimonies partially corroborated each other, lending them additional credibility.270 99. By contrast, the Trial Chamber’s failure to discuss identification evidence with regard to Witness BWK’s uncorroborated identification testimony is problematic. In her testimony, Witness BWK stated that she only saw Kalimanzira once before 23 April 1994, when she overheard a conversation about him in a bar he had entered.271 The extent to which he was identified even in this circumstance is unclear. During the examination-in-chief, Witness BWK explained that she overheard the barman identify Kalimanzira by name to the bar owner,272 while on cross- examination she testified that she overheard the barman identify Kalimanzira as the “gentleman from Kirarambogo”.273 Witness BWK also explained that, although she thought Kalimanzira seemed familiar when she met him on the Kabuye-Gisagara road on 23 April 1994, she only linked him to the individual from the bar when a man named Gakeri, who was escorting her and other Tutsis, identified him as Kalimanzira.274 Consequently, it follows that the basis of Witness BWK’s identification of Kalimanzira on both occasions is hearsay. While a conviction may be based on this type of evidence, caution is warranted in such circumstances.275 In this case, given the unclear nature of Kalimanzira’s identification by the barman, and Witness BWK’s uncertainty over Kalimanzira’s identity when she met him at the Kabuye-Gisagara road, the Trial Chamber should have explicitly explained why it accepted Witness BWK’s identification evidence. The Appeals Chamber, Judge Pocar dissenting, considers that its failure to provide such justification constituted an error of law.

100. In view of the Trial Chamber’s legal error, the Appeals Chamber, Judge Pocar dissenting, will proceed to consider the relevant evidence.276 The Appeals Chamber, Judge Pocar dissenting, is particularly concerned by the uncertainty over whether and to what extent Kalimanzira was even identified by name prior to the meeting on the Kabuye-Gisagara road. The Appeals Chamber, Judge Pocar dissenting, also notes that there is no indication as to the credibility of either individual who identified Kalimanzira to Witness BWK on the record. In these circumstances, the Appeals Chamber, Judge Pocar dissenting, considers that reliance on Witness BWK’s uncorroborated identification evidence is unsafe.

270 See T. 5 May 2008 p. 18; T. 9 May 2008 pp. 33, 34. 271 See T. 9 May 2008 pp. 15, 16. 272 T. 9 May 2008 p. 16. 273 T. 19 May 2008 p. 56. 274 T. 9 May 2008 p. 18. 275 Muvunyi Appeal Judgement, para. 70. 276 See supra para. 8.

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37 101. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s appeal, in part, insofar as it relates to identification evidence by Witness BWK. The impact of this finding will be considered later in this section. The Appeals Chamber dismisses Kalimanzira’s remaining arguments in this sub-section.

3. Alleged Errors Relating to Events at Gisagara Marketplace (April Event) 102. The Trial Chamber based its analysis of the events at the Gisagara marketplace primarily on the evidence of Prosecution Witnesses BCF, BDC, and BWO, and Defence Witnesses AM14 and FCS.277 It concluded that on 23 April 1994 Kalimanzira stood next to Sub-Prefect Ntawukulilyayo as the latter told Tutsis gathered at the Gisagara marketplace to travel to Kabuye hill and promised them protection there.278 The Trial Chamber found that the expulsions of Tutsi refugees from the Gisagara marketplace took place in waves over several days.279 The Trial Chamber reasoned that most discrepancies within and among witnesses’ testimonies and their prior statements were immaterial, and in any event based on factors such as their participation in different waves of expulsion, the passage of time, misrecorded statements, caution in testifying, and the chaotic circumstances at the Gisagara marketplace.280 103. Kalimanzira asserts that the Trial Chamber should have, but did not, explain why it believed that during his visit to the Gisagara marketplace, he was aware that the promises of security at Kabuye hill made by Sub-Prefect Ntawukulilyayo were false.281 Kalimanzira further asserts that the Trial Chamber erred in suggesting that there were multiple waves of expulsions from the marketplace. In particular, he notes that

Witness BCF did not mention several waves of expulsions, even though he was present for several days prior to 23 April 1994 and was one of the last persons to leave the marketplace.282 Kalimanzira concludes that the Trial Chamber was thus not justified in finding that the contradictions between Witness BWO’s testimony and those of certain other witnesses were due to their describing different waves of expulsions.283 He also notes that Witness BWO claimed to be sufficiently close to the speakers to be able to identify various officials in the marketplace, undermining the Trial Chamber’s conclusion that Witness BWO’s location might have prevented him from seeing Kalimanzira, if the latter was present.284

277 Trial Judgement, paras. 358-367. 278 Trial Judgement, para. 367. 279 Trial Judgement, paras. 364-366. 280 See, e.g., Trial Judgement, paras. 358-367. 281 Kalimanzira Appeal Brief, paras. 224-229. 282 Kalimanzira Appeal Brief, paras. 245-247. 283 Kalimanzira Appeal Brief, paras. 245-247. 284 Kalimanzira Appeal Brief, para. 244.

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38 104. Kalimanzira further submits that the Trial Chamber failed to properly consider discrepancies between Witness BCF’s testimony, his prior statements, and Defence evidence.285 Kalimanzira also maintains that Witnesses BCF and BDC colluded with each other, basing this assertion primarily on the facts that they are from the same area of Rwanda, that their stays in Arusha overlapped, and that they presented testimonies that were more similar than their prior witness statements.286 Kalimanzira contends that the Trial Chamber also erred in failing to accord sufficient weight to the evidence of Defence witnesses, especially to the testimony of Witnesses AM14 and FCS that they did not see him at the Gisagara marketplace on 23 April 1994.287 105. The Appeals Chamber is satisfied that the Trial Chamber’s findings concerning Kalimanzira’s actions at the Mukabuga roadblock allowed it to reasonably conclude that Kalimanzira was aware that Sub-Prefect Ntawukulilyayo’s promises of safe refuge at Kabuye hill were false. The Trial Chamber also acted within its discretion in finding that discrepancies within and between the testimonies and prior statements of Witnesses BCF and BDC, and contradictions between their testimony and that of certain Defence witnesses, were not significant. In this regard, the Appeals Chamber recalls that trial chambers enjoy broad discretion in choosing which

witness testimony to prefer, and in assessing the impact on witness credibility of inconsistencies within or between witnesses’ testimonies and prior statements.288 The Trial Chamber reasonably explained that the discrepancies and contradictions could be explained by factors such as the passage of time and chaotic circumstances at the Gisagara marketplace.289 Kalimanzira is unconvincing in alleging collusion between Witnesses BCF and BDC. The facts that their testimonies converged more than their prior statements, that their stays in Arusha overlapped, and that they came from the same part of Rwanda are not alone sufficient to establish that collusion occurred.

106. By contrast, the Trial Chamber’s justification for the existence of multiple waves of expulsions is not reasonable given the evidence before it. In explaining why no Prosecution witness referred to such multiple waves of expulsions, the Trial Chamber reasoned that: Prosecution witnesses were refugees who were instructed to move, and who testified to events as they experienced them[;] they would not conceivably have stayed at the marketplace ₣...ğ to witness an expulsion in multiple stages, nor could they be expected to know that a group of refugees had been moved from the marketplace at other times. [I]t [was] likely that thousands of refugees would not have

285 Kalimanzira Appeal Brief, paras. 230-236, 250-253. 286 Kalimanzira Appeal Brief, paras. 237-242. 287 Kalimanzira Appeal Brief, paras. 254-262. 288 See Muvunyi Appeal Judgment, para. 144; Seromba Appeal Judgement, para. 116; Simba Appeal Judgement, para. 211; Muhimana Appeal Judgement, para. 58; Ntakirutimana Appeal Judgement, para. 258. 289 See Trial Judgement, paras. 360, 361, 365.

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39 shown up at the marketplace all at once, and that as they flowed into the marketplace, they would have been moved at various stages.290 107. The Appeals Chamber considers that this explanation does not fully account for the fact that Prosecution Witness BCF, who operated a store in the vicinity of the Gisagara marketplace, testified to only one wave of expulsion.291 Witness BCF testified that he left the Gisagara marketplace in the afternoon of 23 April 1994;292 thus he was in a position to observe any additional expulsions that occurred prior to that time. It is implausible that he would not have observed or mentioned a previous wave of expulsion that included an address by Sub-Prefect Ntawukulilyayo to a large group of refugees.293 In addition, Defence Witness AM14, who was not a refugee294 and who lived in a house near the Gisagara marketplace, explicitly stated that there was only one wave of refugees expelled from there.295 These testimonies undermine the assumptions on which the Trial Chamber’s reasoning concerning multiple waves of expulsions is based.

108. The Trial Chamber’s error regarding multiple waves of expulsions does not, however, obviate its broader conclusions regarding the Gisagara marketplace. The Trial Chamber suggested that, even if he had attended the same event as Witnesses BCF and BDC, Witness BWO might not have been able to observe Kalimanzira due to his location in the crowd of refugees.296 Given the chaotic circumstances at the marketplace and the fact that Kalimanzira did not speak at this meeting, the Trial Chamber acted within the bounds of its discretion in reaching this conclusion. In any event, the Trial Chamber’s findings relating to Kalimanzira’s role were primarily based on the testimonies of Witnesses BCF and BDC, whose placement of Kalimanzira at Gisagara marketplace was also echoed by Witness BDJ.297 It was within the Trial Chamber’s discretion to find these witnesses credible even though significant aspects of their testimony diverged from the testimony of Witness BWO.

109. For the foregoing reasons, the Appeals Chamber is not convinced that the Trial Chamber materially erred in its analysis of Kalimanzira’s role in the events at the Gisagara marketplace. Accordingly, the Appeals Chamber dismisses this sub-ground of appeal.

290 Trial Judgement, para. 366. 291 See T. 5 May 2008 pp. 10-13; T. 12 May 2008 pp. 11-14, 27-33. 292 Trial Judgement, paras. 304-306. 293 See Trial Judgement, paras. 363, 364. 294 See T. 19 November 2008 pp. 64, 65. 295 See T. 19 November 2008 pp. 69-71. 296 Trial Judgement, para. 363. 297 Trial Judgement, para. 363.

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40 4. Alleged Errors Relating to Events at Kabuye-Gisagara Road 110. The Trial Chamber based its analysis of events at the Kabuye-Gisagara road solely on the testimony of Prosecution Witness BWK.298 In particular, the Trial Chamber concluded that, on 23 April 1994, Kalimanzira personally encouraged a group of Tutsis to travel to Kabuye hill, telling them that they would be safe there.299 The Trial Chamber characterized Witness BWK’s evidence as credible, discounting minor inconsistencies between her testimony and her prior statement.300 It found her testimony partially corroborated by that of other Prosecution witnesses who placed Kalimanzira nearby, at the Gisagara marketplace, on the same day.301 It also noted her mention of a man named Gakeri, who was ordered to escort her and other Tutsis to Kabuye hill, and observed that Witness BWO testified that an individual by that same name was instructed to accompany Tutsis to Kabuye hill.302 The Trial Chamber concluded that Witness BWO’s evidence offered additional corroboration of Witness BWK’s testimony.303 111. In connection with these findings, Kalimanzira asserts that the Trial Chamber erred in discounting variations between Witness BWK’s testimony and prior statement regarding the date of her meeting with Kalimanzira, the number of individuals in his car, and the uniform of Kalimanzira’s chauffeur.304 Kalimanzira also contends

that the Trial Chamber erred in finding Witness BWK’s testimony partly corroborated. He submits that the testimony of witnesses to events at the Gisagara marketplace is not appropriately cited to corroborate Witness BWK’s testimony regarding the Kabuye-Gisagara road, and that, while both Witnesses BWO and BWK may have referred to a man named Gakeri, there is no proof that it was the same Gakeri.305 112. The Prosecution responds that Kalimanzira merely repeats assertions made at trial, without explaining how the Trial Chamber’s approach was erroneous.306 113. The Appeals Chamber recalls its finding, Judge Pocar dissenting, that it was unsafe for the Trial Chamber to rely on Witness BWK’s uncorroborated identification evidence with respect to Kalimanzira.307 The Appeals Chamber, Judge Pocar dissenting, underscores that the partial

298 Trial Judgement, paras. 368, 371. 299 Trial Judgement, para. 371. 300 Trial Judgement, paras. 369-371. 301 Trial Judgement, para. 370. 302 Trial Judgement, paras. 315, 329, 370, citing T. 12 May 2008 p. 65. 303 Trial Judgement, para. 370. 304 Kalimanzira Appeal Brief, paras. 267-278. 305 Kalimanzira Appeal Brief, paras. 281-285. 306 Prosecution Response Brief, paras. 115, 116. 307 See supra Section III.E.2 (Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence).

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41 corroboration noted by the Trial Chamber only suggests that Kalimanzira was in the general area and that a man called Gakeri escorted Tutsis to Kabuye hill, but does nothing to reliably support Witness BWK’s specific identification of Kalimanzira. The Appeals Chamber, Judge Pocar dissenting, therefore is not satisfied that Witness BWK’s testimony can be relied on to establish facts concerning Kalimanzira’s actions at the Kabuye-Gisagara road absent additional evidence. Given that Witness BWK’s testimony was the only direct evidence of the events that occurred at the Kabuye-Gisagara road on 23 April 1994, the Appeals Chamber, Judge Pocar dissenting, considers that the Trial Chamber’s findings regarding Kalimanzira’s actions there are unsafe.

114. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants this sub- ground of Kalimanzira’s appeal. The impact of this finding will be discussed below.

5. Alleged Errors Relating to Kalimanzira’s Presence and Actions at Kabuye Hill 115. Although it discussed other witnesses’ testimony, the Trial Chamber based its analysis of Kalimanzira’s actions during the attack at Kabuye hill on the evidence of Witnesses BDC, BCF, and BWO.308 It described the Kabuye hill massacre as involving thousands of individuals acting in a broad area over a long period of time.309 The Trial Chamber found Witnesses BDC and BCF credible and excused certain inconsistencies between and within their testimonies and prior statements as caused by the passage of time, their trauma, and their low level of education.310 The Trial Chamber also found Witness BWO credible, although it concluded that his testimony concerning Kalimanzira’s actions at Kabuye hill related to an incident that was different from the one which Witnesses BDC and BCF described.311 The Trial Chamber considered the assertions of Witness BBO regarding Kalimanzira’s actions at Kabuye hill, but found his credibility questionable and declined to accept his testimony without corroboration.312 By contrast, the Trial Chamber accepted that Witness BXG’s testimony was “consistent with the general trend of evidence relating to Kabuye hill,” even though he did not testify to seeing Kalimanzira there.313 The Trial Chamber reviewed various accounts of witnesses, but reasoned that the fact that some of them did not see Kalimanzira at Kabuye hill was not inconsistent with his presence there.314 Finally the Trial Chamber dismissed Kalimanzira’s assertion that vehicles could not physically reach Kabuye hill.315

308 Trial Judgement, paras. 372-387. 309 Trial Judgement, para. 387. 310 Trial Judgement, para. 381. 311 Trial Judgement, paras. 382, 383. 312 Trial Judgement, para. 375. 313 Trial Judgement, para. 378. 314 Trial Judgement, paras. 384, 387. 315 Trial Judgement, para. 385.

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42 In this respect, it noted that certain Defence witnesses testified that they reached the area in vehicles, found that the specifics of where vehicles stopped were a “minor detail”, and reasoned that “Kabuye hill was not reached from one direction only.”316 116. Kalimanzira asserts that the Indictment was defective concerning the specifics of the attack on Kabuye hill and that its imprecision allowed the Trial Chamber to lay a new charge against him by finding that the Prosecution witnesses’ testimony related to two separate incidents at Kabuye hill.317 He further asserts that the Trial Chamber erred in ignoring the widely varying dates given by different witnesses for the assault on Kabuye hill, as well as in not specifying an event that could serve as a common point of reference for witness testimonies that provided varying date estimates.318 117. Kalimanzira further submits that the Trial Chamber failed to justify its acceptance of testimony by Witnesses BDC and BCF, given the significant contradictions in their evidence.319 He also asserts that the Trial Chamber’s analysis was careless, claiming that it misattributed relevant testimony of the two witnesses.320 With regard to Witness BWO, Kalimanzira asserts that his testimony contradicts that of other Prosecution witnesses, and characterizes the Trial Chamber’s analysis thereof as flawed.321 Kalimanzira further asserts

that the Trial Chamber failed to specify if it eventually relied on Witness BBO’s testimony,322 and that it did not explain how Witness BXG’s evidence was corroborated by other witnesses’ accounts of Kalimanzira’s actions on Kabuye hill.323 Kalimanzira also maintains that the Trial Chamber gave insufficient weight to Defence witnesses’ testimony asserting that they did not see him at Kabuye hill, emphasizing that several Defence witnesses were present at Kabuye hill for multiple days.324

316 Trial Judgement, para. 385. 317 Kalimanzira Appeal Brief, paras. 293-301, 317, 318. 318 Kalimanzira Appeal Brief, paras. 288-292. Kalimanzira notes that he suggested in his Final Trial Brief making the heavy rainfall mentioned by nearly all witnesses that common point of reference. See Kalimanzira Appeal Brief, paras. 288, 289. 319 Kalimanzira Appeal Brief, paras. 309-311, 313. Issues that Kalimanzira claims Witnesses BDC’s and BCF’s testimony contradict each other on include, inter alia: the number of vehicles he arrived at Kabuye hill with; the number and type of individuals who accompanied him; his behavior; and whether he left before or after fighting started. See Kalimanzira Appeal Brief, para. 310. 320 Kalimanzira Appeal Brief, para. 312, comparing Trial Judgement, para. 309, with T. 5 May 2008 p. 19 (French version); T. 12 May 2008 pp. 32, 33, 44 (French version); T. 20 May 2008 p. 75 (French version). See also T. 5 May 2008 p. 14 (English version); T. 12 May 2008 p. 37 (English version); T. 20 May 2008 pp. 28, 29 (English version). Kalimanzira asserts that, while the Trial Chamber attributed the claim that Kalimanzira stayed for a short time after the start of shooting to Witness BCF, this statement was in reality made by Witness BDC. The Appeals Chamber notes that the French language transcript citation for 20 May 2008 provided by Kalimanzira is not correct. 321 Kalimanzira Appeal Brief, paras. 314-319. 322 Kalimanzira Appeal Brief, paras. 302, 303. 323 Kalimanzira Appeal Brief, paras. 305-308. 324 Kalimanzira Appeal Brief, paras. 329-338.

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43 118. Finally, Kalimanzira contends that the Trial Chamber erred in not conducting a site visit or considering Defence witnesses’ testimony regarding the absence of roads on Kabuye hill.325 Kalimanzira asserts that the Trial Chamber failed to sufficiently explain its acceptance of Prosecution witnesses’ testimony that his vehicle was parked on Kabuye hill near the refugees.326 He notes that if the Trial Chamber believed the vehicle parked at a greater distance, it should have provided more reasoning to support this conclusion.327 Kalimanzira also submits that the Trial Chamber failed to support its conclusion that Tutsis on Kabuye hill were spread over a wide area, and suggests that all refugees would logically have stayed in the same area of Kabuye hill rather than disperse.328 119. The Appeals Chamber recalls the principles of notice previously articulated in this Judgement.329 With regard to the events at Kabuye hill, the Appeals Chamber notes that the Indictment specified the place and date of the Kabuye hill massacre, the general identity of the victims, and that Kalimanzira sought to bring military and police reinforcements in order to help with the attack.330 The Prosecution’s Pre-Trial Brief further specified that Kalimanzira encouraged Tutsis in the area of Gisagara to travel to Kabuye hill, brought armed men to Kabuye hill, provided details of the assault there, and clarified that Kalimanzira was seen at Kabuye hill more than once.331 The Appeals Chamber finds that insofar as there was any vagueness in the Indictment, it was cured by the Prosecution’s Pre-Trial Brief, and thus Kalimanzira had sufficient notice of the material facts underpinning his conviction.

120. With regard to the dating of the attack, a number of approaches was certainly open to the Trial Chamber. However, Kalimanzira does not show that it was unreasonable for the Trial Chamber to resolve diverse testimonies regarding the date of the assault on Kabuye hill, rather than to adopt the “common reference point” suggested in his Final Trial Brief. The Appeals Chamber recalls that “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”332 121. The Appeals Chamber also concludes that the Trial Chamber acted within the scope of its discretion in accepting the testimony of Witnesses BDC, BCF, and BWO, and in finding that the

325 See Kalimanzira Appeal Brief, paras. 320-328. 326 Kalimanzira Appeal Brief, paras. 321-323. 327 Kalimanzira Appeal Brief, para. 324. 328 Kalimanzira Appeal Brief, paras. 326, 327. 329 See supra Section III.B (Ground 2: Alleged Errors in Assessing Authority and Influence). 330 See Indictment, para. 9. 331 Prosecution Pre-Trial Brief, paras. 56-58. 332 Rutaganda Appeal Judgement, para. 207.

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44 latter’s testimony related to a distinct event involving Kalimanzira. In this regard, the Appeals Chamber recalls that trial chambers enjoy broad discretion in choosing which witness testimony to prefer, as well as in assessing the impact on witness credibility of inconsistencies within or between witnesses’ testimony and prior statements.333 A trial chamber “is ₣…ğ not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”334 The discrepancies between the testimonies of Witnesses BDC, BCF, and BWO do not obscure their fundamental similarities, and given the wide ranging scope of the fighting at Kabuye hill, it is reasonable to conclude that Kalimanzira could have been present at multiple locations.335 122. The Trial Chamber’s assessment of Witnesses BBO and BXG was, however, more opaque. It failed to specify which parts of Witness BBO’s evidence, if any, it considered corroborated. Nonetheless, none of its findings depended solely on Witness BBO’s testimony, rendering any errors in this approach immaterial. The Trial Chamber’s explanation that Witness BXG’s evidence was “consistent with the general trend of evidence relating to Kabuye hill”336 left unclear whether the Trial Chamber believed his evidence was corroborated by other Kabuye hill witnesses, corroborated evidence of other witnesses, or both. However, any error was again immaterial. The Trial Chamber believed Witness BXG on his own merits regarding the events at the Mukabuga roadblock, and none of the Trial Chamber’s conclusions concerning events at Kabuye hill depended on corroboration from Witness BXG’s testimony.

123. With regard to the evidence of Defence witnesses, the Trial Chamber acted within its discretion in finding that their failure to recall seeing Kalimanzira on Kabuye hill was not inconsistent with his presence there. The Trial Chamber found that the massacre on Kabuye hill involved thousands of individuals battling “over a large landscape and time span.”337 In this circumstance, a reasonable trial chamber could certainly conclude that some attackers and victims, even if present for several days, would not have observed visits by Kalimanzira.

333 See Muvunyi Appeal Judgment, para. 144; Seromba Appeal Judgement, para. 116; Simba Appeal Judgement, para. 211; Muhimana Appeal Judgement, para. 58; Ntakirutimana Appeal Judgement, para. 258. 334 Muhimana Appeal Judgement, para. 176. 335 The Appeals Chamber observes that Kalimanzira is incorrect in asserting that the Trial Chamber misattributed Witness BDC’s testimony to Witness BCF. As the Trial Chamber noted, Witness BCF testified that Kalimanzira arrived at the base of Kabuye hill at dusk on 23 April 1994 and remained there after shooting began. See Trial Judgement, para. 309; T. 5 May 2008 p. 14; T. 12 May 2008 p.

37. See also Trial Judgement, paras. 304-308. By contrast, Witness BDC testified that Kalimanzira left before shooting started. Trial Judgement, paras. 300, 301; T. 20 May 2008 p.

29. The Appeals Chamber notes that there does not appear to be a basis in Witness BCF’s testimony for concluding how long Kalimanzira remained at the base of Kabuye hill after shooting started, but any inaccuracy in the Trial Judgement regarding this issue is immaterial to Kalimanzira’s appeal. 336 Trial Judgement, para. 378. 337 Trial Judgement, para. 387.

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45 124. The Appeals Chamber considers that the Trial Chamber acted within its discretion in discounting Kalimanzira’s contention that vehicles could not approach Kabuye hill. Given that Prosecution and Defence witnesses both agree that vehicles were used to bring attackers to the area,338 it was reasonable to find the specifics of their parking location to be a relatively insignificant issue. The Trial Chamber was also reasonable in finding that the battle raged over a large area, given witness testimony regarding Tutsis spreading around Kabuye hill itself, and the multiple hills and valleys where attackers and Tutsis gathered.339 125. For the foregoing reasons, the Appeals Chamber is not convinced that the Trial Chamber materially erred in its analysis of Kalimanzira’s actions at Kabuye hill. Accordingly, this sub- ground of appeal is dismissed.

6. Conclusion 126. The Appeals Chamber recalls that it has granted, Judge Pocar dissenting, Kalimanzira’s appeal with regard to the Trial Chamber’s findings in relation to events at the Kabuye-Gisagara road, and has upheld the Trial Chamber’s other findings, including those relating to his actions at the Gisagara marketplace and Kabuye hill. The evidence regarding these latter incidents demonstrates that Kalimanzira intended to aid and abet the acts of genocide on Kabuye hill and substantially contributed to them. Therefore the Trial Chamber’s error with respect to the events at Kabuye-Gisagara road did not result in a miscarriage of justice. Accordingly, the Appeals Chamber dismisses Kalimanzira’s Third and Sixth Grounds of Appeal.

338 See Trial Judgement, para. 385. 339 See Trial Judgement, paras. 338, 345, 352.

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46 F. Alleged Errors Relating to the Butare-Gisagara Roadblock (Ground 7) 127. The Trial Chamber convicted Kalimanzira for instigating and aiding and abetting genocide based, in part, on his participation in the killings at a roadblock on the Butare-Gisagara road on or around 22 April 1994.340 Kalimanzira submits that the Trial Chamber erred in convicting him of this crime.341 In this section, the Appeals Chamber considers whether Kalimanzira had sufficient notice of this crime to prepare his defence.

128. Paragraph 15 of the Indictment reads: Between mid-April and late June 1994, Callixte Kalimanzira incited the population to erect roadblocks in order to eliminate the Tutsi. He was often personally present at the roadblocks to supervise their operations. Many Tutsi were killed at the roadblocks erected on the instructions of Callixte Kalimanzira and supervised by him.342 129. With regard to this allegation, the Trial Chamber made a number of findings based exclusively on the testimony of Prosecution Witness BXK,343 including: […] that the Prosecution has proven beyond reasonable doubt that, in April 1994, Kalimanzira stopped at a roadblock on the Butare-Gisagara road, asked the men manning the roadblock why they did not have weapons and why they had instructed the Tutsis to sit down instead of killing them. Kalimanzira then provided a weapon to a man at the roadblock. Subsequently, Tutsis at the roadblock were deprived of their belongings and taken to a nearby pit, where they were killed.344 130. At trial, Kalimanzira objected to the lack of precision in paragraph 15 of the Indictment.345 The Trial Chamber found that the Indictment was vague with regard to the Butare-Gisagara roadblock.346 However, it was satisfied that Kalimanzira received adequate notice in a timely, clear, and consistent manner through the summary of Witness BXK’s anticipated testimony annexed to the Prosecution Pre-Trial Brief, the witness’s prior statement, and the Prosecution’s opening statement.347 131. Kalimanzira submits that the defect in the Indictment was not cured, since information regarding the factual allegations concerning the killings at the events at the Butare-Gisagara road, provided through Witness BXK’s summary, was not included in the body of the Prosecution Pre-

340 Trial Judgement, paras. 473, 474, 739. 341 Kalimanzira Notice of Appeal, paras. 44-47; Kalimanzira Appeal Brief, paras. 342-380. 342 Emphases omitted. 343 Trial Judgement, paras. 460-463, 465-474. 344 Trial Judgement, para. 473. 345 Trial Judgement, para. 428. 346 Trial Judgement, para.

429. Specifically, the Trial Chamber noted that paragraph 15 provides no locations or specification of the roadblocks where the criminal acts were allegedly committed and offered a time range spanning two and a half months. See Trial Judgement, para. 429. 347 Trial Judgement, para. 432, citing T. 5 May 2008 p. 4.

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47 Trial Brief.348 Furthermore, he points to the Prosecution’s submissions during a status conference on 30 April 2008, where it suggested that there was nothing new in the summaries annexed to the Pre-Trial Brief.349 Secondly, he argues that the anticipated testimony of Witness BXK did not clarify the relevant factual allegations because it referred to two roadblocks located on the Kabuye- Gisagara road.350 Thirdly, Kalimanzira contends that the Prosecution’s opening statement, although discussing an incident at a roadblock on the Butare-Gisagara road, created confusion by referring to events at Kabuye hill.351 132. In addition, Kalimanzira submits that the notice of the charges he was facing was not provided in a timely manner and invokes the Muhimana Trial Judgement, where a period of four weeks between the service of the pre-trial brief and the beginning of the trial was not deemed sufficient to allow the Defence to respond to a new allegation.352 He submits that he suffered prejudice as a result of working on the basis of imprecise documents, which prevented him from conducting an efficient investigation, and emphasizes that the Prosecution Pre-Trial Brief was served to him in English only on 16 April 2008, and in French only on the opening day of the trial, 5 May 2008.353 133. The Prosecution responds that Kalimanzira has failed to demonstrate any error on the part of the

Trial Chamber.354 It notes that the Prosecution Pre-Trial Brief, including the Annex containing witness summaries, comprised less than 50 pages and Kalimanzira only needed to read through 22 pages of Annex A to identify the witnesses, including Witness BXK, who would testify regarding the allegations in paragraph 15 of the Indictment.355 The Prosecution admits that, due to an unintentional error, the annex of its Pre-Trial Brief indicated that Witness BXK would testify to events at “‘two closely located roadblocks on the Kabuye-Gisagara road,’” while it should have read, in conformity with Witness BXK’s prior statement, “‘two closely located road-blocks on the

348 Kalimanzira Appeal Brief, para.

349. He submits, invoking the Niyitegeka and Ntakirutimana Appeal Judgements, that mentioning a fact in a witness summary does not suffice to inform the Defence of the material facts that the Prosecution intends to prove at trial. See Kalimanzira Appeal Brief, para.

99. See also Kalimanzira Reply Brief, para. 28. 349 T. 14 June 2010 p. 10, referring to T. 30 April 2008 p. 8. 350 Kalimanzira Appeal Brief, para.

351. See also Kalimanzira Reply Brief, para. 27. 351 Kalimanzira Appeal Brief, para. 352. 352 Kalimanzira Appeal Brief, para. 101, citing Muhimana Trial Judgement, paras. 470, 472; Kalimanzira Appeal Brief, para. 354. 353 Kalimanzira Appeal Brief, paras. 109, 112, 355-357. See also Kalimanzira Reply Brief, para. 28. 354 Prosecution Response Brief, para. 123. 355 Prosecution Response Brief, para. 128.

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48 Butare-Gisagara and Kabuye-Gisagara roads.’”356 Nevertheless, the Prosecution submits that Witness BXK’s testimony demonstrated the close proximity between the two roads.357 134. The Prosecution submits that, although the misstatement in the Pre-Trial Brief is unfortunate, it does not justify the reversal of Kalimanzira’s conviction.358 Additionally, the Prosecution contends that Kalimanzira has failed to demonstrate that he suffered any material prejudice. In this regard, the Prosecution first notes that Witness BXK’s prior statement was disclosed to Kalimanzira on 31 October 2007 and the Pre-Trial Brief was filed on 16 April 2008.359 Secondly, it underscores that Kalimanzira, despite enjoying a ten-day adjournment of proceedings between Witness BXK’s examination-in-chief and his cross-examination, did not raise any objection based on a lack of clear and consistent notice.360 Thirdly, the Prosecution recalls that Kalimanzira relied on an alibi defence against Witness BXK’s evidence, which the Trial Chamber did not accept, and submits that Kalimanzira has not attempted to demonstrate how his defence would have been different if the Prosecution Pre-Trial Brief had not contained an erroneous reference to the location of the roadblock.361 135. Bearing in mind the previously articulated principles of notice,362 the Appeals Chamber considers that Kalimanzira could not have known, on the basis of the Indictment alone, that he was being charged in connection with the killings at the Butare-Gisagara roadblock. Accordingly, the Appeals Chamber finds, as the Trial Chamber concluded, that paragraph 15 of the Indictment is defective.

136. As a preliminary issue, the Appeals Chamber notes that a review of the trial record reveals that Kalimanzira did not make a contemporaneous objection to Witness BXK’s evidence concerning the Butare-Gisagara roadblock during the course of his testimony, and that he objected only to the lack of specificity in paragraph 15 of the Indictment in his Final Trial Brief.363 The Trial Chamber observed that objections based on lack of notice should be specific and timely and that, where an objection was late, the Trial Chamber would consider whether this shifted the burden onto the Defence to demonstrate prejudice.364 The Trial Chamber, however, did not expressly consider the objection untimely. The Appeals Chamber has held that, where a trial chamber has treated a

356 Prosecution Response Brief, para. 128, citing Defence Exhibit 7 (Statement of 31 October 2007), p. 3. 357 Prosecution Response Brief, para. 128, citing T. 9 May 2008 p. 7; T. 1[9] May 2008 pp. 44-47. 358 Prosecution Response Brief, para. 128. 359 Prosecution Response Brief, para. 129. 360 Prosecution Response Brief, para. 129. 361 Prosecution Response Brief, para. 131. 362 See supra Section III.B (Ground 2: Alleged Errors in Assessing Authority and Influence). 363 Kalimanzira Final Trial Brief, para.

1125. See also Trial Judgement, para. 28. 364 See Trial Judgement, para. 33.

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49 challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine.365 Furthermore, as discussed below, the Appeals Chamber considers that Kalimanzira’s apparent confusion as to what incident Witness BXK’s evidence related to reasonably explains the failure to make a timely objection to this aspect of Witness BXK’s testimony. Therefore, it falls on the Prosecution to demonstrate that Kalimanzira was not prejudiced by the defect in the Indictment.366 137. The Appeals Chamber turns to the question of whether the Trial Chamber correctly determined that the defect in the Indictment was cured and that Kalimanzira suffered no prejudice as a result. On appeal, the Prosecution does not point to any additional filings or oral submissions beyond those identified by the Trial Chamber when considering whether the defects in the Indictment were cured.

138. The description of Kalimanzira’s role in the killings at the Butare-Gisagara roadblock is contained in the summary of Witness BXK’s anticipated testimony annexed to the Prosecution Pre- Trial Brief.367 The summary states that Kalimanzira distributed weapons to those persons manning “two closely located roadblocks on the Kabuye-Gisagara road” and instructed them to kill a large group of Tutsi refugees located there.368 The summary indicates that this anticipated evidence specifically relates to paragraph 15 of the Indictment.369 139. The Appeals Chamber has previously held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief can, in certain circumstances, cure a defect in an indictment.370 The circumstances in this particular case, however, are different. Specifically, the Appeals Chamber, Judge Pocar dissenting, finds that three factors undermine the Trial Chamber’s finding that the defect was cured, especially when considered together: (1) the summary of Witness BXK’s anticipated evidence inaccurately describes the location of the incident; (2) the French translation of the Prosecution Pre-Trial Brief was filed only on the first day of trial, four days before Witness BXK testified; and (3) the Prosecution indicated shortly before the translation was filed that the witness summaries annexed to the Pre-Trial Brief contained no new allegations.

365 Gacumbitsi Appeal Judgement, para.

54. See also Ntakirutimana Appeal Judgement, para. 23. 366 See Gacumbitsi Appeal Judgement, para. 54. 367 Prosecution Pre-Trial Brief, Annex A, p. 21. 368 Prosecution Pre-Trial Brief, Annex A, p. 21. 369 Prosecution Pre-Trial Brief, Annex A, p. 21. 370 Gacumbitsi Appeal Judgement, paras. 57, 58. This approach is consistent with jurisprudence of the ICTY. See Naletili} and Martinovi} Appeal Judgement, para. 45.

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50 140. With respect to the first factor, as Kalimanzira observes, the summary of Witness BXK’s anticipated testimony contains an inaccurate description of the roadblock’s location, placing it on the Kabuye-Gisagara road rather than the Butare-Gisagara road. By contrast, Witness BXK’s prior witness statement accurately summarized his testimony regarding two related incidents at two nearby roadblocks on the Kabuye-Gisagara and Butare-Gisagara roads.371 The Appeals Chamber has held that a pre-trial brief and a witness statement, read together, may provide sufficient notice to the extent that pre-trial brief provides “unambiguous information.”372 However, in the present case, the Appeals Chamber, Judge Pocar dissenting, considers that the error in the summary of Witness BXK’s anticipated testimony made the Prosecution Pre-Trial Brief unclear, and that its curative power was thus, at best, questionable.

141. Turning to the second factor, the Appeals Chamber notes that the Prosecution Pre-Trial Brief was filed in English on 16 April 2008. The Appeals Chamber recalls that Kalimanzira’s lead counsel, Mr. Arthur Vercken, was hospitalized in France on 21 April 2008 due to an unforeseeable medical problem.373 During the status conference of 30 April 2008, Kalimanzira’s co-counsel, Ms. Anta Guissé, whose primary working language was French,374 expressed concern that the Defence had not yet received the French version of the Prosecution Pre-Trial Brief in order to discuss with Kalimanzira, who does not speak English,375 and prepare for trial.376 142. In response to this, the Presiding Judge noted that a translation of the Prosecution Pre-Trial Brief was expected on 2 May 2008, a Friday, which would allow the weekend to review the document before the opening of the trial.377 He also stated that the substantive part of the Pre-Trial Brief was only 25 pages long and that “the remainder of the document” was related to information about the witnesses.378 The reference to the “remainder of the document” appears to relate to the annex which contains the summary of the anticipated testimony of the witnesses.

371 See Defence Exhibit 7 (Statement of 31 October 2007), p. 3. 372 See Ntakirutimana Appeal Judgement, para. 48 (holding that a witness statement, when taken together with “unambiguous information” contained in a pre-trial brief and its annexes may be sufficient to cure a defect in an indictment). The Appeals Chamber observes that notice provided by a witness statement alone is insufficient to cure the defect in an indictment. See Niyitegeka Appeal Judgement, para. 197. 373 See supra Section III.A.2(a) (Absence of Kalimanzira’s Lead Counsel during the First Trial Session). 374 See ICTR, Formulaire IL2, Submitted by Anta Guissé, dated 6 August 2007. 375 Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of His Respondent’s Brief, 26 October 2009. 376 T. 30 April 2008 pp. 7, 9. 377 See T. 30 April 2008 p. 7. 378 T. 30 April 2008 p. 7.

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51 143. The French translation was made available to the Defence only on 5 May 2008, just a few hours before the opening of the trial,379 thus not providing the preparation period anticipated by the Trial Chamber. Witness BXK appeared four days later on 9 May 2008.380 The Appeals Chamber, Judge Pocar dissenting, considers that in these circumstances, it is questionable whether the notice provided by the summary of Witness BXK’s anticipated testimony in the annex of the Prosecution Pre-Trial Brief was timely, clear, or consistent.

144. As regards the third factor, it is significant that, on the eve of trial, the Prosecution stated that its factual theory was contained only in the body of its Pre-Trial Brief, which does not mention the incident at the Butare-Gisagara roadblock. More specifically, while contending that the delay in the translation of the Prosecution Pre-Trial Brief need not impact the start of the trial on 5 May 2008,381 the Prosecution stated that: […] the pre-trial brief sets out the legal theory and the factual theory of the Prosecution’s case. The main text, as Your Honour has rightly noted, is not 50 pages at all. It’s just over 20. Around six of those relates [sic] to the factual theory. That would be what is most interesting to the Accused. Certainly counsel is able to read those six pages and explain the factual theory to the Accused. […] The more extended part of the pre-trial brief is the witness summaries. Those are summaries that the Prosecution has done of what the witness is excepted [sic] to testify to in court. There is nothing new in those summaries. […] Hence, the Prosecution cannot see that the absence of a translation at this point of the pre-trial brief would prevent the proceedings from starting on 5th of May 2008.382 145. The “main text”383 of the Prosecution Pre-Trial Brief refers to only one specific incident in the Gisagara area of Ndora Commune at the Jaguar

roadblock, which is specifically pleaded in paragraph 21 of the Indictment.384 This is significant because it follows from Kalimanzira’s submissions at trial that he considered Witness BXK’s testimony as relevant to this distinct allegation. Both the Kalimanzira Pre-Trial and Final Trial Briefs refer to Witness BXK as giving evidence related to the Jaguar roadblock but do not suggest that he gave evidence with respect to the Butare-Gisagara roadblock.385 The approach adopted by Kalimanzira’s briefs illustrates the

379 The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-I, Mémoire préalable au procès du Procureur, 5 May 2008. The Appeals Chamber observes that the time stamp of the filing was 11.07 a.m. The trial commenced at 2.17 p.m. later that day. See The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Minutes of Proceedings, 5 May 2008, p.2. 380 See T. 9 May 2008. 381 T. 30 April 2008 p. 8. 382 T. 30 April 2008 p. 8 (emphasis added). 383 T. 30 April 2008 p. 8. 384 Prosecution Pre-Trial Brief, para. 62 (“Thirdly, the accused Kalimanzira distributed weapons to the persons manning the roadblocks for the purpose of killing Tutsi. The most notorious example is the so-called ‘Jaguar’ roadblock in Gisagara, Ndora commune. The accused Kalimanzira provided fire arms to at least one of the persons manning the roadblock and directed that they should be used to kill Tutsi. This direction was subsequently carried out.”). 385 See Kalimanzira Pre-Trial Brief, Annex 1, p. 26 (“[Witness AU 37] hails from N[dora] commune, G[isagara] secteur. He knew Callixte K[alimanzira]. He was present at the roadblock called ‘Jaguar’ everyday and has a good knowledge of its functioning and weaponry. He specifically witnessed the handing of a gun to persons manning the

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52 prejudice suffered by Kalimanzira as a result of unclear notice, demonstrating that he prepared his defence against Witness BXK’s claims based on the assumption that they related to an incident at the Jaguar roadblock.

146. Kalimanzira’s confusion is not surprising because a review of both the evidence and witness statements related to these events reveals a certain degree of overlap. In particular, Witness BXK testified that the Butare-Gisagara roadblock was near, although not within sight of,386 the Gisagara church near which, according to other witnesses, the Jaguar roadblock was located.387 In both incidents, Kalimanzira provided a gun to a person manning the roadblock and urged the killing of Tutsis.388 The evidence related to both events references several key individuals who manned both roadblocks.389 147. It is true, as the Trial Chamber noted, that Kalimanzira recognized in his Final Trial Brief that the Butare-Gisagara roadblock was at a different location than the Jaguar roadblock.390 Nonetheless, it does not follow from Kalimanzira’s submissions as a whole that he was fully aware that he was facing two separate allegations. In his Final Trial Brief the discussion of Witness BXK’s evidence is focused on inconsistencies between that evidence and other Prosecution witnesses’ testimony related to the Jaguar roadblock. Notably, Kalimanzira’s confusion as to the Prosecution’s case appears to have carried over until at least the filing of his initial Notice of Appeal, in which he continued challenging Witness BXK’s evidence by comparing it to the evidence of Prosecution witnesses who testified about the events at the Jaguar roadblock.391 The Appeals Chamber, Judge Pocar dissenting, considers that this confusion is a strong indication that Kalimanzira was prejudiced by the lack of clarity concerning the charges against him, and that he did not receive clear and consistent notice.

148. The Appeals Chamber is mindful that the Prosecution’s opening statement, delivered four days before Witness BXK testified, clearly distinguished between the events at the Jaguar roadblock and the one located on the Butare-Gisagara road.392 However, in the circumstances of

roadblock and will indicate the provider and recipient. Accordingly, he will contradict the testimonies of Witnesses BXK, BCN, and BCK.”); Kalimanzira Final Trial Brief, paras. 240-244, 250-253, 260-262 (describing inconsistencies between Witness BXK’s testimony and other Prosecution witnesses who testified about the Jaguar roadblock). 386 Trial Judgement, paras. 460, 465. 387 Trial Judgement, paras. 538, 539, 542. 388 Compare Trial Judgement, para. 473, with Trial Judgement, para. 560. 389 Compare Trial Judgement, para. 461, with Trial Judgement, paras. 538, 540, 542. See also Defence Exhibit 7E (Statement of 31 October 2007), p. 3. 390 Trial Judgement, para. 465. 391 Notice of Appeal, 21 July 2009, para. 71. 392 T. 5 May 2008 p. 4 (“The Accused Kalimanzira also distributed weapons to people manning the roadblocks to enable them to kill Tutsi. One example is the so-called ‘Jaguar’ roadblock in Gisagara, Ndora commune where he gave

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53 this case, the Appeals Chamber, Judge Pocar dissenting, is not convinced that the opening statement alone was sufficient to eliminate the confusion described above. Considered individually, the inaccurate description of the location of the roadblock in the annex of the Pre-Trial Brief, the comments by the Trial Chamber and the Prosecution at the status conference about the Prosecution Pre-Trial Brief, the short time-period between the filing of the French translation of the Prosecution Pre-Trial Brief and Witness BXK’s testimony, and the confusion exhibited by Kalimanzira’s Defence team are not necessarily sufficient to undermine Kalimanzira’s conviction. Considered together however, these factors demonstrate that Kalimanzira failed to receive sufficient notice that he was facing charges related to the Butare-Gisagara roadblock, rendering his conviction unsafe.

149. In sum, the Appeals Chamber agrees with the Trial Chamber that paragraph 15 of the Indictment is defective in relation to Kalimanzira’s role in the events at the Butare-Gisagara roadblock. The Appeals Chamber, Judge Pocar dissenting, finds however that the subsequent notice of this allegation was not timely, clear, or consistent, and resulted in prejudice to Kalimanzira. Accordingly, the Appeals Chamber, Judge Pocar dissenting, finds that the Trial Chamber erred in law by finding that this defect was cured and accordingly in judging Kalimanzira guilty on the basis of his actions at the Butare-Gisagara roadblock.

150. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s Seventh Ground of Appeal. Accordingly, the Appeals Chamber reverses Kalimanzira’s conviction for instigating and aiding and abetting genocide on this basis. It is therefore unnecessary to address Kalimanzira’s remaining arguments concerning the assessment of the evidence.

a firearm to the leader of those manning the roadblock with the specific instruction that it was going to be used to kill Tutsi. He also spurred on the killing of Tutsi at the roadblock situated on the Butare-Gisagara road in Ndora commune in connection with the Kabuye hill massacres. Once again, the Accused Kalimanzira instructed the people manning the roadblock to kill Tutsi and distributed a firearm to facilitate such killings.”).

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54 G. Alleged Errors Relating to the Jaguar and Kajyanama Roadblocks (Grounds 8 and 9) 151. The Trial Chamber convicted Kalimanzira for direct and public incitement to commit genocide based, in part, on his conduct at the Jaguar roadblock, which was located near the Gisagara Catholic Church in Butare Prefecture,393 and the Kajyanama roadblock in Remera Sector, Muganza Commune.394 In particular, the Trial Chamber found that, in middle to late April 1994, Kalimanzira handed a rifle to Marcel Ntirusekanwa at the Jaguar roadblock “in the presence of several others who were also manning the roadblock [… and] told everyone present that the gun was to be used to kill Tutsis.”395 The Trial Chamber further found that, in late April 1994, Kalimanzira exhorted those manning the Kajyanama roadblock to carry arms “to ‘defend’ themselves against ‘the enemy’ who might pass through” and that he “was understood to be calling for the killing of Tutsis.”396 According to the Trial Judgement, Kalimanzira underscored this call by slapping and forcibly taking away a person who was not carrying a weapon.397 152. In connection with his Eighth and Ninth Grounds of Appeal, Kalimanzira first submits that, in convicting him based on these incidents, the Trial Chamber erred in law and in fact in finding that his conduct at these sites amounted to direct and public incitement to commit

genocide.398 Kalimanzira asserts that the Tribunal’s jurisprudence requires a very large number of individuals to be exposed to a call to commit genocide before it can be qualified as direct and public incitement.399 Specifically, he refers to the Appeal Judgement in the Nahimana et al. case as support for his assertion that instructions given to persons manning a roadblock cannot constitute public incitement.400 He maintains that the number of individuals present at the Jaguar and Kajyanama roadblocks when the respective acts in question allegedly took place was limited, that his words were only directed at those manning the roadblocks, and that his conviction for direct and public incitement thus constituted an error of law.401 In addition, he raises a number of arguments

393 Trial Judgement, paras. 562, 739. The exact location of the Jaguar roadblock was pleaded in the Indictment and follows from the evidence. See Trial Judgement, paras. 536, 538, 539, 542. 394 Trial Judgement, paras. 565, 589, 739. 395 Trial Judgement, para.

560. See also Trial Judgement, paras. 561, 562. 396 Trial Judgement, para.

589. See also Trial Judgement, para. 588. 397 Trial Judgement, paras. 587, 589. 398 Kalimanzira Notice of Appeal, paras. 50, 57; Kalimanzira Appeal Brief, paras. 382-386, 428-432. See also Kalimanzira Reply Brief, paras. 31-38, 41. 399 Kalimanzira Appeal Brief, paras. 383, 384. See also Kalimanzira Appeal Brief, para. 429; Kalimanzira Reply Brief, paras. 32-38. 400 Kalimanzira Appeal Brief, para. 384, referring to Nahimana et al. Appeal Judgement, para.

862. See also Kalimanzira Appeal Brief, para. 432. 401 Kalimanzira Appeal Brief, paras. 385, 428, 430, 431. See also Kalimanzira Reply Brief, paras. 31, 34, 36, 38.

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55 concerning the Trial Chamber’s assessment of the evidence underpinning his conviction for these events.402 153. The Prosecution responds that the Trial Chamber did not err in convicting Kalimanzira based on his actions at the Jaguar and Kajyanama roadblocks.403 It asserts that Kalimanzira raises for the first time on appeal the question of what minimum audience size is required to satisfy the public element of the crime of incitement to commit genocide, and contends that the Appeals Chamber should summarily dismiss the argument on this basis.404 In the alternative, the Prosecution contends that “the Appeals Chamber should not make [sic] any general principle of international law which exempts those manning a roadblock from qualifying as the ‘public’ for the crime of direct and public incitement to commit genocide.”405 It submits that the Tribunal’s jurisprudence provides no support for Kalimanzira’s assertions, contending that Kalimanzira has misconstrued the statement in the Nahimana et al. Appeal Judgement and taken it out of context.406 The Prosecution adds that the Nahimana et al. passage is obiter dictum and should not be accorded weight in the present case.407 154. The Appeals Chamber is not convinced by the Prosecution’s submission that Kalimanzira’s argument should be dismissed summarily because it was raised for the first time on appeal. To summarily dismiss the argument on procedural grounds could lead to a serious miscarriage of justice. Noting that the Prosecution responded to Kalimanzira’s arguments, the Appeals Chamber finds it to be in the interests of justice to consider Kalimanzira’s arguments on the merits.

155. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).408 Applying these principles to Jean-Bosco Barayagwiza’s conviction in the Nahimana et al. case for direct and public incitement to commit genocide, the Appeals Chamber determined that supervising a specific group of individuals manning a roadblock does not constitute public incitement to commit genocide, explaining that:

402 Kalimanzira Notice of Appeal, paras. 51-54, 58-60; Kalimanzira Appeal Brief, paras. 387-424, 433-477; Kalimanzira Reply Brief, paras. 39, 40. 403 Prosecution Response Brief, paras. 142-189, 190-212. 404 Prosecution Response Brief, paras. 144, 145. See also Prosecution Response Brief, paras. 192, 193. 405 Prosecution Response Brief, para.

150. See also Prosecution Response Brief, para. 193. 406 Prosecution Response Brief, paras. 147-149. See also Prosecution Response Brief, para. 193. 407 Prosecution Response Brief, para. 148. 408 See Nahimana et al. Appeal Judgement, para. 677.

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56 the supervision of roadblocks cannot form the basis for the Appellant’s conviction for direct and public incitement to commit genocide; while such supervision could be regarded as instigation to commit genocide, it cannot constitute public incitement, since only the individuals manning the roadblocks would have been the recipients of the message and not the general public.409 156. Contrary to the Prosecution’s suggestion, the approach adopted by the Appeals Chamber in the Nahimana et al. Judgement is in accordance with relevant Tribunal jurisprudence and other sources of interpretation, including World War II judgements and the travaux préparatoires of the Genocide Convention. More specifically, the Appeals Chamber observes that, with the exception of the Kalimanzira Trial Judgement, all convictions before the Tribunal for direct and public incitement to commit genocide involve speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.410 These convictions involved audiences which were by definition much broader than the groups of individuals manning the Jaguar and Kajyanama roadblocks, who formed Kalimanzira’s audience.

157. The Tribunal’s jurisprudence is consistent with that of the International Military Tribunal at Nuremberg. The latter considered incitement to, inter alia, murder and extermination, involving

409 Nahimana et al. Appeal Judgement, para. 862 (emphasis added). The Appeals Chamber notes, for clarity, that the Nahimana et al. Appeals Judgement was originally written in French. The above-quoted excerpt, in French, reads “ En particulier, les actes de supervision des barrages ne sauraient fonder la condamnation de l’Appelant pour incitation directe et publique à commettre le génocide; si cette supervision pouvait être considerée comme une incitation à commettre le génocide, elle ne pourrait pas constituer une incitation ‘publique’ puisque seules les personnes tenant les barrages auraient été les destinataires du message et non le public au sens large”. Therefore, in order to reflect more faithfully Article 2(3)(c) of the Statute, a more accurate English translation of the excerpt should have read: “while such supervision could be regarded as incitement to commit genocide, it cannot constitute public incitement ₣…ğ.” 410 A review of the jurisprudence is illustrative of what acts have constituted public incitement at the Tribunal. In a first group of cases, inciting speeches at public meetings to “crowds” of people – ranging from “over 100” to approximately 5,000 individuals - were found to constitute public incitement. The Akayesu Trial Chamber found that a speech in a public place to “a crowd of over 100 people” urging the population to eliminate the “enemy” constituted direct and public incitement. See Akayesu Trial Judgement, paras. 672-674. The conviction was upheld on appeal. See Akayesu Appeal Judgement, para. 238, p.

143. The Niyitegeka Trial Chamber determined, inter alia, that by holding a public meeting attended by approximately 5,000 people at which he “urg[ed] attackers to work” – “working” serving as a synonym for killing Tutsis - Eliézer Niyitegeka incurred individual criminal responsibility for “inciting attackers to cause the death and serious bodily and mental harm of Tutsi refugees […] as provided in Article 2(3)(c)” of the Statute. See Niyitegeka Trial Judgement, paras. 257, 437. See also Niyitegeka Trial Judgement, paras. 432-436. Niyitegeka’s conviction was upheld on appeal. See Niyitegeka Appeal Judgement, para.

270. The Kajelijeli Trial Chamber found Juvénal Kajelijeli guilty of direct and public incitement because he had “incited the crowd” to exterminate the Tutsis. See Kajelijeli Trial Judgement, paras. 856-860. The conviction was upheld on appeal. See Kajelijeli Appeal Judgement, paras. 105, 133. A second group of cases reflects that the dissemination of inciting messages via the media also constituted public incitement. The Ruggiu Trial Chamber held that “messages […] broadcast[ed] in a media forum and to members of the general public” constituted public incitement. See Ruggiu Trial Judgement, para.

17. No appeal was filed. The Nahimana et al. Trial Chamber determined that messages disseminated via radio or the press constituted public incitement. See Nahimana et al. Trial Judgement, paras. 1031-1034, 1036-1038. The findings were upheld in relevant part on appeal. See Nahimana et al. Appeal Judgement, paras. 758, 775. Finally, the Bikindi Trial Chamber held Simon Bikindi responsible for direct and public incitement based on its determination that he had used a public address system to disseminate messages inciting the commission of genocide when travelling on a public road to address the population. Bikindi Trial Judgement, paras. 422-424. These findings were upheld on appeal. See Bikindi Appeal Judgement, paras. 50, 86.

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57 widely circulated speeches and articles, rather than speeches to relatively small and closed groups.411 158. Moreover, the Appeals Chamber recalls that the language of Article 2 of the Tribunal’s Statute tracks the language of the Genocide Convention. A review of the travaux préparatoires of the Genocide Convention confirms that public incitement to genocide pertains to mass communications. The travaux préparatoires indicate that the Sixth Committee chose to specifically revise the definition of genocide in order to remove private incitement, understood as more subtle forms of communication such as conversations, private meetings, or messages,412 from its ambit.413 Instead, the crime was limited to “direct and public incitement to commit genocide,” understood as incitement “in public speeches or in the press, through the radio, the cinema or other ways of reaching the public.”414 159. Having established that the relevant holding of the Nahimana et al. Appeal Judgement is consistent with the Tribunal’s jurisprudence and other relevant precedents, the Appeals Chamber turns to consider whether the precedent set in the Nahimana et al. case is applicable to Kalimanzira’s convictions. A review of the former reveals that the underlying factual basis of Barayagwiza’s initial conviction by Trial Chamber I of the Tribunal involved speaking to militiamen at roadblocks from his vehicle and telling them to kill Tutsis and others without certain party membership cards.415 In addition, the key witness for this event gave evidence that Barayagwiza supervised three roadblocks in the area and heard that Barayagwiza was responsible

411 JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE TRIAL OF GERMAN MAJOR WAR CRIMINALS (1946), reprinted in THE TRIAL OF GERMAN MAJOR WAR CRIMINALS BY THE INTERNATIONAL MILITARY TRIBUNAL SITTING AT NUREMBERG GERMANY, pp. 101, 102 (2001) (“JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL”) (finding Julius Streicher guilty of crimes against humanity for “incitement to murder and extermination” because “[i]n his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti- Semitism, and incited the German people to active persecution […]. Twenty-three different articles […] were produced in evidence, in which extermination ‘root and branch’ was preached […]. Such was the poison Streicher injected into the minds of thousands of Germans which caused them to follow the National Socialists policy of Jewish persecution and extermination.”); JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL, p. 128 (describing incitement in the context of “originating or formulating propaganda campaigns” with respect to Hans Fritzsche). 412 1 THE GENOCIDE CONVENTION: THE TRAVAUX PREPARATOIRES, p. 986 (Hirad Abtahi & Philippa Webb, eds. 2008) (“GENOCIDE CONVENTION”). 413 2 GENOCIDE CONVENTION, pp. 1549, 1552. 414 1 GENOCIDE CONVENTION, p.

986. The Appeals Chamber notes that the definition adopted by the Sixth Committee resembled that originally proposed by the Secretariat of the United Nations (which was altered for some time to include private incitement to genocide, until this alteration was struck by the Sixth Committee). The proposal of the Secretariat differentiated acts such as instructions from officials to subordinates or heads of organizations to members from “direct public incitement.” These acts were considered as “preparatory acts” and covered by other sections of the convention. See 1 GENOCIDE CONVENTION, p. 238. 415 Nahimana et al. Trial Judgement, paras. 718, 719. See also The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, T. 28 August 2001 pp. 21-26; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, T. 29 August 2001 pp. 33, 43, 44.

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58 for ensuring that Tutsis were being killed at them.416 The facts underlying Kalimanzira’s convictions are similar to those in the Nahimana et al. Appeal Judgement. As was the case for Barayagwiza, Kalimanzira’s actions did not involve any form of mass communication such as a public speech. Instead, the nature of his presence and exchanges with those at the roadblocks are more in line with a “conversation” which is consistent with the definition of private incitement found in the travaux préparatoires of the Genocide Convention. Thus it is clear that the Nahimana et al. Appeal Judgement is directly applicable to Kalimanzira’s convictions with respect to the Jaguar and Kajyanama roadblocks.

160. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law by not fully considering and applying the Tribunal’s jurisprudence with respect to direct and public incitement to genocide. In view of this error, the Appeals Chamber will consider the relevant evidence, to determine whether Kalimanzira can be held responsible for direct and public incitement to commit genocide.417 161. With respect to the Jaguar roadblock, the Trial Chamber found that Kalimanzira “handed a rifle to Marcel Ntirusekanwa in the presence of several others who were also manning the roadblock,” that he “told everyone present that the gun was to be used to kill Tutsis,” and that “the gun and the instructions were disseminated to the group.”418 Based on these findings, it appears that Kalimanzira’s instructions were intended only for those manning the roadblock, not the general public.419 In this respect, the Appeals Chamber notes that none of the Prosecution witnesses was certain of the number of persons who were present when Kalimanzira passed through the Jaguar roadblock. There is no indication in the record that anyone other than those manning the roadblock was present. Thus, the Prosecution did not demonstrate that Kalimanzira possessed the mens rea for direct and public incitement to commit genocide at the Jaguar roadblock. The Appeals Chamber therefore finds that Kalimanzira’s conviction for direct and public incitement to commit genocide at the Jaguar roadblock should be reversed.

162. With respect to the Kajyanama roadblock, the Trial Chamber found that Kalimanzira “exhort[ed] those manning the […] roadblock” and that “₣tğhe incitement was disseminated in a public place […] to an indeterminate group of people – those present to man [the roadblock] and

416 Nahimana et al. Trial Judgement, para. 718. 417 See supra para. 8. 418 Trial Judgement, paras. 560, 561. 419 There are indications that manning a roadblock was a duty of male Hutus in the area. See T. 26 June 2008 p. 9; T. 19 November 2008 p. 2.

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59 anyone else watching or listening.”420 These findings are different from those at the Jaguar roadblock in that the Trial Chamber expressly found that members of the general public, other than those manning the roadblock, were present and that Kalimanzira intended to incite them as well.

163. The Appeals Chamber, however, is not satisfied that the evidence reasonably supports the Trial Chamber’s findings concerning Kalimanzira’s intent to incite anyone other than those manning the Kajyanama roadblock. First, in interpreting the meaning of Kalimanzira’s statements, the Trial Chamber gave particular weight to Witness BBB’s testimony, as this witness was manning the roadblock and was thus “among those whom Kalimanzira was allegedly inciting.”421 Witness BBB testified that “Kalimanzira instructed those manning [the roadblock] to prevent any Tutsis […] from passing through, and that they should be killed.”422 The Appeals Chamber considers that this evidence suggests that Kalimanzira’s exhortations were addressed to individuals manning the Kajyanama roadblock.

164. This conclusion is reinforced by the testimony of Witness BXH, a member of the general public, who was present during the incident, and watched it from a short distance.423 It is clear from the context of Witness BXH’s account of this event that he did not believe that he was included in Kalimanzira’s chastisement of individuals manning the roadblock, since he was not part of that group.424 Notably, other than Witness BXH, who was not manning the roadblock, there is no indication as to the number of other members of the general public who were present during the incident.425 In this context, the Appeals Chamber finds that the Prosecution did not prove that Kalimanzira possessed the mens rea for direct and public incitement to commit genocide at the Kajyanama roadblock.

420 Trial Judgement, para. 589. 421 Trial Judgement, para. 588. 422 Trial Judgement, para. 588. 423 T. 22 May 2008 pp. 41, 52. 424 See T. 22 May 2008 p. 45 (“A. […] He spoke to the persons who were standing at the roadblock, and he said, ‘You, who are at this roadblock and are not armed, what will you do if the enemy comes? With what will you defend yourselves?’”). See also T. 22 May 2008 p. 42. 425 Witness BXH’s evidence only expressly referred to the presence at the roadblock of persons who were manning it, including the man that Kalimanzira forcibly took away, although this is not properly reflected in the Trial Judgement. Witness BBB, however, testified that the man grabbed by Kalimanzira was a passer-by and referred to the presence of other persons who were looking from a distance. See Trial Judgement, para. 571; T. 22 May 2008 p. 42 (Witness BXH) (“A. […] [H]e was in the company of the persons who were manning the roadblock, and amongst those persons some were armed and others were not. […] [H]e managed to grab one of those persons who was not armed and […] forced him to enter the vehicle and left with him.”); T. 22 May 2008 pp. 48-51; T. 16 June 2008 p. 33; T. 16 June 2008 p. 35 (Witness BBB) (Q. […] Apart from the people who were at the roadblock, those you have referred to, did any other persons come up to the roadblock? A. No, no one else came to the roadblock. Other persons were looking from a distance.”); T. 16 June 2008 pp. 7, 8, 33-35; Trial Judgement, para. 568.

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60 165. Accordingly, the Appeals Chamber grants Kalimanzira’s Eighth and Ninth Grounds of Appeal and reverses the convictions for direct and public incitement based on the events at the Jaguar and Kajyanama roadblocks. The Appeals Chamber, therefore, need not discuss Kalimanzira’s remaining arguments concerning the Trial Chamber’s assessment of the underlying evidence relating to these grounds.

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61 H. Alleged Errors Relating to the Nyabisagara Football Field (Ground 10) 166. The Trial Chamber convicted Kalimanzira of direct and public incitement to commit genocide based, in part, on a speech he gave at the Nyabisagara football field in Kibayi Commune, Butare Prefecture, in late May or early June 1994.426 In reaching this conclusion, the Trial Chamber relied exclusively on the uncorroborated testimony of Prosecution Witness BCZ.427 Several Defence witnesses attested to attending a similar meeting, involving Alphonse Nteziryayo and Tharcisse Muvunyi, but noted that Kalimanzira was not present.428 The Trial Chamber concluded that Witness BCZ and the Defence witnesses were referring to different meetings.429 167. Kalimanzira submits that the Trial Chamber erred in law and in fact by convicting him of direct and public incitement for this event.430 In this section, the Appeals Chamber considers whether the Trial Chamber erred in its assessment of the evidence.

168. The Trial Chamber based Kalimanzira’s conviction for his role in the meeting at the Nyabisagara football field on the testimony of a single eye-witness, Witness BCZ.431 The Trial Chamber noted that Witness BCZ was an accomplice to Kalimanzira as, following the meeting, he participated in the search for additional Tutsis to kill, and in the destruction of homes.432 It also addressed a number of inconsistencies between Witness BCZ’s testimony and prior statements to Tribunal investigators and Rwandan investigators.433 The Trial Chamber found, however, that he was a credible and reliable witness.434 169. Kalimanzira called five witnesses to refute Witness BCZ’s testimony.435 Each of these witnesses testified that Kalimanzira did not attend a meeting like that described by Witness BCZ.436 Instead, the witnesses referred to a meeting attended by Alphonse Nteziryayo and Tharcisse Muvunyi around 24 May 1994.437 Witness BCZ also recalled this meeting, but indicated that the one involving Kalimanzira occurred around a week afterwards.438 In assessing the Defence witnesses, the Trial Chamber concluded that in some cases their respective accounts “support[ed]

426 Trial Judgement, paras. 613, 614, 739. 427 Trial Judgement, paras. 592-595, 608-614. 428 Trial Judgement, para. 609. 429 Trial Judgement, para 610. 430 Kalimanzira Notice of Appeal, paras. 61-66; Kalimanzira Appeal Brief, paras. 478-531. 431 Trial Judgement, paras. 592-595, 608-614. 432 Trial Judgement, para. 608. 433 Trial Judgement, para. 611. 434 Trial Judgement, para. 612. 435 Trial Judgement, paras. 596-605. 436 Trial Judgement, paras. 597, 599, 601, 602, 604, 609, 610. 437 Trial Judgement, paras. 597, 599, 600, 602, 609. 438 Trial Judgement, para. 609.

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62 the inference that more than one meeting took place.”439 Consequently, the Trial Chamber was satisfied that the Prosecution and Defence witnesses testified to different meetings and that “the existence of one does not preclude the other.”440 170. Kalimanzira submits that the Trial Chamber erred in its assessment of Witness BCZ’s testimony.441 In particular, he contends that, given Witness BCZ’s status as an accomplice, the Trial Chamber erred in not requiring additional corroboration, especially given the witness’s numerous incentives to provide false testimony, the hearsay nature of parts of his statements and testimony, his inaccurate description of Kalimanzira, and the contradictions among his testimony, prior statements, and Defence evidence.442 Kalimanzira also contends that the Trial Chamber erred in finding that the exhortations he allegedly made at the Nyabisagara football field fit into a broader pattern, as it cited the testimony of witnesses it had deemed non-credible.443 171. Kalimanzira further asserts that the Trial Chamber erred in its assessment of the Defence evidence.444 In particular, he contends that, given the formal nature of the meeting, which involved the local bourgmestre, and its location near the commune office, the Trial Chamber failed to adequately explain why it rejected the evidence of Defence Witnesses KBF, BTH, AKK, and Innocent Mukuralinda,

who testified that a meeting featuring Kalimanzira did not take place.445 In addition, Kalimanzira argues that Defence witnesses’ testimony shows that there was only one public meeting in the area around the relevant time, and that this meeting featured Alphonse Nteziryayo and Tharcisse Muvunyi, but not Kalimanzira.446 He asserts that this Defence evidence is fully consistent with Witness BCZ’s initial statements to the Trial Chamber, which referred to only one meeting and did not implicate Kalimanzira, and suggests that Witness BCZ’s final testimony, which did implicate Kalimanzira, is unreliable.447 Kalimanzira also points to several flaws in the Trial Chamber’s analysis of Defence evidence, and suggests that these errors underlie the Trial Chamber’s conclusion that Defence evidence was consistent with more than one public meeting being held in the area.448 Finally, Kalimanzira claims that the Trial Chamber improperly discounted

439 Trial Judgement, para. 610. 440 Trial Judgement, para. 610. 441 Kalimanzira Appeal Brief, paras. 485-514. 442 Kalimanzira Appeal Brief, paras. 485-511. See also Kalimanzira Reply Brief, paras. 43-45. 443 Kalimanzira Appeal Brief, paras. 512-514. 444 Kalimanzira Appeal Brief, paras. 515-531. 445 Kalimanzira Appeal Brief, paras. 517, 520. 446 Kalimanzira Appeal Brief, paras. 517, 518. 447 Kalimanzira Appeal Brief, para. 518, referring to Defence Exhibit 33 (Statement of 19 October 1999), Defence Exhibit 34 (Statement of 2 February 2000). 448 Kalimanzira Appeal Brief, paras. 520-524.

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63 the testimony of Witness KXL, which conflicted with Witness BCZ’s description of the violence following the meeting.449 172. The Prosecution responds that Kalimanzira merely repeats submissions made at trial.450 In any event, the Prosecution asserts that the Trial Chamber did not err in its assessment of Witness BCZ’s evidence.451 It contends that the Trial Chamber correctly considered Witness BCZ’s status as an accomplice and applied the necessary caution in assessing his credibility.452 It further contends that the Trial Chamber properly exercised its discretion in considering and weighing alleged inconsistencies in Witness BCZ’s evidence.453 The Prosecution also maintains that Kalimanzira’s challenges regarding Witness BCZ’s ability to identify Kalimanzira ignore “the wealth of ₣...ğ identification evidence” before the Trial Chamber.454 Finally, the Prosecution asserts that the Trial Chamber reasonably rejected Kalimanzira’s argument that only one meeting occurred at the Nyabisagara football field, and submits that Kalimanzira has not demonstrated “any basis upon which the findings should be revisited.”455 173. The Appeals Chamber recalls that “accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal” and that “a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the

circumstances in which it was tendered.”456 The Trial Chamber noted the requirement to approach accomplice witnesses with caution.457 It also examined the circumstances surrounding Witness BCZ’s testimony and his possible motives to falsely incriminate Kalimanzira.458 174. With respect to this latter issue, the Trial Chamber noted that, although Witness BCZ had been released at the time of his testimony, his evidence reflected statements that he gave while he was imprisoned.459 It thus acknowledged the possibility that his evidence may have been influenced by the desire to minimize his own responsibility.460 However, the Trial Chamber decided, “after careful consideration,” that “no such motive can be demonstrated.”461 It reasoned that, “[h]ad he

449 Kalimanzira Appeal Brief, paras. 525-531. 450 Prosecution Response Brief, paras. 224, 235. 451 Prosecution Response Brief, paras. 225-234. 452 Prosecution Response Brief, paras. 225-227. 453 Prosecution Response Brief, paras. 231-233. 454 Prosecution Response Brief, para. 230. 455 Prosecution Response Brief, paras. 236, 237. 456 See Muvunyi Appeal Judgement, para. 128. 457 Trial Judgement, para. 72. 458 Trial Judgement, paras. 608, 612. 459 Trial Judgement, para.

608. It follows from Witness BCZ’s evidence that he was released at the end of January 2008, which is just approximately five months prior to his testimony in this case. See T. 24 June 2008 p. 52. 460 Trial Judgement, para. 608. 461 Trial Judgement, para. 608.

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64 intended to falsely accuse Kalimanzira, his testimony and allegations would likely have been more accusatory.”462 It also situated Witness BCZ’s account of the contents of Kalimanzira’s speech within a “pattern of conduct” illustrated by the testimonies of other Prosecution witnesses who had also testified that “Kalimanzira called on people to destroy dead Tutsis’ homes and plant trees and grass in their place.”463 175. The Appeals Chamber observes that the Trial Chamber’s reasoning regarding the pattern of Kalimanzira’s conduct in purportedly giving similar speeches on other occasions is problematic. The Trial Chamber noted incidents described by Witnesses AZM, AZH, and AZC.464 In other parts of the Trial Judgement, however, the Trial Chamber either found that Kalimanzira lacked notice of the underlying allegation (Witness AZM)465 or expressly concluded that the evidence was insufficiently reliable to sustain a conviction (Witnesses AZH and AZC).466 The Trial Chamber should have more clearly explained why it found the testimony of these witnesses sufficiently reliable to establish a pattern of conduct, but insufficient to accept in their own right. The Appeals Chamber considers, however, that it is unclear how much weight the Trial Chamber accorded to this evidence in assessing Witness BCZ’s testimony.467 176. The Appeals Chamber further notes that while Witness BCZ could

have implicated Kalimanzira in additional criminal activity or for directly participating in killings, his failure to do so does not permit any firm conclusions regarding the reliability of the witness’s testimony. Nonetheless, the Appeals Chamber considers that the assessment of witness credibility is primarily a matter for the Trial Chamber. The Trial Chamber fully considered Witness BCZ’s possible motives to lie, and in the context of the facts before it, acted within its discretion in determining that he had no such motives.

177. Turning to the assessment of the Defence witnesses, the Appeals Chamber notes that the Trial Chamber did not discount their credibility with regard to the Nyabisagara football field

462 Trial Judgement, para. 612. 463 Trial Judgement, para. 612, citing T. 17 June 2008 p. 21 (Witness AZM), T. 25 June 2008 pp. 43, 44 (Witness AZC), T. 23 June 2008 pp. 11, 12 (Witness AZH). 464 Trial Judgement, para. 612, citing T. 17 June 2008 p. 21 (Witness AZM), T. 25 June 2008 pp. 43, 44 (Witness AZC), T. 23 June 2008 pp. 11, 12 (Witness AZH). 465 Trial Judgement, para. 221. 466 Trial Judgement, paras. 403-405, 408, 421, 423, 445. 467 The Appeals Chamber notes the Trial Chamber’s formulation that the converging testimony of other witnesses “might suggest a pattern of conduct or mode of operation.” See Trial Judgement, para. 612.

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65 meeting.468 Instead, the Trial Chamber found that their evidence was consonant with more than one public meeting taking place at the Nyabisagara football field.469 The Trial Chamber explained that: the evidence of Defence witnesses supports the inference that more than one meeting took place. [Witness] KBF admitted to the possibility that there may have been other meetings in Kibayi commune. The Defence Pre-Trial Brief indicated that [Witness] AKK was expected to testify to two meetings at the Nyabisagara football field; however, when giving her testimony on the stand, she insisted that she was only aware of one meeting. [Witness] Mukuralinda’s statement that he was not aware of any other ‘security’ meeting in Kibayi commune was amended under cross- examination to include a second one, but ‘restricted’ in nature. No questions were put to [Witness] BTH on the possibility of other meetings. Because [Witness] KXL was in hiding for most of April and May 1994, the Chamber considers that his testimony does not cast reasonable doubt on when and how Bimenyimana and Hategekimana’s homes were destroyed. […] For these reasons, the Defence evidence does little to contradict BCZ’s evidence.470 178. However, in reviewing the Trial Chamber’s analysis of the evidence, the Appeals Chamber considers that the Trial Chamber misconstrued the testimonies of Witnesses AKK, Mukuralinda, and KXL, and failed to sufficiently explain why it did not consider it relevant that none of the Defence witnesses was informed of the second meeting involving Kalimanzira.

179. Witness AKK, who lived in close proximity to the football field and could oversee large portions of the field from her house, testified that she attended only one meeting and was firm in asserting that no other meetings could have taken place on the football field afterwards.471 When confronted with the fact that her will-say statement, annexed to the Kalimanzira Pre-Trial Brief,472 indicated that she would testify on two meetings at the football field, Witness AKK denied having made such a statement.473 Nonetheless, the Trial Chamber relied on the will-say statement provided by Kalimanzira to conclude that Witness AKK’s testimony did not undermine the evidence provided by Witness BCZ.474 180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as

468 The Appeals Chamber notes, however, that the Trial Chamber did raise concerns about the credibility of Witness Mukuralinda in connection with another incident. See Trial Judgement, para. 289. 469 Trial Judgement, para. 610 (internal citations omitted). 470 Trial Judgement, para. 610. 471 T. 26 November 2008 pp. 42, 43; T. 26 November 2008 pp. 52, 53, 56. 472 The Appeals Chamber notes that the summary of Witness AKK’s anticipated testimony is contained on page 18 in the annex to the Kalimanzira Pre-Trial Brief entitled “Summary of Will-Say Statements of Defence Witnesses for Callixte Kalimanzira.” This page is omitted from the version of the Kalimanzira Pre-Trial Brief filed in the trial record. However, the relevant portion of the English translation of the will-say statement was quoted by the Prosecution during the cross-examination of Witness AKK. See T. 26 November 2008 p.

56. The original French version of the Kalimanzira Pre-Trial Brief contains the full text of the will-say statement. See The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-I, Mémoire préalable à la présentation des moyens de preuve à décharge, annexe, pp. 8, 9.. 473 See T. 26 November 2008 pp. 56-58. 474 See Trial Judgement, para. 610.

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66 necessary for the trial chamber to assess credibility.475 Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.476 A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.477 Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,478 and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.479 Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony.

181. Witness Mukuralinda, who worked as an accountant in Kibayi Commune in 1994, testified that only one meeting took place in the commune, specifically on 24 May 1994.480 He noted that he “₣wasğ not aware of any other meeting that took place in Kibayi commune” and added that “personally, ₣he didğ not believe that there were […] any other such meetings held in the Kibayi commune.”481 In considering the witness’s testimony, the Trial Chamber emphasized his admission under cross-examination that a second meeting – although “restricted” in nature – took place.482 However, a review of Witness Mukuralinda’s testimony shows that it cannot reasonably support the proposition that another large-scale public meeting occurred in the area, as the Trial Chamber intimated. In particular, the witness stated that: there are other meetings which we could […] call “restricted”. And these are meetings where you have only a handful of people who are working in a commune who meet together to discuss security matters. It is possible that I participated in one such meeting. But this was a meeting that brought together commune – or workers and the bourgmestre. Members of the population are not invited to such meetings. This is an official meeting. So I cannot deny that one such meeting took

475 Simba Appeal Judgement, para. 103, quoting Akayesu Appeal Judgement, paras. 134, 135. 476 For example, some statements are transcriptions of interviews or are signed by a domestic judicial authority. 477 See, e.g., The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on the Admissibility of Evidence of Witness KDD, 1 November 2004 (“Simba Admissibility of Evidence Decision”), paras. 9-11. 478 Simba Admissibility of Evidence Decision, para. 9. 479 See T. 26 November 2008 pp. 55-58. 480 Trial Judgement, para. 602. 481 T. 3 December 2008 p. 7. 482 Trial Judgement, para. 610.

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67 place. But what was important for me was talking about meetings to which the population was invited. And one such meeting was the meeting of the 24th of May.483 182. The Appeals Chamber recalls that Witness BCZ testified that several hundred members of the local population attended the meeting in which Kalimanzira participated.484 This stands in stark contrast to Witness Mukuralinda’s above-quoted description of other official meetings at the commune office involving “a handful of people,” who worked with the bourgmestre. Accordingly, the Appeals Chamber considers that no reasonable trial chamber could have concluded that Witness Mukuralinda’s admission of the existence of other restricted meetings supported the inference that more than one large public meeting occurred at the Nyabisagara football field during the relevant time-period.

183. Witness KXL gave evidence about the destruction of Vincent Bimenyimana’s and Charles Hategekimana’s homes in April 1994.485 Witness BCZ, however, stated that the houses were destroyed after Kalimanzira’s speech at the football field in late May or early June 1994.486 The Trial Chamber did not accept Witness KXL’s testimony because the witness claimed to have been in hiding for most of April and May 1994.487 Given the clear contradiction between the evidence of Witnesses KXL and BCZ concerning the destruction of the homes in question, the Appeals Chamber is concerned by the Trial Chamber’s failure to address Witness KXL’s explanation that he witnessed the destruction even though he was in hiding because he could see the houses from his place of refuge.488 This concern is heightened when the Appeals Chamber considers that Witness KXL provided significant detail as to how the houses were destroyed.489 Under these circumstances, the Trial Chamber erred in not sufficiently explaining why it did not accept Witness KXL’s testimony regarding the destruction of the homes.490 184. Finally, although a trial chamber need not always articulate its reasoning in detail,491 the Appeals Chamber, Judge Pocar dissenting, is not satisfied that the Trial Chamber sufficiently addressed Kalimanzira’s arguments concerning the mode of convocation for the various alleged meetings at Nyabisagara football field.492 Witnesses AKK, BTH, KBF, Mukuralinda, and KXL all

483 T. 3 December 2008 p. 26 (emphasis added). 484 Trial Judgement, para.

595. See also Trial Judgement, para. 592. 485 Trial Judgement, para. 605. 486 See Trial Judgement, paras. 592, 595. 487 Trial Judgement, para. 610. 488 T. 24 November 2008 pp. 42, 43. 489 T. 24 November 2008 pp. 42, 43. 490 The Appeals Chamber recalls that a “Trial Chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence.” Muhimana Appeal Judgement, para. 135 (emphasis added). 491 Simba Appeal Judgement, para. 152. 492 See Kalimanzira Final Trial Brief, para. 1074.

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68 either attended the meeting in late May 1994 in their official capacity (Witness KBF)493 or had learned of the meeting through official channels, either directly from Bourgmestre Kajyambere (Witnesses Mukuralinda and BTH),494 from the conseiller of their respective sectors (Witness AKK),495 or from a policeman (Witness KXL).496 Witness BCZ testified that the meeting in which Kalimanzira allegedly participated was also convened by Bourgmestre Kajyambere and that the local population had been invited.497 185. The Defence witnesses did not hear about any meeting involving Kalimanzira. In many circumstances such evidence is properly accorded minimal probative value.498 However, the circumstances in this case are different because many of the Defence witnesses had close ties to the local authorities or lived in close proximity to the site.499 Therefore, these witnesses would have been well positioned to know if such a meeting occurred. The Trial Chamber did not discount their evidence on any bases other than those noted above. In this context, the Trial Chamber erred in not explaining more fully why it believed the Defence witnesses would not have heard of a second meeting, and thus why their testimony did not cast reasonable doubt on Witness BCZ’s evidence.

186. The Appeals Chamber underscores that trial chambers enjoy a broad discretion in assessing evidence, to which deference is owed. However, in these specific circumstances, the Trial Chamber’s analysis of Defence evidence rested on a number of legal errors and assumptions which had no reasonable basis in the record. The Appeals Chamber, Judge Pocar dissenting, finds that considered together, these legal and factual errors render Kalimanzira’s conviction for the events at Nyabisagara football field unsafe. The Appeals Chamber, Judge Pocar dissenting, finds that no reasonable Trial Chamber could have relied on Witness BCZ’s accomplice evidence of Kalimanzira’s participation in the meeting at the Nyabisagara football field in light of the

493 Trial Judgement, para. 600. 494 Trial Judgement, paras. 599, 602; T. 25 November 2008 p. 7 (Witness BTH). 495 Trial Judgement, para. 596. 496 Trial Judgement, para.

604. The Appeals Chamber notes that this procedure of convocation is consistent with evidence provided by Defence Witness AM122 concerning the mechanism by which public meetings were usually convened. See T. 19 November 2008 p. 41 (“Q. […] When a bourgmestre wanted to convene or summon members of the population to a public meeting, how did he proceed? A. When he had to convene a meeting he would send the conseillers of the secteurs to talk to the responsables of the cellules, and the responsables would, in turn refer, to the – talk to the nyumbakumi, the people in charge of ten houses – households. And, hence, the population was informed. Also – communiqués could also be issued at the level of the commune office. Q. Could the bourgmestre convene a meeting of the population without the conseillers of the secteur or the responsables of cellule being informed? A. That was not possible because in order to convene a meeting the bourgmestre had to go through his assistants and aides, those helping him in his duty. Namely, the conseillers of secteur and responsable of cellule. That way the entire population will be informed and aware”). 497 Trial Judgement, para. 592. 498 See, e.g., Muhimana Appeal Judgement, paras. 19, 211; Nchamihigo Appeal Judgement, para. 373. 499 See T. 26 November 2008 pp. 42, 43 (Witness AKK); T. 26 November 2008 pp. 52, 53 (Witness AKK); Trial Judgement, para. 602 (Witness Mukuralinda); T. 17 November 2008 pp. 12, 13 (Witness KBF); T. 25 November 2008 pp. 3, 7 (Witness BTH).

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69 competing Defence evidence, absent further corroborative evidence or additional analysis demonstrating that the Defence witnesses were not credible.

187. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s Tenth Ground of Appeal. The Appeals Chamber accordingly reverses Kalimanzira’s conviction for direct and public incitement to commit genocide at the Nyabisagara football field. The Appeals Chamber, therefore, need not discuss Kalimanzira’s remaining arguments concerning the Trial Chamber’s assessment of notice relating to this ground.

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70 I. Alleged Errors Relating to the Gisagara Marketplace (May Event) (Ground 11) 188. The Trial Chamber convicted Kalimanzira for direct and public incitement to commit genocide based, in part, on his actions during a meeting at the Gisagara marketplace at the end of May 1994.500 In particular, the Trial Chamber found that Kalimanzira criticized members of the crowd for being unarmed and rewarded a man who was carrying a weapon.501 It also found that he told those present that “they had not completely defeated the enemy” and “to kill young Tutsi girls who had been forced into marriages because they could cause problems.”502 Based on these statements, the Trial Chamber concluded that Kalimanzira intended to incite the crowd to carry weapons in order to kill Tutsi civilians.503 The Trial Chamber based its findings on the uncorroborated evidence of Prosecution Witness BDK.504 189. Kalimanzira submits that the Trial Chamber erred in law and in fact in convicting him for direct and public incitement to commit genocide based on this incident.505 In this section, the Appeals Chamber considers whether the Trial Chamber’s findings are supported by credible evidence.

190. Witness BDK was the sole Prosecution witness to give evidence on the meeting at the Gisagara marketplace at the end of May 1994.506 The Trial Chamber found her evidence concerning this event “reliable and credible.”507 In reaching this finding, it recalled that it had not accepted her evidence about Kalimanzira’s participation in an earlier meeting in April 1994 at the home of Fidèle Uwizeye related to the attack at Kabuye hill.508 However, the Trial Chamber considered that its doubts about the witness’s testimony regarding the earlier meeting did not “reflect upon [Witness] BDK’s general credibility.”509 The Trial Chamber also considered various alleged inconsistencies in Witness BDK’s evidence and concluded that they were explained by the passage of time or were not in fact inconsistencies.510

500 Trial Judgement, paras. 728, 729, 739. 501 Trial Judgement, para. 728. 502 Trial Judgement, para. 728. 503 Trial Judgement, para. 729. 504 Trial Judgement, paras. 719-722, 724-729. 505 Kalimanzira Notice of Appeal, paras. 67-71; Kalimanzira Appeal Brief, paras. 532-568. 506 Trial Judgement, paras. 719-722. 507 Trial Judgement, para. 727. 508 Trial Judgement, para. 727, referring to Trial Judgement, paras. 388-391. 509 Trial Judgement, para. 727. 510 Trial Judgement, paras. 724-726.

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71 191. Kalimanzira asserts that the Trial Chamber erred in failing to address Witness BDK’s ability to identify him.511 He maintains that Witness AX88 rebutted Witness BDK’s testimony regarding the first occasion on which the latter claimed to have seen Kalimanzira prior to his speech at the Gisagara marketplace.512 He further notes that the Trial Chamber declined to rely on Witness BDK’s testimony regarding the second of these prior sightings,513 and failed to account for her difficulties in identifying Kalimanzira in the courtroom.514 He concludes that the Trial Chamber should have treated Witness BDK’s testimony as if she had never met Kalimanzira prior to the events in question.515 Kalimanzira also contends that as Witness BDK arrived at the Gisagara marketplace after he allegedly began speaking, she did not hear him being introduced, and thus was not in a position to identify him.516 192. Kalimanzira further asserts that as the Trial Chamber found Witness BDK less than fully credible in its analysis of the events leading up to the massacre at Kabuye hill, it should not have accepted her testimony regarding events at Gisagara marketplace without corroboration.517 Kalimanzira also maintains that the Trial Chamber erred in not considering more fully the contradictions within Witness BDK’s testimony, why she attended the meeting and when she left, and her role as a frequent

witness in Gacaca trials.518 More broadly, Kalimanzira suggests that the Trial Chamber should have explained more fully why it accepted Witness BDK’s entire testimony, given its unlikely nature.519 193. The Prosecution responds that the Trial Chamber correctly assessed Witness BDK’s identification evidence concerning Kalimanzira and the alleged inconsistencies in her evidence.520 In particular, the Prosecution submits that Kalimanzira already raised these issues at trial and should not be permitted to merely repeat them on appeal.521 The Prosecution recalls that a trial chamber is not required to refer to every piece of evidence in its judgement.522 The Prosecution further contends that the Trial Chamber’s acceptance of Witness BDK’s evidence was reasonable since it found her credible, she had seen Kalimanzira at least three times at close range, her identification of Kalimanzira at the Gisagara marketplace was not made under difficult conditions, and she provided

511 Kalimanzira Appeal Brief, paras. 538-549. See also Kalimanzira Reply Brief, paras. 47, 48. 512 Kalimanzira Appeal Brief, paras. 542, 543. 513 Kalimanzira Appeal Brief, para. 544. 514 Kalimanzira Appeal Brief, paras. 547, 548; Kalimanzira Reply Brief, paras. 47, 48. 515 Kalimanzira Appeal Brief, paras. 541, 545. 516 Kalimanzira Appeal Brief, para. 546. 517 Kalimanzira Appeal Brief, paras. 550-557. 518 Kalimanzira Appeal Brief, paras. 559-567. 519 Kalimanzira Appeal Brief, paras. 559-561. 520 Prosecution Response Brief, paras. 247-263. 521 Prosecution Response Brief, paras. 249, 250, 258, 261. 522 Prosecution Response Brief, para. 251.

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72 a physical description of him and identified him in court.523 The Prosecution argues that the Trial Chamber only declined to rely on Witness BDK in relation to the meeting in April 1994 at Fidèle Uwiyeze’s home because it was directly contradicted by Witness AX88.524 In the Prosecution’s view, the same concerns do not exist with respect to the incident at the Gisagara marketplace.525 194. The Prosecution further submits that it was within the Trial Chamber’s discretion to accept part of Witness BDK’s evidence even though it questioned other parts of it.526 Finally, the Prosecution contends that the Trial Chamber fully considered Kalimanzira’s arguments related to various alleged inconsistencies at trial and correctly determined that they did not impact Witness BDK’s credibility.527 195. The Trial Chamber did not discuss the basis on which it accepted Witness BDK’s identification of Kalimanzira during the meeting at the Gisagara marketplace. Thus, it failed to analyze Witness BDK’s testimony regarding her prior encounters with Kalimanzira, or the competing evidence from Witness AX88, who testified that the two occasions on which Witness BDK claimed to have seen Kalimanzira prior to the Gisagara marketplace meeting never took place.528 The Appeals Chamber recalls that, though a trial chamber has the obligation to provide a reasoned opinion, it is not required to articulate its

reasoning in detail.529 Additionally, the fact that certain evidence has not been referred to in the Trial Judgement does not mean that it was not taken into account in the Trial Chamber’s assessment.530 The Appeals Chamber considers that “[t]here is a presumption that a 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.”531 However, this presumption may be rebutted “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”532 196. A review of Witness BDK’s evidence reveals that her basis for identifying Kalimanzira at the Gisagara marketplace was of limited probative value and relied on hearsay evidence. According to her testimony, she saw him for the first time at the home of Fidèle Uwizeye in the early 1990s

523 Prosecution Response Brief, paras. 252-255. 524 Prosecution Response Brief, paras. 254, 257. 525 Prosecution Response Brief, para. 257. 526 Prosecution Response Brief, para. 260. 527 Prosecution Response Brief, paras. 262, 263. 528 T. 19 November 2008 p. 22. 529 Simba Appeal Judgement, para. 152. 530 Simba Appeal Judgement, para. 152. 531 Halilovi} Appeal Judgement, para.

121. See also Kvoèka et al. Appeal Judgement, para. 23. 532 Kvoèka et al. Appeal Judgement, para. 23.

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73 “long before the genocide.”533 At the time, the witness did not know Kalimanzira so her husband identified Kalimanzira to her.534 The witness provided no significant details about this brief encounter,535 and she knew nothing else about him other than that her husband said that Kalimanzira worked in Kigali.536 197. Witness BDK saw Kalimanzira a second time at Uwizeye’s home at the end of April 1994.537 She recognized Kalimanzira primarily based on her prior encounter with him as well as her husband’s confirmation of Kalimanzira’s identity.538 The Trial Chamber observed that Witness BDK’s testimony regarding this occasion was directly contradicted by Defence Witness AX88.539 In assessing the two witnesses’ evidence, the Trial Chamber observed, inter alia, that “their testimonies diverge so drastically on this point […] that one of them must be lying, if not both.”540 The Trial Chamber concluded that Witness BDK’s uncorroborated evidence concerning her second sighting of Kalimanzira at the end of April 1994 was “insufficiently reliable to prove the allegations ₣…ğ beyond reasonable doubt.”541 198. Other than these two prior incidents, there appears to be no other basis in Witness BDK’s testimony to support her contention that the person she saw at the Gisagara marketplace was in fact Kalimanzira.542 In particular, there is no indication from her testimony about the meeting that

533 T. 20 May 2008 p.

47. See also T. 21 May 2008 pp. 9, 10. 534 T. 20 May 2008 p. 46 (“A. When I knew him for the first time, I had met him at [Fidèle Uwizeye’s] house, and it was one afternoon. Since I did not know him at the time, I asked who he was, and I was told that it was a certain Callixte Kalimanzira who lived in Kigali and he had come to visit Fidèle. Q. Who told you that he was a certain Callixte Kalimanzira that lived in Kigali? Who gave you that information? A. It was my husband.”). See also T. 21 May 2008 p. 10. 535 T. 21 May 2008 p. 10 (“Q. When he came to Fidèle Uwizeye’s house, were you present in Fidèle Uwizeye’s house? A. When I got to Fidèle Uwizeye’s house, I found Mr. Callixte Kalimanzira there. Q. Was there anybody accompanying him on that day? A. No, there was no one accompanying him. Q. Did you find him sitting in the living room, and did you join the group? How did it go? A. I got into the living room, I greeted him as a visitor. I did not stay in the living room. I spoke to Fidèle Uwizeye’s wife. I wanted something from that family. She told me where I could get what I wanted. She showed me the spot and I went and got what I wanted. Q. And was your husband present in the living room on that day? A. Yes, he was there with him.”). 536 T. 20 May 2008 p. 47 (“Q. What else did you know about Kalimanzira other than he worked in Kigali? A. I knew nothing else about Mr.

Kalimanzira.”). 537 T. 20 May 2008 pp. 47, 49-53; T. 21 May 2008 pp. 10, 14. See also Trial Judgement, para. 332. 538 T. 20 May 2008 pp. 52, 53; T. 21 May 2008 p. 14. 539 Trial Judgement, para. 388. 540 Trial Judgement, para. 389. 541 Trial Judgement, para. 391. 542 The Appeals Chamber notes Kalimanzira’s submission that Witness BDK could not initially identify Kalimanzira in court when asked to do so by the Prosecutor, but only recognized him shortly after the close of her examination-in-chief when the Presiding Judge stated that she would be cross-examined by Kalimanzira’s co-counsel. At that point, the witness correctly identified Kalimanzira as seated next to his co-counsel. See Kalimanzira Appeal Brief, para. 547; T. 20 May 2008 pp. 59, 60. The Prosecution responds that Witness BDK gave a reasonable explanation of her initial failure to identify Kalimanzira, claiming that his face had been hidden from her. See Prosecution Response Brief, para.

255. The Appeals Chamber recalls that in-court identifications carry very limited probative value. See Kamuhanda Appeal Judgement, para. 243.

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74 Kalimanzira was introduced or referred to himself by name or that she confirmed his identity with any other person.

199. The Appeals Chamber recalls that caution is warranted before basing convictions on hearsay evidence.543 It is unclear from the Trial Judgement to what extent such caution was applied. Moreover, the Appeals Chamber notes the Trial Chamber’s uncertainty as to Witness BDK’s veracity with respect to one of two occasions where she claimed to have identified Kalimanzira. Under these circumstances, the Appeals Chamber, Judge Pocar dissenting, considers that the Trial Chamber should have provided a clearer explanation of its reasons for accepting portions of Witness BDK’s testimony addressing identification. The Appeals Chamber, Judge Pocar dissenting, finds that its failure to do so constituted an error of law.

200. In view of the Trial Chamber’s legal error, the Appeals Chamber, Judge Pocar dissenting, will consider the relevant evidence to determine whether Kalimanzira can be held responsible for direct and public incitement based on Witness BDK’s testimony.544 Taking into account all relevant factual findings of the Trial Chamber as well as the trial record, the Appeals Chamber is especially concerned by the finding that Witness BDK may have been lying about one of the occasions when she claims to have seen Kalimanzira prior to the May meeting in the Gisagara marketplace. The latter finding also creates doubt as to the reliability of Witness BDK’s testimony with regard to the other occasion where she identified Kalimanzira,545 which involved very similar circumstances.546 Given the uncertainty regarding the reliability of Witness BDK’s identification evidence, the Appeals Chamber considers that Witness BDK’s identification of Kalimanzira has not been established beyond a reasonable doubt.

201. In sum, the Appeals Chamber, Judge Pocar dissenting, considers that given Witness BDK’s reliance on hearsay evidence to identify Kalimanzira, the Trial Chamber erred in law by not providing additional explanation before relying on her uncorroborated testimony. Assessing the relevant factual findings on their face, the Appeals Chamber, Judge Pocar dissenting, is not convinced beyond a reasonable doubt that Witness BDK was in a position to identify Kalimanzira, and thus holds that his conviction with respect to the May meeting at the Gisagara marketplace is unsafe.

543 See supra Section III.E.2 (Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence). 544 See supra para. 8. 545 T. 19 November 2008 p. 22. 546 Cf. Muvunyi Appeal Judgement, paras. 130, 131 (finding that the Trial Chamber erred in not applying a similar degree of caution to one aspect of a witness’s evidence where it had previously rejected his testimony based on generally applicable concerns).

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75 202. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s Eleventh Ground of Appeal and reverses his conviction for direct and public incitement to commit genocide based on the meeting at the Gisagara marketplace. As a result, the Appeals Chamber does not address any of Kalimanzira’s remaining arguments under this ground of appeal.

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76 IV. APPEAL OF THE PROSECUTION A. Alleged Errors Relating to the Form of Criminal Responsibility (Ground 1) 203. The Trial Chamber convicted Kalimanzira for instigating and aiding and abetting genocide based on his participation in the killings at the Butare-Gisagara roadblock on or around 22 April 1994 and for aiding and abetting the crime of genocide based on his participation in the massacres of Tutsi refugees on Kabuye hill on 23 April 1994.547 The Prosecution submits that the Trial Chamber erred by not concluding, based on the evidence it accepted, that with respect to both events, Kalimanzira ordered and committed the crime of genocide.548 The Prosecution requests that the Appeals Chamber enter a conviction on this basis and increase Kalimanzira’s sentence to life imprisonment.549 Kalimanzira responds that the Prosecution’s appeal should be dismissed.550 204. In connection with Kalimanzira’s Seventh Ground of Appeal, the Appeals Chamber, Judge Pocar dissenting, reversed his conviction based on the events at the Butare-Gisagara roadblock.551 Consequently, the Appeals Chamber need not address this aspect of the Prosecution’s appeal. In this section, the Appeals Chamber considers two principal questions relating to Kalimanzira’s conviction based on events at Kabuye hill: (1) whether the Trial Chamber failed to assess Kalimanzira’s conduct based on ordering and committing; and (2) whether the Trial Chamber erred by not convicting Kalimanzira on the basis of these forms of responsibility with respect to his actions at Kabuye hill.

1. Alleged Failure to Make Findings on Modes of Liability Other Than Aiding and Abetting 205. The Prosecution submits that the Trial Chamber “ignored” ordering or committing in making its findings on Kalimanzira’s responsibility even though these forms of responsibility were clearly pleaded under Count 1 (genocide) in the Indictment.552 206. A review of the Trial Judgement reflects that the Trial Chamber was expressly aware that Count 1 (genocide) pleaded all modes of participation under Article 6(1) of the Statute, including ordering and committing.553 The Trial Chamber also highlighted the specific allegation that Kalimanzira used his position of authority to incite and order persons under his authority to commit

547 Trial Judgement, paras. 392, 393, 474, 739. 548 Prosecution Notice of Appeal, paras. 1-11; Prosecution Appeal Brief, paras. 4, 28-73. 549 Prosecution Notice of Appeal, paras. 12-14; Prosecution Appeal Brief, paras. 74-76 550 Kalimanzira’s Response Brief, paras. 8, 10, 11, 16. 551 See supra Section III.F (Ground 7: Alleged Errors Relating to the Butare-Gisagara Roadblock). 552 Prosecution Appeal Brief, paras. 30, 37. See also Prosecution Appeal Brief, paras. 38, 58. 553 Trial Judgement, para. 160.

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77 genocide.554 In addition, the Trial Chamber explained the legal elements of each form of responsibility in detail.555 207. Bearing this in mind, the Appeals Chamber is satisfied that, in determining Kalimanzira’s form of responsibility, the Trial Chamber implicitly considered all forms of liability pleaded in the Indictment. The Appeals Chamber can identify no error in the Trial Chamber’s decision to only explicitly discuss the form of responsibility it concluded was most appropriate. Accordingly, the Prosecution has not shown that the Trial Chamber erred in this respect.

2. Alleged Errors Relating to Kalimanzira’s Conviction for Aiding and Abetting Genocide at Kabuye Hill 208. In relation to Kalimanzira’s conviction for aiding and abetting genocide at Kabuye hill,556 the Trial Chamber found that, on 23 April 1994, he was present at the Gisagara marketplace when Sub-Prefect Dominique Ntawukulilyayo instructed Tutsis there to seek refuge at Kabuye hill.557 According to the Trial Chamber, this offered tacit approval of and gave credence to the sub- prefect’s false assurances of safety.558 That same day, Kalimanzira was found to have told Tutsis on the Kabuye-Gisagara road to go to Kabuye hill, promising them safety.559 The Trial Chamber also found that Kalimanzira then travelled to Kabuye hill along with armed soldiers and policemen who, using their firearms, participated in the killing of a large number of Tutsis.560 The Trial Chamber concluded that “Kalimanzira’s role in luring Tutsis to Kabuye hill and his subsequent assistance in providing armed reinforcements substantially contributed to the overall attack.”561 209. The Prosecution does not dispute the Trial Chamber’s assessment of the evidence.562 Instead, it argues that, on the basis of these findings, the Trial Chamber erred in failing to conclude that Kalimanzira ordered and committed genocide in relation to the attack.563 The Prosecution argues that “[c]onsidering [Kalimanzira’s] direct involvement and active participation in the targeting and killings of members of the Tutsi ethnic group, his specific intent to destroy the Tutsi ethnic group as such, his position of authority, and the overall genocidal context within which he

554 Trial Judgement, para. 160, citing Indictment, paras. 2, 6. 555 Trial Judgement, para. 161. 556 Trial Judgement, paras. 392, 393, 739. 557 Trial Judgement, paras. 367, 392. 558 Trial Judgement, para. 392. 559 Trial Judgement, paras. 371, 392. In connection with Kalimanzira’s Third and Sixth Grounds of Appeal, the Appeals Chamber overturned this finding. See supra Sections III.E.2, III.E.4 (Grounds 3 and 6: Alleged Errors Relating to Kabuye Hill). 560 Trial Judgement, para. 393. 561 Trial Judgement, para. 393. 562 See Prosecution Appeal Brief, paras. 31, 48, 68.

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78 acted, no reasonable trier of fact could have held otherwise [than] that his acts and conduct more appropriately amounted to participation through ordering and committing […].”564 210. The Appeals Chamber considers, in turn, whether the Trial Chamber erred in not finding that Kalimanzira either ordered or committed the crime of genocide in relation to the events at Kabuye hill. (a) Ordering 211. The Prosecution contends that the Trial Chamber erred in failing to find that “the acts and utterances of [Kalimanzira], the resulting killings[,] and the overall context of the events” demonstrated that he ordered genocide at Kabuye hill.565 In this respect, the Prosecution submits that, based on the Trial Chamber’s findings, Kalimanzira had authority over the attackers and was perceived by the attackers as an authority.566 It also underscores that, based on the evidence presented at trial, Kalimanzira was the highest authority present at the Kabuye hill massacre.567 212. In addition, the Prosecution points to an event recounted by Prosecution Witness BWO, namely, the killing of a group of refugees by civilians allegedly acting on Kalimanzira’s instructions.568 The Prosecution states that, according to Witness BWO, Kalimanzira promised a leader of a group of Tutsi refugees protection, but then told a group of assailants that they should kill the refugees.569 The Prosecution submits

that this “order was immediately obeyed.”570 In sum, the Prosecution submits that “₣bğy telling the attackers to kill the Tutsi refugees immediately and by bringing as reinforcements persons under his authority, directed to participate in the attacks, [Kalimanzira] therefore gave direct orders and completed the actus reus of ordering genocide […].”571 213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence.572 It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.573 The Trial Chamber, however, made no findings that

563 Prosecution Appeal Brief, paras. 28-32, 47-52, 68-76. 564 Prosecution Appeal Brief, para. 29 (emphasis in original) (internal citations omitted). 565 Prosecution Appeal Brief, para. 47 (internal citations omitted). See also Prosecution Appeal Brief, paras. 48-52. 566 Prosecution Appeal Brief, paras. 48-51. 567 Prosecution Appeal Brief, para. 50. 568 Prosecution Appeal Brief, para. 49. 569 Prosecution Appeal Brief, para. 49. 570 Prosecution Appeal Brief, para. 49. 571 Prosecution Appeal Brief, para. 51. 572 Semanza Appeal Judgement, paras. 361, 363. 573 Trial Judgement, paras. 97-99.

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79 he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”574 While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence.

214. The Prosecution’s argument relies heavily on Witness BWO’s account of Kalimanzira telling a group of assailants at Kabuye hill to kill a group of Tutsi refugees. The Trial Chamber found the witness credible and accepted his evidence about this incident even though it was “substantially uncorroborated.”575 In reviewing Witness BWO’s evidence, however, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber not to convict Kalimanzira for ordering based on Witness BWO’s testimony.

215. More specifically, it follows from Witness BWO’s evidence that the group of assailants arrived at the hill after Kalimanzira.576 Although the leader of a group of Tutsi refugees recognized Kalimanzira,577 it is not clear from the evidence that the civilian assailants did so as well, or that they knew that he was an authority. More significantly, it is not entirely clear from the witness’s testimony whether the civilian assailants attacked the group of refugees immediately after Kalimanzira spoke to them,578 or attacked the refugees only upon the arrival of soldiers some time after his departure.579 Given these ambiguities, the Trial Chamber acted within its discretion in

574 Trial Judgement, para. 393. 575 Trial Judgement, para. 383. 576 T. 5 May 2008 pp. 30, 31; T. 19 May 2008 p. 8. 577 Trial Judgement, para. 317. 578 See T. 5 May 2008 p. 30 (“When he was talking to the people who arrived and who were behind him – I can try to repeat what he said. After Boniface spoke to him, Callixte turned to the newcomers and said, ‘You should kill them immediately because the others have already finished.’ And that was when we fled and we joined the other refugees. But, Kalimanzira had already uttered those words, and some of the refugees were killed on the spot.”); T. 19 May 2008 p. 9 (“Q. And this group of persons, who included the two individuals whose names you mentioned, that group was only composed of civilians, or were there also soldiers in the group? A. They were civilians and Interahamwe. When they started attacking us, I personally escaped. I left the scene. But let me point out that there were many of them. There were Interahamwe, civilians, and later on soldiers also arrived at the scene. And the attack lasted the entire day. So let me point out that there were also soldiers. Q. At the time you fled, Mr. Witness, there was only that group of civilians. Do you agree with me? A. Yes, there was that group of people who had come almost at the same time as Kalimanzira, and it was at about 11. Between 1 p.m. and 2 p.m. soldiers came to the scene and

started firing at the refugees and killing them.”). However, the Appeals Chamber observes that, if Witness BWO fled when the civilian assailants attacked shortly after Kalimanzira left, it is not clear how he would have been in a position to observe the arrival of the soldiers two hours later. 579 See T. 5 May 2008 pp. 31, 32 (“Q. What happened following Kalimanzira speaking to these civilians from Dahwe? A. Soldiers and Interahamwe arrived. […] Q. After Kalimanzira got into his vehicle and left, what did you and the other refugees do? A. We stayed where we were; there was nothing else we could do. And it was during that time that the Interahamwe and the soldiers arrived. […] Q. How did the soldiers and the Interahamwe get to where they were to attack you? A. They arrived and they started shooting immediately. When we heard the gunshots, we were hopeless and we ran helter-skelter. The other attackers started attacking us with machetes and bladed weapons. Q. Do you know how the soldiers and Interahamwe reached where you were, by foot or in a vehicle? A. The vehicle dropped the soldiers at Gisagara, and they joined the Interahamwe and came to the place where we were on foot. Q. You told us that

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80 concluding that aiding and abetting rather than ordering was the most appropriate mode by which to characterize Kalimanzira’s conduct. (b) Committing 216. The Prosecution submits that the Trial Chamber erred in failing to qualify Kalimanzira’s actions in relation to Kabuye hill as “committing” genocide.580 In particular, the Prosecution argues that the Trial Chamber erred in law in formulating the legal test for committing by adopting an incomplete definition for this form of responsibility and limiting its consideration to the question of whether Kalimanzira had killed anyone with his own hands.581 To illustrate the Trial Chamber’s alleged error, the Prosecution points to the Gacumbitsi and Seromba Appeal Judgements, which held that committing genocide can encompass acts beyond physical killing.582 217. The Prosecution contends that, had the test for committing been properly applied, a reasonable trier of fact would have concluded that Kalimanzira committed genocide at Kabuye hill.583 Specifically, the Prosecution underscores Kalimanzira’s efforts to gather Tutsi refugees at Kabuye hill, his provision of armed reinforcement for the attacks, and his genocidal intent, which illustrate his integral role in organizing and supervising the subsequent killings.584 In the Prosecution’s view, Kalimanzira’s conduct is comparable to that found to constitute committing in the

Gacumbitsi and Seromba cases.585 218. In discussing the forms of responsibility under Article 6(1) of the Statute, the Trial Chamber stated that “‘[c]ommitting’ implies, primarily, physically perpetrating a crime.”586 The Appeals Chamber can identify no error in this definition. The formulation is similar to the one articulated in the Nahimana et al. Appeal Judgement.587 Indeed, the Trial Chamber’s use of the term “primarily” to qualify its definition of committing as physical perpetration illustrates that it did not limit the scope of its inquiry.588 This stands in contrast to the definition used by the trial chamber in the

Kalimanzira spoke to some civilians from Dahwe. Did you see those civilians again after that incident? A. Yes, the civilians would come along with the attackers. They were part of the groups of attackers. I was able to see them.”). See also T. 19 May 2008 pp. 8-10. 580 Prosecution Notice of Appeal, paras. 5, 6; Prosecution Appeal Brief, paras. 53-57, 68-73. 581 Prosecution Notice of Appeal, paras. 5, 6; Prosecution Appeal Brief, paras. 53-57. 582 Prosecution Appeal Brief, para. 53, citing Gacumbitsi Appeal Judgement, para. 60, Seromba Appeal Judgement, para. 161. 583 Prosecution Appeal Brief, paras. 54, 68-73. 584 Prosecution Appeal Brief, paras. 69-71, 73. 585 Prosecution Appeal Brief, para. 72. 586 Trial Judgement, para. 161. 587 Nahimana et al. Appeal Judgement, para. 478 (“The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.”). 588 Trial Judgement, para. 161.

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81 Seromba case, which the Appeals Chamber found too restrictive.589 The fact that the Trial Chamber did not explicitly recall the additional clarification of this well-settled principle provided by the Gacumbitsi and Seromba Appeal Judgements does not mean that these clarifications were not considered.

219. It follows from the Gacumbitsi and Seromba Appeal Judgements that physical perpetration need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.590 The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled.”591 Bearing this in mind, the Appeals Chamber is not convinced that the Trial Chamber’s conclusion that Kalimanzira’s conduct was best characterized as aiding and abetting was unreasonable. The Trial Chamber did not find that he supervised or directed the attack at Kabuye hill. Instead, it concluded that he lured Tutsis to Kabuye hill and brought armed reinforcements.592 220. In other cases, trial chambers have qualified bringing assailants to a killing site as aiding and abetting.593 In the circumstances of this case, the Appeals Chamber is not convinced that Kalimanzira’s tacit approval of Sub-Prefect Ntawukulilyayo’s call for Tutsis to go to Kabuye hill, and his leading assailants to Kabuye hill,594 are sufficient to require that the legal qualification of his overall conduct be elevated to “committing”. Furthermore, the fact that the Trial Chamber found that Kalimanzira possessed genocidal intent,595 rather than simply knowledge of the principal perpetrators’ mens rea,596 does not in itself compel the conclusion that the Trial

Chamber erred in finding that aiding and abetting most accurately described Kalimanzira’s conduct. The Appeals Chamber recalls that it is not unusual for a trial chamber to find that an individual convicted only of aiding and abetting possesses genocidal intent.597 221. Consequently, the Prosecution has not identified any error in the Trial Chamber’s decision not to hold Kalimanzira responsible for committing genocide at Kabuye hill.

589 See Seromba Appeal Judgement, para. 155 (“‘committing’ means [...] direct physical or personal perpetration”), quoting Seromba Trial Judgement, para.

302. See also Seromba Appeal Judgement, para. 161 (“[T]he Trial Chamber erred in law by holding that ‘committing’ requires direct and physical perpetration of the crime by the offender.”). 590 Gacumbitsi Appeal Judgement, para. 60; Seromba Appeal Judgement, para. 161. 591 Gacumbitsi Appeal Judgement, para.

60. See also Seromba Appeal Judgement, para. 161. 592 Trial Judgement, para. 393. 593 See, e.g., Semanza Trial Judgement, paras. 431-433; Ntakirutimana Trial Judgement, paras. 827-831. 594 See Trial Judgement, paras. 392, 393. 595 Trial Judgement, para. 393. 596 See Blagojevi} and Joki} Appeal Judgement, para. 127. 597 See Ntakirutimana Trial Judgement, paras. 827-831. Cf. Semanza Trial Judgement, paras. 431-433.

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82 3. Conclusion 222. Accordingly, the Appeals Chamber dismisses the Prosecution’s First Ground of Appeal.

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83 B. Alleged Errors Relating to the Sentence (Ground 2) 223. The Trial Chamber sentenced Kalimanzira to a single sentence of 30 years of imprisonment.598 The Prosecution submits that the Trial Chamber erred in imposing this sentence and requests that the Appeals Chamber increase Kalimanzira’s sentence to imprisonment for the remainder of his life.599 Kalimanzira responds that the Trial Chamber “wrongly convicted ₣himğ of all the counts on which he was found guilty,” and that he should accordingly be acquitted.600 224. In addressing this ground of appeal, the Appeals Chamber bears in mind that trial chambers are vested with broad discretion in determining an appropriate sentence due to their obligation to individualize penalties to fit the circumstances of the accused and the gravity of the crime.601 As a rule, the Appeals Chamber will revise a sentence only if the appealing party demonstrates that the trial chamber committed a discernible error in exercising its sentencing discretion or that it failed to follow the applicable law.602 225. In this section the Appeals Chamber considers three principal questions: (1) whether the Trial Chamber failed to give sufficient weight to the gravity of Kalimanzira’s crimes; (2) whether it gave undue weight to irrelevant considerations; and (3) whether it failed to follow the applicable law.

1. Alleged Error in Assessing the Gravity of the Crimes 226. The Prosecution submits that the Trial Chamber erred in its assessment of the gravity of Kalimanzira’s crimes by failing to give proper weight to: the form and degree of his participation in their commission, their scale and brutality, the vulnerability of the victims, and the timing of his offences.603 The Prosecution contends that Kalimanzira’s crimes were of the “utmost gravity and amount to conduct so egregious and inhumane as to warrant the highest possible penalty.”604 In this respect, the Prosecution recalls that the specific aspects of Kalimanzira’s crimes suggest the brutal treatment of innocent victims, and observes that in each instance he exhibited genocidal intent and

598 Trial Judgement, para. 756. 599 Prosecution Notice of Appeal, paras. 15-25; Prosecution Appeal Brief, paras. 4, 77-128. 600 Kalimanzira Response Brief, para. 14. 601 See Karera Appeal Judgement, para. 385; Nahimana et al. Appeal Judgement, para. 1037; Simba Appeal Judgement, para. 306; Ntagerura et al. Appeal Judgement, para. 429. 602 See Bikindi Appeal Judgement, para. 141; Nchamihigo Appeal Judgement, para. 384; Karera Appeal Judgement, para. 385; Nahimana et al. Appeal Judgement, para. 1037; Simba Appeal Judgement, para. 306; Blagojevi} and Joki} Appeal Judgement, paras. 137, 321; Ntagerura et al. Appeal Judgement, para. 429; Semanza Appeal Judgement, para. 312; Blaškić Appeal Judgement, para. 680. 603 Prosecution Appeal Brief, paras. 85-110. 604 Prosecution Appeal Brief, para. 92.

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84 played a leadership role.605 The Prosecution also emphasizes that Kalimanzira perpetrated multiple crimes within a narrow time-frame, that his actions were immediately proximate to killings, and that his actions “served to re-ignite killings after they had slowed or ceased.”606 227. The Trial Chamber briefly recalled the factual and legal basis of each of Kalimanzira’s crimes and provided a cross-reference to the relevant section of the Trial Judgement, where the incidents were discussed in greater detail.607 The Trial Chamber also “[took] due notice of the intrinsic gravity of Kalimanzira’s crimes.”608 Furthermore, it considered that genocide “shocks the conscience of humanity” and that direct and public incitement to commit genocide was of a similar gravity.609 Therefore, the Trial Chamber was manifestly aware of all the factual and legal circumstances surrounding the offences referred to by the Prosecution in its submissions. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in its consideration of the gravity of Kalimanzira’s offences.

2. Alleged Error in Giving Undue Weight to Irrelevant Considerations 228. The Prosecution submits that the Trial Chamber erred in its assessment of the sentence by giving weight to two irrelevant considerations.610 First, the Prosecution refers to the Trial Chamber’s statement that the crimes occurred in Kalimanzira’s own prefecture and not at the national level.611 The Prosecution argues that this conclusion has no relevance and does not diminish the gravity of the offences so as to justify a lesser sentence.612 Second, the Prosecution argues that the Trial Chamber’s consideration that Kalimanzira’s crimes were essentially unrelated to his official duties and powers at the national level is erroneous and irrelevant.613 According to the Prosecution, there is no evidence to support such an inference.614 In addition, the Prosecution contends that the Trial Chamber expressly found that Kalimanzira’s authority derived from both his local influence and national authority.615 229. The Appeals Chamber agrees that the crimes’ commission in Kalimanzira’s own prefecture and not at the national level is not a relevant fact for the purpose of assessing their gravity. The

605 Prosecution Appeal Brief, paras. 92-106. 606 Prosecution Appeal Brief, para.

108. See also Prosecution Appeal Brief, paras. 107, 109, 110. 607 Trial Judgement, paras. 745, 746. 608 Trial Judgement, para. 746. 609 Trial Judgement, para. 746. 610 Prosecution Appeal Brief, paras. 111-115. 611 Prosecution Appeal Brief, para. 112, citing Trial Judgement, para. 747. 612 Prosecution Appeal Brief, para. 112. 613 Prosecution Appeal Brief, paras. 114, 115, citing Trial Judgement, para. 747. 614 Prosecution Appeal Brief, para. 114. 615 Prosecution Appeal Brief, para. 115, citing Trial Judgement, paras. 95-99.

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85 genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994, which resulted in the killings of hundreds of thousands of Tutsis, is indivisible.616 The Appeals Chamber, however, is not convinced that this error invalidated the sentence since it is not clear how much weight the Trial Chamber attributed to this consideration. As explained above, the Trial Chamber correctly noted the serious gravity of Kalimanzira’s crimes.

230. As for the Prosecution’s contention that the Trial Chamber erred in finding that Kalimanzira’s crimes were “essentially unrelated to [Kalimanzira’s] official duties and powers at the national level,”617 the Appeals Chamber agrees that this appears inconsistent with many of the findings in the Trial Judgement. Indeed, the Trial Chamber found that Kalimanzira attended many meetings, such as the inauguration of Élie Ndayambaje, in his capacity as an official of the Ministry of Interior.618 Kalimanzira’s position was also a key consideration in assessing the impact of his presence on the commission of crimes.619 231. Nonetheless, after noting that the crimes were “essentially unrelated” to Kalimanzira’s duties, the Trial Chamber expressly considered that his position as directeur de cabinet of the Ministry of Interior “lent him the credibility and influence required for some of his criminal acts.”620 It also took the abuse of this influence into account as an aggravating circumstance.621 Consequently, it is clear that the Trial Chamber took his position into account in sentencing. Therefore, the Appeals Chamber cannot identify any error on the part of the Trial Chamber in this respect that would invalidate the sentence.

3. Alleged Error in “Reserving” Life Imprisonment for a Certain Class of Offenders 232. The Prosecution submits that the Trial Chamber erred in law by reserving life imprisonment to a certain class of offenders.622 To illustrate this claim, the Prosecution quotes the following excerpt from the Trial Judgement: At this Tribunal, a sentence of life imprisonment is generally reserved [for] those who planned or ordered atrocities and those who participate in the crimes with particular zeal or sadism. Offenders receiving the most severe sentences tend to be senior authorities.623

616 See Ndindabahizi Appeal Judgement, para. 138. 617 Trial Judgement, para. 747. 618 See, e.g., Trial Judgement, para. 291. 619 See, e.g., Trial Judgement, paras. 362, 392. 620 Trial Judgement, para. 747. 621 Trial Judgement, para. 750. 622 Prosecution Appeal Brief, paras. 116-125. 623 Trial Judgement, para. 744 (internal citations omitted).

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86 233. For the Prosecution, this analysis demonstrates that the Trial Chamber incorrectly reserved the imposition of a sentence of life imprisonment for only a certain category of offenders or mode of participation, thereby failing to follow the Tribunal’s jurisprudence and wrongly limiting its own discretion.624 The Prosecution submits that a correct reading of the Musema Appeal Judgement, to which the Trial Chamber refers,625 indicates that a sentence of life imprisonment is not necessarily limited to any particular group of offenders or mode of participation.626 234. Moreover, the Prosecution argues that, by correctly focusing on the circumstances surrounding the case and not on a categorization of offenders, the Appeals Chamber in the Gacumbitsi case held that where a person convicted of genocide is a primary actor or leader, life imprisonment is the appropriate sentence in the absence of significant mitigating circumstances.627 Finally, the Prosecution emphasizes that Kalimanzira, as one of the most influential persons in Butare Prefecture, played a critical role in the crimes committed by influencing others to commit crimes, distributing arms, transporting attackers to massacres sites, and inciting Hutus to commit the most heinous crimes, and further contends that Kalimanzira’s involvement as a leader and principal player was continuous between April and June

1994.628 235. The Trial Chamber correctly noted that, pursuant to Article 23 of the Statute and Rule 101 of the Rules, in determining the sentence, consideration must be given, among other factors, to the gravity of the offences or totality of the conduct.629 As a result, the Appeals Chamber is not persuaded that the Prosecution’s selective quotation of the Trial Judgement demonstrates that the Trial Chamber inappropriately imposed a legal threshold on the imposition of a sentence of life imprisonment.

236. The portion of the Trial Judgement quoted by the Prosecution is no more than a reformulation of the well-established principle of gradation in sentencing, which holds that leaders and planners should bear heavier criminal responsibility than those further down the scale. This general principle is, of course, subject to the proviso that the gravity of the offence is the primary consideration for a trial chamber in imposing a sentence. The Trial Chamber, referring to the Musema Appeal Judgement, expressly acknowledged both of these propositions.630

624 Prosecution Appeal Brief, paras. 121, 125. 625 Trial Judgement, para. 744, n. 776. 626 Prosecution Appeal Brief, paras. 119-121. 627 Prosecution Appeal Brief, para. 122, citing Gacumbitsi Appeal Judgement, paras. 204-206. 628 Prosecution Appeal Brief, para. 124. 629 Trial Judgement, para. 741. 630 Trial Judgement, para. 744, n. 776.

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87 237. In addition, as the Prosecution concedes, the Trial Chamber correctly noted that life sentences have also been imposed on lower level officials and individuals who did not hold government positions.631 Further, nothing in the language used by the Trial Chamber prevented in a per se fashion the imposition of a sentence of life imprisonment; instead, the Trial Chamber’s approach focused on a case-specific examination of the facts and circumstances surrounding Kalimanzira’s convictions.

238. Finally, the Appeals Chamber is not persuaded by the Prosecution’s reading of the Gacumbitsi Appeal Judgement and its relevance to this case. Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of a sentence of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.632 239. With respect to the Prosecution’s submission emphasizing the specific role played by Kalimanzira in relation to the crimes committed, the Trial Chamber clearly considered his prominence and influence in Butare society. It addressed this prominence in the body of the Trial Judgement as well as in the sentencing section,633 where it found that the influence he derived from his stature made it likely that others would follow his example and that this was an aggravating factor.634 240. For the foregoing reasons, the Appeals Chamber finds that the Prosecution has not identified any error of law on the part of the Trial Chamber in this respect.

4. Conclusion 241. Accordingly, the Appeals Chamber dismisses the Prosecution’s Second Ground of Appeal.

631 Trial Judgement, para. 744, n.

777. See Prosecution Appeal Brief, para. 118. 632 Gacumbitsi Trial Judgement, paras. 224, 325. The Trial Chamber found that Gacumbitsi had exhibited particular sadism and that there were no significant mitigating circumstances. He was found to be a “primary player” and “a leader in the commune who used his power to commit the brutal massacre and rape of thousands.” See Gacumbitsi Appeal Judgement, para.

204. The Appeals Chamber noted that, although not every individual convicted of genocide or extermination has been sentenced to life imprisonment, Gacumbitsi’s case was not comparable to the cases where a fixed term of imprisonment has been imposed. See Gacumbitsi Appeal Judgement, paras. 204, 205, n. 446. 633 Trial Judgement, paras. 99, 750. 634 Trial Judgement, paras. 747, 750.

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88 V. IMPACT OF THE APPEALS CHAMBER’S FINDINGS ON KALIMANZIRA’S SENTENCE 242. The Appeals Chamber recalls that it has reversed, Judge Pocar dissenting, Kalimanzira’s conviction for aiding and abetting genocide in relation to his presence at the inauguration of Élie Ndayambaje and for instigating and aiding and abetting genocide in relation to killings at the Butare-Gisagara roadblock. In addition, the Appeals Chamber, Judge Pocar dissenting in part, has reversed Kalimanzira’s conviction for direct and public incitement. The Appeals Chamber considers that the reversal of almost all Kalimanzira’s convictions represents a significant reduction in his culpability and calls for a revision of his sentence. The Appeals Chamber notes, however, that it has affirmed Kalimanzira’s conviction for aiding and abetting the genocide of Tutsis at Kabuye hill. Thus, he remains convicted of an extremely serious crime. In the circumstances of this case, the Appeals Chamber, Judge Pocar dissenting, reduces Kalimanira’s sentence of 30 years of imprisonment to 25 years of imprisonment.

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89 VI. DISPOSITION 243. For the foregoing reasons, THE APPEALS CHAMBER, PURSUANT to Article 24 of the Statute and Rule 118 of the Rules; NOTING the written submissions of the parties and their oral arguments presented at the hearing on 14 June 2010; SITTING in open session; GRANTS, Judge Pocar dissenting, Kalimanzira’s Fifth Ground of Appeal and REVERSES his conviction for aiding and abetting genocide in relation to his presence at the inauguration of Élie Ndayambaje; GRANTS, Judge Pocar dissenting, Kalimanzira’s Seventh Ground of Appeal and REVERSES his conviction for instigating and aiding and abetting genocide in relation to killings at the Butare- Gisagara roadblock; GRANTS Kalimanzira’s Eighth and Ninth Grounds of Appeal and REVERSES his conviction for direct and public incitement to commit genocide in relation to the events at the Jaguar and Kajyanama roadblocks; GRANTS, Judge Pocar dissenting, Kalimanzira’s Tenth and Eleventh Grounds of Appeal and REVERSES his conviction for direct and public incitement to commit genocide in relation to the events at the Nyabisagara football field and the Gisagara marketplace; DISMISSES Kalimanzira’s Appeal in all other respects; DISMISSES the Prosecution’s Appeal in all respects; AFFIRMS Kalimanzira’s conviction for aiding and abetting genocide in relation to the massacre at Kabuye hill; REDUCES, Judge Pocar dissenting, the sentence of 30 years of imprisonment imposed on Kalimanzira by the Trial Chamber to 25 years of imprisonment to run as of this day, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 8 November 2005;

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90 RULES that this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules; and ORDERS that, in accordance with Rule 103(C) and Rule 107 of the Rules, Kalimanzira is to remain in the custody of the Tribunal pending the finalization of arrangements for his transfer to the State where his sentence will be served. Done in English and French, the English text being authoritative.

_____

_____

____ Theodor Meron

Mehmet Güney

Fausto Pocar Presiding Judge

Judge

Judge

_____

____ Andrésia Vaz

Carmel Agius Judge

Judge

Judge Pocar appends partially dissenting and separate opinions. Done this 20th day of October 2010 at Arusha, Tanzania.

[Seal of the Tribunal]

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1 VII. PARTIALLY DISSENTING AND SEPARATE OPINIONS OF JUDGE

POCAR A. Partially Dissenting Opinion 1. In this Judgement, the Appeals Chamber allows Kalimanzira’s appeal, in part, with regard to the Trial Chamber’s findings in relation to the events at the Kabuye-Gisagara road (Kalimanzira’s third and sixth grounds of appeal in part).1 The Appeals Chamber also allows Kalimanzira’s fifth, seventh, tenth and eleventh grounds of appeal, reversing the Appellant’s conviction for: (i) genocide for aiding and abetting the killings of Tutsis based on his presence at the inauguration of Élie Ndayambaje as bourgmestre of Muganza Commune on or about 22 June 1994;2 (ii) genocide for instigating and aiding and abetting the killings of Tutsis at a roadblock on the Butare-Gisagara road on or around 22 April 1994;3 (iii) direct and public incitement to commit genocide based on his speech at the Nyabisagara football field in Kibayi Commune, Butare Prefecture, in late May or early June 1994;4 and (iv) direct and public incitement to commit genocide based on his actions during a meeting at the Gisagara marketplace at the end of May 1994.5 To my regret, for the detailed reasons expressed below, I respectfully disagree with both the reasoning and the conclusions of the Majority and the consequent reversal of Kalimanzira’s convictions for these events.

2. As a preliminary matter, the applicable standard of appellate review warrants careful consideration. Its application by the Majority in this case is of considerable concern. In particular, I note that the Majority has systematically reviewed evidence, effectively conducting a trial de novo, rather than according deference to the Trial Chamber’s assessment of witness’ evidence. In this respect, I believe the Appeals Chamber exceeds its jurisdiction and undermines the strict standard of appellate review.

3. Pursuant to Article 24 of the Statute, the Appeals Chamber shall only review errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice.6 However, in allowing most of the above-mentioned grounds of appeal and overturning Kalimanzira’s convictions for the relevant crimes, the Majority proceeds to reconsider

1 Appeal Judgement, paras. 101, 114, 126. See also Appeal Judgement, paras. 94-96, 99-101, 110-114. 2 Appeal Judgement, paras. 79, 80, 243. See also Appeal Judgement, paras. 72-80. 3 Appeal Judgement, paras. 150, 243. See also Appeal Judgement, paras. 127-150. 4 Appeal Judgement, paras. 187, 243. See also Appeal Judgement, paras. 166-187. 5 Appeal Judgement, paras. 202, 243. See also Appeal Judgement, paras. 188-202. 6 Nchamihigo Appeal Judgement, para. 7; Bikindi Appeal Judgement, para. 9; Zigiranyirazo Appeal Judgement, para.

8. See also Boškoski and Tarčulovski Appeal Judgement, para. 9.

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2 the evidence itself absent a demonstrated error of law, fact, or abuse of discretion. Such an approach contradicts consistent case law, which states that appeals from judgement are not trials de novo.7 4. Without having heard a single witness, the Majority re-evaluates the evidence purely “on paper”, based entirely on the transcript of the witnesses’ testimony. In my view, this is an imprudent and even dangerous way of proceeding, which effectively results in the Appeals Chamber substituting its own judgement for that of the Trial Chamber. In assessing the appropriate weight and credibility to be accorded to the testimony of a witness, a Trial Chamber will consider “relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his 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.”8 Crucially, “the trial Judges are in the best position to assess the credibility of a witness and the reliability of the evidence adduced”9 and, consequently, “a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.”10 5. The approach

adopted by the Majority is, in my view, illustrative of a problematic trend in the Appeals Chamber, which calls into question the distinction between trial and appellate functions. When the Appeals Chamber acts as a second, more remote, Trial Chamber, as I respectfully submit it has in this case, the relationship between the two functions is gravely compromised, leaving little or no discretion to the Trial Chamber’s assessment of the evidence.

6. In the interest of completeness, I explain below the specific reasons for my dissent under the relevant grounds of appeal.

1. Alleged Errors Relating to the Inauguration of Élie Ndayambajye 7. Kalimanzira’s conviction for aiding and abetting genocide for the killings of Tutsis based on his presence at the inauguration of Élie Ndayambaje as bourgmestre of Muganza Commune on or about 22 June 1994 was based by the Trial Chamber on the evidence of Witnesses BBB and BCA. According to the Majority, these witnesses “refer to no particular incident, provide no approximate

7 See, e.g., Mrk{i} and [ljivan~anin Appeal Judgement, para. 352; Had`ihasanovi} and Kubura Appeal Judgement, para. 302; Limaj et al. Appeal Judgement, para. 127. 8 Nchamihigo Appeal Judgement, para.

47. See also Nahimana et al. Appeal Judgement, para. 194. 9 Nahimana et al. Appeal Judgement, para. 949; Rutaganda Appeal Judgement, para. 188; Akayesu Appeal Judgement, para. 132; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadić Appeal Judgement, para. 64.

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3 time-frame for the killings, and do not give any identifying information concerning the assailants or victims.”11 The Majority then concludes that “[n]o reasonable trier of fact could have concluded that Tutsi were killed as a result of the ceremony”.12 8. I respectfully disagree with the Majority in affirming that the witnesses provided no approximate time-frame for the killings. Witness BBB explained that the killings happened “after the speech”13 given at the inauguration of Élie Ndayambaje as a new bourgmestre. Similarly, I also disagree that the witnesses provided no identifying information concerning the assailants or the victims. Witness BBB identified the assailants as the people present at the meeting – between 200 and 300 Hutus – and the victims as being “Tutsi grandchildren” and “Tutsi women”.14 Witness BCA identified the victims who were killed as “Tutsis and Hutus who opposed the government”.15 9. In addition, I recall our well-established jurisprudence that “[w]here the Prosecution alleges that an accused personally committed the criminal acts in question, it must, so far as possible, plead the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed ‘with the greatest precision.’”16 However, “[w]here it is alleged that the accused […] aided and abetted the alleged crimes, the Prosecution is

[only] 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.”17 Kalimanzira was charged and convicted for aiding and abetting genocide in offering moral support to Élie Ndayambaje’s call to kill Tutsis during the ceremony. Therefore, contrary to the Majority’s statement in paragraph 77 of the Appeal Judgement, it was not necessary to give identifying information with respect to the victims.

10 Nchamihigo Appeal Judgement, para. 47; Nahimana et al. Appeal Judgement, para. 194. 11 Appeal Judgement, para. 77. 12 Appeal Judgement, para. 79. 13 T. 16 June 2008 p.

20. Cf. Trial Judgement, para. 283. 14 T. 16 June 2008 pp. 19, 20. Cf. Trial Judgement, paras. 282, 283. 15 T. 18 June 2008 pp. 50, 51. Cf. Trial Judgement, para. 281. 16 Naletili} and Martinovi} Appeal Judgement, para. 24, citing Prosecutor v. Tadi}, Case No. IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment, 14 November 1995, paras. 11-13. See also Bla{ki} Appeal Judgement, para. 213; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“Krnojelac 11 February 2000 Decision”), para. 18; Kupre{ki} et al. Appeal Judgement, para.

89. The Appeals Chamber in Ntakirutimana pointed out that “the inability to identify victims is reconcilable with the right of the accused to know the material facts of the charges against him because, in such circumstances, the accused’s ability to prepare an effective defence to the charges does not depend on knowing the identity of every single alleged victim.” See Ntakirutimana Appeal Judgement, paras. 73, 74. 17 Bla{ki} Appeal Judgement, para.

213. See also Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 13; Krnojelac 11 February 2000 Decision, para. 18; Prosecutor v. Radoslav Br|anin and Momir Tali}, Case No. IT-99-36-PT, Decision on Objections by Momir Tali} to the Form of the Amended Indictment, 20 February 2001, para. 20.

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4 10. In the present case, after “₣hğaving carefully considered ₣theğ evidence” of Witnesses BBB and BCA, the Trial Chamber found them reliable.18 In addition, the Trial Chamber also believed Witnesses BBB and BCA’s evidence that Tutsis were killed following the inauguration ceremony of Élie Ndayambaje as a new bourgmestre.19 Accordingly, the Trial Chamber found Kalimanzira guilty of aiding and abetting genocide by his presence at the inauguration of Élie Ndayambaje on or around 22 June 1994.20 I find no error in this approach.

11. In its assessment of the evidence, the Majority equates the present case with the Muvunyi case. It stresses that “[i]n the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that ‘contain[ed] no detail on any specific incident or the frequency of the attacks.’”21 I respectfully cannot discern any similarity with the Muvunyi case, in which the testimony from one of the two witnesses confirmed that his knowledge was second-hand and the Appeals Chamber specifically found that neither witness personally observed the events.22 By contrast, in the present case, the evidence of witnesses BBB and BCA was not hearsay. As recalled, Witnesses BBB and BCA – who both attended the inauguration of Élie Ndayambaje as a new bourgmestre – testified that killings followed the inauguration. Thus, paragraph 78 of the Appeal Judgement places undue emphasis on the role of hearsay in the present case. Furthermore, the Majority fails to identify any material distinction between the quality of the evidence in the Muvunyi case and that provided by Witnesses BBB and BCA with respect to the occurrence of the killings. In my view, the Muvunyi case simply cannot be equated to the present case.

12. Thus, I consider that Kalimanzira has not demonstrated that a reasonable Trial Chamber could not have concluded beyond reasonable doubt that killings followed the inauguration of Élie Ndayambaje as a new bourgmestre. Having found no error in the Trial Chamber’s approach and in its assessment of the evidence of Witnesses BBB and BCA, I am convinced that killings of Tutsis occurred following Élie Ndayambaje’s inauguration ceremony as a new bourgmestre. Given our deferential standard of review on appeal, I find the Majority unreasonable in concluding that “[n]o reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony”.23

18 Trial Judgement, para. 291. 19 Trial Judgement, para. 291. 20 Trial Judgement, para. 293. 21 Appeal Judgement, para. 78, citing Muvunyi Appeal Judgement, para. 69. 22 Moreover, I believe it is not clear that the reference in the first sentence of paragraph 78 of the Appeal Judgement to the presence of third-hand hearsay evidence in the Muvunyi case is substantiated. 23 Appeal Judgement, para. 79.

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5 2. Alleged Errors Relating to the Events at the Gisagara-Kabuye Road 13. In the present case, the Majority finds that the extent to which Kalimanzira was identified by Witness BWK is “unclear” and, therefore, that “the Trial Chamber should have explicitly explained why it accepted Witness BWK’s identification evidence”.24 As a result, the Majority concludes that the Trial Chamber committed an error of law and proceeds to re-consider the evidence itself.25 Further to expressing its concerns on the uncertainty as to whether and to what extent Kalimanzira was identified by name prior to the meeting on the Gisagara-Kabuye road, the Majority considers that “reliance on Witness BWK’s uncorroborated identification evidence is unsafe” and that “there is no indication as to the credibility of either individual who identified Kalimanzira to Witness BWK on the record.”26 The Majority, therefore, grants Kalimanzira’s appeal, in part, insofar as it relates to the events at the Kabuye-Gisagara Road.27 14. I respectfully disagree with both the reasoning and the conclusion of the Majority with respect to the events at the Kabuye-Gisagara Road.

15. I recall that the Trial Chamber has the discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.28 Furthermore, a Trial Chamber also has the discretion to rely on uncorroborated, but otherwise credible witness testimony, provided it assesses such testimony with caution. In the Trial Judgement, the Trial Chamber correctly stated that: The Appeals Chamber has consistently held that a Trial Chamber is in the best position to evaluate the probative value of evidence and that it may, depending on its assessment, rely on a single witness’s testimony for proof of a material fact. Accordingly, the Chamber does not necessarily require evidence to be corroborated in order to make a finding of fact on it. Though a Trial Chamber may prefer that a witness’ testimony be corroborated, it is not a requirement or an obligation in the practice of this Tribunal.29 It further stressed that: While direct evidence is preferred, hearsay evidence is not per se inadmissible before the Trial Chamber. The Trial Chamber has the discretion to treat such hearsay evidence with caution, depending on the circumstances of the case. In certain circumstances, hearsay evidence may

24 Appeal Judgement, para. 99. 25 Appeal Judgement, paras. 99, 100. 26 Appeal Judgement, para. 100. 27 Appeal Judgement, paras. 101, 113, 114, 126. 28 Nahimana et al. Appeal Judgement, para. 194; Ntagerura et al. Appeal Judgement, para. 388. 29 Trial Judgement, para. 71, referring to Karera Appeal Judgement, para. 45; Niyitegeka Appeal Judgement, para. 92; Rutaganda Appeal Judgment, para. 29; Musema Appeal Judgment, paras. 36-38; Ntakirutimana Appeal Judgement, para. 132; Kayishema and Ruzindana Appeal Judgement, paras. 154, 187, 320, 322; Delali} et al. Appeal Judgment, para. 506; Aleksovski Appeal Judgment, paras. 62-63; Tadić Appeal Judgment, para. 65; Kupreškić et al. Appeal Judgement, para. 33.

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6 require other credible or reliable evidence adduced by the Prosecution in order to support a finding of fact beyond reasonable doubt.30 It is in light of these standards that the Trial Chamber’s assessment of the evidence has to be considered.

16. In the present case, the Trial Chamber examined Witness BWK very cautiously. I recall that the Trial Chamber gave careful consideration to Kalimanzira’s argument that Witness BWK’s testimony contained three inconsistencies with her statement given to ICTR investigators eight months before.31 I note that the Trial Chamber considered this evidence, provided thoughtful reasoning, and found that it does not cast reasonable doubts on Witness BWK’s testimony.32 It is correct that the Trial Chamber did not discuss identification evidence with regard to Witness BWK’s testimony. However, it acted within its discretion in not specifically discussing the identification evidence of certain witnesses. I find no error in this approach. Thus, I consider that Kalimanzira has not demonstrated that the Trial Chamber committed an error of law. In these circumstances, deference must be accorded to the Trial Chamber’s assessment of Witness BWK’s testimony. Moreover, I consider that Kalimanzira is attempting to relitigate a matter that was raised at trial.

17. In paragraph 100 of the Appeal Judgement, the Majority “proceed to consider the relevant evidence” itself and, in a few lines, arrives at the conclusion that “reliance on Witness BWK’s uncorroborated identification evidence is unsafe.” A Trial Chamber, as the primary trier of fact, is better placed than the Appeals Chamber to evaluate the probative value of witness’ testimony. In my view, the Appeals Chamber should not overturn or reassess a Trial Chamber’s findings regarding witness’ testimony unless the Trial Chamber fails to treat such evidence with caution. In the present case, the Trial Chamber duly exercised caution in relying on Witness BWK’s evidence and, therefore, correctly applied the legal standard. By contrast, the Majority conducts a de novo assessment of Witness BWK’s testimony without having heard her testimony and partly bases its reasoning on small discrepancies in Witness BWK’s testimony. This is an unwarranted intrusion in the assessment correctly made by the Trial Chamber and is in violation of the appellate standard of review. I am convinced that we cannot conclude that the Trial Chamber acted unreasonably in assessing Witness BWK’s testimony.

30 Trial Judgement, para. 75, referring to Rukundo Trial Judgement, para. 39; Muvunyi Trial Judgement, para. 13; Rutaganda Appeal Judgement, para. 34; Rule 89 of the Rules. 31 Trial Judgement, para. 369. 32 Trial Judgement, para.

369. See also Trial Judgement, para. 371 where the Trial Chamber “believes BWK beyond reasonable doubt and finds her evidence to be reliable”.

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7 3. Alleged Errors Relating to the Butare-Gisagara Roadblock 18. With respect to Kalimanzira’s conviction for instigating and aiding and abetting genocide based on his participation in the killings of Tutsis at a roadblock on the Butare-Gisagara road on or around 22 April 1994, the Majority finds that paragraph 15 of the Indictment, which was found defective by the Trial Chamber, was not cured by subsequent timely, clear or consistent notice and resulted in prejudice to Kalimanzira. The Majority finds the Trial Chamber committed an error of law in this respect and, therefore, overturns Kalimanzira’s conviction.33 19. I respectfully disagree with both the reasoning and the conclusion of the Majority. I note that the Trial Chamber found that the Indictment was vague with regard to the Butare-Gisagara roadblock.34 However, it was satisfied that Kalimanzira received adequate notice in a timely, clear, and consistent manner through the summary of Witness BXK’s anticipated testimony annexed to the Prosecution Pre-Trial Brief, Witness BXK’s prior statement, and the Prosecution’s opening statement.35 20. The Appeals Chamber has previously held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief can, in certain circumstances, cure a defect in an indictment.36 I recall that the Prosecution Pre-Trial Brief was filed in English on 16 April

2008, several weeks before Witness BXK testified about this incident on 9 May 2008. The French translation of the Prosecution Pre-Trial Brief was filed only on 5 May 2008. Nonetheless, Kalimanzira’s Lead Counsel is bilingual and would have been able to communicate this information to him.37 Although it is true that he was absent during the first trial session and was hospitalized on 21 April 2008, the record reflects that he was in contact with the rest of his team.38 I further recall that Kalimanzira’s Co-Counsel stated that she did not want to delay the trial simply because of the delay in the delivery of the translation.39 Given the importance of a Prosecution Pre-Trial Brief, the

33 Appeal Judgement, paras. 149, 150. See also Appeal Judgement, paras. 137-150. 34 Trial Judgement, para. 429. 35 Trial Judgement, paras. 432, 434, 435. 36 Gacumbitsi Appeal Judgement, paras. 57, 58. This approach is consistent with jurisprudence of the ICTY. See Naletili} and Martinovi} Appeal Judgement, para. 45. 37 See Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of Notice of Appeal, 20 July 2009, paras. 3, 6. 38 T. 20 May 2008 p.

59. See also Appeal Judgement, para. 33. 39 T. 30 April 2008 p. 9 (“Yes, Mr. President, I do not intend to delay the proceedings, especially with regard to the pre-trial brief. I told you what I had to say on this matter. We have a way of proceeding in the Defence team in that we put Mr. Kalimanzira, who is the Accused person, at the heart of his defence. He is entitled to all the facts of law and of this case in order to have all the necessary clarifications with regard to the strategy we are going to adopt, and that is the reason for which I gave the indications I gave regarding the time necessary to look into the pre-trial brief with you. But, of course, all this is a matter that is left to your discretion, Mr. President.”).

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8 lack of objection by Kalimanzira to this delay strongly indicates, in my view, that he was already aware of the factual allegations against him.

21. In addition to the Prosecution Pre-Trial Brief, I note that this incident was clearly mentioned during the Prosecution’s opening statement and identified as occurring on the Butare-Gisagara road.40 Notably, again, Kalimanzira did not object or seek clarification. Therefore, I consider that this would have eliminated any latent ambiguity arising from the description of the location in the summary of Witness BXK’s anticipated testimony. Similarly, I find no merit in Kalimanzira’s suggestion that he was prejudiced because he assumed that Witness BXK was testifying about the Jaguar roadblock, which was located nearby. The summary of Witness BXK’s testimony does not refer to paragraph 21 of the Indictment, which contains this allegation.41 Furthermore, the Prosecution’s opening statement clearly distinguished between these two incidents.42 Therefore, any possible confusion on the part of the Defence was not reasonable. Consequently, I am satisfied that, in these particular circumstances, the defect in paragraph 15 of the Indictment was cured, as correctly noted by the Trial Chamber, and that Kalimanzira did not suffer prejudice in the preparation of his defence.

22. In paragraphs 146 and subsequent of the Appeal Judgement, the Majority proceeds to re- examine the facts in order to justify Kalimanzira’s confusion rather than to identify any concrete error made by the Trial Chamber, which would indicate that the Trial Chamber abused its discretion when it determined that the confusion was dispelled by Kalimanzira’s recognition in his Final Trial Brief that the Butare-Gisagara roadblock was at a different location to the Jaguar roadblock43 and by the fact that the Opening Statement distinguished between the two roadblocks. The Majority strangely concludes that Kalimanzira’s “confusion is a strong indication that Kalimanzira was prejudiced by the lack of clarity concerning the charges against him, and that he did not receive clear and consistent notice.”44 I believe this conclusion is illustrative of the Appeals Chamber’s new trend to engage in a trial de novo by reassessing the evidence in a situation where it is unnecessary and inappropriate to the requisite and strict standard of review on appeal. In paragraph 149 of the

40 T. 5 May 2008 p. 4 (“[Kalimanzira] also spurred on the killing of Tutsi at the roadblock situated on the Butare-Gisagara road in Ndora commune in connection with the Kabuye hill massacres.”) 41 Prosecution Pre-Trial Brief, Annex A, p. 21. 42 T. 5 May 2008 p. 4 (“The Accused Kalimanzira also distributed weapons to people manning the roadblocks to enable them to kill Tutsi. One example is the so-called ‘Jaguar’ roadblock in Gisagara, Ndora commune where he gave a firearm to the leader of those manning the roadblock with the specific instruction that it was going to be used to kill Tutsi. He also spurred on the killing of Tutsi at the roadblock situated on the Butare-Gisagara road in Ndora commune in connection with the Kabuye hill massacres. Once again, the Accused Kalimanzira instructed the people manning the roadblock to kill Tutsi and distributed a firearm to facilitate such killings.”) (emphasis added). 43 Trial Judgement, para. 465. 44 Appeal Judgement, para. 147.

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9 Appeal Judgement, the Majority finds that “the Trial Chamber erred in law by finding that this defect was cured and accordingly in judging Kalimanzira guilty on the basis of his actions at the Butare-Gisagara roadblock.” This terminology exemplifies this point particularly well, as it fails to identify how the Trial Chamber applied an incorrect standard in deciding, within the parameters of its discretion, that the defect in the Indictment was cured. Indeed, the Majority seems to suggest that no reasonable Trial Chamber could have found that the defect was cured, but, in my view, this is distinct from an error of law as the Trial Chamber did apply the correct legal standard.

23. Finally, Kalimanzira is attempting to re-litigate a matter that was raised at trial. Indeed, Kalimanzira already argued at trial that there were inconsistencies between Witness BXK’s testimony and his prior statement. However, the Trial Chamber examined these inconsistencies carefully,45 and found Witness BXK to be credible.46 I find no error in this approach. Thus, I consider that Kalimanzira has not demonstrated that the Trial Chamber committed an error or that it abused its discretion. In these circumstances, deference must be accorded to the Trial Chamber.

4. Alleged Errors Relating to the Nyabisagara Football Field 24. In the present case, the Majority finds that “the Trial Chamber erred in not explaining more fully why it believed the Defence witnesses would not have heard of a second meeting, and thus why their testimony did not cast reasonable doubt on Witness BCZ’s evidence.”47 In reaching this conclusion, the Majority states: The Defence witnesses did not hear about any meeting involving Kalimanzira. In many circumstances such evidence is properly accorded minimal probative value. However, the circumstances in this case are different because many of the Defence witnesses had close ties to the local authorities or lived in close proximity to the site. Therefore, these witnesses would have been well positioned to know if such a meeting occurred. The Trial Chamber did not discount their evidence on any bases other than those noted above.48 It further finds that “no reasonable Trial Chamber could have relied on Witness BCZ’s accomplice evidence of Kalimanzira’s participation in the meeting at the Nyabisagara football field in light of the competing Defence evidence, absent further corroborative evidence or additional analysis demonstrating that the Defence witnesses were not credible.”49 25. I find the reasoning and the conclusion of the Majority problematic for various reasons. First, from a strictly legal point of view, the Trial Chamber carefully assessed Witness BCZ’s

45 Trial Judgement, paras. 466-469. 46 Trial Judgement, para. 470. 47 Appeal Judgement, para. 185. 48 Appeal Judgement, para. 185 (internal citations omitted). 49 Appeal Judgement, para. 186.

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10 testimony and found him to be credible and reliable.50 I find no error in this approach.51 I recall that the Trial Chamber has the discretion to assess and accord the appropriate weight and credibility to the testimony of witnesses.52 Indeed, the call for additional analysis challenges the Trial Chamber’s firmly established discretionary power to assess the appropriate weight and credibility to be accorded to witness testimony, to which deference is owed.53 Furthermore, I recall that, according to our well-established jurisprudence, “it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’ testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.”54 26. Second, I note that the Defence witnesses were not aware of any meeting involving Kalimanzira. In my view, this does not mean than other meetings involving Kalimanzira did not take place. However, after reassessing the evidence, the Majority comes to a speculative conclusion that “[the Defence] witnesses would have been well positioned to know if such meeting occurred.”55 In my view, the Majority is exceeding its jurisdiction here.

27. Third, I believe the Majority misses an important point when it concludes that “[t]he Trial Chamber did not discount [the Defence witness] evidence on any bases other than those noted above. In this context, the Trial Chamber erred in not explaining more fully why it believed the

50 I find unpersuasive Kalimanzira’s assertion that the Trial Chamber erred in assessing Witness BCZ’s credibility. Nothing in the Statute or the Rules prohibits a Trial Chamber from relying upon the testimony of uncorroborated accomplice witnesses, provided appropriate caution is applied. See Nchamihigo Appeal Judgement, para.

48. In the present case, the Trial Chamber was clearly aware that Witness BCZ was an accomplice witness and that he may have had a motive to falsely incriminate Kalimanzira. See Trial Judgement, paras. 608, 612. In my view, the Trial Chamber displayed the necessary caution in assessing Witness BCZ’s testimony. Kalimanzira has thus not established that the Trial Chamber erred in this regard. Kalimanzira has also not established any error in the Trial Chamber’s approach to alleged contradictions in Witness BCZ’s testimony. Indeed, I am not convinced that the Trial Chamber displayed bias in holding that “[i]t is likely that [Witness] BCZ omitted to mention Kalimanzira before his October 2001 statement to ICTR investigators because they did not specifically ask him about Kalimanzira before that time” and that “[i]t is also likely that BCZ omitted to mention this [second] meeting before October 2001 because its content and effect (no killings followed because no Tutsis could be found) might have seemed less important to him compared to the events he did mention.” Trial Judgement, para.

611. It was certainly open to the Trial Chamber to assess Witness BCZ’s testimony in this way and Kalimanzira has not rebutted the presumption of impartiality. See also Semanza Appeal Judgement, para.

13. The Trial Chamber sufficiently analyzed the alleged contradictions and reasonably accepted the explanations for them offered by the witness. 51 Trial Judgement, para. 612. 52 Nchamihigo Appeal Judgement, para. 285; Nahimana et al. Appeal Judgement, para. 194; Ntagerura et al. Appeal Judgement, para. 388. 53 See e.g. Nahimana et al. Appeal Judgement, para. 194 (“₣Tğhe Trial Chamber has full discretionary power in assessing the appropriate weight and credibility to be accorded to the testimony of a witness”); Ntagerura et al. Appeal Judgement, para. 388 (The decision to admit ₣witness testimonyğ does not in any way prejudice the weight and credibility that the Trial Chamber will, in its own discretionary assessment, accord to the evidence”); Simba Appeal Judgement, para 211 (“₣Tğhe Appeals Chamber recalls that it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness testimony to prefer”); Rutaganda Appeal Judgement, para. 253 (“It therefore falls to the Trial Chamber to assess the contradictions pointed out and determine whether the witness – in light of his entire testimony – was reliable, and his testimony credible.”). 54 Bagilishema Appeal Judgement, para. 12, citing Kupreškić et al. Appeal Judgement, para. 32. 55 Appeal Judgement, para. 185 (emphasis added).

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11 Defence witnesses would not have heard of a second meeting, and thus why their testimony did not cast reasonable doubt on Witness BCZ’s evidence.”56 I recall, as noted by the Trial Chamber, that some of the Defence witnesses testified that they did not see – or were not aware of – Kalimanzira between April and July 1994.57 As correctly noted by the Trial Chamber, this contradicts Kalimazira’s own testimony that “he stopped by Hatagekimana’s house in the end of the first week of June on his way to see his family in Kirarambogo[, which] lends additional support to is presence in Kibayi commune around the time of this alleged meeting.”58 I recall that the Appeals Chamber previously held that: If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance.59 Accordingly, it was within the Trial Chamber’s discretion to find that “the Defence evidence does little to contradict BCZ’s evidence.”60 Consequently, contrary to the Majority’s finding, the Trial Chamber did not abuse its discretion in finding that two meetings took place, that the Defence witnesses testified to different meetings, and that the existence of one does not preclude the other.

28. Thus, I do not believe that the Trial Chamber has abused its discretion in reaching its conclusion in the present case. In this circumstances, deference must be accorded to the Trial Chamber’s assessment of witnesses’ testimony.

5. Alleged Errors Relating to the Gisagara Marketplace (May Event) 29. With respect to the events at Gisagara market place at the end of May 1994, I agree with the Majority that the Trial Chamber did not discuss the basis on which it accepted Witness BDK’s identification of Kalimanzira.61 Although it would have been preferable for the Trial Chamber to discuss the issue of Witness BDK’s identification of Kalimanzira, I disagree with the Majority that the Trial Chamber erred in not doing so.62 According to Witness BDK’s testimony, she met Kalimanzira for the first time at the home of Fidèle Uwizeye in the early 1990s.63 At the time,

56 Appeal Judgement, para. 185. 57 T. 25 November 2008 pp. 7-9 (Witness BTH); T. 17 November 2008 pp. 14-15 (Witness KBF); T. 24 November 2008 pp.29-30 (Witness KXL). See also Trial Judgement, paras. 599, 601, 604. 58 Trial Judgement, para.

612. See also Trial Judgement, para. 654; T. 10 February 2009 pp. 50-51 (Callixte Kalimanzira). 59 Kvoèka et al. Appeal Judgement, para. 24. 60 Trial Judgement, para. 610. 61 See Appeal Judgement, para. 195. 62 Appeal Judgement, para. 199. 63 T. 20 May 2008 pp. 46, 47.

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12 Witness BDK did not know Kalimanzira so her husband identified him to her.64 Beyond describing this evidence as hearsay, the Majority has not demonstrated why it would be unreasonable for the Trial Chamber to accept this as a basis of identification.

30. Similarly, I am not persuaded that the Trial Chamber erred in accepting Witness BDK’s evidence even though her first sighting of Kalimanzira was contradicted by the testimony of Witness AX88. Although the Trial Chamber did not expressly assess this contradiction between their testimonies on this point, it carefully weighed their respective accounts in discussing Witness BDK’s testimony on Kalimanzira’s presence at Uwizeye’s home in April 1994.65 Thus, it was clearly mindful of their conflicting versions of the relevant events. In its consideration of the evidence, the Trial Chamber found portions of Witness AX88’s testimony “not at all convinc[ing]”, and described it as “convoluted and often contradictory.”66 This clearly suggests that the Trial Chamber had significant concerns with Witness AX88. However, the Majority is misleadingly silent on this point when reassessing the evidence and only mentions that “[t]he Trial Chamber observed that Witness BDK’s testimony regarding this occasion was directly contradicted by Defence Witness AX88.”67 Consequently, in my view, it has not demonstrated that no reasonable Trial Chamber could have relied on Witness BDK’s identification of Kalimanzira in light of Witness AX88’s evidence.

31. While the Trial Chamber also raised concerns with respect to Witness BDK’s evidence about the meeting at Uwizeye’s home in 1994, it considered significant the fact that Witness BDK’s testimony on that point was hearsay and stated that this did not impact her overall credibility.68 I recall that “it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.”69 Furthermore, “[a] Trial Chamber is entitled to rely on any evidence it deems to have probative value and it may accept a witness’s testimony only in part if it considers other parts of his or her evidence not reliable or credible.”70 In the present case, the Trial Chamber reasonably explained that its prior rejection of Witness BDK’s evidence did not “reflect upon ₣herğ general credibility.”71 It has not been demonstrated that this assessment was outside the bounds of the Trial Chamber’s discretion.

64 T. 20 May 2008 p.

46. See also T. 21 May 2008 p. 14. 65 Trial Judgement, paras. 388-391. 66 Trial Judgement, para. 390. 67 Appeal Judgement, para. 197. 68 Trial Judgement, paras. 391, 727. 69 Muvunyi Appeal Judgement, para. 128. 70 Kajelijeli Appeal Judgement, para. 167. 71 Trial Judgement, para. 727.

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13 32. I am not satisfied that the Trial Chamber should have rejected Witness BDK’s evidence because of various alleged internal inconsistencies. I reiterate our well-established jurisprudence that “it falls to the trier of fact to assess the inconsistencies highlighted in testimony and determine whether they impugn the entire testimony.”72 In the present case, the Trial Chamber expressly considered inconsistencies within Witness BDK’s evidence and reasonably determined that they were either immaterial or nonexistent.73 I find no error in this approach. In addition, contrary to Kalimanzira’s arguments, I consider that Witness BDK’s testimony in various Gacaca proceedings did not render the Trial Chamber’s reliance on her testimony unreasonable. Kalimanzira has not substantiated his assertion that the participation in such proceedings, albeit frequent, undermines the witness’s credibility.

33. Finally, I find unpersuasive the contention that the Trial Chamber failed to explain why it accepted Witness BDK’s testimony even though that testimony was in Kalimanzira’s view “unlikely.”74 The Trial Chamber addressed Kalimanzira’s assertion – though not in detail – and found that the witness convincingly explained her behavior, in particular why she attended the meeting and when she left.75 It is necessary to reiterate that the Trial Chamber has full discretion in the assessment of a witness’s credibility.76 In my view, it was therefore reasonable for the Trial Chamber to accept Witness BDK’s explanations of her behavior. For the foregoing reasons, the Trial Chamber did not err in its assessment of Witness BDK’s testimony.

34. The Majority’s reasoning, on the other hand, is problematic for numerous reasons. First, the Majority states:77 The Appeals Chamber considers that “[t]here is a presumption that a 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.”78 However, this presumption may be rebutted “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”79

72 Rutaganda Appeal Judgement, para. 443. 73 Trial Judgement, paras. 724-726. 74 Trial Judgement, para. 724 reads as follows: “The Defence contends that BDK’s testimony was fraught with inconsistencies. It suggests that her descriptions of the timing of her departure from the meeting was inconsistent; that it was unlikely that her brother-in-law would have forced her, a Tutsi, to attend the meeting; that if she had been forced to attend, it was unlikely that she would leave and draw attention to herself, especially when she had been married before the war and was not among the group who was threatened. None of the Defence’s arguments were persuasive. The passage of time since 1994 would explain difficulty in recalling time exactly; further, BDK gave convincing explanations for her behaviour.” (internal citation omitted). 75 See Trial Judgement, para. 724. 76 See Nahimana et al. Appeal Judgement, para. 194. 77 Appeal Judgement, para. 195. 78 Halilovi} Appeal Judgement, para.

121. See also Kvoèka et al. Appeal Judgement, para. 23. 79 Kvoèka et al. Appeal Judgement, para. 23.

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14 35. However, the Majority omits the remainder of the quoted reference to Kvoèka et al. Appeal Judgement, which states: 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, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail. 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.80 In my view, without this addition, the quotation is an inaccurate representation of the legal reasoning established in Kvoèka et al. Appeal Judgement. The Majority thus misrepresents the standard established.

36. Second, in the third sentence of paragraph 197 of the Appeal Judgement, the Majority misrepresents reality by stating that “[t]he Trial Chamber observed that Witness BDK’s testimony regarding this occasion was directly contradicted by Defence Witness AX88.”81 In my view, this sentence is incomplete and misleading because it submits that the testimony of Witness AX88 contradicts that of Witness BDK without mentioning the fact that the Trial Chamber found portions of Witness AX88’s testimony “not at all convinc[ing]” and described it as “convoluted and often contradictory”,82 as already mentioned above.

37. Third, the Majority “notes the Trial Chamber’s uncertainty as to Witness BDK’s veracity with respect to one of two occasions where she claimed to have identified Kalimanzira. Under these circumstances, the Appeals Chamber […] considers that the Trial Chamber should have provided a clearer explanation of its reasons for accepting portions of Witness BDK’s testimony addressing identification.”83 Here again, the focus of the Majority on the Trial Chamber’s uncertainty is highly misleading, as it fails to note that the Trial Chamber explicitly explained that its reasons for not relying on Witness BDK’s evidence in the prior occasion “do not apply to her evidence here, nor do they reflect upon [Witness] BDK’s general credibility.”84

80 Kvoèka et al. Appeal Judgement, para. 23. 81 Appeal Judgement, para. 197, referring to Trial Judgement, para. 388. 82 Trial Judgement, para. 390. 83 Appeal Judgement, para. 199. 84 Trial Judgement, para. 727.

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15 38. Fourth, in finding an “error of law” based on the fact that “[i]t is unclear from the Trial Judgement [how much] caution was applied”85 in its assessment of Witness BDK’s evidence, the Majority simply employs a loose criterion to an already nondescript standard of caution. To suggest that this is the appropriate appellate standard of review with respect to caution appears particularly questionable. Finally, having found an error of law, the Majority also neglects to articulate the correct legal standard with respect to the degree of caution which in its view is necessary in the context of identification evidence before reviewing the relevant findings of the Trial Chamber accordingly as required by our strict standard of appellate review.

6. Conclusion 39. For the foregoing reasons, I disagree with the reasons and conclusions of the Majority with respect to the relevant portions of Kalimanzira’s third, fifth, sixth, seventh, tenth and eleventh grounds of appeal.

40. In light of the above, I also dissent on the reduction in the sentence decided by the Appeals Chamber. I would leave the sentence imposed by the Trial Chamber undisturbed. B. Separate Opinion 41. While I am in general agreement with the Appeal Judgement with respect to Kalimanzira’s conviction for direct and public incitement to commit genocide based on his conduct at the Jaguar roadblock and the Kajyanama roadblock, in particular its conclusion, I feel compelled to write separately in order to clarify a number of points of the Appeals Chamber’s reasoning with which I feel uncomfortable.

42. First, in paragraphs 156 to 158 of the Appeal Judgement, the Appeals Chamber relies mostly on the travaux préparatoires of the Genocide convention to interpret the definition and scope of the crime of direct and public incitement to commit genocide. I am slightly uncomfortable with this approach, as I believe the travaux préparatoires of the Genocide convention provide little guidance as to the scope of the words “direct and public”,86 which are at the core of the present issue. In my opinion, one must look to other sources for a comprehensive definition and scope of the term “public”, such as the work of the International Law Commission or the Akayesu Trial Judgement.

85 Appeal Judgement, para. 199. 86 This point has been recognized by legal experts on the issue. See, e.g., Schabas, William A., Genocide in International Law: the Crime of Crimes, Cambridge University Press, Cambridge, 2009 (2nd edition), p. 329.

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16 43. Second, the Appeals Chamber limits itself to the application of the Nahimana et al. Appeal Judgement to Kalimanzira’s convictions, but does not break down the crime into its elements, nor does it reveal how the term “public” is defined.

44. In setting out the elements of the offence, the Akayesu Trial Chamber elaborated on the requirement of “public incitement” as follows: [t]he public element of incitement to commit genocide may be better appreciated in light of two factors: the place where the incitement occurred and whether or not assistance was selective or limited. A line of authority commonly followed in Civil law [sic] systems would regard words as being public where they were spoken aloud in a place that were [sic] public by definition. According to the International Law Commission, public incitement is characterized by a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television. It should be noted in this respect that at the time [the] Convention on Genocide was adopted, the delegates specifically agreed to rule out the possibility of including private incitement to commit genocide as a crime, thereby underscoring their commitment to set aside for punishment only the truly public forms of incitement.87 The Kajelijeli Trial Chamber emphasized that “[t]he ‘public’ element of incitement to commit genocide is appreciated by looking at the circumstances of the incitement—such as where the incitement occurred and whether or not the audience was select or limited.”88 45. However, in

paragraphs 156 of the Appeal Judgement for example,89 the Appeals Chamber emphasizes, and make comparison with other cases, on the size of the audience required to satisfy the public element of the crime of incitement to commit genocide. Indeed, the Appeals Chamber for example states that “[t]hese convictions involved audiences which were by definition much broader than the groups of individuals manning the Jaguar and Kajyanama roadblocks, who formed Kalimanzira’s audience.”90 In my view, this establishes a dangerous and incorrect precedent linked with the question of what minimum audience size is required to satisfy the “public” element of the crime of direct and public incitement to commit genocide. I believe, no threshold exists and none should be established. There is no clear indication in the jurisprudence of the Tribunal that a speech must be made to a large group of people in order to qualify as public incitement. For the purpose of the law, it suffices that the speech was directed at a number of individuals at a public place or at members of the general public, as the International Law Commission confirmed.91 In its report, the

87 Akayesu Trial Judgement, para. 556 (internal citations omitted). 88 Kajelijeli Trial Judgement, para. 851. 89 See also Appeal Judgement, footnote 410. 90 Appeal Judgement, para. 156 (emphasis added). 91 See Article 2(3)(f) of the Draft Code of Crimes Against the Peace and Security of Mankind, in Report of the International Law Commission to the General Assembly, UN doc. A/51/10 (1996), p. 26: “The equally indispensable element of public incitement requires communicating the call for criminal action to a number of individuals in a public place or to members of the general public at large. Thus, an individual may communicate the call for criminal action in person in a public place or by technical means of mass communication, such as by radio or television.”

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17 International Law Commission added that “[t]his public appeal for criminal action increases the likelihood that at least one individual will respond to the appeal and, moreover, encourages the kind of ‘mob violence’ in which a number of individuals engage in criminal conduct.”92

Done in English and French, the English text being authoritative

Judge Fausto Pocar Done this 20th day of October 2010, At Arusha, Tanzania.

₣Seal of the Tribunalğ

92 See Article 2(3)(f) of the Draft Code of Crimes Against the Peace and Security of Mankind, in Report of the International Law Commission to the General Assembly, UN doc. A/51/10 (1996), p. 27.

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1 VIII. ANNEX A – PROCEDURAL HISTORY 1. The main aspects of the appeal proceedings are summarized below. A. Notices of Appeal and Briefs 2. Trial Chamber III rendered the judgement in this case on 22 June 2009.

1. Kalimanzira’s Appeal 3. On 20 July 2009, the Pre-Appeal Judge denied Kalimanzira’s request for an extension of time to file his notice of appeal from the translation of the Trial Judgement into French.1 Kalimanzira filed his Notice of Appeal on 21 July 2009.2 On 31 August 2009, the Pre-Appeal Judge granted Kalimanzira’s request for a 75 day extension of time for the filing of his Appellant’s brief from the filing of the French translation of the Trial Judgement.3 He filed his Appellant’s brief on 1 February 2010.4 4. On 5 March 2010, the Appeals Chamber granted Kalimanzira’s request to file an Amended Notice of Appeal and granted the Prosecution a 15-day extension of time to file its Respondent’s brief.5 Kalimanzira filed his Amended Notice of Appeal on 8 March 2010.6 The Prosecution filed its Respondent’s brief on 29 March 2010.7 On 6 April 2010, the Pre-Appeal Judge denied Kalimanzira’s request for an extension of time to file his Reply brief following the translation of the Prosecution’s Respondent’s brief into French.8 Kalimanzira filed his Reply brief on 13 April 2010.9 2. Prosecution’s Appeal 5. The Prosecution filed its Notice of Appeal on 22 July 200910 and its Appellant’s brief on 5 October 2009.11 On 26 October 2009, the Pre-Appeal Judge granted Kalimanzira’s request for a

1 Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of Notice of Appeal, 20 July 2009. 2 Notice of Appeal, 21 July 2009. 3 Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009. In this same decision, the Pre-Appeal Judge denied Kalimanzira’s request to file an amended notice of appeal within 30 days of the filing of the French translation of the Trial Judgement. 4 Callixte Kalimanzira’s Appeal Brief, 1 February 2010. Kalimanzira filed his brief confidentially. On 5 March 2010, the Pre-Appeal Judge granted the Prosecution request to order him to file a public version. See Decision on the Prosecution’s Motion Requesting a Public Filing of Callixte Kalimanzira’s Appellant’s Brief, 5 March 2010. The public version was filed on 30 March 2010. 5 Decision on Callixte Kalimanzira’s Motion for Leave to Amend His Notice of Appeal, 5 March 2010. 6 Amended Notice of Appeal, 8 March 2010. 7 Prosecutor’s Respondent Brief, 29 March 2010. 8 Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of His Reply Brief, 6 April 2010. 9 Callixte Kalimanzira’s Brief in Reply, 13 April 2010. 10 Prosecutor’s Notice of Appeal, 22 July 2009.

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2 40-day extension of time for the filing of his Respondent’s brief from the filing of the French translations of the Prosecution’s Appellant’s Brief and the Trial Judgement.12 On 19 January 2010, Kalimanzira filed his Respondent’s brief.13 The Prosecution filed its Reply brief on 25 January 2010.14 B. Assignment of Judges 6. On 10 July 2009, the Presiding Judge of the Appeals Chamber assigned the following Judges to hear the appeal: Judge Patrick Robinson, presiding, Judge Mehmet Güney, Judge Fausto Pocar, Judge Andrésia Vaz, and Judge Carmel Agius.15 On 20 July 2009, the Presiding Judge designated Judge Vaz as the Pre-Appeal Judge.16 On 5 February 2010, the Presiding Judge of the Appeals Chamber replaced himself with Judge Theodor Meron.17 The Bench then elected Judge Meron as the Presiding Judge in this case.18 On 4 March 2010, Judge Meron designated himself as the Pre-Appeal Judge.19 C. Motion Related to the Admission of Additional Evidence 7. On 12 March 2010, Kalimanzira filed a motion for the admission of additional evidence.20 The Prosecution responded on 12 April 2010.21 Kalimanzira did not file a reply. On 11 June 2010, the Pre-Appeal Judge, after consulting with the Bench, decided to defer consideration of the motion until after the appeal hearing.22 On 21 September 2010, the Appeals Chamber denied Kalimanzira’s motion in a confidential decision.23

11 Prosecutor’s Appellant’s Brief, 5 October 2009. 12 Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of His Respondent’s Brief, 26 October 2009. 13 Observations on the Prosecutor’s Appellant’s Brief Dated 5 October 2009, 19 January 2010. The Prosecution challenged this submission because it was filed one day late and allegedly did not correspond to the requirements for a Respondent’s brief. It also sought sanctions. The Appeals Chamber accepted the filing of the submission and considered it as the Respondent’s brief. It denied the request for sanctions. See Decision on the Prosecution’s Requests Made in Relation to Kalimanzira’s “Observations on the Prosecutor’s Appellant’s Brief Dated 5 October 2009”, 5 March 2010. 14 The Prosecutor’s Response to Respondent Callixte Kalimanzira’s “Observations on the Prosecutor’s Appellant’s Brief Dated 5 October 2009”, 25 January 2010. 15 Order Assigning Judges to a Case Before the Appeals Chamber, 10 July 2009. 16 Order Designating a Pre-Appeal Judge, 20 July 2009. 17 Order Replacing a Judge in a Case Before the Appeals Chamber, 5 February 2010. 18 Order Designating a Pre-Appeal Judge, 4 March 2010. 19 Order Designating a Pre-Appeal Judge, 4 March 2010. 20 Motion to Admit Additional Evidence, 12 March 2010 (“Motion”). 21 Prosecutor’s Response to “Motion to Admit Additional Evidence”, 12 April 2010 (“Response”). 22 Decision Deferring Consideration of Kalimanzira’s Motion for the Admission of Additional Evidence on Appeal, 11 June 2010. 23 Decision on Kalimanzira’s Motion for the Admission of Additional Evidence on Appeal, 21 September 2010.

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3 D. Hearing of the Appeals 8. On 2 June 2010, the Pre-Appeal Judge denied Kalimanzira’s motion to postpone the hearing in light of the arrest of a counsel for appellant in another case before the Tribunal by Rwandan authorities.24 On 11 June 2010, the Pre-Appeal Judge denied a second motion to postpone the hearing on the same basis.25 On 14 June 2010, the parties presented their oral arguments at a hearing held in Arusha, Tanzania, in accordance with the Scheduling Order of 20 May 2010.26

24 Decision on Kalimanzira’s Request to Postpone the Appeal Hearing, 2 June 2010. 25 Decision on Kalimanzira’s Second Request to Postpone the Appeal Hearing, 11 June 2010. 26 Scheduling Order, 20 May 2010.

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4 IX. ANNEX B – CITED MATERIALS AND DEFINED TERMS A. Jurisprudence 1. ICTR

AKAYESU The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (“Akayesu Trial Judgement”). The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”).

BAGILISHEMA The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2002 (“Bagilishema Appeal Judgement”).

BIKINDI The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T, Judgement, 2 December 2008 (“Bikindi Trial Judgement”). Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Judgement, 18 March 2010 (“Bikindi Appeal Judgement”).

GACUMBITSI Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 (“Gacumbitsi Appeal Judgement”).

KAJELIJELI The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence, 1 December 2003 (“Kajelijeli Trial Judgement”). Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”).

KAMUHANDA Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgement, 19 September 2005 (“Kamuhanda Appeal Judgement”).

KARERA François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009 (“Karera Appeal Judgement”). KAYISHEMA and RUZINDANA The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”).

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MUHIMANA Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Judgement, 21 May 2007 (“Muhimana Appeal Judgement”).

MUSEMA Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 6 November 2001 (“Musema Appeal Judgement”).

MUVUNYI The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T, Judgement and Sentence, 12 September 2006 (“Muvunyi Trial Judgement”). Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Judgement, 29 August 2008 (“Muvunyi Appeal Judgement”). NAHIMANA et al. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”).

NCHAMIHIGO Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Judgement, 18 March 2010 (“Nchamihigo Appeal Judgement”).

NDINDABAHIZI Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Judgement, 16 January 2007 (“Ndindabahizi Appeal Judgement”).

NIYITEGEKA The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement and Sentence, 16 May 2003 (“Niyitegeka Trial Judgement”). Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”). NTAGERURA et al. The Prosecutor v. André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Case No. ICTR-99-46-A, Judgement, 7 July 2006 (“Ntagerura et al. Appeal Judgement”).

NTAKIRUTIMANA The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Judgement and Sentence, 21 February 2003 (“Ntakirutimana Trial Judgement”). The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004 (“Ntakirutimana Appeal Judgement”).

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RUGGIU The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000 (“Ruggiu Trial Judgement”).

RUKUNDO The Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T, Judgement, 27 February 2009 (“Rukundo Trial Judgement”).

RUTAGANDA Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”).

SEMANZA The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (“Semanza Trial Judgement”). Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005 (“Semanza Appeal Judgement”).

SEROMBA The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement, 12 March 2008 (“Seromba Appeal Judgement”).

SIMBA Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”).

ZIGIRANYIRAZO Protais Zigiranyirazo v. The Prosector, Case No. ICTR-01-73-A, Judgement, 16 November 2009 (“Zigiranyirazo Appeal Judgement”).

2. ICTY

ALEKSOVSKI Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”). BLAGOJEVI] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-06-A, Judgement, 9 May 2007 (“Blagojević and Jokić Appeal Judgement”).

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BLA[KI] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”). BOŠKOSKI Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010 (“Boškoski and Tarčulovski Appeal Judgement”). BRĐANIN Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Judgement, 3 April 2007 (“Brđanin Appeal Judgement”). DELALI] et al. Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Delalić et al. Appeal Judgement”). FURUND@IJA Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundžija Appeal Judgement”). HAD@IHASANOVI] and KUBURA Prosecutor v. Enver Had`ihasanovi} and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008 (“Had`ihasanovi} and Kubura Appeal Judgement”). HALILOVI] Prosecutor v. Sefer Halilovi}, Case No. IT-01-48-A, Judgement, 16 October 2007 (“Halilovi} Appeal Judgement”). KORDIĆ and ČERKEZ Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”). KRSTI] Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004 (“Krstić Appeal Judgement”). KUPREŠKIĆ et al. Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović and Vladimir Šanti}, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreškić et al. Appeal Judgement”).

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KVOČKA et al. Prosecutor v. Miroslav Kvočka, Mlado Radić, Zoran Žigić and Dragoljub Prcać, Case No. IT-98- 30/1-A, Judgement, 28 February 2005 (“Kvočka et al. Appeal Judgement”). LIMAJ et al. Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-A, Judgement, 27 September 2007 (“Limaj et al. Appeal Judgement”). MRK[I] and [LJIVAN^ANIN Prosecutor v. Mile Mrk{i} and Veselin [ljivan~anin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrk{i} and [ljivan~anin Appeal Judgement”). NALETILI] and MARTINOVI] Prosecutor v. Mladen Naletili}, a.k.a. “Tuta” and Vinko Martinovi}, a.k.a. “Štela”, Case No. IT- 98-34-A, Judgement, 3 May 2006 (“Naletili} and Martinović Appeal Judgement”).

BLAGOJE SIMI] Prosecutor v. Blagoje Simi}, Case No. IT-95-9-A, Judgement, 28 November 2006 (“Blagoje Simi} Appeal Judgement”). TADI] Prosecutor v. Du{ko Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”).

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9 B. Defined Terms and Abbreviations Defence Callixte Kalimanzira or his defence team, as appropriate Genocide Convention Convention for the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948, 78 U.N.T.S. 277 (entered into force 12 January 1951)

ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994

ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Indictment The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-2005-88-I, Indictment Filed on 21 July 2005, 21 July 2005 Kalimanzira Appeal Brief Callixte Kalimanzira’s Appellant’s Brief, 1 February 2010 Kalimanzira Final Trial Brief The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Closing Brief, 2 April 2009 Kalimanzira Notice of Appeal Amended Notice of Appeal, 8 March 2010

Kalimanzira Pre-Trial Brief

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10 The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Defence Pre-Trial Brief, 17 September 2008 Kalimanzira Reply Brief Callixte Kalimanzira’s Brief in Reply, 13 April 2010 Kalimanzira Response Brief Observations on the Prosecutor’s Appellant’s Brief Dated 5 October 2009, 19 January 2010

MRND Mouvement Révolutionnaire National pour la Démocratie et le Développement n. (nn.) footnote (footnotes) p. (pp.) page (pages) para. (paras.) paragraph (paragraphs) Prosecution Appeal Brief Prosecutor’s Appellant’s Brief, 5 October 2009 Prosecution Notice of Appeal Prosecutor’s Notice of Appeal, 22 July 2009 Prosecution Pre-Trial Brief The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-2005-88-PT, Prosecutor’s Pre-Trial Brief, 16 April 2008

Prosecution Reply Brief

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11 The Prosecutor’s Response to Respondent Callixte Kalimanzira’s “Observations on the Prosecutor’s Appellant’s Brief Dated 5 October 2009”, 25 January 2010 Prosecution Response Brief Prosecutor’s Respondent Brief, 29 March 2010 RPF Rwandan Patriotic Front Rules Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda

RTLM Radio Télévision Libre des Milles Collines Sixth Committee The Sixth Committee is one of the six main committees in the United Nations General Assembly and its primary forum for the consideration of legal questions. Statute Statute of the International Criminal Tribunal for Rwanda established by Security Council Resolution 955 T. Transcript Trial Judgement The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Judgement, 22 June 2009