Callixte Nzabonimana v. The Prosecutor

@ 2238/H Tribunal P6nalI nternationalp our le Rwanda T InternationalC riminal'fribunal for Rwanda tGTR-98-44D-A 29th Sept. 2014 IN THE APPEALS CHAMBBR l2238tH - 2051lHl Before: JudgeM ehmet Gi.ineyP, residing JudgeW illiam H. Sekule JudgeA rlette Ramaroson JudgeK halida Rachid Khan JudgeK offi Kumelio A. Afande Registrar: Mr. BonganiM ajola Judgement: 29 September2 014 CALLIXTE NZABONIMANA Y. THB PROSECUTOR CaseN o.lCTR-98-44D-A JUDGEMENT ICTRA ppealsC haq[er Counsel for Callixte Nzabonimana t.ss EzPo r w { Mr. Vincent Courcelle-Labrousse Mr. PhilippeL arochelle Detc: A4A^A K. Action: (/2*.LrG Office of the Prosecutor Copicrdo ,dil-trI*) t, Mr. HassanB ubacarJ allow Mr. JamesJ . Arguin Mr. Steffen Wirth Ms. Alison McFarlane 'l Intcl'rr.:rlinru(r lr 'irt;iri:ri i'ilrrrrt:,!ril; r l{rr:ttxta Ms. Mary DianaK aranja 'li'illrr n a I 1lc/ttll i itl r l tt: il lrrt :tl potn' lt' ll rlattrta

2237/H III. APPEAL OF NZABONIMANA A. ALLEGEEDn nOnSR rlarrNc ro NzaeoNIMANAR'Src ur ro a Fan Trual (Gnowo l) ...............5 B. Auecpn EnnonsR llarnqc ro TseAssESSMEoNFTT HEA ltnt (Gnolnt D2 , ru eanr) ...............,.7 C. Auecpo EnnonsR rLarnic ro rHEC yayr CsNrRsR NoT UsNYABIKENKCEo uuuut OFntce (Gnonro2 ,r Np ARTa,u o GnouND3 )............ ..........9 1.N otice.... .........'.....10 2.A ssessmeonf Et vidence.............. ..............13 3. Directa ndP ublicIn citementot CommiGt enocide... ......................41 4. Instigatioonf Genocidea ndE xterminatioans a CrimeA gainsHt umanity...........................48 5.C onc1usion................ ..............56 D. ALLEGEEDn nonsR -sr-arrxcro rHEB uranp TRaorNcC surRe( Gnouvo 4 aNo Gnouuo 5, tN 1.N otice.... .......'.......57 2. Assessmeonft E videnc.e.. ........... ..'...........60 3. Directa ndP ublicI ncitementto CommitG enocide... '.............'.'.....79 4. Conclusio..n.. ............ ...'..........83 E. Allpcro EnnonsR rlartNc ro MuRAMB(IG RoLTN5D, r Nr nnr) ....."....84 1.N otice..... ".........'..84 2.A ssessmeonf Et vidence.............. ...'..........94 3. Directa ndF ublicI ncitementto CommitG enocide... ....................I29 4. Conspiractoy C ommiGt enocide. ........."'I32 5.C onc1usion................ ...-..-....'142 F.A r,lpcpnE RRoRRsl lartltc ro NvaNaaeuv(nG r.ouND6) ............ '.....143 G.A urcso EnnonsR

ElarrNcr o TAMBwE(G nouNo7 ) ............... ........1.4 5 1.N otice.... .............I45 2. Conspiractoy CommitG enocide. ......'.....I49 3.C onc1usion................ ...........153 H. Au-EcpoE nnonsR rlarrNc ro SeNrrllclNc( GRouND8) ............ .'.".1 54 1.P reliminarMya tters ..'........1..5' 5 2. AllegedD ouble-CountingB etweenA ggravatingC ircumstanceasn d Elementso f the Crime......... ......156 tV. APPEAL OF THE PROSECUTION........ 158 A. AT-ITcpnE nnon RTLRTTNTc o NZABONIMANA'CSO NVTCTTFOONR I NSTIGATINGGE NOCIDE aNo ExrprurrNArloNr NN yABIKENKEC oMMwE OEEtcE(G nolwo 1)............... .........158 1.C ommitting.............. ..........'..159 2. Ordering .......'.....162 3. Conc1usion..,............. .........1..6. 3 B. Aupcgo ERn.onsR rIarruc To THER II.EA.SEO FP zuSONERINS RUTOBWEC OMMUNE (GnouN2o) ............... .....164 V.IMPACT OF THE APPEALS CHAMBER'S FINDINGS ON NZABONIMANA'S SENTENCE............... ...............168 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 ("34

VII. SEPARATEO PINION OF JUDGE KOFFI KUMELIO A. AFANEE............................171 VIII. ANNEX A _ PROCEDURALH ISTORY .................173 A. Norrcnso FA ppEaeLN nB Rrsps .....................173 1,N zabonimanaA'psp ea1................ ............L73 2.P rosecutioAnp'sp eal................. ..............174 3.O theirs sues.......,. ..................I74 B.A ssrcNHaEoNFJr uocns ...............175 C.A ppsaHl sanrNc.... ......................175 IX. ANNEX B - CITED MATERIALS AND DEFINED TERMS .....176 A. JunrspnuDENCE .........176 ]. Tribunal. .............176 2. InternationaClr iminalT ribunafl or theF ormerY ugoslavia(I CTY)....... ........1.8 1 3.O theJr udgemenatnsd D ocuments,.,......... ..................182 B. DsrrNeoT pnH,ArsN DA BBREVIATIoNS.... .......1..8 3 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 r-'-\ \.}

2235/H 1. The Appeals Chamber of the Intemational 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 RwandanC itizens Responsiblef or Genocidea nd Other Such Violations Committed in the Territory of Neighbouring Statesb etween 1 January 1994 and 31 December 1994 ("Appeals Chamber" and "Tribunal", respectively) is seised of appeals by Callixte Nzabonimana( "Nzabonimana") and the Prosecutiona gainst the Judgementa nd Sentence pronounced by Trial Chamber III of the Tribunal ("Trial Chamber") on 31 May 2012 in the case of 1 The P ros e c u tor v. Ca llixte Nz abo n imana ("T ial Judgement"). I. INTRODUCTION A. Background 2. Nzabonimana was bom in 1953 in Kavumu secteltr, Nyabikenke commune, Gitarama prdfecture.2F rom 8 April 1994 to mid-July 1994, he was the Rwandan Minister of Youth and AssociativeM ovements and serveda s the Chairmano f the Mouvementr dpublicain national pour la ddmocratie et le ddveloppement( "MRND") party in Gitaramap rdfecture duingthe events.3 3. The Trial Chamber convicted Nzabonimanap ursuant to Article 6(1) of the Statute of the Tribunal ("Statute") for instigating genocide (Count 1) and extermination as a crime against humanity (Count 4) at the Cyayi cenre on 14 April 1994 resulting in the killings of Tutsis at the Nyabikenke

communeo ffice on 15 April lgg4.4 The Trial Chamberc onvictedh im for conspiracyt o commit genocide( Count 2) basedo n two agreementsto commit genocidei n Gitaramap rdfecture.s Further, the Trial Chamber convicted him for direct and public incitement to commit genocide (Count 3), basedo n his speechesa t the Butare trading centre on12 April 1994,a t the Cyayi centre on 14 April 1994, and.a t the Murambi training centre on 18 April l994I The charge of murder as a crime againsth umanity (Count 5) was dismissed.TN zabonimanaw as sentencedto a single term of life imprisonment.s ' The Prosecutorv . CallbcteN zabonimanaC. aseN o. ICTR-98-44D-T,J udgemenat nd Sentencep, ronouncedo n 31 May 2012, filed on 25 June2 012.F or easeo f referencet,w o annexesa re appendedA: nnex A - ProceduralH istory; Annex B - Cited Materialsa nd DefinedT erms. 2 Trial Judgemenpt,a ra.4 . 'Trial Judgemenpt,a ra.5 . Seea lsoi bid.,p ara.89. o Trial Judgemenpt,a ras.1 71 8, l'73 7, 178 6, 178 7,1790,1800, s Trial Judgementp, aras.l '74 7, l'74 8, 1'74 9, 1800. " Trial Judgemenpt,a ras.1 762,1 768,1 7'731, 775,18 00. 'Trial Judgemenpt,a ras.1 796,1 800. " Trial Judgementp, aras.1 821,1822. CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2234/H B. The Appeals 4. Nzabonimanap resentse ight groundso f appealc hallengingh is convictionsa nd sentence." He requestst he Appeals chamber to overturn the Trial Judgement,e nter acquittalso n all counts oI the Indictment, and order his immediater elease."'In the alternative,N zabonimanar equestst he Appeals Chambert o reduceh is sentence."T he Prosecutionr espondst hat Nzabonimana'sa ppeal shouldb e dismissed.r2 5. The Prosecutiona dvancest wo grounds of appeal,I t challengest he Trial Chamber's finding that Nzabonimana instigated a massacrea t the Nyabikenke commune office on 15 April 1994, arguing that his conviction fbr this crime should be basedo n his committing or, in the alternative, ordering the massacre.'tT he Prosecutiona lso challengest he Trial Chamber's decision to not convict Nzabonimana of aiding and abetting genocide stemming frorn the killings of Tutsis in Rutobwe, o**urr.'o Nzabonimanar espondsth at the Prosecution'sa ppeals houldb e dismissed.l5 6. The Appeals Chamber heardo ral argumentsr egardingt hesea ppealso n 29 April2014. e NzabonimanNao ticeo f Appealp, p.7 -60;N zabonimanAap pealB rief,p aras2. l-395. '0 N zabonimanNao ticeo f Appealp, . 61;N zabonimanAap pealB rief,p ara'3 96. rr NzabonimanNao ticeo f Appealp, . 61. rr ProsecutioRne sponsBer ief,p aras.53, 15. r3p rosecutioNn oticeo f Appeai.p ara.2P: rosecutioAnp pealB rief,p aras2. -4,23-5'7,69. ra P rosecutioNn oticeo f Appeal,p ara.3 ; ProsecutioAn ppealB rief' paras5. , 58-69. rs N zabonimanRae sponsBer ief,p iua.1 2,p .32. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 il*\

2233/H II. STANDARDSO F APPELLATE REVIEW 7. The Appeals Chamber recalls the applicable standardso f appellate review pursuant to Article 24 of the Statute.T he Appeals Chamberr eviews only errorso f law which have the potential to invalidate the decision of the trial chamber and errors of fact which have occasioned a l6 miscarriageo f justice.

8. Regarding errors of law, the Appeals Chamber has stated: Wherea party allegest hat therei s an error of law, that party musta dvancea rgumentsin supporto f the submissiona nd explainh ow the error invalidatest he decisionH. owever,i f the appellant's a-rgumentdso not supportt he contention,t hat party doesn ot automaticallylo se its point sincet he AppealsC hamberm ay stepi n and,f or other reasonsf,i nd in favour of the contentiont hat therei s ane rroro f law.- 9. Where the Appeals Chamber finds an error of law in the trial judgement arising from the application of an incorrect legal standard,i t will articulate the correct legal standard and review the relevant factual findings of the trial chambera ccordingly.tt In so doing, the Appeals Chamber not only corrects the legal effor, but, when necessary,a lso applies the correct legal standardt o the evidence contained in the trial record and determines whether it is itself convinced beyond reasonabled oubt as to the factual finding challenged by the appellant before that finding may be confirmed on appeal.le 10. Regardinge rrors of fact, it is well-establishedt hat the Appeals Chamber will not lightly overturn findines of fact made bv a trial chamber: Where the Defence alleges an erroneous finding of fact, the Appeals Chamber must give deference to the Trial Chamber that received the evidence at trial, and it will only

interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous. Furthermore, the-,enoneousf inding will be revoked or revised only if the enor occasioneda miscarriageo f iustice.20 The same standardo f reasonablenessa nd the same deferencet o factual findings of the trial chamber apply when the Prosecutiona ppealsa gainsta n acquittal." The Appeals Chamberw ill only hold that an error of fact was committed when it determines that no reasonablet rier of fact could have made t6 See, e.g., BizimunguA ppeal Judgement,p ara. 8; Ndindiliyimana et al. Appeal Judgement,p ara. 8; Ndahimana AppealJ udgementp, an.

7. Seea lso Dordevii AppealJ udgementp, ara.1 3. 11 N takirutimana AppeaJl udgementp, ara.1 1 (internalr eferenceo mitted).S eea lso, e.g.,B izimungllA ppealJ udgement, para.9;N dindiliyimanae t al. AppealJ udgementp, ara.9 ; NdahimanaA ppealJ udgementp, ara.8 . 1' Bloikii AppealJ udgemenpt,a ra.1 5. Seea lso,e .g.,B iTimunp AppealJ udgemenpt,a ra. l0; Ndindiliyimanae t al. Appea.Jl udgemenpt,a ra.1 0. 'n- il toiktC AppealJ udgemenpt,a ra.1 5. Seea lso,e .g.,B izimunguA ppealJ udgemenpt,a ra. l0; Ndindiliyimanae t al. AppealJ udgemenpt,a ra.1 0. zo Krstii AppealJ udgementp, ara.4 0 (internalr eferenceso mitted).S eea lso, e.g., BizimunguA ppeal Judgement, para.I 1; Ndindiliyimanae t al. AppealJ udgementp, ara. I 1; NdahimanaA ppealJ udgementp, ara.1 0. 2' Srr, r.g.. BifimunguA ppealJ udgementp,a ra. 11; Ndindiliyimanae t al. AppealJ udgementp,a ra. 11; N&thirutna AppealJ udgementp, ara.1 0.S eea lso Dordevii AppealJ udgementp, ara.i 8. a..*^\- rJv CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

the impugned linding.2' However, consideringt hat it is the Prosecutiont hat bearst heburdenSfil$hfl/H of proving the guilt of the accusedb eyond reasonabled oubt, the significance of an error of fact occasioninga miscariage of justice is somewhatd ifferent fbr a Prosecutiona ppeala gainsta cquittal than for a Defence appeal against conviction.23A convicted person must show that the trial chamber's factual errors createa reasonabled oubt as to his guilt.2aT he Prosecutionm ust show that, when account is taken of the errors of fact committed by the trial chamber,a ll reasonabled oubt of the accused'sg uilt hasb eene liminated.2s I 1. A party cannot merely repeato n appeala rgumentst hat did not succeeda t trial, unlessi t can demonstratet hat the trial chamber's rejection of those argumentsc onstituteda n error warranting the intervention of the Appeals Chamber.26A rguments which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chambera nd needn ot be considerecol n the merits.27 12. In order for the Appeals Chamber to assessa rgumentso n appeal,t he appealingp arty must provide preciser eferencest o relevant transcriptp ageso r paragraphsi n the decision or judgement to which the challenge is made.2*M oreouer, the Appeals Chamber cannot be expectedt o consider a party's submissionsi n detail if they

are obscure,c ontradictory, vague, or suffer from other formal and obvious insufficiencies.zFei nally, the Appeals Chamber has inherent discretioni n selecting which submissionsm erit a detailed reasonedo pinion in writing, and it will dismiss arguments which are evidently unfoundedw ithout providing detailed reasoning.3t' tt Srr, r.g., Biz,imunguA ppeal Judgement, para. l1; Ndindiliyimana et al. Appeal Judgement, para. l1; Ndahimana Appeal Judgement,p ara.

10. Seea lso Dordevi( Appeal Judgement,p ara. I 8' t' St", e.g., Biz,imunguA ppeal Judgement, para. I I ; Ndindiliyimana et ctl. Appeal Judgement, para. 1l; Ndahimana AppealJ udgementp, ara. 10.S eea lso Dordevii AppealJ udgementp, ara. 18' 'o,S"e. e.g.. Biz.imunl;uA ppeal Judgement,p ara. ll; Ndindiliyimana et al. Appeal Judgement,p ara. lli Ndahimana Appeal Judgement,p ara.

10. Seea lsctD ordevi( Appeal Judgement,p ara. 18 ' tt,S"r.e.g., BizimunguA ppealJudgement,paral.l ; Ndindiliyimanaetal. Appeal Judgement,paral.l iNdahimana Appeal Judgement,p ara.

10. Seeu lso Dordevi( Appeal Judgement,p ara. 18. 26 Kupreikit et al. Appeal Judgement, para.

27. See also, e.g., Biz.imungu Appeal Judgement, para. 12', Ndindiliyimuna et al. Appeal Judgement,p ara. 12. t' See, e.g., Bizimunl4u Appeal Judgement, para. 12; Ndindiliyimctna et al. Appeal Judgement, para. 12; Ndahimana Appeal Judgement,p ara. I l. Seea lso Dordevi( Appeal Judgement,p ara. 20. rE Practice Direction on Formal Requirements for Appeals tiom Judgement, 15 June 2007, para. 4(b). See also, e.9,., Biz.imungu Appeal Judgement, para. 13; Ndindiliyimuna et ul. Appeal Judgement, para. 13; Ndahirutna Appeal Judgement,p ara. 12. 2e Kunuruc et al. Appeal Judgement, para.

43. See also, e.g., Bizimungu Appeal Judgement, para. | 3; Ndindiliyimuna et al. AppealJ udgement,p ara. 13; Ntlahimanu Appeal Judgement,p ara' 12. 30 K rnt4jekLcA ppeal Judgement,p ara.

16. See also, e.g., Biz.imungaA ppeal Judgement,p ara. 13; Ndindiliyimuna et al. Appeal Judgement,p ara. l3; NtlcthimanuA ppeal Judgement,p ara.

12. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 Cv*,

2231/H III. APPEAL OF NZABONIMANA A. Allesed Errors Relatins to Nzabonimana's Risht to a Fair Trial (Ground 1) 13. Nzabonimanas ubmits that the Trial Chambere rred in fact and in law in its assessmenot f his right to a fair trial, in light of the Prosecution'sc onduct during its investigationsa nd the trial proceedings.3lI n particular, Nzabonimana argues that the Prosecution violated its disclosure obligations concerning material disclosed: (i) in relation to Prosecution Witnesses CNAA and CNAC;3z (ii) from various other trials before the Tribunat;33 (ili) in relation to Prosecution WitnessC NAL;3a and (iv) in relation to ProsecutionR ebuttal Witness CNR1.35N zabonimanaa lso lists other issuesr elatedt o the Prosecution'sc onductt hat the Trial Chambera llegedly failed to take into account.3H6 e requestst hat all findings of the Trial Chamber delivereda fter a manifestly unfair trial be reversed,o r that his sentenceb e significantly reduced as a result of repeatedv iolations of his basicr ights.37 14. The Prosecution responds that Nzabonimana's submissions should be summarily dismissed.3s 15. The Appeals Chamber recalls that it has inherent discretion to determine which of the parties' submissionsm erit a reasonedo pinion in writing and that it may dismiss argumentsw hich are evidently unfoundedw ithout providing detailedr easoning.3Ien particular, the Appeals Chamber may

summarily dismiss submissions that are either: (i) a mere repetition of arguments that were unsuccessfual t trial without any demonstrationt hat their rejection by the Trial Chamberc onstituted an error warrantingt he intervention of the AppealsC hamber;o r (ii) mere assertionsu nsupportedb y any evidence,u ndevelopeda ssertionso, r assertionsth at fail to articulatea ny error.oo 16. With respect to the alleged disclosure violations, the Appeals Chamber considers that Nzabonimanam erely raises issueso n appealt hat the Trial Chamber already addresseda nd ruled upon without attemptingt o demonstratea n error in the Trial Chamber's reasoningi n the relevant 3r N zabonimanNa oticeo f Appeal,p ara.I .1 ; NzabonimanAap pealB rief,p aras2. 1-28. 32 NzabonimanaA ppealB rief, para.2 5. " NzabonimanaA ppealB rief, para.2 6. 3a NzabonimanAap pealB ief ,paru.27. '" NzabonimanaA ppealB rief, para.2 8. 36NzabonimanaNoticeof Appeal,para1.. 1(1)-(10N);z abonimanaAppealBrief,puas.2l-24. 37 NzabonimanaA ppealB rief, para.2 9. 38 P rosecutioRn esponsBe ief . pans. 12-24. " Jees upra,p ila. t l. oo S rr, i.g., Eordevii Appeal Judgementp, ua. 201S ainovii et al. AppealJ udgementp, ara.2 7; Stugar Appeal Judgemenpt,a n.

16. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

llndinssal or decisions.aA2t no point doesN zabonimanasu bstantiataen y prejudiceh e cotp&EQ/H incurred as a result of an alleged violation of his right to a fair trial. Consequently,h is submissions related to the alleged violations of disclosure obligations are summarily dismissed. The Appeals Chambera lso dismissesN zabonimana'sr emainings ubmissionsre latedt o his right to a fair lrial as he fails to provide any argumenti n support.a3 n. For the fbregoing reasons,t he Appeals Chamber dismissesN zabonimana's First Ground of Appeal. a' SeeT rial Judgementp, aras.4 5-48,5 8-60,f n. 94. o2 T he Appeals Chamber notes the following Trial Chamber's decisions for: (i) the documents from the Ngirabutware trial, in-ih, Protrrrtor v. Cullixte Nz.abonimana,C aseN o. ICTR-98-44D-T, Decision on Defence Motion for Appropriate Relief in Light of Exculpatory Material Disclosed by the Prosecution on l5 November 201 1, 3(i April 2012, p. l4; (ii) the statement of Witness CNAL, in The Prosecutor v. Cullixte Nzabonimana, CaseN o. ICTR-98-44D-T, Decision on DefenceM otion to Recall Witness CNAL, 17 December2 009; and (iii) the 22February 2012 statements,i n the The Prosecutrtr v. Callixte Nzsbonimona, Case No. ICTR-98-44D-T, Decision on Deience Motion for Appropriate Relief in Light of Exculpatory Material Disclosed by the Prosecution on 23 February2 012 Relatingt o WitnessT '77,30 April 2012,

paras.40,4 9,52in which the Trial Chamberc oncludedt hat the Prosecution was not in violation of its Rule 68 of the Rules obligations. As to the disclosed documents on 18 July 2012, the Appeals Chamber notes that Nzabonimana refers to a motion that was already adjudicated by the Appeals Chamber.S ee Decision on Callixte Nzabonimana'sN ew Motion for Remedies,1 6 October 2013; Callixte Nzibonimana's New Motion fbr Appropriate Remedieso n Account of Further Violations of Rules 66(A)(ii) and 68 of rhe Rules of Procedurea nd Evidence, l2 July 20t3 (original French version filed on 25 June 2013) (public with confidentiala nd public annexes). ot The Appeals Chamber notes that Nzabonimana merely enumeratesi ssuesr elated to the conduct of the Prosecution with reference in footnotes to paragraphs of the Trial Judgement or decisions from the Trial Chamber. See Nzabonimana Appeal Brief, paras. 21-24, fns.34-40. The Appeals Chamber observes,h owever, that Nzabonimana's contentions regarding the Trial Chamber's erroneousa ssessmento f evidence are considered in this Judgement where NzabonimanaprovidestherequiredspecificatiSonese.i 4l'ru,paras.69,70,'74-7189, 7,203,285,287. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 ';j,

2229/H B. Alleged Errors Relating to the Assessmento f the Alibi (Ground 2. in part) 18. Nzabonimana presented an alibi according to which he was in Kigali from 6 to 12 April 1994, and therefore could not have participated in meetings and distributed weapons in Nyabikenke commLtneG, itaramap rdfecture,b etween 8 and 12 April 1994,a s allegedi n paragraphs 16, 17,35,37, and5 2 of the Indicrment.aToh e Trial Chamberd id not rejectt he alibi in its entirety, but concludedt hat it was "not sufficiently credible to raise a reasonabled oubt in the Prosecution's case[ and] not reasonablyp ossibly true in relation to the relevantp aragraphso f the Indictment".4s 19. Nzabonimanas ubmits that, although he was not convicted of any crime within the period coveredb y the alibi, the Trial Chambera pplied the wrong standardo f proof in assessinge ach alibi witness and the Prosecutione vidence.a6N zabonimana argues that this shifting in the burden of proof and the failure to assesst he Defence evidence in its entirety were prejudicial to him as it affected his right to a fair trial and impacted the Defence evidence as a whole.aT 20. The Prosecutionr espondst hat Nzabonimana'ss ubmissionss hould be summarily dismissed, as he was not convictedf or any crime falling within the alibi period.as 2L The Appeals Chamber finds that Nzabonimana fails to sufficiently elaborate his submissions,a s he

merely refers to paragraphso f the Trial Judgement.F urthermore,h is submission related to his right to a fair trial is broad and does not refer to any finding or decision.ae Consequently, his challenges are summarily dismissed. In any event, the Appeals Chamber observest hat the Trial Chamber correctly recalled the applicable law on the assessmenot f alibi evidence.50T he Appeals Chambera lso notes that the Trial Chamberc onsideredt he alibi evidence in conjunction with the Prosecutione videncew hen assessingp aragraphs1 6, 17, 35, 37, and 52 of the Indictment,sla nd recalledi ts finding that the alibi was not reasonablyp ossibly true in relation to eachp aragraphe xamined.5T2 he Trial Chamberh eld that "[d]espite this finding that Nzabonimana's alibi cannot be reasonablyp ossibly true, [...] the burden of proof remains on the Prosecution to establish the events alleged in the Indictment beyond reasonabled oubt".53T he Trial Chamber acquitted Nzabonimanao f the chargesi n question as it concluded that the Prosecutionf ailed to * Trial Judgemenpt,a ras.293,294. ot Trial Judgemenpt,a ra.4 58. o6 N zabonimanNa oticeo f Appeal,p ara.2.1N; zabonimanAap pealB rief' para.3 0. a7 NzabonimanAap pealB rief,p ara.3 1. a8 ProsecutioRn esponsBe rief,p ara.2 5. ae SeeN zabonimanAap pealB riei para.31. 50 SeeT rial Judgemenpt,a ras3. 86-3893, 92. t' TrialJ udgemenpta, ras2. 96,4 62,509,5535,7 8,6 39,a ndfns.5 91'6 45'6 92,726,804. t' TrialJ udgemenpt,w w. 462,5095, 53,5 18,639a, ndf ns'5 91,6 45,692,126,804. "' Trial Judgemenpt,a ra.459. CaseN o.: ICTR-98-.14D-A 29 Septembe2r0 14

prove beyond reasonabled oubt the relevant allegationso f the Indictment.soT he Appeals CffiffiU is therefbre not persuadedt hat the Trial Chamber shifted the burden of proof or applied the wrong standardo f proof to assessN zabonimana'sa libi evidence.

22. For the foregoingr easons,t he AppealsC hamberd ismissesi n part Nzabonimana'sS econd Ground of Appeal.ss to T rial Judgemenpt,a ras5. 06,5 50,5 75, 635,6 36,6 62.S eeI ndictmentp, nras.1 6 , \1 , 35, 3'7, 52. ss N zabonimana'asi legationsre latedt o the Trial Chamber'sa ssessmenotf his influence( seeN zabonimanaN oticeo f Appeal,p ara.2.2N; zabonimanAa ppealB rief,s ection2 .2) aree xaminedb elow.S eei nfra, paras.1 36,1 3'7,1 41-144. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 G:

2227/H C. (Ground 2. in Part. and Ground 3) 23. The Trial Chamber convicted Nzabonimana of direct and public incitement to commit genocideb y, inter alia, encotraging,o n 14 April 1994,a crowd of personsa t the Cyayi centren ear the Nyabikerke commune office to kill Tutsis (Count 3;.56A dditionally, it convicted Nzabonimana of genocide( Count 1) and exterminationa s a crime againsth umanity (Count 4) for instigating, by his speech at the Cyayi centre, the killings of Tutsis at the Nyabikenke commune offlce on 15 April Igg4.s1I n particular, the Trial Chamber determined that Nzabonimana held a meeting in the afternoon of 14 April 1994 at the Cyayi centre, located approximately 250 to 300 metres away from the Nyabikenke communeo ffice.58I t found that approximately3 0 people were presenta t the centre and that Nzabonimanas aid to those gathered:" I know that Hutus do not heed instructions. Do not continue to eat the cows of Tutsi who have soughtr efugee at the communal office. What" really mattersi s not the cows; it is rather,t he owners of the cows that matter".tnT h" Trial Chamber also found that Nzabonimana threateneda Tutsi, Evariste Munyagatare, who was among those seeking refuge at the Nyabikenke commune office.60 The Trial Chamber further determined that, following Nzabonimana'sa ddresso n 14 April 1994 at the Cyayi centre, the first successfula ttack againstt he

Nyabikenke commune offrceo ccurredb etween 3.00 and 4.00 a.m. and resumedd uring the day on 15 April 1994.utT he Trial Chamber found that during these attacks on the commune office, between 15 and 60 Tutsi refugeesw ere killed, including Munyagatare.62 24. Nzabonimana submits that the Trial Chamber erred in fact and in law in convicting him in connection with the events at the Cyayi centre and the Nyabikenke commune office.63I n this section,t he Appeals Chamberc onsidersN zabonimana'sa tgumentsi n relation to: (i) notice; (ii) the assessmenot f evidence;( iii) direct and public incitement to commit genocide;a nd (iv) instigation of genocidea nd exterminationa s a crime againsth umanity. tu T riul Judgemenpt,a ras.1 763,1 768,1 775,1 800. tt Triat Judgementpj aras.1 718, 173'7,1786,l '18'7,l'190,1 800.B asedo n its findings relatedt o the Nyabikenke communeo ffice attacks, the Trial Chambera lso found Nzabonimanar esponsiblef or murder as a crime against humanity.H owever,r ecallingt he law on cumulativec onvictionsa nd the fact that Nzabonimanaw as convictedo f exterminationa s a crime agiinst humanity, the Trial Chamberd ismissedt he charge of murder as a crime against humanity.S eeTialJudgemenpt,a ras.1 795,1 799'1 800. tt Trial Judgemenpt,a ras8. 87,9 38.S eea lsoi bid-,p ara.1 710' te Trial Judgemenpt,a ras8. 87,9 38.S eea lsoi bid.' para.1 710. uo T .ial Judgemenpt,a ras8. 87,9 38.S eea lsoi bid.,p ara.1 710. ut Trial Judgemenpt,a ras9. 13, 936,939.S eea lsoi bi.d.'pua.1 117. 6'Trial Judgemenpt,a ras9. 36, 939.S eea lsoi bid.,pan. 1711. 63 N zabonimanNao ticeo f Appeal,p aras3. .1-3.5N; zabonimanAap peaBl rief,p aras3. 3-116. :tt 9 u CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2226/H l. Notice 25. Nzabonimana submits that he did not receive clear and sufficient notice in paragraphs1 9 and 20 of the Indictment of allegations that he threatenedM unyagatare and of Munyagatare's death.6aH e argues that while the Trial Chamber acknowledgedt hat Munyagatare's death was not pleaded in the Indictment or in the ProsecutionP re-Trial Brief, it failed to determine whether he was put on notice.6sA lthough the Trial Chamber decided not to convict him on the basis of Munyagatare's death, Nzabonimana claims that it considered the death as evidence of the contextual background and a material element of his conviction tbr genocide, extermination, and direct and public incitementt o commit genocide.66N zabonimanaf urther avers that he was not notilled of the alleged threat he made against Munyagatare,w hich was a material element for his convictions of genocidea nd direct and public incitement to commit genocide.6TN zabonimana argues that he suffered prejudice becauseh e was unable to prepare for his cross-examinationo f Prosecution Witnesses CNAI or CNAX, did not research Gacaca judicial documents related to Munyagatare'sd eath,a nd did not requestt o call eye-witnessews ith respectt o this event.68 26. The Prosecutionr espondst hat Munyagatare'sd eath and Nzabonimana's threat againsth im did not have to be pleaded becauset hey are part of the evidence and, for the

death, contextual background to the allegations in the Indictment.6eF urthermore, the Prosecution argues that only Witness CNAX testified to Munyagatare'sc leatha nd that Nzabonimanar eceived,a year befbre his testimony, his prior statementc letailingt he death and the threat.7oR egarding both WitnessesC NAI and CNAX, the Prosecutions ubmits that Nzabonimanad id not object to their testimoniesb ecause of lack of notice.Tl 27. Paragraph 19 of the Indictment reads: On or abourl 4 April 1994,C allixte NZABONIMANA held a meetinga t Cyayic ellule,K iyumba secteur,N yabikeikec ommune,G ituramup refectureH. e askedt he populationt o prioritizet he massacreo f Tutsi beforet akingt heir propertiesA. s a resulto f this meeting,T utsi were killed at theN yabikenkeco mmunaol tficeb y InterahamweH, utuc iviliansa ndc ommunapl olicemen.

28. Paragraph 20 of the Indictment reads: 6aNzabonimanaNoticeo A f p peal,p ara.3.4;NzabonimanaAppeBarli ef,paras.ll 3-115 6s N zabonimanaA ppeal Brief. pzua.I 13. nt'Nzabonimana A ppeal Brief, para. 113' ('7 NzabonimanAap peaBl rief,p ara.1 15. 68 N zabonimanAa ppealB rief, para.l 14,r e.fbningto , inter alia, CallixteN zabonimana'Ms otion to PresenAt dditional Evidenceo n Rppeat2, 4 July2 dl3 (confidential()o riginalF renchv ersionf iled on 5 June2 013)( "Rule I l5 Motion"). 6e P rosecutioRne sponsBer ief,p zras.1 01'1 03. 70 P rosecutioRne sponsBer ief,p aras1. 01'1 03. 7r P rosecutioRne sponsBer ief,p aras1. 01'1 02' l0 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 G\

2225/H Ono r about1 5A pril 1994f,o llowingth eo rderso f CallixteN ZABOMMANA,T utsir efugeeast Nyabikenkec ommunaol ffice were attackedb y InterahamweH, utu civilians,s oldiersa nd communapl olicemenM. any Tutsi were killed includingS pecioseK ARUHONGOJ, eanne UJENEZAa ndG abrieKl AMMBA. On or about1 5A pril 1994a, ftert hea ttacka t theN yabikenke communaol ffice,C allixteN ZABONIMANAs ervedb eert o thea ttackerast hish omein Kavumu secteuNr, ya biken kec ommune.

29. The Appeals Chamber recalls that the Prosecutioni s required to state the chargesa nd the material facts underpinningt hose chargesi n the indictment with sufficient precision, but not the evidenceb y which suchf acts are to be proven.72In reachingi ts judgement,a trial chamberc an only convict the accusedo f crimes that are chargedi n the indictment.T3A n indictment which fails to set forth material facts in sufficient detail is defective;74h owever, the defect may be cured if the Prosecutionp rovidest he accusedw ith timely, clear, and consistenti nformation detailing the factual basisu nderpinningth ec harges.T5 30. Objectionsb asedo n lack of notics shouldb e specific and timely.TuW hen an appellantr aises a defect in the indictment for the first time on appeal, he or she bears the burden of showing that his or her ability to prepareh is or her defencew as materially impaired.tt Wh"n, however, an accused has previously raisedt he issue of lack of notice before the Trial Chamber,t he burden rests on the Prosecution to prove on appeal that the ability of the accusedt o prepare his or her defence was not materially impaired.Ts 31. With respectt o Munyagatare'sd eath,t he Appeals Chambern otest hat neitherp aragraphs1 9 or 20 of the Indictment identify Munyagatare as a victim of the commune office attacks on 15 April 1994. Contrary to Nzabonimana'ss ubrnission,ttt he Triul

Chamberd eterminedt hat he ttid not receive sufficient notice of Munyagatare'sd eath.*oC ons"quently,t he Trial Chamber statedt hat it would not considerh is killing as a basisf or conviction but could take "this evidencei nto account as contextualb ackgroundt o further corroboratep roperly pled allegationsi n the Indictment".8l 72 Sainovii et al. Appeal Judgement, para. 213; Kanyarukiga Appeal Judgement,p art' 73; Kupreikii et al. AooealJ udeemenpt.a ra.8 8. "'Srr, ,.g1, Biri*ungn Appeal Judgementp, ara. 363i Mugenzi and Mugiraneza AppealJ udgement,p ua. ll1; NtawukulilyayoA ppealJ udgementp, ara. 189. 7a See, e.g., Bizimungu Appeal Judgement,p wa. 46; Kanyarukiga Appeal Judgement,p ua 73; Kupreikii et al. AppealJ udgemenpt,a ra.I 14. " See,e .g.,B izimunguA ppealJ udgementp, ua. 46;N dindiliyimanae t al. AppealJ udgemenpt,a ra.1 76;M ugenzia nd MugiranelaA ppealJ udgemenpt,a ra.1 17. 'u Srr, t.g., Mugenzia nd Mugiraneza AppealJ udgementp, an. 122; RenzahoA ppeal Judgementp, ara. 56; Muvunyi I AppealJ udgemenpt,a ra.1 23. 77 S ee Ndindiliyimana et al. AppealJ udgement,p an. 176; RenzahoA ppeal Judgementp, ara. 56; Ntagerura et al. AppealJ udsementp.a ra.3 l. '8''See n atiailiyimina et al. AppealJ udgement,p ua. 116; RenzahoA ppeal Judgementp, ara. 56; Ntagerura et al. Apped Judgemenpt,a ra.3 1. '' SeeN zabonimanAa ppealB rief, para.1 13. Judgemepnatr, a9.3 5. ll tlq "' Trial Judgemenpt,a n. 935. /---v- \.\ 1l \ CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14

32. According to paragraph2 0 of the Indictment: "Many Tutsis were killed including Sffiel/E KARUHONGO, JeanneU JENEZA and Gabriel KANIMBA". The Appeals Chamber observest hat although the paragraphl ists specific victims, this is only by way of example as shown through the use of the word "including". The material fact for Nzabonimana'sc onviction of instigation is that Tutsis were killed following his course of conduct.*' The Appeals Chamber considers that the names listed after "including" only serve as exampleso I the material lact that Tutsis were killed at the Nyabikenke communeo ffice during the 15 April 1994 attacks.I ndeed, the Trial Chamber found that "during these attacks on the communeo ffice, between 15 and 60 Tutsi refugees were killed, including EvaristeM unyagatare".s3 33. The Appeals Chamber observest hat the Trial Chamber did not convict Nzabonimana for Munyagatare's killing but referred to his death in finding that Tutsi refugees were killed at the commune office during the 15 April 1994 attacks.EaT he Appeals Chamber therefore finds that Munyagatare's killing is not a material fact that should have been pleaded in the Indictment. Accordingly,t he AppealsC hamberd ismissesN zabonimana'sa rgument.

34. Turning to the threat, the Appeals Chamber notes that neither paragraph 19 nor 20 of the Indictment specifies that Nzabonimana threatened Munyagatare on 14 April 1994. The Trial Chamberf ound that Nzabonimanap rompted otherst o act and to continue the genocidal attack upon the Nyabikenke commune office, and that he intended to do so "by threateninga Tutsi and saying that Tutsis should be massacreda t Cyayi centre on 14 April 1994".85A ccordingly, in the Trial Chamber's view, Nzabonimana'sc riminal conduct consistedo f his threat againstM unyagatarea nd his statementa t the Cyayi centre.86H is threat thus amountedt o a material fact, which along with his statement,u nderpinnedN zabonimana'sc onviction for instigation.T he Appeals Chamberr ecalls that when the accused is charged with instigation, the Prosecution is required to identify the "particular acts" or the "particular course of conduct" on the part of the accusedw hich forms the basis for the charge in question.tt On this basis, the Appeals Chamber finds that the threat should have been pleadedi n the Indictment. In this respect,t he Indictment was defective. Rr W ith respectt o direct and public incitement to commit genocide, the Appeals Chamber notes the inchoate nature of this offence. As the material fact for this conviction cannot be based on the killings at the commune oftice but only on Nzabonimana's conduct at the Cyayi centre on l4 April 1994, the Appeals Chamber therefore limits its analysis to his convictions for genocide and extermination as a crime againsth umanity. tt Trial Judgement,p ara.939 (emphasisa dded). Ea SeeT rial Judgementp, aras.935,l '71 1,fn.2167. *'Trial Judgement, para.

1717. The Appeals Chamber observest hat the Trial Chamber did not ref'ert o Nzabonimana's threata gainstM unyagatarein its findings on directa nd public incitement.S eeT rial Judgementp, aras.1 763-1768. no Trial Judgement,p ara. 171,1. t'Srrr.g.,Ntlindiliyimanaetal.,para. 172;NtuwukulilyayoAppealJ udgement,para.1 88;R enz,uhoA ppeal Judgement, oara.53. l1 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 t\,

2223/H 35. Having reviewed the trial record, the Appeals Chamber observes that at no point did Nzabonimanao bject to allegations of threatening Munyagatare prior to or during the testimonies of Witnesses CNAI and CNAX.*S The Nzabonimana Pre-Defence Brief makes no reference to Munyagatare and does not argue lack of notice with respect to paragraphs 19 and 20 of the Indictment.seF urthermore, the Trial Chamber noted that "the Defence did not file any motion prior to its Closing Brief that alleged defects in the Indictment".eoT he Appeals Chamber therefore considerst hat Nzabonimanar aisest he allegedl ack of notice on his threat againstM unyagataref or the first time on appeal.A ccordingly, Nzabonimanab earst he burden of showing that his ability to preparc his defence was materially impaired.

36. Nzabonimana has failed to moet this burden. The Appeals Chamber finds that, Nzabonimanaw as able to challenget he credibility of WitnessesC NAI and CNAX.el Furthermore, the Appeals Chamber notes that the Defence cross-examinedW itnessesC NAI and CNAX on the threat,e2a nd presentedD efence witnessest o contradict the testimonies of Witnesses CNAI and CNAX on this issue.e3In these circumstances,t he Appeals Chamber finds that Nzabonimanah as not shown that the failure to plead the threat against Munyagatare materially impaired his defence and therefored ismissesh is arsument 37. For the foregoing reasons,t he Appeals Chamber dismissesN zabonimana's arguments in relation to notice under his Third Ground of Appeal.

2. Assessmenot f Evidence 38. On the basis of Prosecutiona nd Defence evidence,t he Trial Chamber determined that on 13 April 1994t here was an attempteda ttack on the Nyabikenkec ommuneo ffice which was repelled by Defence Witness T24 and commune policemen and during which Tutsi refugees were not tt WitnessC NAI, T. 26 November2 009 pp.61-65;W itnessC NAI, T. 27 November2 009 pp. 22,28-33,3'l (closed sessionW); itnessC NAX, T.23 November200p9p .60,61;WitnessC NAX, T.24 Novembe2r 009p p.32-31( closed session)S. ee also Closing Arguments;T . 20 October 2O11,T . 21 October 20lI; The Prosecutorv . Ceillixte NzabonimanaC, ase No. ICTR-98-44D-T,N zabonimana'sA bridged Final Brief, l3July 2011 (confidential) ("NzabonimanCal osingB rief '), pans.2 01- 237,2 51 - 28'7,4 25,4 26,4 31 ,5 55. 8e SeeT he Prosecutorv . Callixte NzabonimanaC. aseN o. ICTR-98-44D-T,R eviseda nd AmendedP re-DefenceB riei 2010( originalF renchv ersionf iled on 12M arch2 010)( "NzabonimanPar e-DefencBe rief'), paras.31-41. -8^April 'u Trial Judgemenpt,a ra.3 6. "' SeeT ial Judgemenpt,a ras8. 73,8 '768, '77. et WitnessC NAI, T. 27 November2 009 pp. 28-32 (closeds ession)W; itnessC NAX, T. 24 November2 009 p. 33 (closeds ession). e3 SeeW itnessT 24,T .28 April 201 0p . M, wheret hew itnesst estifiedth ath e knewM unyagataraen dn everh eardo f an incidentw hereM unyagatarec hallengedN zabonimana(s ee also Tfral Judgementp, ara. 784); see WitnessT 193, T. 9 March2 0i I pp. 15,2 2 (closeds ession)w, heret hew itnessw, ho alsok newM unyagatared,e niedb eingp resenwt ith Kamali, Witness CNAI, and Munyagatared uring Nzabonimana'sr emarks at the Cyayi centre (see also Tial Judgemenpt,a ra.8 16). 13 1,) CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

harmed.eaB ased on the evidence of ProsecutionW itnessesC NAI and CNAX, the Trial CIffie/H found that, on the afternoon of 14 April 1994, Nzabonimanah eld a meeting at the Cyayi centre, located approximately2 50 to 300 metrest iom the communeo fflce, where approximately 30 people were present, including Isaac Kamali, Munyagatare, Witnesses CNAI, CNAX, and Defence WitnessT 193.esA ccordingt o the Trial Chamber,N zabonimanas aidt o thoseg athered:" I know that Hutus do not heed instructions.D o not continue to eat the cows of Tutsi who have soughtr efuge at the communal offi.ce.W hat really matters is not the cows; it is, rather, the owners of the cows that matter".e6I t also cleterminedt hat after Nzabonimanas poke, Munyagatare,w ho was among those seeking refuge at the commune office, challenged him and that Nzabonimana then threatened Munyagatare.eT 39. Relying primarily on the evidence of Witnesses CNAI and CNAX, the Trial Chamber determinedt hat on the night of 14 to 15 April 1994,b etween3 .00 and 4.00 a.m. ("Night Attack"), Hutu civilians and communep olicemen, armed with firearms, grenades,a nd traditional weapons, attackecl the commune office.e8 It further held that, starting at approximately 10.00 a.m. on l5 April 1994 ("Day Attack") and lasting until the afternoon, commune policemen, the Interahamwe, and civilians armed with traditional weapons, firearms, and grenadesa

ttacked the commune office.eeT he Trial Chamber concluded that during the attacks, approximately 15 to 60 Tutsi refugeesi,n cludingM unyagatarew, erek illed.l00 40. In its findings relating to the Cyayi centre and the Nyabikenke commune office, the Trial Chamber considerecl Defence evidence "in conjunction with the Defence claims that the Prosecutionw itnessesf abricated their evidence", and concluded that the Defence did not raise a reasonablcd oubti n the Prosecution'sc ase.l0l 41. The AppealsC hamberw ill first considerN zabonimana'ss ubmissionso n the assessmenotf Prosecutione vidence,l0a2n d then turn to the assessmenotf Defencee vidence.l0I3t doess o bearing " T.ial Judgementp, aras. 866, 938. The Trial Chamberm ade these findings on the basis of evidencef rom WitnesseCsN AX, T24,T28,T 193,a ndN dayisaba. " TrialJ udgemenpt,a ras8. 87,9 38. 'o TrialJ udgemenpt,a ras8. 87,9 38. " TrialJ udgemenpt,a ras8. 87,938. e8 T rialJ udgemenpt,a ras.910-913,93S9e. ea lsoi bid.,p aras8. 88-898. 'frial " Judgemenpt,a ras9. 27, 936,939. "n'TrialJ udgemenpt,a ras9. 36,9 39. "" Trial Judgemenpt,a ra.9 40.S eea lsoi bid., para.256. r02 N zabonimanNao ticeo f Appealp, aras.3.1.1,3.1.N2z; abonimanAap peaBl rief,p aras.33-60. '03 N zabonimanNao ticeo f Appealp, ara.3.1.3N; zabonimanAap pealB rief,p aras.6l-79. t4 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2221/H in mind that it will only find an error of fact if it determines that no reasonablet rier of fact could l04 have made the impugnedIrndrnss.'- (a) Alleged Errors in AssessingP rosecutionE vidence 42. The Trial Chamberr elied on WitnessesC NAI and CNAX with respectt o the events at the Cyayi centre on 14 April 1994 and it relied primarily on these witnessesi n making its findings related to the Night and the Day Attacks at the Nyabikenke communeo ffice.los Furthermore, the Trial Chamber's finding that Munyagatarew as killed during the communeo ffice attacksw as based solely on Witness CNAX's testimony.106 43. Nzabonimana submits ttrat the Trial Chamber erred in assessingW itnesses CNAI's and CNAX's credibility and should not have relied upon them to make findings about the events at the Cvavi centre and the Nvabikenkec ommuneo ffice.107 44. The Prosecution responds that the Trial Chamber correctly relied on the corroborating evidenceo f WitnessesC NAI and CNAX.108 45. The Appeals Chamber recalls that trial chambers are best placed to assesst he evidence, including the demeanouro f witnesses.10T9h erefore,t rial chambersh ave full discretionaryp ower in assessingt he credibility of a witness and in determining the weight to be accordedt o his or her testimony.lloT his assessmenist basedo n a number of factors,i ncluding the witness's demeanouri n court, his or her role in

the eventsi n question,t he plausibility and clarity of the witness's testimony, whether there are contradictionso r inconsistenciesin his or her successives tatementso r between his or her testimony and other evidence,a ny prior exampleso f false testimony, any motivation to lie, and the witness'sr esponsesd uring cross-exarnination.llll n addition, the Appeals Chamber has previously stated that it is within a trial chamber's discretion to accept or reject a witness's '* sr, trpro, para.1 0. tot Triul Judgemenpt,a ras.8 67-8788, 87-8908, 92-8959, 00-902,910-9139,1 5,923, 925-929,9369, 38-940.T he AppealsC lailUer will use the singularf orm of the word "attack" in relation to 15 April 1994,n oting that the Trial CiramUeru ses the plural (see Trial Judgementp, aras. 914, 921,,a nd 924) and the singular (see Trial Judgement, pwas.924-92'l). 1* T.iul Judgementp, uas. 932, 935, 939. 10 N 7 zabonimanNa oticeo f Appeal,p aras3. .1.1,3 .1.2;N zabonimanAa ppealB ief ,pan.42. 10 P 8 rosecutioRn esponsBe rief,p ara.3 8. ,os S rr, e.g., Karyirukiga AppealJ udgement,p ua. l2l; Simba AppealJ udgementp, ara.9; Ntagerura et al. Appeal Judgementp, aras.1 2,2 13. tto iee, e.g.,N- dinditiyimnnae t ai. AppealJ udgemenpt,a ra.3 31; NdahimanaA ppealJ udgemenpt,w a. 431K anyarukiga AopeaJl udgemenpta, ra.1 21. ttl'trr, r.g-.,K oryirrkiga AppeaJl udgementp, ua. l2l', Bikindi AppealJ udgementp, ara.l l4; NchamihigoA ppeal Judgementp, wa. 47. 15 29S eptembe2r0 14 q;.rt, CaseN o.: ICTR-98-44D-A

testimony, after seeing the witness, hearing the testimony, and observinghim or her wder2f,frlo/H examination.ll2 (i) WitnessC NAI's Credibility 46. Nzabonimana submits that no reasonablet rier of fact could have rejected some parts of Witness CNAI's testimony, while accepting other parts with respect to the same event.ll3 Nzabonimanac laims that the Trial Chamber's rejection of Witness CNAI's testimony in relation to Kamali's knowledge of his ethnicity as a Tutsi,rra and on Witness Tl93's participationi n the attacks,u nderminedW itness's CNAI credibility as a whole.ttt As to Kamali's knowledge of WitnessC NAI's ethnicity,N zabonimanaa rguest hat,b y finding one crucial aspecto f his testimony implausible, the Trial Chamber considereclt hat the witness could lie under oath.r16O n WitnessT l93's participation in the attacks, Nzabonimana contends that Witness CNAI's explanations of contradictions, going as far as questioning the authenticity of a Gitarama coutt judgement, adversely impacted his credibili,y.ttt Nzabonimana submits that the Trial Chamber could not rely on WitnessC NAI's old age to explainc ontradictionsb ecause:( i) the witnessg ave a different explanation for discrepanciesb etween his testimony at trial and previous statements;a nd (ii) the Trial Chamber treated age clifferentlyb etweenW itness CNAI and Defence Witness Straton Sibomana.rrBN zabonimanaf urther

claims that the Trial Chamber failed to assesst he implausible fact that Witness CNAI, after hearing Nzabonimana's speechi n the Cyayi centre, returned to buy cigarettesfr om GermainK arangwa,t he leadero lthe Interahamwe.tte 4j. The Prosecutionr esponds that Nzabonimana merely repeats unsuccessfult rial arguments without showing how the Trial Chamber's assessmento f Witness CNAI's credibility was unreasonable.l20 48. The Trial Chamber consideredo ne aspecto f Witness CNAI's testimony implausible - that Kamali did not know that he was a Tutsi.r2rI t recalled that the witness testified to being related to ,t See,e .g., Kanyurukiga Appeal Judgement, para. 121; Nchamihig,oA ppeal Judgement, para.210; Serombu Appeal Judgementp, ara. 11 6. i,, frrubonirnanaN otice of Appeal, para. 3.1.2(8);N zabonimanaA ppeal Brief, para.

51. Seea lso AT.29 Apri,l2 014 pp. 6-8. I[ NzabonirnunaA ppeal Brief, para. 51,r e.fbrringto Trial Judgementp, aras.8 75,904-908.S eea lso ibid.,paras.52'53, 57. Nzabonimana further nrguei that the Trial Chamber's successiver ejections of Witness CNAI's testimony can only undermineh is credibility.S eei bid., para.5 5. I rs Nzabonimana Appeai Brief, para. 54, re.ferringr,o Trial Judgement,p aras.9 03-908. Seea lso ihid., para-5 1. r16 N zabonimanaA ppealB rief,p aras.5l,53. rr7 N zabonimana Appeal Brief, para. 54. rr8 N zabonimana Appeal Brief, paras. 56-58,r e.f'erringr o Trial Judgement,p ara. 1290. rre N zabonimana Appeal Brief, para. 59, reJbffing rr.rT rial Judgement,p aras.757-759. l2{)Prosecutio R n e sponseB rief, para.4 6. 't' Trial Judgementp, ara.8 75. r6 29 Septembe2r0 14 CaseN o.:I CTR-98-44D-A C*\

2219/H Kamali and that they knew each other well.r22T he Trial Chamber did not believe Witness CNAI on this aspect,b ut consideredt hat this did not underminet he witness'sc redibility as a whole because: [t]heC hamberer calltsh att hee videncees tablishethde p resencoef o theTr utsisa tC yayii,n cluding EvaristMe unyagataaren dW itnesCs NAX.E veni f Kamalki newW itnesCs NAIw asa Tutsi,t his doesn ot lead to the conclusionth at WitnessC NAI was not presenat t Cyayi to witness Nzabonimansap'se ecahn di ts aftermath.l23 49. The Appeals Chamber considers that it was reasonablef or the Trial Chamber to accept Witness CNAI's testimony of his presence,a s well as of Nzabonimana'ss peecha nd its aftermath. The Appeals Chambern otes that the Trial Chamberf ound that Witness CNAI, along with Witness CNAX, provided internally credible and consistenta ccountso f the "Cyayi meeting".r2aR ecalling that the Trial Chamber has the discretion to accept some but reject other parts of a witness's testimony,l2st he Appeals Chamberr ejects Nzabonimana'sa rgumentt hat by finding one aspecto f WitnessC NAI's testimonyi mplausible and not credible,t he Trial Chamberw ould necessarilyh ave consideredt he witness to lie under oath. Accordingly, Nzabonimanaf ails to demonstratet hat the Trial Chambere rred in its assessmenot f WitnessC NAI's credibility.

50. In its deliberations on the perpetrators of the Night Attack, the Triai Chamber held that: Given the contradictionsi n Witness CNAI's accountsa s to the participation of Witness T193 in the attack, and the difficult conditions for identification, the Chamber does not find that the evidencep roves that Witness T193 carried a machetea nd participatedi n the attack.126 51. After recalling that Witness CNAI questioned the authenticity of the Gitarama court judgement and denied stating that Witness T193 threw grenades,r2tTh e Trial Chamber did not find Witness CNAI's explanation for the discrepancys ufficient and also noted that conditions at the time of the attack made identification of assailantsd ifficult.r28T herefore, the Appeals Chamber notes that the Trial Chamberd id not acceptW itness CNAI's explanation.T he Appeals Chamberi s not convinced that the rejection of his explanalion prevented the Trial Chamber from reasonably relying on the witness'se vidence.

52. With respect to Nzabonimana's argument on Witness CNAI's age, the Appeals Chamber observest hat the Trial Chamber relied on his age, the minor nature of the discrepancies,a nd the passageo f time betweent he 1994 eventsa nd the witness's testimony,t o find that the discrepancies Judgemepnatr,a 8.7 5. i'"i ill.t Trial Judgemenpt,a ra.8 75. r24 Trial Judgementp, an.872. "t Sre Ndahirnana Appeal Judgement,p ara. 183; Kanyarukiga Appeal Judgement,p ara. 187; Bagosora and Ns e n gi yu mva AppealJ udgemenpt,a n. 243. ''o Trial Judgemenpt,a ra.9 08. ttt Trial Judgementp, ara.9 06. "t TnalJudgement,p aras.9 06, 907. LI CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

between Witness CNAI's testimony and previous statementsd id not underrnine his credib:@.WH The Appeals Chamber finds no error in this approach.T he fact that Witness CNAI justified the discrepanciesa s mistakes made by people who recorded his statemontsd id not prevent the Trial Chamber from taking into account the witncss's age among other factors.''t'The Appeals Chamber is also not persuadedt hat the Trial Chamber erred in treating the ages of Witness CNAI and Witness Sibomana differently since circumstanceso f the two witnessesa re distinguishable.A fter noting that Witness Sibomana was serving a prison sentencef or his involvement in the genocide and was 82 years of age and in failing health,r3rt he Trial Chamber explicitly statedt hat it treated WitnessS ibomana'st estimonyw ith appropriatec aution.'t'In comparison,W itnessC NAI was not convicted for participatingi n the genocide,a nd he provided eyewitnessa ccounto f eventsa t the Cyayi centre and the Nyabikenke communeo ffice.rtt In view of the foregoing, Nzabonimanaf ails to demonstratet hat the Trial Chamber could not rely on Witness CNAI's age, among other factors, to find that the discrepanciesd id not undermineh is credibility.

53. Finally, in summarising Witness CNAI's testimony, the Trial Chamber noted Witness CNAI's evidence that he returned to Karangwa's bar at around 8.00 p.m. and asked Karangwa if he sold cigarettes.l3oT he Trial Chamber was therefbre aware of this aspect of the testimony. Nzabonimana fails to demonstrate that the Trial Chamber erred in not expressly addressingth is aspecto f the evidencei n assessingW itnessC NAI's credibility. Nzabonimanaa lso fails to explain how this aspecto f the evidencew as implausible.A ccordingly, the Appeals Chamber dismissesN zabonimana'sa rgumentt hat the Trial Chamberf ailed to assessth is "implausible" fact.

54. In light of the above, the Appeals Chamber finds that the Trial Chamber did not err in the assessmenotf WitnessC NAI's credibility. (ii) WitnessC NAX's Credibility 55. Nzabonimanas ubmitst hat WitnessC NAX lackedc redibility because:( i) he was convicted and imprisonedf or embezzlement;t3(sii ) having witnessede ventsi nvolving Nzabonimanain 1994, the witness knew crucial inlormation that could have savedT utsis but refrained from warning them or any authority;r3oli il; tre testifiedt hat he waited until 2008 to reveal his knowledgeo f events, r2e SeeT rialJ udgemenpt,a ra.874. r30 SeeT rialJ udgemenpt,a ras8. 73,8 74. 't' Trial Judgementp, ara.1 290. r3t T rial Judgementp,a ra.1 290,r eJ'erringto Trial Judgemenpt,a ras8. 0-82. r33 SeeT rialJ udgemenpt,a ras.151-156,'160,,7'76614 . ''o Trial Judgemenpt,a 'a.759. r3t N zabonimanAa ppealB rief, pzra.4 3; NzabonimanRa eplyB rief, para.2 2.S eea lso AT.29 April 2014p . 50. 116 N zabonimanAap pealB rief,p aras.4 3,46 NzabonimanRae plyB rief,p ara.22S. eea lso AT.29 April 2014p p.55, 56. l8 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2217/H while his declarationt o Rwandan police made in 1996, which does not mention Nzabonimanao r Munyagatare,s howst he contrary;t" and (iv) the Trial Chambers hould have treatedh is silence as it did with Prosecution Witness CNBA.138N zabonimana adds that the Trial Chamber erred in assessingW itness CNAX's credibility since his alibi and the Prosecution evidence for the Kabimbura centreo n 11 April 1994 shouldh ave cast doubt on his credibiliry.l3e 56. Nzabonimanas ubmitst hat no reasonabletr ier of fact could have acceptedW itness CNAX's testimonyt hat Munyagatared ied during the attacksb ecause:( i) Witness CNAX's testimony, that he was in chargeo f identifying the victims in the middle of the attack,i s implausible; and (ii) the Trial Chamber erroneously rejected Witness T193's testimony as hearsay, did not take Defence WitnessT28's evidencei nto account,d espitec iting it, and disregardedW itness CNAI's testimony who had doubtsa bout the death.rao 51. The Prosecutionr esponds that Nzabonimana's submissionsf ail to provide arguments,rat ignore evidencea cceptedb y the Trial Chamber,l4za nd rely on evidencen ot on the record.lotI t adds that the Trial Chamber rejected Nzabonimana's alibi for 11 April 1994, and acquitted him in relation to the Kabimbura meeting.la The Prosecution also responds that the Trial Chamber reasonably found that Munyagatare was killed at the

commune offrce,tasa nd that Nzabonimana's altemativea ccounto f Munyagatare'sd eathi s basedo n material not on the record.la6 58. The Appeals Chamber dismissesN zabonimana's argument relating to Witness CNAX's imprisonment for embezzlementa s he merely raisest he issue without elaboration.'otW ith respect to Witness CNAX's failure to warn refugees,t he Appeals Chamber notes that the Trial Chamber explicitly consideredt his issue and acceptedt he witness's explanation, of not wanting to cause r37 NzabonimanaA ppealB rief, para.M , referring /o Rule I 15 Motion. r38 N zabonimanaA ppealB rief, para. 45,r eferring toT1ralJ udgementp, ara.1 038.A ccordingt o Nzabonimanat,h e Trial Chambers houldh ave found that WitnessC NAX's credibility was underminedb y his silence,a s it did for two witnessesS.e ea lsoN zabonimanRa eplyB rief, para.22w, hereN zabonimansap ecifiesth ati t is WitnessC NBA. r3e N zabonimanaA ppeal Brief, paras.4 7-50; NzabonimanaR eply Brief, para.

23. Nzabonimanaa lso arguest hat the Trial Chambere rredi n finding that he breachedR ule 67(A)(ii) of the Rules on notice of alibi and in excluding alibi witnessesS. eeN zabonimanNa otice of Appeal,p ara.3 .1.2(5).N oting that this argumentis not developedfu rtheri n NzabonimanaA ppealB rief, the AppealsC hamberc onsiderst hat it hasb eenw ithdrawn.N zabonimanafu rther submits that, in light of his alibi and ProsecutionW itnessC NRl's testimony,h e was not at the Kabimburac entre., See NzabonimanAap pealB rief,p ara.9 1.S eea lso AT.29 April 2014p p.8,9. 140 NzabonimanAap pealB rief,p ara.7 8. lal ProsecutioRn esponsBe rief, paras4. 0, 42. '02 ProsecutioRn esponsBe rief,p ara.3 9. '"'Prosecution ResponsBer ief,p ara4. 1. r4 ProsecutioRn esponsBe rief,p aras.4 4,4 5. Seea lsoA T. 29 April 2014p p.3 4, 35. ra5 ProsecutionR esponseB ief , pata.7 2 . ra6 ProsecutionR esponseB ief , paru.14. r47 The AppealsC hambero bservest hat the Trial Chambern oted WitnessC NAX's imprisonmentw hen assessingth e witness'sc redibilityo n allegationtso whichh e testifiedS. eeT rial Judgemenpt,a ras2. 86, 653,877.T heT rial Chamber noted that the crime was unrelatedt o the genocidea nd that a criminal convictionu nrelatedt o the facts of the present cased id notp er se indicatet hat the witnessl ackedc redibility.S eei dem. t9 C'\ CaseN o.:I CTR-98-44D-A 29 Septembe2r 014

further insecurity among frightened refugees.la8N zabonimana makes no attempt to demoBffi6/H how the Trial Chamber erred in finding Witness CNAX's explanation plausible. As for WitnessC NAX's failure to warn authoritiesa t the time of the events,l4eN zabonimanap rovidesn o references in support of his argument and fails to explain the alleged impact on the witness's credibility. The Appeals Chambera lso dismissesN zabonimana'sa rgumento n Witness CNAX's testimonyt hat he waited until 2008 to revealh is knowledgeo f events,a s he relies on a document r50 which is not part of the recordi n this case.

59. Further, the Appeals Chamber is not convinced by Nzabonimana'sc ontention that the Trial Chambere red in treatingt he silenceso f WitnessesC NAX and CNBA clifferently.r5Nr zabonimana fails to explain how the situationso f thesew itnessesw arrant similar treatment.T he Trial Chamber fbund that Witness CNBA's silence underminedh is credibility becauseh e was a local official, had a role in the ongoing investigationsi nto the genocide,a nd given his official position would have provided relevant information during Gacaca sessions.l52T his is distinguishable from circumstanccss urroundingW itnessC NAX, who had no role in genocidei nvestigations.

60. The Appeals Chamber now turns to Nzabonimana'sc hallengea gainstW itness CNAX's credibility basedo n eventso n 11 April 1994a t the Kabimburac entre.rs3A s context,t he Appeals Chamber notes that, according to Witness CNAX, Nzabonimanaw as seen attending a meeting at the Kabimburac entrei n Nyabikenkec ommuneo n l1 April 1994,a round5 .00p .-.t'o However,t he Trial Chamber noted Witness CNRI's evidencet hat around 3.00p.m. the witness left Gitarama prdfecture with Nzabonimanat o return to Kigali.rssT he Trial Chamber examined this contradiction in relation to events at the Kabimbura centre and concluded that the allegations against Nzabonimana in this respect were not established as Witnes s CNAX's evidence was uncorroborated, hearsay, and contradicted by Prosecution evidence.''o Th" Appeals Chamber observes,h owever, that the Trial Chamber acceptedW itness CNAX's testimony that he went to the 'o'Trial Judgementp, ara.8 78. rae .SeeN zabonimana Appeal Brief, para. 46. rso S ee Decision on Callixte Nzabonimana's Motion for Admission of Additional Evidence on Appeal Pursuantt o Rule ll5 of the Rules, 22 April 2014 ("Rule 115 Decision"),p .

5. The Appeals Chamberr ecalls that it did not admit as additionale videnceW itness CNAX's statementm ade in 1996,b ased,i nter alia, on the fact it could not have been a decisive factor in reaching the decision at trial as Witness CNAX's testimony was found to be corroborated by Witness CNAI's testimony.S eei bid., p. 4. r5r See Nzabonimana Appeal Brief, para. 45, re.f'erringt r.rT rial Judgement, para. 1038; Nzabonimana Reply Brief, para.22. 1" Trial Judgementp, ara. 1038. rs3 N zabonimanap oints to testimonieso f ProsecutionR ebuttalW itnessC NRl as well as alibi DefenceW itnessesT l I and Mechtilde Mugiraneza to demonshate that Witness CNAX's testimony on Nzabonimana's presence at the Kabimbura centre on I I April 1994 was contradicted.S ee NzabonimanaA ppeal Brief, paras.4 7-50. 't' Witnes. CNAX, T. 23 November2 009 pp. 57-59.S eea lso Trial Judgementp, ara.6 42. 't' Trial Judgement,p ara.453. ''o Trial Judgement,p ara.662. 20 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 ,lk

2215/H Kabimbura centre on 11 April 1994 for food.1s7 The Trial Chamber did not find that Witness CNR1's evidencer enderedt he whole of Witness CNAX's evidencen ot credible.T he Trial Chamber consideredt hat the evidence of Witnesses Mugiraneza and T11 only covered parts of 11 April lgg4,r58a nd did not raise a reasonabled oubt in the Prosecutione videncep lacing him at the sceneo f the allegedc rime on 11 April lgg{.lse The AppealsC hamberd oesn ot detect any error in the Trial Chamber's assessmenot f Witness CNAX's credibility in light of Nzabonimana'sa libi andW itnessC NRl's evidence.160 6L The Appeals Chamber further finds that the Trial Chamberr easonablya cceptedW itness CNAX's testimony on Munyagatare's death at the commune offrce.l6l Despite being the only witness who testified that Munyagatarew as killed during the attacks,t he Trial Chamber considered that Witness CNAX providedc redible and reliable testimony on the death.16N2z abonimanaa ppears to suggestt hat WitnessC NAX was in chargeo f identifying Tutsis killed at the communeo ffice and arguest hat this was implausibled uring an attack.16T3h e Appeals Chambero bservest hat, in cross- examination,t he Defences uggestedth e samet o Witness CNAX, who answered: When I was getting ready to run away, I passedn ear dead bodies. I even had to jump ovet some of - one of them. So under those conditions, it was when I was

fleeing that I was able to identify Munyagatare'sb ody. Those people had been killed by grenades hrapnels.T hey could be identified. And since I was one of those in charge of refugees,I felt compelled to know the identity of some oI tne vlctrms.1'64 62. The Appeals Chamber finds that it was reasonable for the Trial Chamber to accept Witness CNAX's testimonyo n Munyagatare'sd eath," given his position in chargeo f the refugees", and given that WitnessC NAX felt a responsibilityt o identify Munyagatare'sb ody.165 63. The Appeals Chamberi s also not persuadedt hat the Trial Chamber's assessmenot f other evidence on Munyagatare'sd eath underminesW itness CNAX's overall credibility. Specifically, beyond disagreeingw ith the Trial Chamber's assessmenot f DefenceW itnessesT 28's and T193's testimonies,N zabonimanaf ails to demonstrateh ow the Trial Chamber erred. Indeed, the Trial ttt Trial Judgementp,a ra.662. l58,See Trial Judgemenpt,a ras4. 55,4 56. 15e ,SeeT rial Judgemenpt,a ra.457. t60 T he AppealsC hamberi s equallyn ot persuadedb y Nzabonimana'sc laim that, on the basiso f his alibi evidence,a nd WitnessC NR|'s testimonyN, zabonimanwaa sn otp resenat t theK abimburac entreo n 11A pril 1994.S eeN zabonimana Appeal Brief, para.9 1. Indeed,t he AppealsC hambero bservest hat the Trial Chamberd id not find that Nzabonimana wai absenta t the Kabimburac entreo n l1 April 1994.T he

AppealsC hamberf inds no error sinceW itnessesC NAX and CNR] placedN zabonimanian Gitaramaa t somep oint in the afternoono f 1l April 1994.S ee,e .g.,Trial Judgement, paras.4504, 53,659. 1ut Trial Judgemenpt,a ras9. 35,9 36. tut Trial Judgementp, was.9 32, 935. 163 NzabonimanaA ppealB rief, para.7 8. le WitnessC NAX, T. 24 Novembe2r 009p .36 (closeds ession)' t6t Trial Judgementp, an.932. The Trial Chambera lso consideredth at WitnessC NAX knew Munyagatarea s he saw him the previous daya t theC yayi centtea ndt hereforew ould haveb eena blet o reliably identify hrim'S eei dem. 11 CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 tln

Chamber had the discretion to reject Witness Tl93's hearsay evidence, which it 29M/H implausible.'06T he AppealsC hambero bservest hat the Trial Chamberc onsideredW itnessT 28's testimony that Munyagatared ied in the home of his parents-in-law,b ut provided no reasonf or not acceptingt his explanation.r6TH aving reviewed the transcripts,t he Appeals Chamber observest hat Witness T28 did not explain how he knew that Munyagatare died at the home of his parents-in- law.r68A s to Witness CNAI, the Trial Chambere xplicitly consideredh is testimony and at no point did Witness CNAI doubt Munyagatare'sd eath.t6eIt consideredW itness CNAI's statementf rom 2002, indicating that Munyagatarea nd his family were killed during the genocidea nd thrown into the NyabarongoR iver.rTnH oweuer, the Trial Chambern oted that fhe 2002 statementi s uncleara s to where Munyagatare was killed and that Witness CNAI was not present at the scene to confirm whether Munyagatarew as thrown into the river.tTl 64. In light of the above, the Appeals Chamber finds that the Trial Chamber did not err in the assessmenotf WitnessC NAX's credibility. (iii) WitnessesC NAI's and CNAX's Credibility in Relationt o Fabricationo f Evidence 65. On 8 December 2010, the Trial Chamber grantedN zabonimana'sm otion in part requesting the appointmento f an amicus curiae to investigatea llegationst hat Witness CNAI, or a member of

the Prosecutiont eam, disclosedp rotectedw itness inforrnation in violation of Rule 77(AXii) and/or (iv) of the Rules.rT'TheA mirzs Reportc oncludedt hat "Witness CNAI did not at all disclosea ny protectedi nfbrmation pertaining to DefenceW itness T36" and "did not threatena nd/or bribe and/or intimidate Witness T36 or at all".r73I t lurther recommendedt hat "there are no grounds or basis or at all fbr instigating proceedings for contempt of the Tribunal against Prosecution WitnessCNAI".lTl The Amicu.sR eport reachedt he same conclusionsr egardingm emberso f the Prosecution's office.'tt The report did recommend that "the Chamber consider ordering further investigationso n the need for supplementaryp rotective measuresf or def'encew itnessese specially ""'Trial Judgementp, ara.9 34. 't" Trial Judgement,p ara.934. 'ot WitnessT 28, T. 2 June2 010 p. 44 (closeds ession). r6e See NzabonimanaA ppeal Brief, para. 78. rt') Trial Judgementp, ara.9 33. 't' Trial Judgement, para.

933. As for Nzabonimana's reliance on a 1996 statement from Witness CNAX and a declarationt iom Munyagatare's wit'e (.seeN zabonimana Appeal Brief, para. 79), the Appeals Chamber notes that these materialsa re not part of the recordi n this case.S eeR ule 115 Decision,p .5. 112 S ee The Prosecuktr v. Callixte Nzabonimana,C ase No. ICTR-98-44D-T, Decision on Nzabonimana's Renewed and Confidential Motion fbr Appointment of Amicus Curiae to InvestigateA llegations of Contempt of the Tribunal Against ProsecurionW itness CNAI, 8 December 2010. See also Tnal Judgement,p ara.

1902. The Appeals Chamber notes that on 1 April 201 I , the "Report of the Amicus Curiee on Allegations of Contempt of Tribunal by Witness CNAI and/or a Member [of] the ProsecutionO ffice Pertainingt o Def-enceW itness T36" ("Amicu.r Report") was filed confidentially. "'' Amicus Report, para.77. "_oA-* icus Report, para. 78. ' 't Amicns Report,p ara.79. 22 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 I'Ilr,

2213/H where their statusa s defencew itnessesi s known in the community in the interesto f justice and fair trial".176 66. On2I October2 011, the Trial Chambera cceptedt heA micus Report and declinedt o initiate contemptp roceedingsa gainst any personsi n the matter, including Witness CNALlTT It noted that the Defence" generallya greedw ith the conclusionso f the amicu.r,p articularly in regard to the need for the Tribunal to strengthenp rotective measuresf or Defencew itnesses".l'r OnZl October 2011, the Trial Chamber also issued a decision admitting a statement by Witness CNAI dated 8March2011 ("Witness CNAI Statemento f 8 March 201I"), which was annexedt o the Amicus Report.rTeIn the same decision, the Trial Chamber rejected the admission of other documents annexedt o theA miczs Report, including a statementb y ProsecutionI nvestigatorD jibo Moumouni dated 8 March 2011 ("Prosecution InvestigatorM oumouni Statement"),a nd three statementsb y DefenceW itnessT 37 ("Defence WitnessT 37 Statements").180 67. In assessingD efence allegationst hat Prosecutionw itnessesf abricated evidence, the Trial Chamber considered whether Rwandan authorities and Witness CNAI recruited Prosecution witnesses.18S1 pecifically, the Trial Chamber examined if Witness CNAI recruited witnesses, including Witness CNAX, to testify falsely for the Prosecution.rsI2n doing so, the Trial Chamber consideredD

efencea rgumentsp ointing to theA micrzsR eport.18I't also assessedw hether Rwandan authorities and Prosecution witnesses obstructed Defence investigations and whether Defence witnesses were harassed.l8aT he Trial Chamber determined that the Defence claim of alleged fabrication was based on mere speculation and that the Defence team, despite encountering "logistical problems, it was able to adequately defend the interest of Nzabonimana".185 Furthermore, in making its factual findings on events at the Cyayi centre and the Nyabikenke communeo ffice, the Trial Chambere xplicitly recalledi ts findings on fabrication of evidence.ls6 "6 AmicusR eportp, ara.8 0. "' The Prosecutovr . CaLlixteN zabonimanaC, aseN o. ICTR-98-44D-TD, ecisionF ollowingA micusC uriaeR eport Pertainingt o Allegations of Co[n]tempt of the Tribunal by ProsecutionW itness CNAI and/or a Member of the ProsecutioOn ffice,2 1 October2 011( *21 October2 011D ecisionA cceptingA rzlcasR eport"),p . 11. r78 2 1 October2 011D ecisionA cceptingA micusR eport,p aras.1 2,25.A fter notingt hatt he "Defenced id not disagree with the amicusc uriae conclusionsth at DefenceW itnessT 36 was not intimidated,t hreatenedo r bribedb y Prosecution witnessC NAI" and that the "Defence acceptedt he amicus curiae conclusionsth at neither Witness CNAI nor any Prosecutiono fficial divulged protectedi nformationp ertainingt o WitnessT 36",

the Trial Chamberc onsideredt hat the Defenced id not challengeo r objectt o the conclusionso f theA micusR eport.S eei bid, para.2 5. "n Th, Prose"utorv . Callbte NzabonimanaC, aseN o. ICTR-98-44D-T,D ecisiono n DefenceM otion for Admissiono f Documents2,1 October2 0ll (*21 October2 011 Decisiono n Admissiono f Documents")p,a m.2 4,p .9. 18 2 0 1 Octobe2r 01I Decisiono n Admissiono f Documentsp,a ras2. 5'21,p . 9. 181 Trial Judgemenpt,a ras9. 4-156;2 40-255. r8t Trial Judgemenpt,a ras.1 49-156. tt'Triul Judgemenpt,a ras.1 52,1 55. t* Trial Judgementp, uas. 240-255, ttt Trial Judgementp, ara.255.S eea lso ibid., paula1. 56. 186 TdaI Judgemenpt,a ras.7438, 56,9 40. ZJ CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

68. Nzabonimana submits that the Trial Chamber erred in assessingP rosecution WiflE#e/H CNAI's and CNAX's testimoniesb ecauseit examinedc ollusiona nd intimidationg lobally without speciticallyc onsideringth esei ssuesi n relationt o WitnessesC NAI and CNAX, who were lying.r87 69. Nzabonimanas ubmits that the Trial Chamber ignored the impact of the Amicus Report and Witness CNAI Statemento f 8 March 2011 on the credibility of WitnessesC NAI and CNAX.r88 With respectt o WitnessC NAI Statemenot f 8 March 2011,N zabonimanan otest hat WitnessC NAI explained that he assistedt he Prosecutioni n finding witnessesa nd that he provided the names of ProsecutionW itnessesC NAQ, CNBH, CNAK, CNAX, and CNAY.rseA ccordingt o Nzabonimana, this is contrary to the Trial Chamber's findings that Witness CNAI denied assistingt he Prosecution to lind witnessesa nd was solelyt he contactp ersonb ecauseh e was the only one with a phone.reH0 e argues that, becauseW itness CNAI testified to the contrary, the witness lied befbre the Trial Chamber.rerF urthermore,i n light of Witness CNAI Statemento f 8 March 2011, Nzabonimana arguest hat the Trial Chamber ignored Witness CNAX's lies when finding that the witness denied that Witness CNAI proposedh im as a witnesst o the Prosecution.leN2z abonimanaa lso contends that,u nlike ProsecutionW itnessesC NAQ, CNAY, and CNBU, WitnessC NAX deniedt hat Witness CNAI

accompaniedh im on 4 October2 008 to meet with Prosecutionin vestigatorsin Nyamabuye commLtneG, itaramap rdfecture.te3N zabonimanaa lso arguest hat the Amicus Report establishedt hat WitnessC NAI approachedW itnessT 36 to testifyl or the Prosecution.rea 70. Nzabonimanaf urther submits that the Trial Chamber erred in refusing to admit Prosecution InvestigatorM oumouni Statementa nd DefenceW itness T37 Statements,a ll annexedt o the Amicus Report, becauset hey also impact Witness CNAI's credibility.resN zabonimana points to the fact that the declarationo f the investigatord escribedW itness CNAI's supervisoryr ole over Prosecution witnessesa nd that the investigatorg ave the witness nameso f individuals in Nyabikenke commune for background verification.re6N zabonimanaa lso submits that the Trial Chamber erred in refusing to recall Prosecution investigators and witnesses involved, including Witness CNAI, after I87 NzabonimanaN otice of Appeal,p ara.3.l.l;Nzabonimana Appeal Brief, ptra.33. rEE NzabonimanaN otice of Appeal, para. 3.1.1(2);N zabonimanaA ppeal Brief, para. 36; NzabonimanaR eply Brief, pina.2 I . Seeu lso AT.29 April 20I4 pp.4-6.50. 'n' NzabonimanaA ppeal Brief, para.3 8; NzabonimanaR eply Brief, para.2 1. re" Nzabonimana Appeal Brief, para. 38,re.ferring to Trial Judgement,p aras. 149, 151, 153. rer Nzabonimana Appeal Brief, para. 38. re2 N zabonimana Appeal Brief, para. 39, re.fbrring toTiral Judgement,p ara. 114. rer N zabonimana Appeal Brief, pzra. 39,re,ferrin14to Trial Judgement,f n.220: Nzabonimana Reply Brief, para.2l. rea Nzabonimana Appeal Brief, para. 38. res NzabonimanaN otice of Appeal,p ara.3 .1.1(3);N zabonimanaA ppeal Brief, para.3 7. 'e6 Nzabonimana Appeal Brief, para. 40. 'tA Ca.seN o.: ICTR-98-44D-A 29 Septembe2r0 14 'T\

221|/H discoveringt hat 245,000 Rwandan Francsw ere paid to Rwandan authoritiesf or the "treatment of witnessesi n Gitarama".197 7I. Finally, Nzabonimana submits that the Defence did not simply encounter "logistical" problems but that Defence witnessesw ere intimidated in relation to the Nyabikenke events'le8I n this regard, Nzabonimana relies on the testimony of Defence Investigator Fernand Batard, the declarationo f DefenceW itnessT 160, and the Amicus Report.lee 72. The Prosecutionr espondst hat: (i) Nzabonimana'sa rgumento n global assessmenst hould be summarily dismissed;2o(oii ) the Amicus Report found Nzabonimana'sa llegationso f intimidation to be unfounded, that Nzabonimanaa cceptedt his conclusion, and that he fails to demonstratew hy Witness CNAX's evidence is false;2or( iii) Nzabonimana fails to substantiateh ow the Trial Chamber erred in refusing to admit documents attachedt o the Amicas Report or how the documents affectedW itness CNAI's credibility;2o'(iu) money transferredt o Rwandana uthoritiesw as not for bribes but to cover witnesses' and (v) despite "logistical ptoblems", Defence "xp"nr"r;'o' WitnessB atard was able to collect large volumeso f evidencea nd Nzabonimanaf ails to explain the prejudice,i f any, he suffered.2oa 73. In its findings on the alleged fabrication of evidence, the Trial Chamber concluded that: Taking into accountt he Chamber'sa

ssessmenotf the credibility of the relevantD efencea nd Prosecutiown itnesseasn dt hee videncea s a whole,t heC hambefri nds thatt hee videncele d by the Defencer elating to the allegedf abricationo f evidenced oesn ot underminet he credibility of the Prosecutiown itnessest'e stiiony.205 The Appeals Chamber recalls that the Trial Chamberd id not initiate contempt proceedingsa gainst WitnessC NAI and dismisseda llegationso f fabricationa gainstW itnessesC NAI and CNAX.'ou Th" re? N zabonimanAap pealB rief,p ara.4 1.S eea lsoi bid.,pua.2l. Seea lso AT.29 April 2014p . 50. 1e8 N zabonimanAa ppealB rief, paras3. 4, 35; NzabonimanRae plyB rief, paras.1 9,2 0.S eea lso AT.29 April 2014p p. 5,6 . ree N zabonimanaA ppeal Brief, para.3 4; NzabonimanaR eply Brief, para.

20. Seea lso AT.29 Apfl 2014 pp- 5' 6. The AppealsC hambern otest hat in his Notice of Appeal,N zabonimanaa dvancesa rgumentsre lating to witnessi ntimidation under the sectiono n Defencew itnessesb, ut fails to developt hesea rgumentsi n his Appeal Brief. SeeN zabonimana Notice of Appeal, para.3.1.3(5)(6)T.h e AppealsC hambera lso finds unsubstantiatehdi s argumentt hat the Trial Chambere xclud"d all Defencee videncew ithoutj ustification andf ailed to considerd ifficulties encounteredth roughout trial, except where evidence is corroboratedb y Prosecutione vidence. See NzabonimanaN otice of Appeal, para.3.1.3(4). 2m ProsecutioRn esponsBe rief,p ara.2 8. 201 P rosecutioRn esponsBe rief,p ara.3 1.S eea lso AT.29 Api|2014 pp.32-34. 2@ P rosecutioRn esponsBe rief,p ara.3 2. 203 P rosecutioRn esponsBe rief,p aras.3 6,31,r eferrinSto ProsecutioRn eplyB rief, paras7. 7,7 8. 2e ProsecutioRn esponsBe rief,p aras2. 9,3 0.S eea lsoA T. 29 April 2014p . 31. tot T rial Judsementp, ara.256. t* T.ial Judlgemenpt,a ras.1 36-156,253-256S. eea lso 21 October2 011 DecisionA cceptingA micusR eport.W ith respectt o WitnessC NAX specifically,t he Trial Chamberc onsidereda nd rejectedD efencea ssertionsth at this witness, along with WitnessesC NAI, CNAQ, CNAY, CNAF, CNAP, and CNBU all fabricatedt heir testimony.S eeT rial Judgemenpt,a ras.1 54,1 56. 25 (\-. $\ CaseN o.: ICTR-98-,+4D-A 29 Septembe2r0 14

Trial Chamber explicitly recalled its findings on fabrication in its assessmenot f eventsa t theEHlO/H centre and the Nyabikenke commune office.2O7T hus, contrary to Nzabonimana's arguments,t he Trial Chamber did not merely consider collusion and intimidation in a global manner, but also explicitly in assessintgh e credibilityo f WitnessesC NAI and CNAX.208 74. The Appeals Chamber is not convinced by Nzabonimana's submission that the Trial Chamber ignored the impact of the Amicus Report and Witness CNAI Statemento f 8 March 201I on rhe creclibility of WitnessesC NAI and CNAX. The Appeals Chamber observest hat the Trial Chamber explicitly considered the Amicus Report when it examined the Defence allegation that Witness CNAI recruited witnessest o testify falsely for the Prosecution.'oeIn particular, the Trial Chamber noted the Defence submission,m adc in NzabonimanaC losing Brief, which pointed to the Amicus Report as evidenceo f WitnessC NAI's recruitmenta nd intimidation of witnesses.2lT0h e Trial Chamber recalled that it acceptedc onclusions contained in the Amicus Report and that the parties <lid not appeal this ruling.2rr Specifically, the Trial Chamber recalled the Amicus Report's conclusionst hat WitnessT 36's allegationso f being threatenedi,n timidated,a nd bribed by Witness CNAI were unfound ed.ztz 15. The Appeals Chamber notes that the Trial Chamber referenced

sections of the Amicus Report that cited WitnessC NAI Statemenot f 8 March 2011, thus showingt hat the Trial Chamber did take the statementi nto account.2r3A lso, in its 2l October 2011 Decision on Admission of Documents, the Trial Chamber admitted the statement" for the sole purpose of challenging and assessingt he credibility of ProsecutionW itness CNAI".2r4 In Witness CNAI Statement of 8 March2Oll, Witness CNAI stated that he "sometimesa ssistedt he Prosecutiont o look for witnessesw hen they requested".2ttT he Trial Chamber noted that Witness CNAI denied recruiting Prosecution witnesses.ZroW itness CNAI testifled that Prosecution investigators contacted the witnesst o, in turn,c ontacto ther witnessesb ecauseh e had a phone.2l7W hen askedb y Counsel:" [i]f I were to put it to you that a witness said you were the one who went to find them to come and testifv here.w ould vou deny that?",W itnessC NAI answered:" I would contestt hat becauseI do t"t Trial Judgementp, aras.7 43, 856, 940. t"t Trial Judgementp, ara.8 56. t"'Trial Judgementp, aras.1 52, 155. t"'Trial Judgement,p ara.1 52. 2" Trial Judgementp, ara. 152.S eea lso 21 October2 011 DecisionA cceptingA micus Report,p . 11. t'2 Trial Judgement,p ara. 152. 2r3 S eeT rial Judgement,f n. 227, re.f'erringt o Amicus Report, paras.4 2-46- ?'t 21 October2 011 Decisiono n Admissiono f Documents,p ara.24. ttt A*irus Report.A nnex

A. :16 S eeT rial Judgementp, ara. 151, ref?rring to WitnessC NAI, T.27 November2 009 pp. 18,20 (closeds ession)T' he Appeals Chamber notes that in cross-examinationW itness CNAI explicitly denied knowing any witness that he went to find. SeeW itnessC NAI, T.27 November2 009p .20 (closeds ession). rr7 ^ SeeW itnessC NAI, T. 27 November2 009 p. l8 (closeds ession). 26 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 ir-?

2209/H not know any witness that I went to find".218T he question posed by Counsel can be reasonably understood as referring to a recruiting role and not merely a contact role. The Appeals Chamber considerst hat a reasonablet rier of fact could have found that Witness CNAI was consistenti n his statement and his testimony on his role as contact person. The Appeals Chamber finds Nzabonimana's contention that Witness CNAI lied before the Trial Chamber unfounded. In any event, even if Witness CNAI did recruit Prosecution witnesses,t here is no evidence that he recruited them "to testify falsely". The Trial Chamber consideredt hat the mere fact that witnesses had contact, travelled together to interviews, or temporarily stayedt ogether "does not lead to the conclusion that they colluded to fabricate their eviden ce".2|eT he Trial Chamber then found the Defence claim of fabrication to be "basedu pon mere speculation"a nd that the "evidence does not support the conclusion that Witness CNAI recruited witnesses to testify falsely against Nzabonimana".22N0z abonimanaf ails to demonstrateh ow the Trial Chambere rred in its assessment of Witness CNAI's credibility in iight of the Amicus Report and Witness CNAI Statement of 8 March 2011.

76. Turning to the impact of the Amicus Report and Witness CNAI Statemento f 8 March 2011 on Witness CNAX's credibility, the Appeals Chamber first notest hat the Trial Chamber explicitly considered differences between Witness CNAX's evidence and the testimonies of Witnesses CNAY, CNAQ, CNBU, and CNAI on the presenceo f Witness CNAI when travelling to meet Prosecution investigatorso n 4 October 2008.221S econd, the Appeals Chamber considers that Witness CNAX's testimony is not contradictedb y Witness CNAI Statemento f 8 March 2011. At trial, Witness CNAX testified that he knew Witness CNAI and denied that the latter put him in touch with Prosecutioni nvestigatorr."' A""o.ding to Witness CNAX, "[i]t is simply because fWitness CNAI] had a telephonea nd the people who could contactm e would call him and give the information for him to relay to me".223C onsistent with this, the Appeals Chamber observes that Witness CNAI Statemento f 8 March 2011 merely statest hat Wilness CNAI knew Witness CNAX adduced evidence for the Prosecution and that they came from the same atea."a Furthermore, there is no evidence that Witness CNAX was recruited by Witness CNAI to testify falsely against Nzabonimana.22B5a sedo n the foregoing, the Appeals Chamberf inds no basis for Nzabonimana's 218 S eeW itnessC NAI, T. 27 Novembe r 2009p . 20 (closeds ession)' t"t'oT_.r ial .,J u.dgemenpta, ra.1 53. "o Tial Judgementp, ara.1 56( emphasisa dded). t" Trial Judgemenpt,a ra.1 50,f n.220. 222 W itnessC NAX, T. 24 Novembe r 2009p . 39 (closeds ession)S. eea lsoT rialJ udgemenpt,a ra.I 14. 223 W itnessC NAX, T. 24 Novembe2r 009p . 39 (closeds ession). 224 SeeA micu.sR eport.A nnex A. 22s S eeA micusR eport,A nnexA . Seea lso Trial Judgementp, ara. 156. 2't [\"q \)\ CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

argument that the Trial Chamber ignored the impact of the Amicus Report or Witness?"j&SlS/H Statemenot f 8 March 201I on the credibilityo f WitnessesC NAI and CNAX.

77. The Appeals Chamber now turns to Nzabonimana's submission that the Trial Chamber erred in refusing to admit ProsecutionI nvestigatorM oumouni Statementa nd Defence Witness T37 Statementsb, oth of which have an allegecilm pact on WitnessC NAI's credibility.2toT he Appeals Chamber llnds that Nzabonimana did not demonstrateh ow Prosecution Investigator Moumouni Statementa nd Def'enceW itness T37 Statementsu ndermine the credibility of Witness CNAL On 2l October20ll, the Trial Chamber denied Nzabonimana's motion to admit Prosecution Investigator Moumouni Statement and Defence Witness T37 Statements on the basis that Nzabonimana failed to show their relevance and probative value.221W ith respect to Defence Witness T37 Statements,t he Appeals Chamber finds that Nzabonimana is repeating arguments fiom trial without demonstratingh ow the Trial Chamber erred in its original assessment.t'*A t fot ProsecutionI nvestigatorM oumouni Statement,t he Appeals Chamberr ecalls that the Trial Chamber found that mcre contact does not lead to collusion or fabrication of evidence.22Teh e Appeals Chamber finds no error in this. Furthermore, Witness CNAI's alleged recruitment of other Prosecution witnesses was already considered in relation to Witness CNAI Statement of 8 March2 011.

78. With respect to Nzabonimana's allegation concerning money paid to Rwandan authorities tbr the treatment of witnesses,t he Trial Chamber stated that the concerns on disbursemento f Tribunal funds to Prosecutionw itnessesh ad been extensivelyl itigated.z3IOt determined,o n the basis of Def-enceW itness Jean-MarieV ianney Mporanzi's testimony and Exhibit D125, that the money was used to pay for witnesses't ravel and relatede xpenses."tT he issue was thoroughly explored at tnal.232T he Appeals Chamber finds that Nzabonimana fails to substantiate his 226 Nzabonimana Appeal Brief, para. 37. 121 S ee2 l October2 01I Decisiono n Admissiono f Documents,p aras.2 5-27,p . 9' :2r3 Compure Nzabonimana Appeal Brief, para. 3'7 with The Prcsecutor v. Callixte Nzahonimuna, Case No. ICTR-98-44D-T, Motion for Admission of Documents, 24 May 201 I (confidential), para. 43. ::e .SeeT rial Judgementp, ara. t53. -r't"o - T ria.l ,J ud,gement.p ara.6 2. tt'Trial Judgementp, aras.1 44-146.S eeE xhibit Dl25 ("Paymentsm adet o DefenceW itnessM poranzi"). tttTrialJudgement,paras 1 . 4 4-146.Seealsoibid.,para.62,fnl0. 3.TheAppealsChamberrecallsthatithasupheldthe Trial Chamber's determination to not initiate contempt proceedings Against Prosecution investigators on this matter. See The Prosecutor v. Callixte Nz,ahonimanuC, ase No. ICTR-98-44D-AR9l, Decision on Callixte Nzabonimana's Appeal Against the

Trial Chamber's Decisiono n Motion for Rule 91 ProceedingsA gainst ProsecutionI nvestigators, 2i April 2012, para. 16; The Prosecutrtr v. Callixte Nzabonimana,C ase No. ICTR-98-44D-T, Decision on Defence Motion for ProceedingsA gainst OTP Investigators2, 5 November 2011, para. 26. ln a decisiono n 7 April 2011, the Trial Chamber denied Nzabonimana's requestt o summon Prosecutioni nvestigatorsi n relation to the 245,000 Rwandan Francs.S ee The Prttsecutor t,. Callixte Nzubonimana,C ase No. ICTR-98-44D-T, Decision on "Callixte Nzabonimana's Motion for Summon of OTP Investigators Adamou Allagouma and Almahamoud Sidibe, sous-prdJetM s. Immacul6e Mukamasabo",7 April 201l . 28 CaseN o.:I CTR-98-44D-A 29 Seotember2 014 {-i*-\

2207/H allegation that the Trial Chamber erred in refusing to summon witnesses to testify on this matter. His arsumenti s therefored ismissed.

79. As for Nzabonimana's argument that the Defence did not merely encounter "logistical" problems but faced intimidation,233i t is unclear to the Appeals Chamber how this affects the Trial Chamber's determination on the credibility of Witnesses CNAI and CNAX. Furthermore, Nzabonimana merely repeatsh is argumentsf rom tial.23aT he Appeals Chamber notes that the Trial Chambere xplicitly consideredd ifficulties encounteredb y InvestigatorB atard.2" It determinedt hat, despite difficulties, Investigator Batard interviewed approximately 300 people, contacted approximately5 00 people,t ook 2000 photographso f sites in Rwanda, gathereda pproximately 600 Gacaca documents, and shot videos without hindrance.236T he Trial Chamber concluded that Nzabonimana's Defence team "was able to adequatelyd efend the interests of Nzabonimana" through "utilising the fruits of investigator Batard's labour".237M ore significantly, the Trial Chamber considered that Witness Batard "was free to investigate in Rwanda" and that Nzabonimana's submissions of hindrance amounted to "mere speculation".238T he Appeals Chamber finds no error in the Trial Chamber's determination.

80. On the basis of the foregoing,t he Appeals Chamberf inds that the Trial Chamberd id not err in its credibility assessmento f Witnesses CNAI and CNAX in relation to the allegations of fabricationo f evidence.23e (iv) Corroborationa nd Alleged Contradictionsb etweenW itnessesC NAI and CNAX 81. Nzabonimana submits that the Trial Chamber could not find that Witness CNAI was corroborated by Witness CNAX, who testified to having heard statementss imilar to those allegedly made by Nzabonimana at the Kabimbura cenfte on 11 April 1994.240N zabonimana further submits that the Trial Chamber ignored the Prosecution's withdrawal of paragraphs 18 and 43 of its Indictment five days before the filing of the Prosecution Final Trial Brief, which smoothed-out 233 N zabonimanaA ppealB rief, paras.3 4, 35; NzabonimanaR eply Brief, paras.1 9,2 0. 234 S eeN zabonimanCa losingB rief,p aras.3 6-43;Tial Judgemenpt,a ns.240,241,243-253- 2" Trial Judgementp, was.2 43-250,2 53-255. ?3u Trial Judgemenpt,a ra.254. "' Trial Judgemenpt,a ra.2 55. 238 Trial Judgementp, aras.2 54,2 55 . t" Th" AppealsC hambera lso dismissesN zabonimana'su ndevelopeda rgumentsm adei n his Notice of Appealt hat the Trial Chamber'se rrorsi n relationt o assessmenotf fabricationo f evidencea mountedt o violationso f his fair trial rights. .SeeN oriceo f Appeal,p aras.3.1.l(3),3.1.1(5),3.1.1(6),3.1.1T(h8e). A ppealsC hambero bservefsu rthert hatt hese a-rgumentwse ren ot developedin the NzabonimanaA ppealB rief. rao NzabonimanaA ppeal Brief, para.

91. See c/so NzabonimanaN otice of Appeal, para. 3.1.2(3).S ee also AT.29A pfl2014p.9. 29 i ! l J v "--:c-2 CaseN o.: ICTR-98-44D-A 29 septembe2r0 14

contradictions between testimonieso f WitnessesC NAI and CNAX, and \mpacted2fuA$/H credibility.2ar 82. The Proseclltionr espondst hat Nzabonimana'sa rgumentr egarding corroborationi s difficult to understanda nd he fails to explain why the Trial Chamber would be forced to come to the same conclusion about two different events at the Kabimbura centre and the Cyayi centre.2a2T he Prosecutionl urther respondst hat it withdrew paragraphsl 8 and 43 of the Indictment in accordance with the Trial Chamber's request ancl not to conceal alleged contradictions in the evidence of WitnessesC NAI and CNAX.2a3 83. With respect to Nzabonimana's argument on conoboration of Witnesses CNAI and CNAX,244 the Appeals Chamber first observest hat the Trial Chamber acceptedW itness CNAI's testimony that Nzabonimanat old those gatheredt o stop eating cows of Tutsi refugeesa nd to focus on the Tutsis instead.2a5It then fbund that Witness CNAX corroborated this by "stating that Nzabonimanah ad told the people that Tutsis were to be killed belore their property was taken".246 Having reviewed the transcripts,t he Appeals Chambern otest hat Witness CNAX stated: [Nzabonimanaw] asi n a vehiclea ndw ass ayingt hes amet hingt hath e had saida t theK abimbura centre;n amely,t hat the Tutsis had to be killed first beforet heir propertyw as taken and that anybodyw ho actedin a contrarym annerw asm istaken.2a?

84. Despite referencing Kabimbura, Witness CNAX's testimony reveals that he directly heard what Nzabonimana said at the Cyayi centre, unlike his hearsayt estimony concerning Kabimbura centre.248T herefore, the Appeals Chamber finds no error in the Trial Chamber's use of Witness CNAX's direct evidencet o corroborateW itnessC NAI's testimonyc lnN zabonimana'ss tatemenat t the Cyayi centre.

85. The Appeals Chamber observest hat the Trial Chamber specifically ordered the Prosecution to withdraw paragraphso f the Indictment that were unsubstantiatedb y evidence.2aIen compliance with the Trial Chamber's order, on 30 June 2011, the Prosecutionw ithdrew nine paragraphsf rom zar NzabonimanAa ppealB rief,p ara.6 0. to2 ProsecutioRn esponsBe rief, para.8 2. 243 Prosecution Response Brief, para. 52, re.ferring to The Prosecuktr v. CuLlixte N7.abr;nimana, CaseN o. ICTR-98-44D-TO, rderf br Prosecutiotno ReviewI ndictmenat nd to File PublicV ersion,8 April 2011 ("Ordero f 8 April 2011"). raa N zabonimanAap pealB rief,p ara.9 1. zot Trial Judgemenpt,a ras8. 70,8 87. too Trial Judgemenpt,a ra.8 70. tot W itnessC NAX, T. 23 Novembe2r 009p . 60 (emphasiasd ded). tot W itnessC NAX,T .23 Novembe2r 009p p 58,59.S eea lsoT rialJ udgemenpt,a fas6. 43,769. rae SeeO rdero f 8 April 2011,p . 2. 30 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 ;Y\

2205/H the Indictment, including paragraphs1 8 and 43.2s0C onsidering that the Prosecution'sw ithdrawal was done in accordance with a Trial Chamber order, and that Nzabonimana provides no further justification for his claim, the Appeals Chamber dismisses Nzabonimana's argumentsi n this regard. (v) Conclusion 86. Based on the foregoing, the Appeals Chamber finds that Nzabonimanaf ails to demonstrate that the Trial Chamber erred in assessingt he credibility of WitnessesC NAI and CNAX and in relying on their testimonies in respect of the events at the Cyayi cenfte and the Nyabikenke communeo ffice on 14 and 15 April 1994. (b) Alleged Errors in AssessingD efenceE vidence 8'1. In relation to the events at the Cyayi centre and the Nyabikenke commune office, the Trial Chambera ssessetdh e testimonieso f DefenceW itnessesT24,T28,T3l, T150, T193, and Bernard Ndayisaba as well as the evidence of Defence Witness BCB from the Rukundo tiral.2sl Nzabonimana submits that the Trial Chamber excluded all the Defence evidence without justification."' In particular, Nzabonimanac hallengest he Trial Chamber's assessmenot f Defence evidencew ith respectt o: (i) the Cyayi centre on 14 April 1994; (ii) the participation of commune policemen during the Night and the Day Attacks at the Nyabikenke commLtne office; and (iii) firearm use during the Night and the Day Attacks at the Nyabikenke communeo

ffice. (i) The Cyayi Centre 88. In relation to the event at the Cyayi centre, the Trial Chamber noted that all Defence witnessesd enied that a meetins occurred.25T3h e Trial Chamberf ound the testimonieso f Witnesses 2so S eeT heP rosecutovr . CallixteN zabonimanaC,a seN o. ICTR-98-44D-TP, rosecutor'Ns oticet o the Defenceth atH e Will Not Be Requestinfgo r Convictionusn derP aragraph1s8 ,22,27,31,32,36,43,53 and5 5 of theI ndictment, 30 June2 011,p ara.7 . Seea lsoP rosecutioCn losingB ief, para.2 . "' 5"" Trial Judgemenpt,a ras.7 82-855,879-88869, 5-9019, 09,9 11, 912,914,916-926,928,9309, 32,9 34,935, 938-940.T he AppealsC hambern otest hat the Trial Chambera lso examinede xcerptso f FatherL erusse'st estimony from the Rukundot rial that the Defenceu sedt o challenget he credibility of WitnessC NAX. Seei bid., paras.9 18-924; seea lso infra, paru.l l2. 2t2 N zabonimanNa oticeo f Appeal,p ara.3 .1.3;N zabonimanAa ppealB rief, paras.6 1-78.T he AppealsC hambenr otes that Nzabonimanas ubmitst hat the Trial Chambere rredi n law and in fact in its assessmenotf the credibility of Defence Witnesses T24, T28, T150, and T193 by applying elroneous criteria. See NzabonimanaN otice of Appeal, para.3.1.3(2)N; zabonimanAa ppealB rief, para.6 1. As Nzabonimanafa ils to articulatew hich criteriaw as allegedly appliede rroneouslyt,h e AppealsC hamberw ill only examineh is factualc

hallengesA. lso, while the contentiont hat the Trial Chambere rroneouslye xcludede videnceo f pressureth at DefenceW itnessesT 24 andM poranzif acedi s raisedi n his Notice of Appeal,t he AppealsC hambero bservesth ath e fails to developt his in his AppealB rief. SeeN zabonimana Notice of ,tppeal,p ara.3 .1.3(7).H owever,u nderG rounds4 and 5, Nzabonimanach allengesth e Trial Chamber's credibilitya ssessmeonft WitnesseTs 24 andM poranzi.A ccordinglyh, is argumentws ill be examinedb elow.S eei nJra, peras.1 96-204,285-291 2tt Trial Judgemenpt,a n.819. JI "r) CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

T24, NdayisabaT, 28, andB CB of little or no probativev alue.2sWa hena ssessintgh et estimflWW,/H WitnessesT 193 and T150, the Trial Chamberh eld that: The Chamberr ecallst hat WitnessC NAI testifiedt hat both WitnessesT 150 and Tl93 were present at Cyayi centred uring the meetingo n 14 April 1994.W itnessT l93 was convictedb y a Rwandan court fbr his role in the genocide and was sentencedt o nine years' imprisonment. The Chamber considers that given that both witnesses are implicated as being affiliated with Nzabonimana at Cyayi centre,t hey may have reasont o distancet hemselvesf rom this allegation. Witness T150 testified that he neither saw nor heard of a meeting held at Cyayi celLule by Nzabonimana,a nd that no one mentioned the Cyayi meeting or Nzabonimana's words during the Cyayi Gacacu sessionsW. itness Tl93 testitiedt hat on 14 April 1994,h e passedt hrough Cyayi centre at 2.(X) p.m. but never saw Nzabonimana. Neither witness provided first hand testimony regarding what occurred at Cyayi centre at approximately 4.00 p.m. on 14 April 1994. The Chanrbert hus considerst hat the testimonyo f WitnessesT 150 and Tl93 are of limited probative value.

89. Nzabonimanas ubmitst hat the Trial Chambere rredi n treatingW itnessesT 193's and T150's testimonies with caution.2s6H e argues that, since they had no involvement in criminal activities linked with Nzabonimana'sa lleged crimes, they had no objective reasont o distancet hemselves.2sT According to Nzabonimana,b y stating that "both witnessesa re implicated as being affiliated with Nzabonimanaa t Cyayi centre", the Trial Chamberc onsideredt heir mere presencea t the scenet o be criminal anclu sedt his as the reasont o reject their testimonies.2-Ht*o wever, he maintainst hat, as per Witness CNAI's testimony,W itness Tl93 was at the Cyayi centre and his associationw as to protcct Munyagatare.2sNe zabonimana also challengest he Trial Chamber's considerationo f Witness Tl93's conviction as he was acquitted in relation to the attack atthe commune offtce.26o Furthermore,W itness Tl93's conviction was unrelated to events at the Cyayi centre or to Nzabonimanaa s it pertainedt o later events.26Nr zabonimanaf urther submits that the Trial Chamber contraclictedit self by rejectingt he evidenceo f WitnessesT 193 and T150 on the basis that both witnessesm ay have haclr eason to distancet hemselvesa s they were implicated as being affiliated with the event at the Cyayi centre, while, at the same time, finding that their testimonies lacked probative value as they were not present,26N2

zabonimana submits that, had the Trial Chamber correctlya ssessedth e testimonieso f WitnessesT 193 and T150, it could only have found that their t'o Trial Judgemenpt,a ras8. 81,8 84-886A. s to WitnessT 24,theT rial Chamberre calledit s findingt hatt hew itness's credibility was seriouslyu nderminedb y his admissiono f lying to Prosecutionin vestigatorsS. eeT rial Judgement, oara.8 80. 2" Trial Judgemenpt,a ras.8 82,8 83( internarl eferenceosm itted). 2s6 N zabonimanAap pealB rief,p aras6. 2-65.S eea lso AT.29A pril 2014p . 10' :t7 N zabonimanAap pealB rief,p aras6. 2,63.S eea lso AT.29 April2014p . 10. zs8 N zabonimanAa ppealB rief,p aras6. 2,6 4. Seea lso AT . 29 April 20l 4 p. 10' rse NzabonimanAa ppealB rief,p ara.6 3. :t"'Nzabonimana AppealB rief,p ara.6 5. :6r NzabonimanAap pealB rief,p ara.6 5. rt': N zabonimanAap pealB rief,p ara.6 6,r e.fbrrintgo TrialJ udgemenpt,a ra.8 83.S eeu lso AT.29 April 2014p p. 10,1 1. 32 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 i}\

2203/H testimoniesr enderedW itnessC NAI's evidencei mplausiblea nd,a s a consequencea, lso underrnined WitnessC NAX's testimonv,a s it corroboratedW itnessC NAI.263 90. The Prosecution responds that the Trial Chamber correctly rejected the claims of WitnessesT 193 and T150 that Nzabonimana was not at the Cyayi centre.26aT he Prosecution submitst hat the Trial Chamber was entitled to assessth e testimonieso f WitnessesT 193 and T150 against that of Witness CNAI.265 It further argues that Nzabonimana fails to address the Trial Chamber'sr easonsf or finding their testimonieso f limited probativev alue.'66 91. Nzabonimanar eplies that the Trial Chamber should not have found Witness CNAI, who testified to WitnessesT 193 and T150 being present at the Cyayi centre, credible becausei t had admitted as one alternativet hat both WitnessesT 193 and T150 were not at the Cyayi centre.26H7 e also contends that the reasonsp rovided by the Prosecutionf or the Trial Chamber to disbelieve WitnessesT 150 and T193 are absentf rom the Trial Judgement.268 gZ. Wirness CNAI testified that around 4.00 p.m. or 5.00 p.m. on 14 April 1994, aftet Nzabonimana'ss tatementa t the Cyayi centre,W itness T193 anived in a car with Witness T150, he stopped behind Nzabonimana's vehicle, got out, and walked towards Witness CNAI.26e Witness CNAI further testified that after Munyagatarew as threatenedW, itnessesC NAI

and T193 pushed Munyagatare down a slope away from the road.270S ubsequently,N zabonimana called WitnessT 193 and told him that they must go to the Remera centre "to finish off what they had started",W itnessT 193 gaveh is vehiclet o WitnessT 150, who had beeni n WitnessT 193's car, and Witness T193 left in a car with Kamali.2TrS ince Witness CNAI placed both Witness Ti93 and Witness T150 at the scene in association with Nzabonimana, the Appeals Chamber finds it reasonablef or the Trial Chamber to note that both Defence witnessesw ere implicated as being "affiliated" with Nzabonimana and "may have reason to distance themselves".272T he Appeals Chamber also notes that at no point did the Trial Chamber consider their mere presencet o be criminal. 263 NzabonimanaA ppealB rief, para.6 7. 2s ProsecutioRn esponsBer ief,p ara.5 3.S eea lso AT.29 Apt'rl2014p .35. 265 P rosecutionR esponseB rief, para.5 6. ztr prosecutionR eiponseB rief, para. 58, referring to ProsecutionR esponseB rief, para. 54 where the Prosecution submitsth att heT rial Chambehr ads everarl easonsto disbelieveW itnesseTsl 50 andT 193. 26i NzabonimanaR eply Brief, para.2 5. 268 NzabonimanaR eply Brief, para.2 5. 2ue W itnessC NAI, T. 26 November2 009p p.61, 65; WitnessC NAI, T. 27 November2 009p . 28 (closeds ession)'.S ee also TiaI Judgemenpt,a ras7. 51 - 753. 270 w itnessC NAI, T. 26 November2 009p .65; WitnessC NAI, T. 27 Novembe2r 009p .33 (closed session).S ee also Trial Judgemenpt,a ra.7 55. ,7t WitnessC NAI, T. 26 November2 009p .65; WitnessC NAI, T. 27 Novembe2r 009p . 31(closed session).S ee also Trial Judgementp, ara.7 56. "2 Ti.al Judgemenpt,a ra.882. JJ CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 ,i"*r,

93. The Appeals Chamber further observest hat the Trial Chamber referred toWitness2EO2/H 273 conviction "by a Rwandanc ourt for his role in the genocicle" but was aware that the witness was acquittedo f having a role in the communeo ffice attack.21Tah e Appeals Chamber again recalls that a trial chamberh as full discretiont o assessw itness credibility,2T5a nd notes that a witness's criminal history may be a factor in assessingc redibility.2T6N zabonimanaf ails to demonstrateh ow the Trial Chambere rredi n notingW itnessT 193's convictionw hen it assessehdi s credibility.

94. The Appeals Chamber also dismissesN zabonimana'sa llegation that the Trial Chamber contradictedit self. The Trial Chamber'sf lnding that WitnessesT l93's and Tl50's testimoniesa re of limited probative value is basedo n the fact that neither of them provided first-hand testimony regarding what occurred at the Cyayi centre at the relevant time.277T he Appeals Chamber understandst hat the Trial Chamber consideredt hat, even if they were fbund credible, it could not have relied upon them. The Trial Chamber determinedt hat they were unable to account for what occurred at the Cyayi centre at 4 p.m. when the meeting was fbund to have taken place.278In deed, befbre examining the probative value of their testimonies,t he Trial Chamber already applied a cautiousa pproachw hen it preferreclW itness CNAI's testimony.2TTeh erefore,t he Appeals Chamber finds no contradiction in the Trial Chamber's assessmentT. he Appeals Chamber dismisses Nzabonimana'sa rgumentsa lleginge rrorsi n assessingD efencee videncew ith respectt o eventsa t the Cvavi cenffe. (ii) Participationo f Conmr.rneP olicemena t the Nyabikenke Conmune Office 95. Based on the evidence of WitnessesC NAI and CNAX, the Trial Chamber found that the perpetrators of the Night Attack were commune policemen and Hutu civilians.280T he Trial Chamber stated: Defence Witness T28, also an eyewitness, denied that commune policemen were

involved. However, the Chamber notes that Witnesses T28 and BCB corroborated the Prosecution witnesses' testimony that commune policemen were present at the scene of the attack. The Chamber notes that while Witness T28 was not personally implicated in the attack, he was ''' TrialJ udgemenpt,a ra.8 82. ttt Trial Judgement,p ara. 904, re.t'erringto Exhibit D76B (Judgemento f Gitarama Court of First Instance, 20 March2 003),p aras.4 5-46,103-104. t" Se"t rpra, para.45. "o Cl'.B ogrtora and NsengiyumvaA ppeaJl udgementp,a ra.2 641K umuhandaA ppealJ udgementp,a ra.1 42. tt7 TrialJ udgemenpt,a ra.8 83. 27t T he Trial Chambern otedt hatW itnessT l93 testifiedt hath e passedth roughC yayi centrea t 2.00p .m. but nevers aw Nzabonimanaa nd WitnessT 150 testifiedt hat he neither saw nor herud of a meetingh eld at Cyayi celluLeb y NzabonimanSa.e eT rialJ udgemenpt,a ra.8 83. :7e TrialJ udgemenpt,a ra8. 82. t*" Trial Judgemenpt,a ras9. 02,9 10,9 39. 34 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 \.) v

2207/H indirectly implicated. The Chamber considers^^that,c onsequently, Witness T28 may have had a motive to distance himself from the allegation.2sr 96. The Trial Chamber found that porpetmtors of the Day Attack were commune pol\cemen, Interahamwe, and civilians.282T he Trial Chamber relied on Witness CNAX to find that commune policemenp articipatedi n the Day Attack. The Trial Chamberc onsideredW itness BCB's testimony that around 2.00 p.m. a policeman threw a grenadei nto a crowd of refugees,a nd determinedt hat this corroboratedW itness CNAX's testimony that commurzep olicemen were involved in the attack as perpetrators.2s3 97. Concerning the Night Attack, Nzabonimana submits that the Trial Chamber rejected Witness T28's testimony on the basis that he was "indirectly implicated" without further consideration.28Na zabonimana argues that the Trial Chamber could not reject Witness T28's testimony without explaining the meaning of "indirectly implicated" and by hypothetically finding that the witness could have something to hide, while at the same time, noting that he was not accusedo f anything.28N5 zabonimanaa vers that the lack of corroborationd oes not render Witness T28's testimony unreliable about the identity of assailants.28N6z abonimana contends that the questiono f reliability about the identity of the assailantsis distinguishablef rom the participationo f other

commune policemen.287N zabonimana also assertst hat the Trial Chamber failed to consider Witness BCB's testimonyt hat it was night time and that his colleaguesf ired into the air to repel the assailants.28Ins light of the Defencee vidence,N zabonimanas ubmitst hat the Trial Chamber should not have believed WitnessesC NAI and CNAX that communep olicemen participatedi n the Night Attack.2se 98. With respectt o the Day Attack, Nzabonimanas ubmitst hat the Trial Chamber failed to find that the testimony of Father Lerusse,w ho saw two policemen aiming their guns to prevent an attack,c orroboratedW itness BCB.2eOH e further submits that the Trial Chamber failed to consider Witness BCB's testimony that the policemen, save one, tried to protect the refugees from assailants.2eHl e claims that Witness BCB's evidence, that Father Rukundo arrived with five ttt Trial Judgementp, ara.9 00 (internalr eferenceo mitted). 282 Trial Judgementp, ans. 927, 939. 283 Tdal Judgemenpt,u a. 925. 2e NzabonimanAap pealB rief,p ara.6 8,r eferringt oTial Judgemenpt,a ra.9 00.S eea lsoA T. 29 April 2014p .51. 285 N zabonimanAap pealB rief,p ara.6 8,r eferringt o Trial Judgemenpt,a ra.9 00.S eea lso N|.29 April 2014p . 51. 286 N zabonimanaA ppeal Brief, para. 69, referring ro Trial Judgementp, ara.901. Nzabonimanas ubmitst hat the Trial Chamberf ound that only WitnessT 28 testifiedt hat it was raining during the Night Attack andt hat his evidenceo n this pointw ast husu ncorroborate,dS. eeid em.S eea lso AT.29 Apil20l4 pp.5 1,5 2. 287 N zabonimanaA ppeal Brief, para.

71. Nzabonimanaa vers that no reasonabletr ier of fact could have found that WitnessT 28, who was presenta t the scenei,g noredt hep articipationo f communep olicemen.S eei dem. 288 NzabonimanaA ppeal Bief , para.72. 28e NzabonimanAap pealB ief ,pua.72. 2e0 N zabonimanaA ppeal Brief, para.7 5. zet NzaboumanaA ppeal Bief , pan.75. CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 }\'

soldiers or gendarme.r,r endered Witness CNAX's testimony, that policemen were aiminQflCil)/H guns at Father Rukundo's approachingv ehicle, not plausible.2e2N zabonimana adds that the Trial Chamber should have questionedt he veracity of WitnessesC NAI's and CNAX's allegations concerning the behaviour of the commune policemen, in light of Witness T28 warning the communal authority after the attack,a nd WitnessesT 28 and BCB assistingt he wounded.2e3 99. As to the Night Attack, the Prosecutionr espondst hat Witness T28's evidence was rightly rejected.2eIat submits that Nzabonimana fails to demonstratet hat the Trial Chamber should have believed the Defence evidence and that Witness T28 had strong motives to deny that policemen were involved.2esW ith respectt o the Day Attack, the Prosecutionr espondst hat the Trial Chamber rejected Witness BCB's denial that the commune policemen also perpetrateda ttacks during the duy.'noT he Prosecutiona rguest hat FatherL erusse'st estimonyd id not corroborateW itnessB CB's evidence,a nd that Witness CNAX's evidenceo f police aiming fi.rearmsa t Father Rukundo was not implansible.t" The Prosecutiona dds that eviclencef rom WitnessesB CB, T24, and T28 about moving injured refugeest o a hospital,d oes not underminet he testimonieso f WitnessesC NAX and CNAI thatc ommuLrep olicemen participatedi n the Day Attack.2es 100. Nzabonimanar epliest hat

rejectiono f WitnessT 28's evidencei s even lessj ustifiable since the Trial Chamber admitted that conditions during the Night Attack rendered identification of assailants< iifficult.2eeW ith respect to Witness BCB, Nzabonimana submits that the Prosecution inappropriately discussedh is evidence, whose credibility was never examined by the Trial Chamber, and whose testimony was communicateda fter the end of the trial.300 101. Turning first to the Night Attack, the Appeals Chamber considers that, had the Trial Chamber explained what it meant by personal and indirect implication, it would have revealed protected information.3t" In these circumstances,i t was reasonable for the Trial Chamber to considert hat "Witness T28 may have had a motive to distanceh imself from the allegation".3O2 2e2 Nzabonimana Appeal Brief, para. 75. zer Nzabonimana Appeal Brief, para. 73. 2ea ProsecutionR esponseB rief, para. 60. 2es ProsecutionR esponseB rief, paras.6 1, 63. 2e6 P rosecutionR esponseB rief. para. 65. rot ProsecutionR e.bonseB rief. para.66. r"" ProsecutionR esoonseB rief. para.6?. 2ee N zabonimanaR eply Brief. para. 26. re.ferringr o Trial Judgement,p ara.901. r(n Nzabonimana Reply Brief, para. 21, re.t'bning/ o ProsecutionR esponseB rief, paras.5 9-67. r0r Sea Exhibit D37 (Protected Information Sheet). The Appeals Chamber notes that the Trial Chamber was clearly aware of its duty to provide a reasonedo pinion and to protect the identity of witnesses.S eaT rial Judgement,p aras.6 5, 66. tt" Trial Judgement,p ara. 9oo. 36 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 tl\-

2199/H lO2. As to identifying assailantst,h e Trial Chamberc onsideredt hat the conditions at the time of the attack, even under bright moonlight as testified by Witness CNAI, would have rendered the identification of individual assailants difficult.3o3 The Trial Chamber noted Witness T28's testimony that, as a result of the rainy weather,h e could not identify assailantsd uring the Night Attack.30aT he Appeals Chamber observest hat, by finding identification of particular assailants difficult at the time, irrespective of weather conditions, the Trial Chamber did not rely on Witness CNAI's testimony as to the bright moonlight, or on WitnessT 28's testimony as to the heavy rain, In the Appeals Chamber's view, any error from the Trial Chamber's rejection of Witness T28's evidence about the identity of assailants would not affect its reliance on WitnessesC NAI and CNAX to find that the perpetratorso f the Night Attack were comprised of commune policemen and Hutu civilians.305A ccordingly, Nzabonimana's arguments related to Witness T28 are dismissed.3o6 103. As for the Trial Chamber's alleged failure to considert he testimony of Witness BCB, that commune policemen fired into the air to repel the assailants,t he Appeals Chamber recalls that the fact that certain evidence has not been referred to in the Trial Judgement does not mean that the Trial Chamber did not take it into

accounti n its assessment.3I0nT a ny event, the Appeals Chamber considerst hat Witness BCB's testimony on this matter is not incompatible with the finding that commune policemen participated in attacking Tutsi refugees. The Appeals Chamber further notes that, beyond stating his argument,3o8N zabonimana fails to substantiateh ow the Trial Chamber ened in this regard. Based on the above, the Appeals Chamber is not persuadedt hat the Trial Chamber unreasonablyr elied on the testimonies of Witnesses CNAI and CNAX to find that commune policemen were involved in the Night Attack. The Appeals Chamber therefore considers that Nzabonimana has failed to demonstrate that no reasonablet rier of fact could have relied on their testimoniest o reachs uch findins. 30' Trial Judgementp, ua.901. '* TrialJ udgemenpta, ra9. 01.S eea lsoW itnessT 28,T.2 June2 010p p.51,52( closeds ession). tot Trial Judgemenpt,a ras9. 02,9 10,9 39. t* The Appeals Chamberr ejects Nzabonimana'sc ontentiont hat no reasonabletr ier of fact could have found that WitnessT 28 ignoredt he participationo f communep olicemen.T he Trial Chamberd id not makes ucha finding and the AppealsC hamberr ecallst he reasonablenesosf the Triat Chamber'sc onclusiont hat WitnessT 28, might have had a motive to distanceh imself. 301 S eeK alimanzira AppeaJl udgementp, ara. 195;S imba AppealJ udgementp, an. 152.W ithout providing

references, Nzabonimanam aintainst hat Witness BCB's testimonyw as corroboratedb y WitnessT 28's testimony.T he Appeals Chambern otest hat the transcriptso f WitnessB CB's testimonyw erea dmittedin to evidencea ndc onsideredp rima facie exculpatory.S ee The Prosecutor v. Callixte Nzabonimana.C aseN o. ICTR-98-44D-T, ConsolidatedD ecision on DefenceM otion for AppropriateR elief in Light of hosecution's DelayedD isclosuret o the Accusedo f Exculpatory Evidence,D efenceM otion in Light of The Trial Chamber'sP roprio Motu Order of 15 March 2012, and Defence Motion Pursuantto theT rial Chamber'sO rdero f 4 Apil2012,30 April 2012( *30 Apil2012 Decision"),p ara. 128. 308 N zabonimanaA ppealB rief, para.1 2.The AppealsC hambern otest hat Nzabonimanas imply referst o paragraph8 44 of the Trial Judgemenwt ithout further supportf or his argumenl JI i--r*,: \i \ CaseN o.: ICTR-98-44D-A 29 September2 014

104. Turning to the Day Attack, the Appeals Chamber first recalls that the Trial Chfrrffi8/H consideredF atherL erusse'se vidence,E xhibit D62, to be of "very little probativev alue".30eIt noted that the exhibit was not introduced into evidenceu nder Rule 92bls of the Rules, which would have afforded the Prosecutiont he opportunity to cross-examineF ather Lerusse.3lt'Howeue., the Trial Chamber determinedt hat, in the interestso f justice, it would consider substantivea spectso f Father Lerusse's testimony as contained in Exhibit D62 and insofar as it impacted the credibility of Witness CNAX.3I' When assessingt he Defence's challenge to the Prosecutione vidence that commune policemen participated in the Day Attack, the Trial Chamber explicitly consideredt he substanceo f Father Lerusse'st estimony from the Rukundo case that two commuLzep olicemen defendedt hec ommuneo fflce.3r2Inc omparingt he evidenceo f WitnessC NAX and FatherL erusse, the Trial Chamber noted Father Lerusse's admission that he lost sight of the communep olicemen and consideredt hat he was unable to provide a reliable account of the communep olicemen's r3 activitiest hat clay.3 105. The Appeals Chamber observes that the Trial Chamber did not explicitly consider that Witness BCB corroborated Father Lerusse's evidence on the role of commune policemen.3la However, as recalled above, the fact that certain evidence

has not been referred to does not mean that it was not taken into account in the Trial Chamber's assessment.3rFsu rthermore,t he Appeals Chamber notes that the Trial Chambere xplicitly took into accountW itness BCB's testimony that a policeman threw a grenade at refugees, thus corroborating Witness CNAX's evidence that commLtnep olicemen were involved in the Day Attack.3r6F inally, the Trial Chamber explicitly consicleredth at police officersa ssistedw oundedr ef'ugees.3Iln7 any event,t he AppealsC hamberis unable to see how evidence of their assistingT utsis undermines the reasonablenesso f the Trial Chamber'sf inding that communep olicemenp articipatedi n the attack.

106. On the basis of the foregoing, the Appeals Chamber dismissesN zabonimana's arguments that the Trial Chamber ened in its assessmento f the Defence evidence to find that commune policemen participatedi n the Night and Day Attacks, 'u' Trial Judgement,p ara. 919. '"'Trial Judgementp, ara.9 19. i" Trial Judgementp, ara.9 19. ''' Trial Judgementp, ara.923. ''' Trial Judgement,p ara.923. 3ra SaeT rial Judgement,p ara. 923. ttt 5", sulrru, para.

103. The Appeals Chamber recalls that there is a presumption that a Trial Chamber has evaluateda ll the evidence presentedt o it, provided that there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. See, e.g,.,B izimungu Appeal Judgement,f n.'766; Ntubakuze Appeal Judgement,f n. 357; Bugosoru and Nsenl1iltumvaA ppeal Judgement,f n.625. t'o Trial Judgement,p ara.925. '"' Trial Judgementp, ara.917. 38 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 \-t ),

2197/H (iii) Firearms Use at the Nyabikenke Conrmrne Office 107. The Trial Chamber determined that Hutu civilians and commune policemen were armed with firearms, grenades,a nd traditional weaponsd uring the Night Attack.3l8I t also found that the assailantsu sedt raditional weapons,a s well as firearmsa nd grenadesd uring the Day Attack.3le 108. Nzabonimanas ubmits that the Trial Chamber failed to provide a reasonedo pinion on the use of firearms during the Night Attack.32oH e arguest hat after finding that WitnessesB CB and T28 corroboratedW itnessesC NAX and CNAI on the use of grenades,t he Trial Chamber also made conclusionso n the use of firearms without factual analysis.32Nl zabonimanaf urther submitst hat the Trial Chamberd istorted the testimonyo f WitnessesT 24 and Ndayisabaw hen using their evidence to corroborate the use of firearms in the Day Attack.322H e argues that Witness Ndayisaba testified to not having seen or heard firearms and Witness T24 to not having been told about firearms.323 According to Nzabonimana, the Trial Chamber did not consider Witness BCB's evidence that FatherR ukundo arrived and confiscatedt he assailantst' raditional *"upons."o 109. The Prosecution responds that the Trial Chamber reasonably concluded that after Nzabonimana's intervention attacks escalateda nd attackersu sed flttearms,a s opposed to only traditional weapons."s It submits that

Defence witnessesc orroboratedt he use of firearmsand grenades.326 110. Turning first to the Night Attack, the Appeals Chamberrejects Nzabonimana'ss ubmission that the Trial Chamber failed to provide a reasonedo pinion. Having consideredt hat WitnessesT 28 and BCB corroboratedt he testimony of Prosecutionw itnesseso n the use of grenades,t he Trial Chambers tated:" [t]herefore, the Chamberc oncludest hat the assailantsw ere armed with firearms, grenadesa nd traditional weapon. [...]"."t It is clear that this sentencew as a summary of the Trial Chamber's findings. Notably, in the preceding paragraph the Trial Chamber found that WitnessesC NAI and CNAX "both agreed that the assailants were armed with grenades and fi.rearms".32N8 zabonimana fails to demonstratet hat the Trial Chamber erred in that regard. 3lt Trial Judgemenpt,a ras9. 13,9 39. 3te Trial Judgementp, aras9. 27, 939. 320 NzabonimanaA ppeal Bnef, pal:a7. 4 . 321 NzabonimanaA ppeal Brief, para.7 4. 322 N zabonimanaA ppeal Brief, para.7 6. 323 N zabonimanaA ppeal Brief, para.7 6. Nzabonimanaa rguest hat this is corroboratedb y WitnessT 28. Seei dem. 324 N zabonimanaA ppeal Brief, para.7 1, referringt o Tial Judgementp, ara.8 54. 32s ProsecutionR esponseB rief, para.6 8. 326p roseculionR esponseB rief, paras.6 8, 69. At the appealh earing,t he Prosecutions ubmittedt hat Kamali distributed at leasto neg renadeS. eeA T. 29 April 201'4p - 29. ttt Trial Judgementp,a ra.9l2. 328 SeeT ial Judgementp, ara.9 l 1. '^.4 t) CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

t I l. With respectto theD ay Attack,W itnessC NAX testifiedt hatt he assailantuss edf ireafllflOn Accorcling to the Trial Chamber, Witnesses T24 and Ndayisaba corroborated Witness CNAX's testimony that assailantse mployed "firearms and grenades" during this attack.llt) However, in coming to this conclusion,t he Trial Chamber only noted that Witness Ndayisaba testified that he heard an explosion and that Witness T24 leamed that Father Lerusse barely escapeda grenade attack.33Al s summarisedi n the Trial Judgement,W itness Ndayisabad enied that firearms were used and Witness T24 was not told that firearms were used.33C2 onsequently,n o reasonablet rier of fact could find that the two Defence witnessesc orroboratedW itness CNAX on the use of firearms during the Day Attack and the Appeals Chamberf inds that the Trial Chambere rred in this respect. Il2. However, this error does not occasion a miscariage of justice as it has no impact on the Trial Chamber's finding that firearms were used during the Day Attack. The Appeals Chamber recalls that it acceptedt he Trial Chamber's finding on the participationof commune police during the Night Attack.333T he Appeals Chamber also recalls evidence that policemen carried firearms during attacks at night33aa nd during the day.33sW ith respectt o the Day Attack, the Trial Chamber explicitly consideredD efences ubmissionsth at FatherL erusse'se

videncer efutedW itnessC NAX's testimony that two commune policemen were aiming their guns at Father Rukundo's approaching vehicle.336In responding to Defence arguments,t he Trial Chamber dicl not consider that Father Lerusse was able to provide a reliable accollnt of the commune policemen's activities, given his admission that he lost sight of the communep olicemen.33N7 zabonimanaf ails to demonstrateh ow the Trial Chamber erred in relying on Witness CNAX's evidence to find that firearms were used during the Day Attack. Based on the above, the Appeals Chamber linds it reasonablef or the Trial Chamber to conclude that firearms were used by assailantsw, hich included communep olicemen, in the Day Attack.338 ll3. Finally, in summarisingW itness BCB's testimony,t he Trial Chambern oted his evidence that Father Rukundo arrived and confiscated traditional weapons.tte The Appeals Chamber therefbrec onsiderst hat the Trial Chamberd id not ignoret his aspecto f WitnessB CB's evidence.I n rt'Witness C NAX, T. 23 Novembe2r 009p p.59,60.S eea LsoT rialJ udgemenpt,a ras9. 15,923. 1"1"0 T- ria,l,J ud, gemenpt,a ra.924. tt' TrialJ udgemenpt,a ra.924. ttt WitnesTs 24,T.26 April 2010p .55 (closedse ssionW); itnessN dayisabTa.,2 8 March2 0ll pp. 11,26.S eea lso Trial Judgemenpt,a ras7. 90 (WitnessT 24),829( WitnessN dayisaba)' '3t 5"" supra,p aras1. 02,1 03. 334 ,S eWe itnessC NAI,T . 26 Novembe2r 009p p.6 8,6 9;T rialJ udgemenpt,a ras7. 61,897. ttt WitnessC NAX,T . 24 Novembe2r 009p . 31 (closeds essionT);r ialJ udgement,para.923. tto Trial Judgementp,a ra.9 23. "' TrialJ udgemenpt,a ra.923. rrt Trial Judgementp,a ras9. 27, 939. tt'Trial Judgemenpt,a ra8. 54. 40 'ff=" CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2195/H any event, Nzabonimana fails to demonstrateh ow this evidence impacts the finding that firearms were used. 1I4. Accordingly, the Appeals Chamber dismissesN zabonimana'sa tgumentsi n relation to the use of firearms in the Night Attack atthe commune offtce and finds that the Trial Chamber's error on the corroborationf rom WitnessesT 24 andNdayisabao n firearms use in the Day Attack doesn ot occasiona miscarriageo f iustice. (iv) Conclusion 115. Based on the foregoing, the Appeals Chamber finds that Nzabonimana has failed to demonstratet hat the Trial Chamberc ommitted any error in its assessmenot f Defence evidence in relation to the events at the Cyayi centre and the Nyabikenke commune office on 14 and 15 April 1994 that would occasiona miscarriageo f justice.3a0 (c) Conclusion 116. The Appeals Chamberd ismissesN zabonimana'sa rgumentsi n relation to the assessmenot f evidence under his Third Ground of Appeal.

3. Direct and Public Incitement to Commit Genocide Il7. The Trial Chamber convicted Nzabonimana of direct and public incitement to commit genocide based,i n part, on his conduct at the Cyayi centre on 14 April 1994.34Irn particular, it determinedt hat Nzabonimana'ss peech,w hich consistedo f an explicit call to kill Tutsis, constituted a direct call to commit genocide.3aT2h e Trial Chamberf ound that Nzabonimana'sc onduct satisfied the public element of the crime.3a3T he Trial Chamber further found that Nzabonimana had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group and to directly incite those presentt o commit genocide.3a 118. Nzabonimana submits that the Trial Chamber erred in law and in fact by characterising the incitement as "public".3asN zabonimana avers that the Trial Chamber erred in law by failing to take 'oo T he AppealsC hambera lso dismissesN zabonimana'sg eneralc laim, raisedi n the Noticeo f Appealb ut undeveloped in his Appeal Brief, that the Trial Chamberr epeatedlyv iolated his right to a fair trial in its assessmenot f Defence evidenceS. eeN zabonimanNao ticeo f Appeal,p ara.3 .I .3(1 ). 'otTrial Judgemenpta, ras1. 768,1 775,1 800. 302 Trial Judgementp, an. 1165. 'o'Trial Judgemenpt,u a. 1166. '* Trial Judgemenpt,u a. 1767. 3as N zabonimanNa oticeo f Appeal,p an.3.2; NzabonimanAa ppealB rief, paras.8 0-93.' lee also AT.29 Apil 2014 p. 11.N zabonimana'asr gumenot n the corroboratiobne tweenW itnesseCs NAI and CNAX (seeN zabonimanAa ppeal Briel para.9 l) hasb eene xaminedin thep reviouss ectionS. ees upra,p aras.8 1-84.T he AppealsC hambers ummarily e-\ 4l CaseN o.: ICTR-98-,14D-A 29 Septembe2r0 i4

into account and properly apply the jurisprudence.3aI6n particular, he argues that the nun&|9t1/H persons present, though not to be used strictly, is an essential factor that should be taken into account when assessingt he public charactero f the incitement and that the Nahimana et al. and Kalimanzira Appeal Judgementsc haracteriseds peechesf rom a vehicle as a "conversation".3aT Nzabonimanas ubmits that the Trial Chamberc ircumventedt he elementso f the crime when relying on Nzabonimana'si ntention to be heard by anyone in the area to determinet hat "he was not heard by an exclusivea nd limited group".348H e considerst hat through this "a contrario" reasoninga nd the finding that "[t]he witnessesd id not indicate the specific audience to whom the speechw as addressed" the Trial Chamber admitted that the public element and the audience were not established.3teN zabonimana assertst hat the findings were vitiated from the start when the Trial Chamber consideredi t unreasonableto require WitnessesC NAI and CNAX to remembert he exact number of people presenta nd Nzabonimana'se xact words.35F0 urther, Nzabonimanac laims that the Trial Chamber infbrred his intention fiom the fact that he summonedW itness CNAI, while at the samet ime not believingt his aspecto f the witness'se vidence.3s: 119. Nzabonimanas ubmits that the f'actsc orrespondt o private, rather than public, incitement as

Witness CNAI describedp rivate discussionsb etween Nzabonimana,s eatedi n his car, and specific persons,i ncluding the witness.35N2 zabonimanas ubmits that the Trial Chamber should have found that only Witness CNAI was the direct recipient of his words, and that his deputy, Kamali, WitnessT 193, and Munyagatarew erei ndirectl isteners.3s3 120. The Prosecutionr espondst hat the Trial Chamberc onectly convicted Nzabonimanao f direct and public incitement to commit genocide fbr the event at the Cyayi centre.3s4T he Prosecution dismissesN zabonimana's undevelopeds ubmissiont hat the Trial Chamber rejected all testimonieso f the witnessesw ho were in the area but who testified to not being informed of similar words (see Nzabonimana Appeal Brief, para. 88). It recalls that Nzabonimana's challenges to the assessmento f Defence evidence have been examined in the previous section.S ees upra,p aras.8 8-94. ra6 N zabonimanaN otice of Appeal, para.3 .2.1;N zabonimanaA ppeal Brief, paras'8 0-83. ra7 SeeN zabonimanaA ppeal Brief, paras.8 1, 83. 348 N zabonimana Appeal Brief, para.

86. Seea lso NzabonimanaR eply Brief', para' 32' rae N zabonimana Appeal Brief, para. 86 (French version). Seeu lso NzabonimanaR eply Brief, pnra. 3 | . 3t') N zabonimana Appeal Brief, para.

85. Nzabonimanaf urther submits that the Trial Chamber distorted the testimony of Witness CNAX, who stated there were "less than" 30 people, when it determined that there was a "crowd" of "approximately" 30 people. See Nzabonimana Appeal Brief, para. 92, ref'erring to Trial Judgement, paras. 769, 869, l'763. See also AT.29 April 2014 p.

11. At the appeal hearing, Nzabonimana also argued that Witnesses CNAI and CNAX did not corroborate each other on Kamali's and WitnessesT 193's and T150's presencea t the Cyayi centre. 'lee AT.29 April 2014p .53. r5r Nzabonimana Appeal Brief, para.

86. Seea /so NzabonimanaR eply Brief, para. 32; AT . 29 April 2014 pp. 11, 12. 352 Nzabonimana Notice of Appeal, para. 3.2.2; Nzabonimana Appeal Brief, paras. 89, 90, 93. See also AT.29 April 2014p . I L 3s3 N zabonimana Appeal Brief, piua.

90. See also Nzabonimana Reply Brief, para.

32. Nzabonimana argues that no public has been called, except Witness CNAI allegedly, and from its factual findings there was no "speech" made during a "meeting". Sce Nzabonimana Appeal Brief, para' 89. rsa ProsecutionR esponseB rief, para.7 6. 42 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 a\^r{. v "tJ

2193/H submits that Nzabonimana ignores the law and evidence.'ssI t contends that Nzabonimana's incitement meets the Akayesu definition356fr om the InternationalL aw Commission, according to which incitement is public if it is made "to a number of individuals in a public place".357T he Prosecutions ubmits that Nzabonimana'sr eliance on the Nahimana et al. and Kalimanzira Appeal Judgementsis misplaceda s in both casest he inciting remarks were given to restricted groups of militia members manning roadblocks."t The Prosecutiona rgues that Nzabonimana inconectly claims that he summonedW itness CNAI whereast he evidences hows that Kamali called Witness CNAI to listen to Nzabonimana'sa ddress."'The Prosecutions ubmitst hat Nzabonimana'sc laim on the Trial Chamber'sf inding in relation to the exact numbero f personsa t the Cyayi centre,o r on his exactw ords should be dismisseda s he providesn o reasont o supporti t.360 l2l. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide,p ursuant to Article 2(3)(c) of the Statute,i f he or she directly and publicly incited the commissiono f genocide( actus reus) andh ad the intent to directly and publicly incite others to commit genocide (mens rea).361S uch intent in itself presupposesa genocidal intent.362 I22. The Appeals Chamber observest hat the Trial Chambere xplicitly

consideredt he Appeals Chamber's jurisprudence noting that all convictions before the Tribunal for direct and public incitement to commit genocidei nvolve speechesm ade to large, fully public assemblies,m essages disseminatedb y the media, and communications made through a public address system over a broad public ar"a.363It also recalled the holding in the Kalimanzira Appeal Judgement that the travauxp rdparatoires of the Genocide Convention confirmed that "public" incitement to genocide oertainst o massc ommunications.36a 355 P rosecutioRne sponsBe ief , para.77. 356 ProsecutioRne sponsBe rief,b ara.7 8. 3s7 P rosecutionR esponseB rief, para.7 7, rejbrring to Draft Codeo f Crimesa gainstt he Peacea nd Securityo f Mankind with commentaries1, 996,R eporto f the InternationalL aw Commissiono n the deliberationso f its forty eighth meeting, 5 I U.N. ORGA Supp.( No. l0), reproduceidn theY earbooko f InternationaLla w Commission1, 996,v ol. II (PartT wo) ("Draft Codeo f Crimesa gainstt he Peacea nd Securityo f Mankind"), p.22; AkayesuT rial Judgementp, aras.5 56,6 '74. The Prosecutions ubmitst hat the AkayesuT rial Chamberc onvictedA kayesuo n the basis of this definition and the AppealsC hamberd id not disturb its findings. Seei dem. The Prosecutiona lso submitst hat whether Nzabonimana's wordsw erea remark,n ot a speechi,s irrelevant.S eei bid., para.7 8. 358 ProsecutionR

esponseB rief, para.8 3. 35e P rosecutionR esponseB rief, para.7 9. According to the Prosecutiond uring the appealh earing,N zabonimanau sed the pluralf orm in his statemenat ndw as "addressinga plurality of persons"S. eeA T. 29 April 2014 p.31. 360 ProsecutioRne sponsBe rief,p ara.8 l . 361 K alimanzira Appeal Judgement,p ara. 155; Bikindi Appeal Judgement,p ara. 135; Nahimnna et al. Appeal Judgemenpt,u a.671. 362 N ahimara et at. AppealJ udgement,p an.671 , citing AkayesuT rial Judgementp, ara.

560. Seea lso Mugenzi and MugiraneTaA ppealJ udgementp, ara.1 35;B ikindi AppealJ udgementp, ara.1 35. 363 S eeTfraJl udgementp, ala. 1754,r efening to KalimanziraA ppealJ udgementp, aras.1 55, 156. 3e SeeTialJudgemenpt,a ra.1 754S. eea lsoK alimanziraA ppealJ udgemenpt"a ra.1 58. 43 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 ,]1,^? \J

123. The Trial Chamber further consideredt hat in its assessmenot f the public elementfrfiA2/H incitement, it "may consider the surroundingc ircumstances,s uch as the place where the incitement 'public' occurred and whether the audiencew as selectiveo r limited. Incitement is when conducted through speechess, houtingo r threatsu tteredi n public placeso r at public gatherings".36s 124. The Appeals Chamber turns to the Kalimanzira Appeal Judgement,w hich Nzabonimana relies on to argue that the number of persons is an indispensablef actor to determine the public element.36T6h e Appeals Chamber observest hat the Kalimanzira Appeals Chamber did not rule on the definition of the public element given by the Kalimanzira Trial Chamber, which recalled the definition from the Akayesu Trial Judgement,a nd did not specify whether the number of persons present is an essentialf actor. On the one hand, the Kalimanzira AppealsC hamber concluded that the Tribunal's jurisprudence and other sources indicated mass communication to be a factor, implying that the public element of direct and public incitement coresponds to a large audience.367 On the other hand, the Kalimanzira AppealsC hamber reversedt he convictions on the basis that recipients of the incriminating messagew ere not intended to be the general public.368I t is thus unclear whether the Kalimanzira Appeals Chamber considered the size

of the audience to be a requiremento f public and direct incitement as opposedt o whether the audiencec an also be selected or limited. In fact, in both the Nahimana et al. andK alimanzira cases,t he Appeals Chambero pined that the "general public" was not the recipient of the messageo r consideredt hat the messagew as not intendedt o be for the generalp ublic.36' 125. Consideringt hat the jurisprudenceo f the Appeals Chamberd oes not specify whether a large audience is a requirement for direct and public incitement to commit genocide, the Appeals Chamber will turn to the definition given by trial chambers,37w0h ich recalls the definition from the Akayesu Trial Judgement. Ref'erring to various sources of international law, the Akayesu Tial Chamber elaboratedo n the definition of the public element of the crime of incitement to commit genocide. It noted a 1996 report of the International Law Commission that defined "public incitement" as "a call for criminal action to a number of individuals in a public place ot to members tt" Trial Judgement,p ara. 1755, re.fbrringt o Muvun\ti 11A ppeal Judgement,p ara.

21. The Appeals Chamber notes that the Trial Chamber mistakenly ret-erst o the Appeal Judgement in the Muvunyl case, while the quote comes from the Trial Judgementi n the same caser enderedo n retrial. SeeM w,unyi II Trial Judgement,p ara.27. 366 S ee Nzabonimana Appeal Brief, para. 81, re.ferringt o Kalimanzira Appeal Judgement,p zras. 15I - I 65. 3u1 Kalimanz.ira Appeal Judgement,p aras. 156, 160, fn. 410. so8 Kulimanz.iraA ppeal Judgementp, eras.l 6l-165. to" Nahimara et ul. AppealJ udgement,p ara. 862; Kulimanzira Appeal Judgement,p aras. 161, 164. t"'MuvunyillTrialJudgement, para.27.T hisTrialJudgementwasrenderedonretrial.TheAppealsChamberfurther notes that this passageo f the Muvunyi Trial Judgement was in turn based on the Kalimunzira Trial Judgement. See Muvunyi 1/ Trial Judgement, fn. 42, re.ferring to Kalimanz.ira Trial Judgement, para.

515. The Kalimanzira Trial Judgement is in turn based on Akayesu Trial Judgement. See Kalimanzira Trial Judgement, para. 515, re.fbrring to Akryesu Trial Judgementp, aras.556,559.S eea lso Niyiteg,ekTa rial Judgementp, ara.431. M CiiseN o.: ICTR-98-44D-A 29 Septembe2r0 14 bt<'

2191/H of the generalp ublic at large by such meansa s the massm edia,f or example,r adio or television".371 It also consideredt hat the Civil Law systemsu nderstoodw ords as being public when "spoken aloud in a place that were [slc] public by definition".372 126. Contrary to Nzabonimana'ss ubmissions,t he Appeals Chamber does not consider that the incitement must necessarilyb e communicatedt hrough mass communicationi n order to amount to "public" incitement within the meaningo f Article 2(3Xc) of the Statute.T he number of individuals in the audiencei s not an elemento f the crime of direct and public incitementt o commit genocide. Though the Kalimanzira Appeal Judgement noted that the Tribunal's jurisprudence includes convictionsi nvolving "speechesm ade to large, fully public assemblies"i,n the Appeals Chamber's view, it does not foreclosec onvictions based on communicationst o smaller audiencesw hen the incriminating messagei s given in a public spacet o an unselecteda udience.T he Appeals Chamber notest hat the travaux priparatoires of the GenocideC onventiond o not contradict,b ut supportt his position by stating that public incitement was understood as "public speecheso r in the press, through the radio, the cinema or other ways of reaching the public", though it expresslye xcluded "private" incitement.3t' The International Law Commission confirmed that the

indispensable element of public incitement requiresc ommunicating "the call for criminal action to a number of individuals in a public place or to memberso f the general public at large.T hus, an individual may communicatet he call for criminal action in persont n a public place or by technicalm eanso f mass communication,s uch as by radio or television".3Ta I27. Consequently,t he Appeals Chamber detects no error in the Trial Chamber applying the definition of "public" as stated in the Muvunyi, Niyitegeka, Kajelijeli, and Akayesu Tial Judgements.I ndeed, though most convictions for direct and public incitement involve mass communication,a smallera udiencei s also consistentw ith internationall aw accordingt o which: [The Trial] Chamber may consider the surrounding circumstances, such as the place where the 'public' incitement occurreda nd whether the audiencew as selective [sic] or limited. Incitement is 31t A kay"suTrial Judgement,p ara. 556 (emphasisa dded),c iting Draft Code of Crimes againstt he Peacea nd Security of Mankind. 3'2 Aknyesu Triat Judgement,p ara.

556. The Appeals Chamber also notes that a court in a common law jurisdiction interpreted "public incitement" as a message" delivered in a public place at a public meeting". See Mugesera v. Canada (Minister of Citizenship and Immigration) 1200512 SCR 100, para. 94, where the Supreme Court of Canada stated that Mugesera's "messagew as delivered in a public place at a public meeting and would have been clearly understood by the audience". 373 H irad Abtahi & Philippa Webb, The Genocide Convention: The Travaw Prdparatoires (Leiden-Boston: Martinus Nijhoff Publishers,2 008), p. 986 (emphasisa dded).H owever, this exclusion does not result in the non-criminalisation of incitement on a smaller scalep er se. 3'o See Draft Code of Crimes Against the Peace and Security of Mankind, p. 22, commentary on Article 2(3)(0 (emphasis added). The International Law Commission also specifies that the "public appeal for criminal action increases the likelihood that at least on individual will respond to the appeal and, moreover, encourages the kind of 'mob violence' in which a number of individuals engagei n criminal conduct". See idem. A< i4 CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 i4

when conq_Uctethdr ough speechess houtingo r threatsu ttered in public placeso r at pubric 21QO/H gatherings"' 128. It is clear from the legal findings in relation to the Cyayi centre that the Trial Chamber consideredt he place and the audiencea s factors to assessth e public element.37A6 s stateda bove,t he number of personsp resenti s not an essentialf actor in this assessmentA. s to speechesm ade from a vehicle, the Appeals Chambern otes that the Kalimanzira AppealJ udgementd id not qualify them as conversations.3ttI t was the nature of Kalimanzira's presence and exchanges with those at the roadblockst hat were in line with a conversationr ather than speakingf rom a vehicle.378 129. The Appeals Chamber now turns to Nzabonimana'sa rgumentt hat the Trial Chamber relied on his intentiont o establisht hat he was not heardb y an exclusivea nd limited group.37Ien assessing the public element,t he Trial Chambers tated:" [t]he fact that WitnessC NAI was summonedo ver, and that EvaristeM unyagatarea, Tutsi, was also present,e stablishesb eyondr easonabled oubt that the words were intended to be heard by anyone in the area, rather than an exclusive and limited group".3rJR0 ecalling the definition of direct and public incitement to commit genocide,t he Appeals Chamber notes that establishing the public element requires not only that the accusedp ublicly incited (actus reas), but also

that the accusedh ad the intent to incite publicly (mens reaS.38T1h e Trial Chamber concluded that Nzabonimana'sc onduct satisfiedt he public element of the crime but failed to explicitly state whether it was making a finding on the oclus reus or mens rea or both. However, the Appeals Chamber observest hat in this specific instance,t he facts used by the Trial Chambert o establisht he public element- the public location,a crowd of approximately3 0 people, and audience that was not selectedo r limited - showed that the incitement was public and that Nzabonimana intended it to be so. In this context, the Appeals Chamber considers that the Trial Chamber made an assessmenot f both the actus reus and mens rea of the public element basedo n the same facts. While the Trial Chamber could have been clearer, the Appeals Chamber does not consider that the Trial Chamber used the mens rea to prove the actus reus, or that the Trial Chamber indicated that the oublic characterw as not established.

130. The Appeals Chamber is also not persuadedt hat the Trial Chamber acknowledgedt hat the audience was not established when stating that the "witnesses did not indicate the specific tt'Trial Judgement,p ara. 1755.S eea lso Muvunyi /1 Trial Judgement,p ara.27; Kujelijeli Trial Judgement,p ara.85l ; Nit,itegekaT rial Judgement,p ara. 431 Rugl4iuJ udgementa nd Sentence,p ara. 17 Akayesu Trial Judgement,p ara. 556. ''o,See Trial Judgement,p ara.1 766. '"' Kalimanz.ira Appeal Judgement,p ara. 159. 118 KaLimanzira Appeal Judgement,p ara. 15 9. The Appeals Chamber observest hat in the Kalimanziru casei t concluded that the Nahimana et al. Appeal Judgementw as directly applicable to Kalimanzira's convictions as the underlying facts were similar in both cases. l7e SeeN zabonimana Appeal Brief, para. 86; NzabonimanaR eply Brief, para. 32. r*u Trial Judgement.p ara.1 766. ;n' Sees upru, para.l 2l, 46 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 ,\:-\a\ v

2189/H audience".3t'In fitrding that the audiencew as not limited or exclusive,t he Trial Chamber recalled Witness CNAX's description of a crowd of "approximately 30 people", and the fact that Witness CNAI was summonedo ver, in the presenceo f Munyagatare,a Tutsi.383F urthermore, the Trial Chamber was merely noting minor differences between accountso f Witnesses CNAI and CNAX when it found that "it would be unreasonableto expect the witnessest o provide matching verbatim accountso f such details as to the number of peoplep resenta nd the exact words spokenb y Nzabonimanaa nd Munyagatare".38T4h e Appeals Chamber does not detect any elror in the Trial Chamber'sa naiysis.

131. The Appeals Chamber now turns to Nzabonimana'sc laim that the Trial Chamber inferred his intention from the fact that Witness CNAI was sufi]moned over by Nzabonimana, while not believing this aspecto f the witness's testimony.3sTt he Appeals Chamberf irst observest hat at no point does the Trial Chamberf ind that Nzabonimanas ummonedt he witness.38T6h e Trial Chamber made no explicit factual finding as to who summonedW itness CNAI over to Nzabonimana and simply statedt hat "Witness CNAI was summonedo ver" in its legal findings.38B7 asedo n the above, Nzabonimana fails to demonstratet hat the Trial Chamber erred. I32. The AppealsC hamberr ecalls that the Trial Chamberr elied on the public location, a crowd of approximately 30 people,388a nd an audiencet hat was not exclusive or limited to find that the incitement was public.3seA ccordingly, whether Witness CNAI testified to Kamali calling him to listen to Nzabonimana'ss peech or to hear what Nzabonimanaw as going to tell him personally would not convert the public character of the incitement, as reasonablyf ound by the Trial Chamber, into private discussionsb etween Nzabonimanaa nd specific persons.'noM oreou"r, Witness CNAI 382 S eeN zabonimanAap pealB rief, para.8 6;N zabonimanRae plyB rief,p ara.3 1.S eea lsoTt'raJl udgementp,u a. 1766' 3t'Trial Judgemenpt,u a. 1166. t* Trial Judgementp, ara,.812F. urthermoret,h e

AppealsC hamberr ecallst hat the numbero f individualsi n an audience is not an essentiael lemento f the crime of direct and public incitementt o commit genocide.A ccordingly, the Appeals Chambers ummarilyd ismissesN zabonimana'sa rgumentt hat the Trial Chamberd istortedW itnessC NAX's testimony that there were "lesst han" 30 personsc omparedt o the finding that therew ere "approximately"3 0 people as being an irrelevantc onsiderationin capableo f affectingt he verdict.S eeN zabonimanaA ppealB rief, para.9 2. 38s S eeN zabonimanaA ppealB rief, para.8 6; NzabonimanaR eply Brief, para.3 2. 386 F urthermoreth, eT rial Chambera ssessetdh e Defence'sa llegationth atK amali wouldh avek nownW itnessC NAI's ethnicitya sa Tutsia ndw ould not havec alledh im to listent o Nzabonimanas'sp eechT. he Trial Chambers tatedt hati t did not believeW itnessC NAI's testimonyth atK amalid id notk now his ethnicityS. eeT rial Judgemenpt,a ra.8 75. "t Triul Judgementp, ara.1 766. 3tt The AppealsC hambero bservesth at, in its factualf indings,t he Trial Chamberd eterminedth at Nzabonimana"h eld a meeting" at the Cyayi centre., SeeT rial Judgementp, a.ras8. 87, 938. However,i n its legal analysiso n direct and public incitementt o commitg enocide,a partf rom titling the section" Cyayi CentreM eeting",t he Trial Chamberd oesn ot refer to thei ncidenti n termso f a "meeting".S eeTt'laJl udgemenpt,u as. 1763-1768l7, '75. 38e SeeTialJudgemenpt,a ra.1 766. 3m Nzabonimanap oints to specific sectionso f the witness's testimonya nd submits that the French version of the transcriptsi ndicatet hat Nzabonimanaa ddressedth e witness" personally".S eeN zabonimanaA ppeal Brief, para. 90; NzabonimanaR eply Brief, pan.

29. The AppealsC hambern otes that in the French transcriptW itness CNAI uses pronounsr eferring to himself. SeeW itness CNAI, T. 26 November2 009 p.70 (French) (emphasisa dded)( "lsaac Kamati qui me connaissaimt 'a appeld,je me suisd irigd versI 'endroit oil il se trouvait, il s'entretenaita vec le Ministre 41 c\'"'t.' CaseN o.: ICTR-98-44D-A 29 Septembe2r 014 \)v

testified that Nzabonimana repeated the same statement in Witness T193's presence u8188/H. Munyagatarea lso heard the statement.3eTt he Appeals Chamberr ecalls that the words were spoken in a public space, were heard by several persons,i ncluding Tutsis,3e2a nd contained a message directed to anyone in the area rather than selected persons.totT he Appeals Chamber is not convincedt hat WitnessC NAI's testimonyd escribedf acts correspondingto private conversations. Accordingly, the Appeals Chamber finds that Nzabonimanah as failed to demonstratet hat the Trial Chambere rred in characterisinst he incitement as public.

133. Based on the foregoing, that the Appeals Chamber dismissesN zabonimana's argumentsi n relation to his conviction for direct and nublic incitement to commit genocide under his Third Ground of Appeal.

4. Instigation of Genocidea nd Extermination as a Crime Against Humanity 134. The Trial Chamber convicted Nzabonimanao f instigating genocide and extermination as a crime against humanity for the killings of Tutsis at the Nyabikenke commune office on 15 April 1994.3e4T he Trial Chamber considered that, "particularly when viewecl in context, Nzabonimana's remarks substantially contributed to the successful attack upon the commune offlce".3e5T he Trial Chamber held that this was the only reasonablei nf'erencef rom the following circumstantial evidence: (i) Nzabonimana was an influential figure in Gitarama pr,lJbcture and originated from Nyabikenke ,o*^urr;'06 (ii)prior to Nzabonimana'se xhortationsa t the Cyayi centre,t he attempteda ttack on the communeo ffice had been unsuccessfulc, ommunep olicemen and members of the population helped repel the attacks; following Nzabonimana's address,h owever, communep olicemen and memberso f the population successfullya ttackedt he communeo ffice with the only resistancec oming from the refugeest hemselves;3ea7n d (iii) after Nzabonimana's speech, the attacks escalatedi n their intensity and character,a nd assailantsu sed firearms and grenadesa s Callixte; et il m'a dit d'tcouter bien ce que Ie Ministre allait me dire. J'ai e./Jbctivemenptr Aft aftention d ce que le Ministre disait. Callixte m'u clit ce qui suit : [...]').ln comparison, the

English transcript does not show the use of these pronouns. .SeeW itness CNAI, T. 26 November 2009 p. 61 ("lsaac Kamali knew me and he called for me. I went towards them to the location where he was having a discussion with Minister Callixte. He then told me to listen attentively to what the minister was going to say. So I paid attention to what the minister said. This is what Callixte said[...]"). 3er S eeW itness CNAI, T. 26 Novembe r 2009 p.

61. Seea /so Witness CNAI, T. 26 November 2009 p. 70 (French). t" WitnessesC NAI, CNAX, and MunyagatareS. eeT rial Judgementp, aras.8 87, 938. rer ,SeeT rial Judgement, para. 1766. t'o Trial Judgementp, aras.l 7 18, 1731,1 '786, 1'78'7,17901, 800. t" Trial Judgementp, aras.l 7 12, 11\ 5. tno Trial Judgement.p ara.1 11 2. "' Trial Judgementp.a ra.l 713. 48 CaseN o.;I CTR-98-44D-A 29S eptemb2e0r 14 t\

2187/H opposed to only traditional weapons, which were used during the attack at the commune office on 13 April lgg4.3e8 135. Nzabonimana submits that the Trial Chamber erred in finding a causal link between his statementsa t the Cyayi centre and the attack at the Nyabikenke communeo ffice, and that even if a link was establishedf rom the circumstantiale vidence,t his inference was not the only reasonable conclusion.3eNe zabonimanaf urther arguest hat the Trial Chambere rred in its findings on his nens ,ro.ooo The Prosecution responds that the Trial Chamber's findings support Nzabonimana's conviction for this mode of liabilitv.a0l (a) SubstantialContribution 136. Nzabonimana submits ttrat the Trial Chamber erroneously inferred that he substantially contributed to the attacks solely on the basis of: (i) his influence in Gitarama prdfecture; (ii) the successo f the Night and Day Attacks, including the behavioural change of the population and communep olicemen; and (iii) the use of firearms.a02 I37. Nzabonimana submits that the Trial Chamber erred in finding that he was influential and argues that it was required to frnd that he had specific influence in Nyabikenke on the day of the events.4ON3z abonimanaa lso maintainst hat the Trial Chamberu sed actsf or which he was convicted under direct and public incitement to commit genocide to assessh is influence,4o4a nd that no evidencew

as adducedo n his influenceo ver the Interahamwei n Gitarama pr,lfecture.aos 138. Further, Nzabonimana submits that the Trial Chamber's implicit inference that the attack was successfulb ecauset he prior attackw as unsuccessfudl oesn ot explain how his utterancesle d to the successful attacks on 15 April 1994.406A s for the population's change of behaviour, Nzabonimanaa rguest hat the populationh ad beent argetingT utsis since 8 April i994 in large scale attacks throughout the commune,w ithout indication that he played any role therein.aoTH e adds that there is no evidence that members of the population, who protectedT utsis on 13 April 1994, had "1"0 tT- ria,l. J ud. gemenpt,a ra.1 114. 3ee N zabonimanNa oticeo f Appeal,p aras.3 .3.1,3 .3.2;N zabonimanaA ppealB rief, paras.9 4-98,1 00-112S. eea lso AT. 29 April 2014p p.1 .3,14. am N zabonimanNa oticeo f Appeal,p ua.3.3.2.1()7, (8);N zabonimanAap pealB rief, para.9 9. aor P rosecutionR esponseB rief, paras.8 8-90.S ee also AT. 29 Aprtl 2014 p.29. Accordingt o the Prosecution, Nzabonimana'rse marksg o beyondm ere instigationS. ee ibid., pala.88, referring /o ProsecutionA ppeal Brief, paras4. 9,5 0. ou'Nzaboniman N a o ticeo f Appeal,p ara.3 .3.2.1(5)N; zabonimanAap pealB rief,p aras.9 7,100-112. 403 N zabonimanaA ppeal Brief, paras.1 01-103,1 06. See a/so NzabonimanaR eply Brief, para. 36, referring to KarnuhandaA ppealJ udgementp, aras.6 5, 66.S eea iso NzabonimanaA ppealB rief, section2 .2. as NzabonimanaA ppealB rief, para. 105. 405 N zabonimanaA ppealB rief, para.9 8,r eferuingt o Trial Judgementf,n . 153. affi NzabonimanaA ppealB rief, para. 107. 407 N zabonimanaA ppealB rief, para. 108.S eea /so NzabonimanaA ppealB rief, para.1 10. 49 iit CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

heard him at the Cyayi centrea nd then turned around to attack refugees.aONt zabonimanaa veflftS$/l{ the causal link between the event at the Cyayi centre and the attack on the communeo ffice is not proven becauset he Trial Chamber did not find that individuals involved in the attack heard what was saida t the Cyayi centre.aoe 139. Finally, Nzabonimanas ubmitst hat the Trial Chambcr'sr easoning,t hat attackse scalateda s a result of firearm and grenade use, seemedt o imply his involvement in firearms and grenades distribution when he was fbund not guilty of such acts from 8 April to 14 April 1gg4.4to Nzabonimanaa vers that the Trial Chamber,i n doing so, changedt he theory of the casea gainsth im withoutn otice.a ll 140. The Prosecutionr espondst hat the Trial Chamber made correct findings on Nzabonimana's influence,ar2a nd that there was evidenceo f his influence over the Interaham*e.0" The Prosecution further respondst hat referencet o prior attacksd oes not alter the fact that Tutsis were successfully protectedu ntil Nzabonimana'sa ppearanceo n 14 April l994.araT he Prosecutionf urther submits that, in relation to perpetratorso f attacksb eing presenta t the Cyayi centre, it does not matter who precisely carried out Nzabonimana'sg enocidal order or how the order reachedt he assailantss ince evidence establishedt hat his order had the desired effect of killing Tutsis.arsF

inally, the Prosecutionr espondst hat it was after Nzabonimana'si ntervention that attackersw ere given access to grenades and firearms.otoI t argues that the Trial Chamber was entitled to determine that Nzabonimana's intervention affected civilians' ability to obtain weapons, even when he was not convictedf or distributiono f weapons.ott 008 Nzabonimana Appeal Brief, para. 109. a'D N zabonimana Appeal Brief, paras. 98, 109; Nzabonimana Reply Brief, para.

36. See also Nzabonimana Notice of Appeat, para. 3.3.2.1(10).N zabonimanaa rguest hat the Trial Chamberd id not establisht he specific audiencea t the Cyayi centre and did not find that the Interahumwe, members of the population, or commurzclp olicemen were present during his speech. See Nzabonimana Appeal Brief, paras. 98, 109; Nzabonimana Reply Brief, para.34, re.f'erringt o Trial Judgement, para. 1766 where Nzabonimana points to the Trial Chamber's finding that the witnesses "did not indicate the specific audience to whom the speechw as addressed"t o argue that there is no information on the persons who were instigated. Nzabonimana submits that Def'enceW itness T193, who was identified to be at the Cyayi centre, was exoneratedt br the attack on the communeo ffice. SeeN zabonimana Appeal Brief, para.98, fn. 166. or" NzabonimanaA ppeal Brief, paras.9 7, 110, ll1. Seea LsoA T.29 April 2014 pp. 53,54. ar1 NzabonimanaA ppeal Brief, para.

96. Seea lso AT.29 April 2014 pp.53,54. The AppealsC hambera lso notest hat Nzabonimana raises in his Notice of Appeal argumentsr elated to the Prosecution'sd ropping of chargesa gainsth im but fails to develop these argumentsi n his Appeal Brief. Sea NzabonimanaN otice of Appeal, para.3.3.2.1 (1)-(3),(5); Nzabonimana Appeal Brief, para. 96 (where he generally submits that "[t]he consequenceo f the Prosecution'sd ropping of charges[ ...] is that the Chamberr ewrote the Prosecutionc asee ntirely on [his role] [...]"). The Appeals Chamber therefbrec onsiderst hat Nzabonimana has abandonedt hesea llegations. arz ProsecutionR esponseB rief, para. 84. ar3 ProsecutionR esponseB rief, para. 91, re.ferringt o Trial Judgement,p aras. I I 60, I 16I . ara P rosecutionR esponseB rief. para.9 2. o's P rosecutioRn esoonseB rief.p ara.96. ar" ProsecutionR esponseB rief, para.9 3.S eer ti,rrAr T.29 April 2014p.29. ar7 ProsecutionR esponseB rief, para.9 5. 50 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2185/H I4L To demonstrateh is lack of influence,N zabonimanap oints to: (i) public insults and sabotage against him and his projects in Nyabikenk";ott (ii) the power of the Mouvement ddmocratique rdpublicain ("MDR") political p*ty;otn and (iii) evidence of planned attacks against his house, which, he argues,t he Trial Chamberf ailed to consider.a2Toh e Appeals Chambero bservest hat the Trial Chamber found overwhelming Prosecutiona nd Defence evidencet hat Nzabonimanaw as an influential political personality in Gitaramap rdfecture during the events from April to July 1994.421 This is based on Nzabonimana'sp osition as a Minister in the Interim Government, his previous tenure as Minister of Planning, his Chairmanship of the MRND party in Gitarama prdfecture, his associationw ith and roots in the region, and the settlemento f the Interim Governmenti n Gitarama prdfecture.a" In its assessmentt,h e Trial Chamber consideredt hat he was publicly insulted by his family and the population and that his development projects were sabotagedw ith the advent of multiparty politics.a2T3 he Trial Chambera lso consideredp arty dynamicsb etweent he MDR and the MRND and, specifically, Nzabonimana's arguments on the MDR's power in Gitarama prdfecture.atoW hile there is no explicit mention in the Trial Judgemento f evidence of planned attacks against Nzabonimana's house,a2sth e Appeals Chamber

recalls that the fact that certain evidence has not been referred to does not mean it was not taken into account in the Trial Chamber's assessment.426 t42. The Appeals Chamber is also not persuadedt hat the Trial Chamber used Nzabonimana's convictions of direct and public incitement to commit genocide to assessh is influence .o" The Appeals Chamber notes that the Trial Chamber referenced its factual, rather than legal, findings in relation to Nzabonimana'sp articipation and speechesa t, inter alia, the Butare trading centre, the Cyayi centre, and the Murambi meeting.a2sA ccording to the Trial Chambet, these events al8 NzabonimanAap pealB rief,p ara.1 02. o'' NzabonimanAap pealB rief,p ara.1 03. 420 NzabonimanAap pealB rief,p ara.1 06. "'' Trial Judgemenpt,u a.92. "" Trial Judgemenpt,u a.92. o" Tnal Judgemenpt,a ra.8 8. o'o Tiral Jud-gement,-par8a7s,.8 8, 90. See alsoTiral Judgementp, ara.8 5, referringt o NzabonimanCa losingB rief, paras.2 -5. The AppealsC hambers ummarilyd ismissesN zabonimana'usn developesdu bmissionth at the Indictment fails to plead the relationshipb etweent he MDR and MRND parties( see NzabonimanaA ppeal Brief, para. 103). It further notes Nzabonimana'ss ubmission that the Trial Chamber failed to consider a declaration of Defence WitnessT 46 and a report of Rwandana uthorities( see NzabonimanaA ppeal Brief, para. 103, referring ro Exhibits D134 and D124,p

.8). The AppealsC hambero bservesth at NzabonimanCa losingB rief referst o both exhibits( see NzabonimanaC losingB rief, paras.2 , 5). a25,Se W e i tnessT 24,T . 28 April 2010p p.49, 50 (closeds ession)W; itnessT 3 1, T. 3 May 2010p . 65 (closeds ession); WitnessT 33,22A pril 2010p . 64 (closeds ession). 426'I he Appeals Chamberr ecalls that there is a presumptiont hat a Trial Chamberh as evaluateda ll the evidence presentedto it, providedt hat therei s no indicationt hat the Trial Chamberc ompletelyd isregardeda ny particularp iece of evidenceS. ee,e .g.,B izimunguA ppealJ udgementf,n .766; NtabakuzeA ppealJ udgementf,n .357; Bagosoraa nd Nsen giyumvaA ppealJ udgementf,n . 625. 427 NzabonimanaA ppealB rief, para.1 05. o" Tial Judgemenpt,a ra.9 1. 51 i\r't : CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

constitutede videncet hat Nzabonimanah ad the power to exert his influence in his native reEdSZI/H Gitarama prdfecture.a2eN zabonimanad oes not demonstratet hat no reasonablet rier of fact could have made the samel lndine.

143. With respect to Nzabonimana's inf'luence over the Interahamwe, the Trial Chamber explicitly noted that the Prosecutionh as not proven beyond a reasonabled oubt that he trained and armed the Interaha*rr.o"'The Trial Chamber further determined that "Nzabonimana's pulported role vis-d-vis the Interahamwe" had no impact on the credible and consistentt estimony that he was an influential individual within Gitaramap rdfecture.a3Nl zabonimanaf ails to demonstratea ny error 4'1-) rn thrsl lndrns.

144. In light of the foregoing, Nzabonimanal ails to demonstratet hat the Trial Chamber erred in finding that he was influential. He also fails to explain why instigation would require a determination that Nzabonimanah ad specific influence in Nyabikenke communeo n the day of the events.433T he Appeals Chamber recalls that the Trial Chamber did not solely rely on Nzabonimana's influence to establish his substantialc ontribution to the attacks; but rather, his inf'luencew as one of severalf 'actorst hat the Trial Chambert ook into account.a3a 145. The Appeals Chamber will now examine allegede rrors in relation to the other factors which the Trial Chamberr elied Llpont o infer that Nzabonimanas ubstantiallyc ontributed to the killings at the Nyabikenke commune offrce.R egardingt he Trial Chamber'sr eferencet o the prior unsuccessful attack,a3sth e Appeals Chamber observes that the Trial Chamber was considering the temporal proximity between the unsuccessfula ttack on l3 April 1994, Nzabonimana's speecha t the Cyayi centre on 14 April 1994, andthe subsequenst uccessfual ttack the night right after his speech,a3Toh e Appeals Chamber finds it reasonablef or the Trial Chamber to consider this sequenceo f events, among other factors, to inf-erN zabonimana's substantialc ontribution to the attacks.N zabonimana fails to demonstrateh ow the Trial Chambere rred in this regard. a2e Trial

Judgementp, ara.9 1. tt" Trial Judgementf,n . 153,r e.f'erringto ibid., Section3 .3.1.2. ot' Trial Judcementf.n . 153. ott The Appials Chamberd ismissesN zabonimana'ss ubmissiont hat the Trial Chamberr elied a posteriori on witness testimonies that it pieced together, and that it cited transcriptsf rom Defence witnessest hat do not support findings on influence (see Nzabonimana Appeal Brief, para. 104, re.fbrring to Trial Judgement, fn. 14'7).T he Appeals Chamber observest hat the Trial Chamber did not reference Defence witnessest o support its findings on influence, and further, that Defence witness testimonies cited in footnote 147 correspond to evidence that the MRND placed importance on recruitingm emberso f the population( .seeT rial Judgementp, ara.8 7,fn. 147). ot',te" NzabonimanaA ppeal Brief, piuas. l0l-103, 106. As Nzabonimanah as tailed to demonstratet hat the Trial Chamber was required to determine that he had specific influence in Nyabikenke commune on the day of the events,h is argument that paragraph 90 of the Trial Judgement is "silent on the ef'fect of these events on [his specific influence] exercisedi n Nyabikenke"i s accordinglyd ismissed( seeN zabonimanaAppealB rief, para. 103). aro T rial Judgement,p ara. 17 12. For other factors, seeT rial Judgement,p aras.1 11 3, 171 4. 435 See NzabonimanaA ppeal Brief, para. 107. 436 S eeT rial Judgementp, ara. l?13. Seea LsoT rial Judgementp, aras.1 709-l'/ll. 52 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 t

2183/H 146. The Appeals Chamber now turns to Nzabonimana's arguments on the population's behavioural change after his speech.a3TT he Appeals Chamber recalls the Trial Chamber's determinationt hat prior to Nzabonimana's exhortationsa t the Cyayi centre, communep olicemen and memberso f the populationa ssistedi n repelling attackso n the communeo ffice.a3SIt then found that, following Nzabonimana's address at the Cyayi centre, commune police and members of the population successfullya ttacked the commune office with the only resistancec oming from the refugeest hemselves.o3Teh e Appeals Chamberd etectsn o error in this regard.T he Appeals Chamber is not persuadedh ow Nzabonimana's submission,t hat the population had been attacking Tutsis since 8 April 1994,44u0n derminest he Trial Chamber's findings on behavioural changeb efore and after Nzabonimana'sa ddress.alT he AppealsC hamberi s alson ot convincedt hat the Trial Chamber was specifically required to determinet hat assailantso f the Night and Day Attacks heard what he said at the Cyayi centre. The Appeals Chamber recalls that the octus reus of "instigating" is to prompt anotherp ersont o commit an offence.42I t is not necessaryto prove that the crime would not have been perpetrated without the involvement of the accused;i t is sufficient to demonstrate that the instigation was a factor substantiallyc ontributing to the

conduct of anotherp erson committing the crime.a' Si-il*ly, it is not required that the individuals who were instigated be the same as thosew ho committed the crimes.aa 147. As for firearm and grenade use, the Appeals Chamber recalls that the Trial Chamber considered,a mong other factors,t hat after Nzabonimana'ss peecha ttackse scalatedi n intensity and character.a5I n reaching this conclusion,t he Trial Chambern oted the use of firearms and grenades comparedt o prior attacksw here assailantso nly used traditional weapons.*uT he Appeals Chamber observest hat the Trial Chamber did not find how or why assailantso btained firearms; rather, it consideredt hat after Nzabonimana's statementa ssailantsu sed modern weapons to successfully attack the commune office.41 On this basis, the Appeals Chamber is not persuaded that the Trial 437 NzabonimanAap pealB rief,p aras.98,1 08,1 09. 4"'1"R T- ria,l. J u,dgemenpt,a ra.1 713. o'n Trial Judgementp, ara.1 713. a0 NzabonimanAap pealB rief,p ara.1 08.S eea tsoi bid.,p ara.1 10. aat SeeTialJudgemenpt,a ra.1 713. *2 See,e .g.,N chamihlgoA ppeal Judgementp,a ra. 188;K arera AppealJ udgementp, ara.317; Kordii and Cerkez AppeaJl udgemenpt,a n. 2'7. oot'5r", ,.g1,K orrri AppealJ udgementp, ara.3l7; Nahimanae t al. AppeaJl udgemenpt,a ra.480;K ordii and aerkez AppeaJl udgemenpt,u a.21. * The AppealsC hambero bservesth at, while previousc asesh ave examinedw hetheri ndividuals who were instigated weret he samea s thosew ho committedt he crimes( seeK arera AppealJ udgementp, ara.3 l8; Nahimanae t al. Appeal Judgemenfp ara.513; NdindabahiziA ppealJudgementp, ara.

116. See also Boikoski and Tariulovski Appeal Judgementp, an.75), the AppealsC hamberh asn ot explicitly madei t a requiremenut nderi nstigation. 45 SeeTialJ udgemenpt,a ra.1714. u6 SeeTiraJl udgemenpt,u a. 1714. *t T.ial Judgementp,a ras.939,1 714.T he AppealsC hamberr ecallst hat it found no errorsi n the Trial Chamber's evidentiarya ssessmenotf firearm use.S ees upra,p uas. 107- 1 14 , 53 CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 14

Chamber implied that Nzabonimanaw as involved in firearms distribution.oooT he Appeals CnrtrEe/H also cannot seeh ow the Trial Chamberc hangedt he theory of the casea gainstN zabonimanai n light of its reasoning on the escalationo f intensity and charactera s well as his acquittals in relation to distributiono f weapons.aae 148. In light of the fbregoing, the Appeals Chamber finds that Nzabonimanaf ails to demonstrate that the Trial Chamber erroneouslyi nferred that he substantiallyc ontributed to the killings on the basiso f his influence,t he successo f attackst he night following his speech,t he "mere 250 to 300 metres" between the Cyayi centre and the commune office, and the escalation of intensity and charactero f the attacks through the use of firearms and grenadesi n the Day and Night Attacks.as0 The Appeals Chamber therefbre finds that the Trial Chamber reasonablyc oncluded that the only reasonable inf'erence from the circumstantial evidence was that Nzabonimana substantially contributedt o the attacks.

149. Based on the foregoing, that the Appeals Chamber dismissesN zabonimana's argumentsi n relation to the actus reus of instigation.a5l (b) Mens Rea 150. In its legal findings, the Trial Chamber held that "[t]here is no doubt that, at the time of Nzabonimana's prompting, he knew of the genocidal intent of his audience,p articularly given the meeting's temporal and physical proximity to the recent attack on the commune office".a-52T he Chambera lso noted" the extensivec ircumstantiael videnceo f Nzabonimana'sg enocidali ntent, set out below".as3 151. Nzabonimanas ubmitst hat, sincet he Trial Chamberd id not define the specifica udienceh e addresseda t the Cyayi centre, it could not conclude that he knew the genocidal intent of his auclience.asHae argues that the Trial Chamber was only assuming that he knew of the attack on 13 April Igg4.1ss Nzabonimana adds that the Trial Chamber ered in its determination of his oot See NzabonimanaA ppeal Brief, paras. 9'7, | | l. aae.see NzabonimanaA ppeal Brief, para.9 6. Seea /.roN zabonimanaN oticeo f Appeal,p ara.3 .3.2.1(l). aso SeeT rial Judgementp, aras.1 709-1715. o'' The Appeals Chamber also dismissesN zabonimana'sg eneral claim, raised in the Notice of Appeal but undeveloped in his Appeal Brief, that the Trial Chamber violated his right to a fair trial in, inter alia, refusing to postponet he start of the trial and restrictingt he numbero f Defencew itnessesS. eeN zabonimanaN otice of Appeal,p ara.3 .3.2.1(11)-(13). os: Trial Judgement,p ara.1 117. tsr Trial Judgement,p ara.1 11 7. asa N zabonimana Appeal Brief, para. 99; NzabonimanaReplyB rief,p ara.3 5, 455 Nzabonimana Appeal Brief, para. 99. 54 '1.-\ CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2787/H genocidal intent by noting circumstantiale vidence of events occurring after his statementa t the Cyayi centre.456 152. The Prosecutionr espondst hat Nzabonimana'sa rgumenti s irrelevantb ecauset he required mens rea was sufficiently established.a5TT he Prosecution also submits that the Trial Chamber correctly establishedt he secondf orm of mens rea for instigation - Nzabonimana'sa warenesst hat senocidew ould be committed.as8 153. The Appeals Chamber recalls that the mens rea for instigating is establishedw here the perpetratora ctsw ith either direct intent to prompt anothert o commit a crime, or with awarenesso f the substantiall ikelihood that a crime will be committedi n executiono f that instigarion.ase 154. The Appeals Chambern otest he Trial Chamber'sd eterminationt hat, by "threateninga Tutsi and saying that Tutsis should be massacreda t Cyayi centre on 14 April 1994", Nzabonimana prompted others to act and to continue the genocidal attack upon the commune office, and that he intended to do so.a60S ince the Trial Chamber explicitly found that Nzabonimana had the direct intent to prompt others to commit a crime,46la ny error in relation to the Trial Chamber's finding on Nzabonimana's knowledge of the genocidal intent of his audience is inconsequential to Nzabonimana'sm ensr ea for instigation.a62 155. In the samev ein, any error on the part of the Trial Chamber

in using subsequente vents to establish Nzabonimana's genocidal intent is inconsequentialt o its finding on his intent.a63T he Appeals Chamber observes that the Trial Chamber found that Nzabonimana indeed possessedt he requisite intent to destroy, in whole or in part, the Tutsi ethnic group on the basis of his unambisuousw ords at the Cvayi centre.464 156. Based on the foregoing, Nzabonimana's arguments on the mensr ea of instigation are dismissed. 056 NzabonimanaA ppealB rief, para.9 9. 457 ProsecutioRn esponsBer ief,p aras9. 8, 100. 458 P rosecutionR esponseB rief. para.9 9. otn S ee,e .g.,N chamihlgoA ppealJ udgementp,a ra.6 1; Nahimnnae t al. AppealJ udgementp,a ra.4 80; Kordii and Cer kezA ppealJ udgemenpt,a ns.2 9,3 2. o- Trial Judgemenpt,u a. l711. out Trial Judgementp, ara.l 1l7 . 'ut It is unclearw hethert he Trial Chamberi,n statingt hat Nzabonimana"k new of the genocidailn tent of his audience", sought to establisht he alternatef orm of mensr ea for instigation- an awarenesso f the substantialli kelihood that a crime will be committedi n executiono f his instigation.S eeT rial Judgemenlp ua. 1711. 463 T rial Judgement,p ua. 1711 ("The Chambera lso notes the extensivec ircumstantiale videnceo f Nzabonimana's genocidailn tent,s eto utb elow"). r* T.iul Judgementp, ata.1 167. Seea lso ibid., para.1 137. 55 ,^af'1 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

(c) Conclusion 2180/H 157. For the {bregoingr easons,t he Appeals Chamberd ismissesN zabonimana'sa rgumentsi n relation to instigation of genocide and exterminationa s a crime against humanity under his Third Groundo f Appeal.

5. Conclusion 158. Accordingly,t he AppealsC hamberd ismissesN zabonimana'sS econdG roundo f Appeal,i n part, and Third Ground of Appeal, 56 Ca.seN o.: ICTR-98-44D-A 29 Septembe2r0 14 Y\ ,.'}

2179/H D. Alleeed Errors Relating to the Butare Trading Centre (Ground 4 and Ground 5. in part) 159. The Trial Chamberc onvicted Nzabonimanaf or committing direct and public incitement to commit genocide( Count 3), based,i n part, on his conduct at the Butare trading centre in Rutobwe ,o**urr!u5 In particular, the Trial Chamber found that, on or about 12 April 1994, in the afternoon,N zabonimanaa ddresseda gatheringa t the Butare trading centre and told those gathered to kill Tutsis and take their belongings.a6T6 he Trial Chamber further found that Nzabonimana asked if there were any Tutsis in the crowd.467T he Trial Chamber also held that Prosecution WitnessC NAZ and anotherT utsi fled and that Nzabonimanat old gendarmesa nd the population to pursue them.a68 160. Nzabonimana submits that the Trial Chamber erred in fact and in law in convicting him of direct and public incitement to commit genocide in connection with the event at the Butare trading centre and in consideringt his event as circumstantial evidenceo f his genocidal intent.a6eIn this section, the Appeals Chamber considers Nzabonimana's arguments in relation to: (i) notice; (ii) assessmenotf evidence;a nd (iii) direct and public incitement.

1. Notice 161. Nzabonimanas ubmits that the Trial Chamber erred in fact and in law in finding that he received proper notice of the allegations relating to the Butare trading centre.47oH e argues that the Trial Chamberf ailed to consider that evidencea dduceda t trial did not correspondt o pleadings in paragraph4 0 of the Indictment.aTAr ccording to Nzabonimana,t he Trial Chamber ought to have consideredt he following discrepanciesb etween the Indictment and the evidence relating to the event: (i) the lndictment indicating "Hutu population", whereast he Trial Chamber mentioned a "gathering" and concludedt hat Nzabonimanad id not use the term "lnyen7i";4721 ii; ttre Indictment alleging that Nzabonimanah imself indicated there were Tutsis in the ctowd, whereash osecution WitnessesC NAZ and CNBH testified that Nzabonimana" asked" whether there were any Tutsis present;47a3n d (iii) the Indictment indicating "soldiers", whereasW itnesses CNAZ and CNBH testified to "gendarmes".4l4 On this last point, Nzabonimana argues that the Trial Chamber ou' Trial Judgemenpt,a ras1. 16 2, 1775,1 8 00. o* T.iul Judgementp, an. 734.S eea lso ibid., para.1 157. ou] tria Judgemenpt,u a.734.S eea lsoi bid, para.1 157. ooo Trial Judgemenpt,a ra.734S. eea lsoi bid, parc.1 757. a6e N zabonimanNao ticeo f Appeal,p ans.4.I-4.4;N zabonimanAap pealB rief,p aras.l l7-169. 470 N zabonimanNao ticeo f Appeal,p

wa.4.3.1;N zabonimanAap pealB rief,p aras.1 63-168. aTrNzabonima A na p pealB rief,p ara.1 63,referringto RwamakubaTriaJlu dgemenpt,a ras.6 1,64,92,93, 126,1 27, 144,1531,6 6-168. 472 N zabonimanAap pealB rief,p ara.1 65,r eferringt oTial Judgemenpt,a ras.134,735. ot3 NzabonimanAap pealB rief,p ara.1 66. a7a NzabonimanaA ppealB rief, para. 167. 5'7 CaseN o.: ICTR-98-,+4D-A 29 Septembe2r0 14 /Y<- P \-)

acknowledged this discrepancyb ut erroneouslye xcused it becauseW itnessesC NAZ and2ilVl&/H were farmers,w hile elsewherei n the Trial Judgementt he Trial Chamber held the samed iscrepancy againstP rosecutionW itness CNAF,475F inally, Nzabonimanaa ssertst hat the Trial Chamber should have drawn a negative inference fiom the fact that the nexus pleaded between Nzabonimana's conducta nd the killings in Rutobwec ommunew as not provena nd that no evidencew as adducedo n his instructionsto takeT utsis' iobs.a7" 162. The Prosecutionr espondst hat the three differences are insignificant and did not prevent Nzabonimana from identilying the criminal conduct alleged against him.a11T he Prosecutiona lso submits that notice provided by an indictment is not renderedd efective becauses ome allegations were not establishedb evond a reasonabled oubt.a78 163. Paragraph4 0 of the Indictment reads: On or about 15 April 1994, at Buture tradins cenffe, Rutongo secteur, Rutobwe commune, Giturama prefecture, Callixte NZABONIMANA addressed a gathering and told the Hutu population to kill all Inyenzi and their accomplices,t he Tutsi, and take their jobs and belongings. He stated that even among the gathering, there were Tutsi who must not be spared. CNAZ and other Tutsi tried to flee and the Accused told soldiers and the population to pursue them. Many Tutsi were killed following this meeting by personsi ncluding Interahumwe,H utu civilians and soldiers.

164. The Appeals Chamberr ecalls that, while the Prosecutioni s required to statet he chargesa nd the material facts underpinning those charges in the indictment,aTein general, minor differences between the indictment and the evidence presenteda t trial are not such as to prevent the Trial Chamber from consideringt he indictment in light of the evidencep resenteda t trial.aso 165. The Appeals Chamber tums to the allegedd iscrepancyt hat, in the Indictment, Nzabonimana "told the Hutu population to kill all LheI nyenzi and their accomplices,t he Tutsis", whersast he Trial Chamber mentioned a "gathering" and found that he did not use the term "lnyen3i" during his address.atrT he Appeals Chambcr observes that in the same sentenceo f paragraph 40 of the a7s N zabonimanaA ppeal Brief, para. 167,r et'brrinSt4o Trial Judgementp, tuas.54l, "734andfn.947. '"'Nzabonimana Appeal Brief, para. 168, relbrring toTrial Judgement,p aras.735,738. Nzabonimanaa lso maintains that discrepancies between Prosecution evidence and allegations in the Indictment resulted in the dismissal of allegations in Bizimungu et al. Trial Judgement. See ibid, para. 164, rej?rring to Bi?,imunllue t al. Trial Judgement, oaras. 10 67- I 08 I . 477 P rosecutionR esponseB rief. paras. l4'7-149. a7s Prosecution ResponseB rief, para. I 52. The Prosecutionf urther argues that the trial judgements Nzabonimana cites are not

comparable since the indictment in the Biz.imungu et aL. case failed to plead the relevant event and the RwamakubttT rial Chamber did not reject evidencef or not matching the indictment. See ibitl., paras. 151, 260, re.fbrring to Rw'amakubaT rial Judgement,p ara. 84. ^"t Sre, e.g., Biz,imunguA ppeal Judgement, para.94; Kanyurukiga Appeal Judgement, para.73; Ntageruru et al. Appeal Judgementp,a ra.2l. ot" .tee SemtrnT.aA ppeal Judgement, fn. 492 Rutagandu Appeal Judgement, para.

302. See also Muvunyi II Appeal Judgenrentp. ara.2 9. onr NzabonimanaA ppeal Brief, para. 165,r eJbrringt oT'ial Judgement,p aras.734,735. 58 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 ,:-'vL \\ v'

2177/H Indictment Nzabonimanai s allegedt o have addresseda "gathering". Moreover, paragraph4 0 of the Indictment mentions both Inyenzi and Tutsi as the intended targets. Nzabonimana's selective referencet o parts of paragraph4 0 of the Indictment fails to demonstratet hat the Indictment did not provide him with the requisiten otice in this respect.

166. As to the second alleged discrepancy,t he Appeals Chamber observest hat Nzabonimana points to whether he "stated" or "asked" about Tutsis at the gathering.asT2h e Appeals Chamber considerst his differencet o be minor and observest hat Nzabonimanad oesn ot demonstrateh ow the Indictment failed to provide him with the requisiten otice in this respect.a83 161. The Appeals Chamber is also not persuadedt hat the Trial Chamber erred in assessingt he discrepancyb etween "soldiers" and"gendarmes"i n the Indictment and the evidence.otoIn finding that "any divergencei n the classificationo f the individuals as gendarmeso r soldiers was minor", the Trial Chamberc onsideredt hat: (i) Prosecutiona nd Defencew itnessesa greedt hat Nzabonimana had "uniformed escort", whether identified as gendarmeso r soldiers; (ii) Prosecution witnesses were "local residents,f armers and small businesso wners who would not necessarilyb e able to identify the difference between a gendarme and a soldier"; and (iii) summaries of Prosecution witness testimonies in the Prosecution Pre-Trial Brief indicated that Nzabonimana was accompaniedb y gendar*rr.o" The Appeals Chamber detects no error in the Trial Chamber's finding that the divergence was minor. Nzabonimana's argument that the Trial Chamber erroneously treated Witnesses CNAZ and CNBH differently from Witness CNAF is also not convincing.as6W ith Witness

CNAF, the Trial Chamber considered the discrepancy between gendarme and soldier to be an inconsistencyb etween the witness's testimony and his prior statement.a8T 168. In any event, Nzabonimana fails to demonstrate why this discrepancy is significant. Regardlesso f whether Nzabonimanat old "soldiers" or "gendarmeJ",i n addition to the population, to pursue the Tutsis, what is relevant is the fact that Nzabonimanai nstructed that the Tutsis be pursued,w hich was properly pleadedi n the Indictment.48s 482,!ee NzabonimanAap pealB rief,p ara.1 66. oot Sees upra pan. 164. ae,See NzabonimanAap pealB rief,p ara.1 67. oo' Trial Judgemenpt.a ra.134f,n .94'l. ooo SeeN zabonimanaA ppeal Brief, para. 167,r eferringt o Tial Judgementp, an. 541. *o' Trial Judgementp, ara.

541. The AppealsC hambero bservest hat the Trial Chamberf ound WitnessC NAF's e-xplanatiotnh,a th e wasa peasantin, sufficientto j ustify thei nconsistencbye tweenh is testimonya ndp rior statement. ooo SeeI ndictmentp, ara.4 0. 59 CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 $r'n

169. The Appeals Chamber is finally not persuadedt hat the Prosecution's failure to pr&{ il16/H nexus between Nzabonimana'sc onduct at the Butare trading centre and the Rutobwekillingsasea s well as his instructions to take Tutsis' jobsae0s howed any defect in the Indictment.The fact that some allegations arc ultimately not proven does not necessarily mean that the Indictment is def'ective.ael 170. For the foregoing reasons,t he Appeals Chamber dismisses Nzabonimana's arguments in relation to notice under his Fourth Ground of Appeal.

2. Assessmenot f Evidence nl. On the basis of Prosecution and Defence evidence, the Trial Chamber determined that Nzabonimanaw ent to the Butare trading centre in Rutobwe commune on or about 12 April1994, bought bananab eer, ancl spoke to an audienceo f approximately 20 people.ae2T he Trial Chamber fbund that Nzabonimanat old those gatheredt o kill Tutsis and to take their belongings, and asked whether any Tutsis were in the crowd.ae3It lurther determinedt hat ProsecutionW itness CNAZ and anotherT utsi fled, and that Nzabonimanat old genclarmesa nd the population to pursuet hem.aea 172. Nzabonimana challenges the assessmento f Prosecution and Defence evidence,ae5a nd allegesu nequalt reatmento f witnesses.ooToh c Appeals Chamberw ill addresst hesec hallengesin lurn. (a) Alleged Errorsi n AssessingP rosecutionE vidence 173. The Trial Chambera ssessedth e testimonieso f ProsecutionW itnessesC NAY, CNAZ, and CNBH.4e7I t did not find Witness CNAY credible as to the events at the Butare trading centre, accepted Witness CNAZ's evidence when corroborated by other credible evidence, and found Witness CNBH credible.aesT he Trial Chamber further lbund that Witnesses CNAZ and CNBH provided consistente videncet hat Nzabonimanam ade inf'lammatoryc ornmentsa bout Tutsis after he a8e See Nzabonimana Appeal Brief, para.

168. The Appeals Chamber recalls the Trial Chamber's determination that there was no evidentiary link between the killings in Rutobwe and Nzabonimana's speecha t the Butare trading centre (see Trial Judgement,p ara. 738), and that Nzabonimana was found not guilty of genocide with respect to the event at the Butare trading centre (.seeT rial Judgement,p ara. 1707). aeo See Nzabonimana Appeal Brief, para. 168. oot C1.B ol4osoraa rul Nsengitumva AppealJ udgement,p ara. 121, re.f'errin1t4o Munyakaz.iA ppeal Judgement,p ara.37. o" Trial Judgementp, aras.7 03-70'1. S eeu lso ibitl., para.734. o" Trial Judgement,p ara.134.S eea lso ibid.,para.708. o'o Trial Judgement,p ara.134. oe5.!eeNzabonimanaNoticeof Appeal,paras.41.. 1-41. .4;N zabonimanaAppeaBlr ief,paras.l 17-143,149,151. oe6.See NzabonimanaN otice of Appeal,p ara.4.1 .5(1),(2),(7)N; zabonimanaA ppeal Brief, paras.1 44-148,150,1 52. oel SeeT rial Judgementp, aras.6 66-682,703-"178 ,'734. ou'Trial -t15,'1 Judgementp, aras.7 13, 18. 60 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2175/H stoppeda t the trading cenfte,a nd that the overall consistencyi n their testimonieso utweighed any differences.aeNez abonimanac hallengest he Trial Chamber'sa ssessmenotf their evidence. (i) AllegedContradictions I74. Nzabonimanas ubmitst hat the Trial Chamber failed to considerc ontradictionsb etween the testimonieso f WitnessesC NAZ and CNBH in relation to:s001 i; his identification,50(l ii) the manner in which the crowd assembleda nd the venue where the gatheringt ook place;so2(i ii) the audience's conduct after Nzabonimana'su tterances;50('i u) whether Nzabonimanaa skeda boutT utsis before or after Witness CNAZ's flight;5O4a nd (v) the distribution of *.uponr.tot He argues that, taken together,t he contradictionsc ast doubt on thefut estimonies.s06 I75. The Prosecutionr espondst hat the Trial Chamber did not fail to consider any significant contradictionsb etweent he Prosecutionw itnesses.sOT 176. Regarding his identification, Nzabonimana submits that, according to Witness CNBH, Nzabonimana did not need to introduce himself to his audience,w hile Witness CNAZ stated that he recognised Nzabonimanab ecauseh e introduced himself to the crowd.so8T he Appeals Chamber recalls the Trial Chamber'sf inding that, basedo n testimonieso f WitnessesC NAZ and CNBH as well as DefenceW itnessesT 109 and T110, the evidencer eliably identified Nzabonimanaa s being present at the Butare trading centre.50eT he Appeals Chamber considers that whether or not Nzabonimana introduced himself does not undermine the fact that he was indeed identified. Nzabonimanaa lso doesn ot demonstrateh ow this minor variation castsd oubt on the credibility of WitnessesC NAZ's andC NBH's testimonies.

171. Regardingt he venue and the manner in which the crowd assembled,N zabonimanas ubmits that, according to Witness CNBH, Nzabonimanac alled the people and asked JosephR uhunga to gather those on the veranda of a drinking place with gendarmes, whlIe, according to Witness CNAZ, the people at the centrer ushedt owards the vehiclest hat stoppeda nd the meeting was held ae SeeT ialJudgementp, aras7. 08,7 12. 5m N zabonimanNa oticeo f Appeal,p ua. 4.1.3;N zabonimanAap pealB rief,p aras.1 29-135. sor NzabonimanAap pea.Bl rief.p ara.1 30. sm NzabonimanAa ppealB rief,p ara.l 3 I . 503NzabonimanaAppealBrief,p l3 a 2 ra .S . eealsoibid.,puasl.2 3, 124;AT'29April2 014pp'21,49. se NzabonimanaA ppeal Brief, para.

133. Nzabonimanaa rguest hat WitnessC NAZ testified that the question was askedw hen Karegeyap ointedt o the witness,w hile WitnessC NBH statedt hati t was afterW itnessC NAZ fled. See idem. 50s NzabonimanAa ppealB rief,p ara.1 34.S eea lso AT.29 April 2014p'21' 5tr NzabonimanaA ppealB rief, para. 135.S eea lso NzabonimanaR eply Brief, para.4 8. 507 P rosecutioRn esponsBer ief,p aras.1 0',7 1 11.S eei bid.,p aras.I 13-I 18. Seea lsoA T . 29 April 2014p p.4 1,4 2. AppeaBlr iefp, ara1. 30. lI lq"P:tf.na '* Trial Judgement,p ara.101. 61 a-\r'-'l CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 $Y

outside.5rT0 he AppealsC hambero bservest hat the Trial Chamberr elied, inter alia, onWfiAF4/H CNAZ and CNBH when it noted that people present at the trading centre assembleda round Nzabonimanau pon his arrival.sll Further, a review of their testimoniesr eveals that neither witness clescribedt he venue of the meeting as being inside a building.sr2N zabonimanat hus fails to demonstratea ny contradictiont hat required the Trial Chambert o provide explicit reasoning, 178. As for the audience's conduct after Nzabonimana's speech,h e submits that, according to Witness CNAZ, after being denouncedb y Karegeya, those in the crowd pursued the witness in order to kill him.sr3H e arguest hat, on the other hand, Witness CNBH testified that the population protectedt he Tutsis and did not denouncet hem, and those who pursuedW itness CNAZ did not intend to kill him.-5raT he Appeals Chamber notes that the Trial Chamber explicitly considered dilferencesb etween the testimonieso f WitnessesC NAZ and CNBH on this point, The Trial Chamber consideredt hat Witness CNAZ "exaggerated"d etails of the incident, including how Karegeya denounced him as a Tutsi, but it fbund that this did not undermine Witness CNAZ's entire testimony.t'-tN zabonimanal urther submits that Witness CNAZ did not mention the pursuit of J6rdme Musabyimana by gendarmes in a vehicle, as described by Witness CNBH.sr6 The Appeals

Chamber observest hat the Trial Chamber explicitly noted Witness CNBH's description that the gendarmesc hasedM usabyimanaa nd not WitnessC NAZ.5lTT he Trial Chambera ssessed this inconsistency,f bund it to be minor, and consideredt hat it may be attributed to the significant passageo f time.sl8 The Trial Chamber also consideredt hat Witness CNAZ was chased by genclarmes,srea nd that Witness CNBH corroboratedW itness CNAZ's testimony that gendarmes chaseclo ne of the men who flecl.s2(T' he Appeals Chamber detectsn o enor in the Trial Chamber's assessment, especially given that Witness CNAZ was pursued, and that, according to WitnessC NBH, Witness CNAZ and Musabyimanar an in opposited irections.s2Nr zabonimana's argumentt hat the Trial Chamber failed to considert his allegedc ontradictioni s dismissed. 5r0 NzabonimanAap pealB rief,p ara.1 31. '" SeeT rial Judgementp, ara.1 04, re.f'errint1.r4 W itnessC NAZ, T. l2 November2 009p .4l (closeds ession)W; itness CNBH, T. 3 Decembe2r 009p p. 22,32 (closeds ession)T. he AppealsC hambern otest hat in the Frenchv ersiono f the transcriptsW, itnessC NAZ doesn ot mentioni n his answert o DefenceC ounselt hat people" rushed"( seeW itness CNAZ, T. l2 November2 009p p.4 7, 48 (French)( closeds ession)). "t 5", WitnessC NAZ, T. l2 November2 009p . 4l (closeds ession)w, hereW itnessC NAZ mentions" opena ir"; WitnessC NBH,T . 3 Decembe2r0 09p p.2

2,32( closeds ession). srr NzabonimanAap peaBl rief.p ara.1 32. '''o NzabonimanAap peaBl rief.p ara.1 32. 5's TrialJ udgemenpt,a ras7. | l, 7 12. ''n NzabonimanAap pealB rief,p ara.1 32.S eea lso AT.29A pril 2014p.21. l" TrialJ udgemenpt,a ra7. 10. t't TrialJ udgemenpt,a ra7. 10. ''' TrialJ udgemenpt,a ra7. 08. "u TrialJ udgemenpt.a ra7. 08. "' ^SeWe itnessC NBH,T . 3 Decembe2r0 09p p.3 6,3 7 (closeds ession). ol CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14

2173/H I79. Regarding the moment when Nzabonimanaa sked about Tutsis in the crowd, the Appeals Chamber observes that the Trial Chamber noted the differences between the testimonies of Witnesses CNAZ and CNBH when summarising their evidence. Specifically, it noted that, according to Witness CNAZ, Nzabonimana asked the question before the witness fled,522a nd accordingt o Witness CNBH, it was after Witness CNAZ and Musabyimanaf led.s23T he Appeals Chamber is not convinced that the Trial Chamber failed to consider this discrepu n"y.t'o In any event, the Appeals Chamber finds that this discrepancyd oes not undermine the Trial Chamber's finding that both witnessesc orroboratede ach other on key points that: (i) Nzabonimana asked whether there were Tutsis in the crowd, (ii) Witness CNAZ fled the scene as a result of Nzabonimana'ss peech,a nd (iii) Nzabonimanai nstructedo therst o pursueh im.525 180. As for the weaponsd istribution, the Trial Chambern oted that, accordingt o Witness CNAZ, Nzabonimanat old the population that if anyone needed weapons,h e had a cargo that could be distributed.5'uT h" Trial Chamber also noted that, accordingt o Witness CNBH, Nzabonimanat old the crowd that they should use their traditional weaponst o kill Tutsis.52A7 ccordingly, the Appeals Chambero bservest hat the Trial Chamberc onsideredt he varied accountso f WitnessesC NAZ and CNBH regarding

weapons.F urther, the Appeals Chamber considerst hat this alleged discrepancy does not undermine the overall credibility of WitnessesC NAZ and CNBH, or undermine the Trial Chamber'sf inding that both witnessesc orroboratede ach other on key facts related to the eventsa t the Butare trading centre.528 181, ln light of the above, the Appeals Chamber finds that Nzabonimana has failed to demonstratet hat the Trial Chamber erred in its assessmenot f the differencesb etween Witnesses CNAZ's andC NBH's accounts. (ii) Corroboration 182. Nzabonimana submits that, despite numerous inconsistenciesb etween the testimonies of Witnesses CNAZ and CNBH. the Trial Chamber neverthelessf ound that the two witnesses corroborated each other.s'e He argues that the Trial Chamber erred in finding corroboration on the '<-)'t ^SeeTial Judgementp, ua.679. s23 SeeTiralJ udgement,p ara.670. 524 fhe Appeals Chamber recalls that there is a presumption that a trial chamber has evaluated all the evidence presented to it, provided that there is no indication that the Trial Chamber completely disregarded any particular piece of evidenceS. ees upra,p ara.1 05,f n. 315. '2t '712,734. Trial Judgemenpt,a ras7. 08, ttu Trial Judgementp, arz'.678. ttt Trial Judgementp, ua.669. 528 SeeT ialJudgementp, aras7. 08,7 34. s2e N zabonimanNa oticeo f Appeal,p ua. 4.1.2;N zabonimanAap pealBrief, para.

128. Seea lso NzabonimanaR eply Bief, paras1. 5,49. OJ CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 \r' \

lact that Witness CNAZ fled the trading centre as a result of Nzabonimana's speech uEfrFiZ/H. Nzabonimana gave instructions to pursue Tutsis.s30N zabonimana maintains that both witnesses described two diff'erent sceneso f what occurred after Nzabonimana spoke at the Butare trading centre.s3A' ccordingt o Nzabonimanaw, hile noting WitnessC NAZ's testimonyt hat he was pursued by gendarmesa nd noting Witness CNBH's testimony that the gendarmesp ursued Musabyimana and not Witness CNAZ, the Trial Chamber still fbund conoboration betweenW itnessesC NBH and CNAZ on the fact that the gendarmesc hasedo ne of the men who fled.532N zabonimana further submits that any corroborationb etween WitnessesC NAZ and CNBH that they met in Kabgayi is not relevant.53N3 zabonimanaa lso contestst he finding that DefenceW itness Tl10 conoborated Witness CNAZ to the eff'ectt hat the latter was one of the first to leave the gathering.s3a 183. The Prosecutionr espondst hat the Trial Chamber reasonably found corroboration between WitnessesC NAZ and CNBH.535 184. With respect to the corroboration between Witnesses CNAZ and CNBH, the Appeals Chamber recalls that two prima facie credible testimoniesn eed not be identical in all aspectsi n order to be conoborative and that corroboration may exist even when some details differ.-53T6h e Appeals Chamber further recalls the Trial Chamber's determinationt hat the

overall consistencyi n the testimonieso f WitnessesC NAZ and CNBH outweighedt he differences.-ttItn coming to this conclusion, the Trial Chamber consideredt hat both witnessesp laced Nzabonimana at the Butare trading centre on 12 April 1994.t'* The Trial Chamber fbund the corroborated facts to be: (i) Nzabonimana was present at the Butare trading centre; (ii) approximately 20 people gathered; (iii) both Prosecutionw itnessesw ere present;( iv) after stopping at the trading centre,N zabonimana made inflammatory cornmentsa bout Tutsis to those present;( v) Nzabonimanaa skedw hether there were any Tutsi in the crowd; (vi) Witness CNAZ fled the trading centre as a result of Nzabonimana's speech and Nzabonimana instructed others to pursue him; and (vii) gendarmes pursuedo ne of the men who fled.s3e s30 Nzabonimana Appeal Brief, para. 123,r e.fZrringt o Trial Judgement,p nra. 708. s3r Nzabonimana Appeal Brief, paras. 123,128, reJerring toTrial Judgement,p aras.6 70, 680. s32 Nzabonimana Appeal Brief, para. 124,r e,ferring toTial Judgement,p ruas.7 08, 710. s33 Nzabonimana Appeal Brief, para. 126,r e.ferringt o Trial Judgement,p ara.109. sra Nzabonimana Appeal Brief, para. 125,r efbrring toTrial Judgement,p ara.708. Nzabonimana arguest hat, contrary to Witness CNAZ's testimony,W itness Tl10 statedt hat WitnessC NAZ left quietly without being bothereda nd did not flee as a result of the threats.S ee ibid., re.fbruingt oTrial Judgement,p ara.125. Seeu Lsoi bid.,para. 12. 5rs ProsecutionR esponseB rief, paras.1 08-11 0. "" See,e .g., Ntlahinwna Appeal Judgement,p ara. 93; Ntahakuz.eA ppeal Judgement,p ara. 150; Ntuwukulilyuyo Appeal Judgement,p ara.

24. Seea lso Biz,imunguA ppeal Judgement,p ara.321. "t Trial Judgement,p ara.712. "* Triaf Judgementp.a ras7. 03.1 o4.7oi. "'S,,e Trial Judgementp. aras.7 03. 705-708. 64 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 r

2171/H 185. The Triai Chamberf urther noted that Witness CNAZ exaggeratedd etails,i ncluding the fact that Karegeyad enouncedt he witnessa s a Tutsi, which causedh im to flee.saOTh e AppealsC hamber recalls that, while the Trial Chamber did not find Witness CNAZ credible on the exaggerated details, it neverthelessc oncludedt hat these details did not lead it to discount the witness's entire testimony.5arF urthermore,w hile there is a discrepancya s to whom the gendarmesp ursued, the Trial Chamber reasonably found that both witnesses corroborated the fact that the gendarmes chased a fleeing Tutsi.5a2T he Appeals Chamber is not convinced by Nzabonimana'ss ubmission that both witnesses describedt wo different sceneso f what occurred after his utterancesa t the Butare trading centre. As discusseda bove, the Appeals Chamber did not detect any elror in the Trial Chamber's assessmento f the discrepanciesb etween Witnesses CNAZ's and CNBH's accounts.saG3 iven the above.N zabonimanah as not demonstratedt hat it was unreasonablef or the Trial Chamber to conclude that the overall consistency in their testimonies outweighed the differences. Accordingly, the Appeals Chamber finds that the Trial Chamber reasonably found corroborationb etweenW itnessesC NAZ and CNBH.

186. Contrary to Nzabonimana'sa rgument,s4a4t no point did the Trial Chamberd etermine that Witnesses CNAZ and CNBH met in Kabgayi. The Trial Chamber found that both witnesses testified to seeking refuge at Kabgayi, and that Witness CNBH corroboratedW itness CNAZ's presencet here.5aT5h e Appeals Chambera lso notes that the Trial Chamberm ade this finding when it examined consistenta spectso f their testimonies.I n any event,N zabonimanaf ails to demonstrate how the Trial Chamber erred or how such an error would undermine findings that the two Prosecutionw itnessesc orroboratede acho ther on key facts. I87. Finally, the Trial Chamber found that Witness T110 corroborated Witness CNAZ's testimony that the latter was one of the first to leave the gathering.touT he Appeals Chamber notes that Witness T110 testified to Witness CNAZ being "the first to leave the place" when estimating Witness CNAZ's departurei n relation to Nzabonimana'sd eparture.toTt he Appeals Chamber is not convinced that this was incompatiblew ith Witness CNAZ describingh imself leaving as a result of the speech,w hile others were still present.to*G iven the circumstancest,h e Appeals Chamber finds *" 540T-. ria.l J. u,dgemenpt,w as111,112. *5'4 1T- ria,l. J ud, gemenpt,w a.712. 502 Trial Judgementp, aras.7 08, 734. to' Srcs upro,paras1.7 4-181. 5a NzabonimanaA ppealB rief, para. 126. 505 Trial Judgemenpt,a ra.709. 5'u Trial Judgementp, ara.

708. The AppealsC hambern otes the Trial Chamber'sf inding that Witness T110 corroboratendo t only WitnessC NAZ but alsoW itnessC NBH, asi t indicatedth eP rosecutiown itnessesS.e ei dem. tot W itnessT 110,T . 13O ctobe2r 010p . 11( closedse ssion). tot W irnessC NAZ,T . 12N ovember2 009p p.4,5; WitnessC NAZ, T. 12N ovembe2r 009p . 43 (closeds ession). CaseN o.: ICTR-98-44D-A 29 Septembe2r 014 f i. w ) 1 v

that the Trial Chamberr easonablyf ound corroborationbetweenW itnessesC NAZ andT 1l0 QttVfl/H aspecto f the evidence.

188. Based on the fbregoing, the Appeals Chamber finds that Nzabonimana has failed to demonstratea ny error in the Trial Chamber'sa ssessmenotf corroboratinge vidence. (iii) Overall Assessmenot f ProsecutionW itnesses 189. Nzabonimanas ubmits that the testimonieso f WitnessesC NAY, CNAZ, and CNBH were irreconcilable and that the Trial Chamber should have considered all the evidence and contradictionsb efore deciding whether the allegationsc oncerning the Butare trading centre were established.5aNez abonimana maintains that the Trial Chamber, while rejecting Witness CNAY's testimony becausei t differed too widely from the evidence of the other Prosecution witnesses, failed to draw conclusionso n the inconsistenciesb etween the three witnesses.-5Hsoe claims that the Trial Chamberl imited itself to the testimonieso f WitnessesC NAZ and CNBH, and further erred by stating that the overall consistencyi n their testimonieso utweighedt he differences.'-t' 190. The Prosecution responds that the Trial Chamber reasonably did not accept WitnessC NAY's testimony,o nly acceptedp arts of Witness CNAZ's testimony when consistent with other evidence,a nd reasonablyd isregardedo ther parts of Witness CNAZ's testimony because of signilicantp assageo f time. 552 191. Nzabonimana replies that the Trial Chamber did not fully take into account Witness CNAY's testimony, and also that the Prosecutione

vadesa ddressingt he Trial Chamber's failuret o considert he witness'sc ontradictoryv ersiono f events.ss-' 192. The Appeals Chamber is not convinced that the Trial Chamber erred in its overall assessmenot f the Prosecutione vidence.T he Trial Chamber consideredt he testimonieso f all three Prosecutionw itnessesa nd it weighed Witness CNAY's account against the other evidence.ssa Specilically,i t notedt hat WitnessC NAY's account" varie[d] widely fiom the other witnessesw ho testifled, both in the time of the meeting, the words spokenb y Nzabonimanaa nd the actions of the crowcl after the speech".55T5h e Trial Chamber concludedt hat Witness CNAY's testimony was not ste N zabonimanNa oticeo f Appeal,p iua.4 .L | ; NzabonimanAa ppealB rief, paras.1 l'7- 121. ssO NzabonimanaA ppeal Brief, paras.1 17, 120, \21. See a/,soN zabonimanaR eply Brief,paras.3 9, 41, 42; AT. 29 April 2014p p.2 1,2 2. 55rNzabonimana AppealB rief,p aras.l1 7-122,r e.fbrringto Trial Judgemenpt,a ra1. 12.S eea lsoNzabonimanRa eply para.4 4; AT.29A pril 2014p .22. 9rief, "'ProsecutionR esponsBer ief,p ara.1 07. "' NzabonimanRae plyB rief,p aras3. 9,4 0. Judgemepnatr.a? .1 8. ili I'irl "' TrialJ udgemenpt.a ra.7 I8. 66 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2169/H credible in relation to the Butare trading centre and noted that the Prosecution did not cite this witness in its submissions.ssT6h e Appeals Chamber considerst hat, in rejecting Witness CNAY's evidence, the Trial Chamber was drawing conclusions on inconsistenciesb etween Prosecution witnesses.R ecalling the Trial Chamber's discretion to evaluate any inconsistencies,t o consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence,557t he Appeals Chamber detects no error in the Trial Chamber'sa ssessmenotf the three Prosecutionw itnesses. I93. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber did not err in the overall assessmenotf WitnessesC NAY, CNAZ, and CNBH. (iv) Conclusion I94. Based on the foregoing, the Appeals Chamber considerst hat Nzabonimana has failed to demonstratea ny error in the Trial Chamber'sr elianceo n WitnessesC NAZ and CNBH in respecto f the eventsa t the Butare ftading centreo n 12 April 1994. (b) Alleged Enors in AssessingD efenceE vidence 195. The Trial Chamber assessedt he testimonies of Defence Witnesses T109, T110, and Jean-MarieV ianney Mporanzi.s5sIn relation to Witness Mporanzi, the Trial Chamber considered his testimony on whether the meeting occurred to be of limited probative value.55eT he Trial Chamberr ecalled contradictionsb etween his

testimony and previous statements,s6a0n d found his vague claim that Rwandan authorities pressuredh im to make his previous statementsi nsufficient to substantiateh is assertion that his prior statements were fabricated.s6lF urthermore, it determined that, eveni f fabricated,W itnessM poranzi's admissiont o providing false statementsu ndermrnedh is credibility.56' Th" Trial Chamber noted that Witnesses T109 and T110 acknowledged that Nzabonimana came to the Butare trading centre, but denied that he made inflammatory remarks about Tutsis or that anv Tutsis fled the tradine centre durine his address.563N zabonimana "5:5 6T-. ria.l J- ud, gemenpt,a ra.7 18. "' See,e .g., NdahimanaA ppealJ. udgementp, ara.9 3; HategekimanaAppealJ udgementp, wa. 82; MunyakaziA ppeal Judsemenpt.u a.'11. " s o s r T i ria , l . J u , d ^ gemenpta, ras6. 83-708,719-734. "t Trial Judgemenpt,w a.73l. 'uo Trial Judgementp, ara.732. '5"6't -T r.i a,l J. ud, gemenpt,a n.733. '"' 561T- ria.l- J ud, gemenpt,u a. 7 33. '"' ',r""\ Trial Judgemenpt,a ra.719. 6'7 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

challenges the Trial Chamber's assessmento f Witness Mporanzi's credibility,sonoi lffi/H contradictionsb etweenW itnessesT l09 andT 110.s6s (i) WitnessM poranzi'sC redibility 196. Nzabonimana submits that the Trial Chamber erroneously determined that Witness Mporanzi's creclibility was underminedb ecauseh e admitted to lying to the Prosecution.566 Nzabonimana submits that the Trial Chamber erroneously stated that nothing suggested BourgmestreC harles Gahundee ncouragedW itness Mporanzi to testify falsely.s6TH e arguest hat no trier of fact would have failed to note that the duressW itness Mporanzi faced "vitiated his liberty" on whether to accuseN zabonimanao r not.'56N8 zabonimanaa dds that the Trial Chamber erred in finding that the witness failed to adduce cvidence of duress.-56Hee also maintains that the Trial Chamber found that Witness Mporanzi was not arresteda nd suffbred no undue consequencesa s a result of his decision to testify for the Defence,w hereasW itness Mporanzi fled Rwanda in 2008 to avoid suffering any undue consequences.sTNOza bonimanaf urther submits that, by only considering Witness Mporanzi's admissiont o lying, the Trial Chamber failed to addresse videncec orroborating the witness's testimony on a systemo f recruitment,a nd thus failed to provide a reasonedo pinion.sTl 197. Nzabonimanaa lso submits that the Trial Chamber simply examined contradictionsb

etween Witness Mporanzi's testimony and the prior statementsh e refuted about eventsa t the Butare trading centre, and lailed to make findings based on the witness's freely stated facts during his trial 564 NzabonimanaN otice of Appeal,p aras.4.1 .4(3),4.1 .5(6),5 .1. 2(2); NzabonimanaA ppeal Brief, paras.1 36-143,1 81, 184, 186, 187, 189, 190.N zabonimanac hallengesth e Trial Chamber'sa ssessmenotf WitnessM poranzi's credibility in relation to fabrication of evidence and the Butare trading centre under his Fourth and Fifth Grounds of Appeal. The Appeals Chamber considersa ll contentionsr elated to Witness Mporanzi togetheri n this section. 'n'Nzabonimana Notice of Appeal,p aras.4.1 .5(2);N zabonimanaA ppeal Brief, para. 149. s6o NzabonimanaN otice of Appeal, paras.4 . 1.4(3),4 . 1.5(6),5 .1. 2(2); NzabonimanaA ppeal Brief, paras. 137, 181 (Frencho riginal).S eea lso AT.29 April 2014 pp. 12, 13. Noting that none of Nzabonimana'sa llegationsi n relationt o his right to a fair trial, including the ones related to the assessmento f fabrication of evidence, is developed in his Appeal Brief, the Appeals Chamber considers that these have been withdrawn (.seeN zabonimana Notice of Appeal, paras.4.l.4(5)-(8)).T he AppealsC hambera lso observest hat severala rgumentsr elatingt o fabricationo fevidence are repetitiveo f thoser aisedu nder Ground 3 (see NzabonimanaN otice of Appeal, paras.4 .1.4(1),4.1.4(5),4.1.5(3))a nd '71,72,78,79). h_avbee ena lreadya ssesseudn derG round 3 of Nzabonimana'sa ppeal( sees upra,p aras.7 0, "" Nzabonimana Appeal Brief, para. 186. 568 Nzabonimana Appeal Brief, para.

186. Nzabonimana submits that Witness Mporanzi f'elt no "freedom" to refuse Bourgmestre Charles Gahunde's request to testify against Nzabonimana, based on a prepared list of allegations, as a refusalw ould be considereda n act acainstt he RPF. Seei bid.. para. 185. sn'Nzabonimana AppealB rief.p ara.*8l 4.r e.lerrinNlo Trial Judgemenlp, uas. ll9-135. 140. "" NzabonimunaA ppealB rief.p ara.1 87. 57r Nzabonimana Appeal Brief, paras. 136-143. In particular, Nzabonimana submits that: (i) like Witness Mporanzi, Witness CNBH confirmed that it was Bourgme.srreG ahunde who put them in touch with ICTR investigators,a nd that refusing to make a statementa gainst Nzabonimana was not possible; (ii) Prosecution Witness CNBA testified that it was Witness CNBH who put him in touch with investigatorsf rom the Prosecution,t hus confirming that Witness CNBH participated in the recruitment of Prosecutionw itnessesa nd corroborating Witness Mporanzi's testimony regarding the system of recruitment; and (iii) Witness T109 conoborated Witness Mporanzi in testifying that Witness CNBH attemptedt o recruit him to give f'alset estimony against Nzabonimana.S eei bid., paras. 140-142. 68 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2167/H testimony.572N zabonimana further submits that he was prejudiced by the Trial Chamber's errors and the Prosecution's obstruction as he was unable to use Witness Mporanzi's testimony to confront Witness CNAZ.573 198. The Prosecutionr esponds that Nzabonimanap rovides no argument as to why the Trial Chamberw as not entitled to disbelieve" a confessedli ar".574Its ubmits that Nzabonimanar e-argues the evidencea nd misstatesW itness Mporanzi's testimony in relation to Bourgme.r/reG ahunde.sTs While acknowledging Witness Mporanzi's flight from Rwanda, the Prosecution argues that Nzabonimanai gnores that severald etainedw itnessesd id not suffer consequencesb y testifying for the Defence.ttuT he Prosecutionf urther respondst hat Nzabonimana's undevelopedc laim, that it prevented him from confronting Witness CNAZ, should be summarily dismissed as he fails to addresst he Trial Chamber'sc entrald ecisiono n this matter.577 199. Turning first to the Trial Chamber's assessmento f Witness Mporanzi's credibility in relation to fabrication of evidence, the Appeals Chamber observest hat the Trial Chamber exarnined his testimony in detail when it considered allegations that Rwandan authorities were involved in evidencef abrication.sttT he Trial Chamberd eterminedt hat Witness Mporanzi's vague claims did not support the conclusion that Rwandan Governmento fficials coercedh im to make his

1998 and 2003 statementsto Prosecutioni nvestigators.tteT h" Trial Chamber basedi.t s determinationo n the following considerations: (i) nothing in Witness Mporanzi's account of his interaction with Gahunde suggestedt hat Gahunde encouragedh im to testify falsely;s80( ii) Witness Mporanzi's testimony that he could freely add and omit allegations against Nzabonimana undermined his supposedb elief that he was under threatt o testify falsely;58ra nd (iii) the witnessu ltimately decided not to testify for the Proseculiona nd insteadt estifiedf or the Defence and,b y his own admission,h e was not arresteda nd suffered no undue consequencesa s the result of his testimony.ss2G iven the Trial Chamber's explicit consideration of the alleged duress and circumstances surrounding 5?2 NzabonimanAap pealB rief,p ara.1 90. "'NzabonimanaA ppealB rief,p ara.1 38.S eea lsoi bid.,p aras2. 4, 189. 574 ProsecutioRn esponsBe rief,p ara.I 19. t'' ProsecutioRn esponsBe rief,p ara.1 67. ''o ProsecutioRn esponsBe rief,p ara.1 68,r eferringt o Ti'al Judgemenpt,a ras.1 8 9, 196,212,223. 577 ProsecutioRn esponsBe rief,p aras.1 20-124. ''o TrialJ udgemenpta, ras1. 36-148. "n Trial Judgementp, ara. 143. 5m Trial Judgementp, ara. 140.I n this regard,t he Trial Chamberc onsideredW itnessM poranzi's testimonyt hat he had no choiceb ut to testify againstN zabonimanaa, ndy et admittedt hat Gahundes poket o him gently.I t consideredt hat the witnessp rovidedn o evidenceo ther than vaguep erceptionsa nd fearst hat he would be imprisonedi f he did not testify. Seei dem. t81 Trial Judgemenpt,a ra.1 41. ttt Tria.lJ udgementp, an.

142. CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 t*1

WitnessM poranzi's false prior statements,s8L3h e Appeals Chamber observes that frlffi/H disagreeingw ith the Trial Chamber'sa ssessmenNt,z abonimanfaa ils to demonstratheo w the Trial Chambere rred.T he AppealsC hambetrh usd ismisseNs zabonimana'asr gumentisn thisr egard.

200. The Appeals Chamber is also not convinced that the Trial Chamber erred in stating that Witness Mporanzi "provided no evidence" other than vague perceptionsa nd fears that he would be imprisoned if he dicl not testity.58aR ead in context, the Trial Chamber was assessingW itness Mporanzi's testimonyo n his fear of imprisonments houldh e not testily againstN zabonimanaA. s for the witness's flight from Rwanda in 2008, thc Appeals Chamber is unable to see how this argumentu ndermines,o r rendersu nreasonablet,h e Trial Chamber's finding that Witness Mporanzi, by his own admission,w as not arresteda nd suf'feredn o undue consequenceas s a result of his testimony lor Nzabonimana.5sTsh e Appeals Chambert hereforef in<isn o error in the Trial Chamber consideringW itness Mporanzi's admissiont o providing false statementsin its assessmenot f his credibility. 201,. Consideringt he above,s pecifically the Trial Chamber'sd eterminationt hat the allegationso f coercion were unfounded, the Appeals Chamber finds that the Trial Chamber had no reason to address whether other witnesses corroborated Witness Mporanzi's testimony on the system of recruitment.ssN6 zabonimana'sa rgllmentso n the allegedf ailure to addresse videncea re accordingly dismissed. s83 S pecifically, the Appeals Chamber observest hat the Trial Chamber explicitly considered, inter ulia: (i) the list of allegations against

Nzabonimana; (ii) Gahunde questioning whether Witness Mporanzi supported the RPF, and the witness's fear of answering "no"; (iii) Witness Mporanzi's fear of being imprisoned for not fabricating evidence against Nzabonimana; (iv) Witness Mporanzi's interactions with Gahunde; (v) Witness Mporanzi's acknowledgement that in 2003 he fieely made additional allegations against Nzabonimana beyond those Gahunde told him (.seeW itness Mporanzi, T. 26 May 2010 pp. 35, 36); (vi) Witness Mporanzi received money for food and travel expenses,w hich did not expect and received after his testimony; (vii) Witness Mporanzi made false accusations against Nzabonimana because he thought it would be difficult for authorities to arrest Nzabonimana, who was hiding in the Congo (see Witness Mporanzi,T .26 May 2010 p. 40); and (viii) Witness Mporanzi left Rwanda becauseh is consciencet roubled him for imperilling Nzabonimana and wanted to make reparations fbr what he did (.see Witness Mporanzi, T. 26 May 20 10 pp. 40, 41). SeeT rial Judgement,p aras. 12 0- 13 5, 137- 14 3, 14 6. ttt Trial Judgementp, ara. 140. 5'5 Trial Judgement,p ara.1 42. ttt'In any event, the Appeals Chamber observest hat the Trial Chamber consideredW itness CNBH's testimonyt hat Bourgmestre Gahunde also contacted the Prosecution witness (Trial Judgement, paras. 108, 109, 136, fn. 209). The Trial Chanrber determined that evidence of

a witness's mere contact with Rwandan authorities does not lead to a conclusion that the witness fabricated testimony against Nzabonimana (Trial Judgement, para. 136). The Appeals Chamber detects no error in this determination. Additionally, the Appeals Chamber does not accept Nzabonimana's argumentt hat Witness CNBA's testimony that investigatorss ent Witness CNBH as a messenger( Witness CNBA, T. 14 December 2009 pp. 49, 50 (closed session)) confirmed that Witness CNBH participated in recruitment or corroborated Witness Mporanzi's testimony "regarding the system of recruitment" (Nzabonimana Appeal Brief, para. l4l). Furthermore, the Appeals Chamber is unable to identify which specific aspect of Witness Mporanzi's testimony is corroborated as Nzabonimana fails to provide any relevant transcript reference fiom Witness Mporanzi's testimony on the recruitment system or on Witness CNBH's recruitment activities to falsely accuse Nzabonimana. Accordingly, the Appeals Chamber dismisses Nzabonimana's argument that Witnesses CNBA and T109 corroborated Witness Mporanzi in this regard. t0 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2165/H 202. Tuming to the assessmenot f Witness Mporanzi's credibility in relation to the eventsa t the Butare trading centre, the Appeals Chamber recalls that the Trial Chamber found that his testimony in this respectw as of limited probative value.58T7 he Trial Chamberc onsideredt hat an impromptu meeting could have occurred at the Butare trading centre without Witness Mporanzi's knowledge.588T o reach this conclusion, the Trial Chamber noted Witness Mporanzi's testimony that after 9 April 1994 he was concerned with refugees and other security matters.sseT herefore, the Appeals Chamber finds that the Trial Chamberd id not simply considerh is admission to lying, or merely examined contradictions between prior statements he refuted and his testimony. The Appeals Chamber therefored ismissesN zabonimana's contention that the Trial Chamber did not enter findings on WitnessM poranzi's trial testimony.

203. As for the allegations of prejudice resulting. from his inability to cross-examine Witness CNAZ with Witness Mporanzi's evidence, Nzabonimana merely mentions a Defence objection prior to WitnessC NAZ's cross-examination.5eHoo wever, he fails to indicate any error in the Trial Chamber rejecting the objection.5elF inally, Nzabonimanad oes not identify any error in the decision nor does he indicate the Prosecutiono bstruction he is challenging.A lso, it is entirely unclear on what matter Nzabonimana wanted to confront Prosecutionw itnesses with Witness Mporanzi's testimony.G iven his unsubstantiateda nd vaguec laims,t he Appeals Chamberd ismisses his argument.

204. In light of the above,t he Appeals Chamberr ejects Nzabonimana'ss ubmissiont hat the Trial Chamber erred by failing to provide a reasoned opinion or in assessingW itness Mporanzi's credibiliw in relation to fabricationo f evidencea nd his testimonvo n the Butare tradine centre. (ii) WitnesseTs1 09'sa ndT 110'sC ontradictions 205. Nzabonimanasu bmitst hat, contraryt o the Trial Chamber'sfi nding,W itnessesT 109 and T110 did not contradicet acho thero n why Nzabonimana'vse hicles toppeda t the Butaret rading t8t Trial Judgementp,a ra.731. ttt TrialJ udgemenpt,a ra.13I. ttn Trial Judgemenpt,a ra.137. 5e0 SeeN zabonimanAap pealB rief,p ara.1 38,r eJbrringto WitnessC NM, T. 12N ovembe2r 009p p. 8-1 3. sel The AppealsC hambern otest hat on 12 Novembe r 2009,d uring WitnessC NAZ' s testimony,t he Defenceb roughta n oral motion seekingt o postponeth e cross-examinatioonf this witnessu ntil it met with WitnessM poranzi.T he Defence arguedt hat the Prosecutiono bstructedt he meetingb y failing to cooperatew ith the Defencea nd by maintainingt he witnesso n its list despiteW itnessM poranzi'sd esiret o not testify for the ProsecutionD. uring theseo ral argumentsi,t surfacedt hat the Defence,r ather than the Prosecutionh, ad knowledgeo f WitnessM poranzi's whereaboutsH. aving heardt he argumentst,h e Trial Chambero rally deniedt he Defencem otion to postponeW itnessC NAZ's testimony., See WitnessC NAZ, T. 12N ovembe2r 009p p. 8-13.T he AppealsC hamberd etectsn o enor in theT rial Chamber'sd ecision as it consideredth at the Defenceh ad sufficienti nformationt o cross-examinWe itnessC NAZ, and it left the optiono pen forNzabonimanatorecaTTWitnessCNAZ.SaeWitnessCN1A2ZN,oTv.e mber2009p1.3 . 1'l CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 O1

centre.se2A ccording to Nzabonimana, the fact that Witness T110 did not see NzaborfitfiM/H relieving himself castsn o doubt on the witness's testimony, and the Trial Chamber could not infer that his testimony was contradictory.se3N zabonimana further claims that the Trial Chamber erroneously found WitnessesT l09's and Tl10's version of events suspectb ecauseo f their discrepanciesa nd their attempt to present the meeting as an impromptu event.se4N zabonimana argues that the Trial Chamber and the Prosecutiona greed the meeting was impromptu and that WitnesseTs l09 andT l l0 shouldn ot haveb een" reproached".5es 206. The Prosecution responds that Nzabonimana ignores contradictions the Trial Chamber identifiedi n the evidenceo f WitnessesT 109 andT l l0.se6R egardingt he "impromptu" natureo f the meeting, the Prosecution submits that Nzabonimana ignores the real issue - namely that these witnessesg ave contradictory reasonsw hy Nzabonimana stopped at the Butare trading centre in ordert o avoid the conclusiont hat he stoppedt o give an inciting speech.5eT 207. In a statemento f l3 January2 010, WitnessT l09 indicatedt hat Nzabonimanae xited and stood besideh is vehicle,a nd that his driver exited the vehicle to go to the toilet.sesW itnessT 109 made no modificationst o thesef acts in his statemento f 23 May 2010.-5eDeu ring his testimony, Witness T109 statedt hat Nzabonimanae xited

the vehicle to relieve himself in a bananap lantation, and that his driver went "to the gents".6t"'Asf or WitnessT 110, in a statemenot f 12 January2 010, the witness said that Nzabonimanas toppeda t the Butare trading centre becauseR uhunga had called for him, "if not, he would perhapsh ave merely greetedu s from his car and would have continued on his way".ot" During his testimony, Witness T110 testified that Ruhunga went towards Nzabonimanaa nd spokew ith him, and that Nzabonimanaw as always standingn ear his car.u"' 208. The Trial Chamber consideredt hat both witnessesp rovided contradictory accounts as to why Nzabonimana's vehicle stoppeda t the trading centre.60T3 he Appeals Chamber observest hat ser NzabonimanaA ppeal Brief, para. 149,r e.f'erringto Trial Judgement,p arrs.727,728. '"' NzabonimanaA ppeal Brief. para. 149. sea Nzabonimana Appeal Brief, para. 151, re.fbrring toTrial Judgement,p ara.129. '"'Nzabonimana Appeal Brief, para. 151,r et''erringto Trtal Judgement,p ara.664.S eea lso AT.29 April 2014p.20. se6 ProsecutionR esponseB rief, pnra. 138. 5e7 ProsecutionR esponseB rief', para. 140,r elbrring toTrial Judgement,p ara.729. se* Exhibit P58 (WitnessT 109's Statemento f l3 January2 0lo),para. 12. t" Exhibit P59 (WitnessT l09's Staremenot f 23 May 2010). o"" Witne.. T109,T .2 June2 010p .65 (closeds ession)W; itnessT 109,T . 3 June2 010 pp.26,21 (closeds ession).

t"" Exhibit P69 (WitnessT l l0's Statemento f l2 January2 010),p ara. 14.S eea l.w AT.29 April 2014 p. 19. t"'t witness T110, l2 October2 010 p. 2l (closeds ession). t"'t Trial Judgement, paras.1 27,728. According to the Trial Judgement,W itness Tl09 stated that Nzabonimana went to a bananap lantation to relieve himself', while Witness T110 testified that Nzabonimana stood by his czr the whole time '727. he was at the trading centre. ,lee ibid., para. The Trial Chamber further noted that in previous statements, Witness Tl09 statedt hat Nzabonimana stood by his vehicle without mentioning the banana plantation, and the witness explained that he intbrmed Defence investigators of this fact but it was not recorded. See ibid., para.

728. As for Witness Tl10, the Trial Chamber noted that in a prior statement,h e statedt hat Nzabonimana's vehicle stoppedb ecause Ruhunga called for him. See ibid., para.728. '72 Cas^eN o. : ICTR-98-44D-A 29 Septembe2r0 14 t*\

2163/H the Trial Chamber found the discrepancies significant becauset he Prosecution presented evidence that Nzabonimana deliberately drove to population centres, stopped his vehicle, and encouraged Hutus to kill Tutsis.60aA ccording to the Trial Chamber, "the Defence witnesses attempted to portray Nzabonimana's stop at the Butare trading centre as impromptu and attempted to establish that Nzabonimana stopped his vehicle at the trading centre for reasons other than to give an inflammatory address".60sT he Trial Chamber noted, however, that these witnesses provided contradictory reasons for why he stopped, and considered that these contradictory accounts "undermine the credibility of their counter-narrativer egardingt he reasonN zabonimanas toppeda t the Butare trading centre".6o6 209. The Appeals Chamber finds it inconsequential whether the Trial Chamber erred in finding that thesew itnessesp rovided contradictoryr easonsf or why Nzabonimanas topped.W hat mattersi s whether Nzabonimanam ade inflammatory statementsa bout Tutsis. The Appeals Chamber further recalls that, when faced with competing versionso f the samee vent, it is the prerogativeo f the trier of fact to decide which version it considersm ore credible.60O7 n this basis, the Trial Chamber had reasonableb asis to reject the Defence's version of events, which denied Nzabonimana making inflammatory remarks about

Tutsis, and acceptt he evidenceo f ProsecutionW itnessesC NAZ and CNBH, which it found consistent. 2I0. Finally, the Appeals Chamber is not convinced that the Trial Chamber "agreed" that the meeting at the Butare trading centre was "impromptu".608T he Appeals Chamber observest hat, in summarising the Prosecution's arguments, the Trial Chamber noted that "Nzabonimana held an impromptu meeting".60eH or"u"r, in the Trial Chamber's assessment,i t considered that the Prosecutionp resentede vidence during trial that "Nzabonimana deliberately drove to population centresi n Gitaramap rdfecture,s toppedh is vehicle and encouragedH utus to kill Tutsis".610 6e Trial Judgemenpt,a n.129 uot Trial Judgemenpt,a ra.129. o* Trial Judgemenpt,a ra.129. uo' See e.g., Ndahimana AppealJ udgement,p ara. 46; NtabakuzeA ppeal Judgement,f n. 523 RutaSandaA ppeal Judgement,p an. 29 ("Where testimoniesa re divergent,i t is the duty of the [t]rial [c]hamber,w hich heard the witnessest,o decidew hich evidencei t deemst o be more probative,a ndt o choosew hich of the two divergentv ersions of the samee venti t may admit".) (internalr eferenceo mitted). 608 S eeN zabonimanaA ppealB rief, para. 151,r eferring toTial, Judgementp, ara.664. uoe Trial Judgementp, aru.664. 610 Trial Judgement,p ua.

729. The AppealsC hambera lso considersit inaccuratef or Nzabonimanat o say that the Prosecutio"na greed"t he meetingw as impromphr..l ee NzabonimanAap pealB rief, para.1 51.T he AppealsC hamber considerst hat ttre Prosecution'su se of "impromptu" in its Closing Brief was about how the meeting was held. See ProsecutioCn losingB rief, para.212.H owever,t heT rial Chamber'sa nalysisa t paragraph7 29 of theT rial Judgement relatest o Prosecutione videnceo n the reasonsf or driving and stoppinga t different populationc entresi n Gitaramat o encouragteh ek illing ofTutsis. t) C-\ CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 14

2II. Based on the foregoing, the Appeals Chamber linds that the Trial Chambesr' assessrfrrfifli /H contradictionsb etween WitnessesT 109 and T110 does not warrant the Appeals Chamber's intervention. (iii) Conclusion 212. Based on the foregoing, the Appeals Chamberconsiders that Nzabonimana fails to demonstratet hat the Trial Chamberc ommitted any eror in its assessmenotf Defencee videncet hat would occasiona miscarriageo f justice. (c) Alleged Unequal Treatmento f Testimonies (i) Prosecutiona nd DefenceW itnesses 213. Nzabonimana submits that the Trial Chamber treated Prosecution and Defence witnesses unequallyb y assessingco ntradictionsju, dicial rccords,t he opiniono f witnessesa, nd the plausibility of testimonies in a radically different manner,ott Given the number and importance of contradictionsb etweenW itnessesC NAZ and CNBH, Nzabonimanaa rguest hat the Trial Chamber should not have consideredW itnessT 109 not credibleb ecauseo f a mistake in one aspecto f his testimony.6l2A ccording to Nzabonimana,t he Trial Chamber also should not have found Witness T1l0's testimony( statingt hat WitnessC NAZ left at the samet ime or a little beforeN zabonimana made his statement) contradictory to his prior statement fiom January 2010 (indicating that Witness CNAZ left some minutes befbre Nzabonimana).6r3N zabonimanaa lso avers that the Trial Chamberi ncorrectlyr eproachedW itnessT

110 for his opinion on WitnessC NAZ allegedlyf alling into a ditch,6raw hile it assesseddi lferentlyt he opiniono f Prosecutionw itnesses.6rs 2I4. Nzabonimana I'urther submits that the Trial Chamber treated the issue of judicial records differently between Det'enceW itnessesT l09 and T110 and ProsecutionW itnessesC NAA and CNAC.6r6N zabonimanas ubmitst hat nothing in the judicial recordso f WitnessesT l09 and Tl10 gave reasonst o doubt their sincerity.ottH e arguest hat the Trial Chamber erred by holding against 6rrNzabonimana Notice of Appeal, para.4.1.5; NzabonimanaA ppeal Brief, paras. 145-148, 150, 152. See also 4T.29 April 2014p p. 19-21. "rr Nzabonimana Appeal Brief, para. 148,r e.t'brringr o Trial Judgement, para.724. 613 Nzabonimana Appeal Brief, para. 146, re.t''errin1t1o Trial Judgement, para.725. Nzabonimana notes the Trial Chamber'sf inding that WitnessT l l0's hesitation,in respondingt o why WitnessC NAZ left the scene," may" indicate that he was not credible in resoecto f eventst o which he testitied. Seei dem. t'rt Nzabonimana Appeal Brief. para. 147 (French original), re.t''erringt o Trial Judgement, para.

726. See aLso AT 29 April 2014p p. 18,1 9. n'' Nzabonimana Appeal Brief, para. 147 (French original), re.fbrringt o NzabonimanaA ppeal Brief, paras.2 20,221 . 616 NzabonimanaA ppeal Brief, para. 145. 6r7 NzabonimanaA ppeal Brief, para. 145. '74 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 {i-\

2761/H Witness T109 his false guilty plea,618a nd againstW itness T110 his admissiont o making a false confession.6leN zabonimanaa rguest hat therei s overwhelrninge videnceo f pressureo n prisonerst o plead guilty.620 2I5. Nzabonimanaa lso submits that the Trial Chamber found the evidenceo f WitnessesT 109 and T110 not plausibleo n the fact that Nzabonimana'se scortsr emainedi n the vehicle and left him in the middle of the crowd.621H owever, he argues that it acceptedt he testimony of Witnesses CNAZ and CNBH that Nzabonimanao rderedt he same escortst o pursueT utsis, leaving him amidst peopleh e threatenedt o kill.622A ccording to Nzabonimana,t his Prosecutione vidence,c oupled with the gendarmes'u nlikely pursuit of Musabyimanai n a vehicle, should have raisedd oubt or mistrust in relation to accountso f Prosecutionw itnesses.u" He claims that the Trial Chamber described discrepanciesin Prosecutione videncea s minor divergencesa nd additional details,62wa hile it held that differences between the testimonies of Witnesses T109 and T110 undermined their credibility.62s 216. The Prosecutionr espondst hat the Trial Chamber reasonablyd isbelievedW itnessesT 109 and T110 for a "host of thoroughly explained reasons",u'uT h" Prosecution submits that: (i) Nzabonimanaf ails to acknowledget he Trial Chamber's concernt hat WitnessesT 109 and T110 changedt heir accountst o favour

Nzabonimana;6'71 ii; the Trial Chamberc orrectly consideredt hat Witness T110 asserted, without basis, that Witness CNAZ did not fall into a ditch;628 (iii)Nzabonimana ignores findings that Witnesses T109 and T110 did not suffer adverse consequencesf or refusing to give certain testimony;62ea nd (iv) the Trial Chamber regarded Witnesses CNAA's and CNAC's testimonies with caution.630F urthermore, the Prosecution responds that, given Nzabonimana's position as a government minister, the Trial Chamber reasonablyf ound that the gendarmesw ould not have stayedi n the car when Nzabonimanaa lighted 618 NzabonimanAa ppealB rief,p ara.1 45,r eferringt oTial Judgementp, an.120. o'' NzabonimanaA ppealB rief, para.1 45,r eferringt oTrial Judgementp, ara.72l. Nzabonimannao test hat the Trial Chambear cknowledgetdh e absenceo f a nexusb etweenth e allegationrse latedt o WitnessT 110'sc onfessiona nd the c^hargeasg ainstN zaboniman.a S eei dem,r efening to Trial Judgementp, an.722. o'u NzabonimanAa ppealB rief,p ara.1 45. o'' NzabonimanAa ppealB rief,p ara.1 50,r eferringt oTial Judgementp,a n.730.S eea lso AT.29 Apnll2 014p . 47. 62: NzabonimanaA ppealB rief, para. 150,r eferringt o Tiral Judgementp, ara.7 08.S eea lso AT. 29 April 2014p . 47. o" NzabonimanaA ppealB rief, para. 150,r eferringr o Trial Judgementp, an.67l o'o NzabonimanAa ppealB rief,p ara.1 52,r eferringt oTriraJl udgemenpt,a

ras.7l0,7l1. o" NzabonimanAa ppealB rief,p ara.1 52,r eferringt oTial Judgementp,a ras.724-729. o'o ProsecutionR esponseB rief, para.7 29,r eferringt oTial Judgementp,a ras.7 19-730.S eea lso AT.29 April 2014 pp.4 2.43. o" ProsecutionR esponsBe rief, para.1 35,r eferringt o T'"ialJ udgemenpt uas.7 24,'725.S eea lso AT. 29 Apil 2014 o.42. 628 ProsecutionR esponseB rief, para. 137, referring to Tiral Judgementp, an.726. o" ProsecutieRn esponsBe rief,p ara.1 33. o'"Prosecution ResponsBe nef,para.134r, eferringt oTial Judgemenpt,a ras.1 142,1 210. N"' CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 14

and that they would have followed his orders to pursue fleeing Tutsis.63lT heProsecutiound 8f tffillrl. the Trial Chamber treated Prosecution and Defence witnesses alike as it found certain contradictionsb etweenW itnessesT 109 andT 110 to be minor.632 217. With respectt o the allegedu nequala ssessmenot f discrepanciest,h e Appeals Chambern otes that, contrary to what Nzabonimanaa ppearst o submit,63t3h e Trial Chamberd id not use a "mistake" in one aspecto f WitnessT 109's testimonyt o find his evidencei ncrediblea s a whole.63T* he Trial Chambern oteda "significantd iscrepancy"b etweenW itnessT 109's testimonya nd prior statements regarding Witness CNAZ,635a nd considereclt his discrepancyt o undermine Witness T109's credibility "as to what happenedt o Witness CNAZ on the date of Nzabonimana's addressa t the Butare trading centre".636T he Appeals Chamberd etectsn o error in the Trial Chamber's assessment of the discrepancya nd observest hat the Trial Chamber reachedi ts conclusion on the credibility of WitnessT 109's testimonvb asedo n severalt hctors.637 218. As for WitnessT 110, the Trial Chambero bservedt hat he provided contradictorya ccounts of Witness CNAZ's actions after Nzabonimana's speech.63T8h e Trial Chamber noted that, accordingt o WitnessT 110's 12 January2 010 statementW, itnessC NAZ left a few minutesb efore Nzabonimana and was not pursued; however, in his

testimony at trial, the witness stated that Witness CNAZ left at the same time or very shortly befbre Nzabonimana.oteI n the Appeals 'oa Chamber's view, there is no contradiction between few minutes befbre" and "very shortly befbre". Also, a review of his testimonya t trial revealst hat Witness T1l0 did not provide any information that would contradict his prior statement that Witness CNAZ was not pursued as Witness Tl10 statedt hat "when he left, he had no problem".640T he Appeals Chamber thus finds that no reasonabletr ier of fact could concludet hat a contradictione xistedb etweenW itnessT l10's prior statementa nd testimony on when Witness CNAZ left the Butare trading centre. The Trial 63r ProsecutionR esponseB rief'.o ara. 139. 63r ProsecutionR esponseB rief, para. l4l . re.ferring toTrialJudgement, para.123. Seea lso AT.29 Aprrl 2014p.42. 633 Nzabonimana Appeal Brief, para. 148. 63a .SeeT rial Judgement, para.124. n" Trial Judgement.p ara.724. n'n Triaf judgement, para.724. Specifically, the Trial Chamber observed that: (i) in Witness T109's testimony, WitnessC NAZ and other Tutsis remaineda t the centret hroughoutN zabonimana'ss peech;( ii) in his l3 Januery2 010 statement,W itness CNAZ left the trading centre without explanation and that the departure did not provoke a reaction or responsef iom anyone; and (iii) in his 23 May 2010 statement,W itness CNAZ did not leave

the trading centre before Nzabonimana.S ee iclem, re.f'erring/ o Witness T109, T.2 June 2010 p.7G72 (closed session); Exhibit P58 (WitnessT 109's Statemento f 13 January2 010),p ara. 17; Exhibit P59 (WitnessT 109's Statemento f 23 May 2010). 637 SeeT rial Judgementp, aras.7 20, 724,730. t'tt Trial Judgement, para.725. 6re T rial Judgement,p ara.725, re.fbrringr r.rE xhibit P69 (WitnessT 110's Statemento f 12 January2 010), para. 16; Witness T110, T. 13 October 2010 pp. 11, 14 (closed session).T he Appeals Chamber notes that Nzabonimana inaccurately statest he finding of the Trial Chamber recalling Witness T110's testimony that Witness CNAZ left at the same time or very shortly before Nzabonimana left, as opposed to at the same time or little before Nzabonimana made his statement.S ee Nzabonimana Appeal Brief, para. 146. o'" WitnessT 110,T . 13 October2 010p p. I l, 14( closeds ession). 16 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2159/H Chamber accordingly erred in finding a contradiction. However, the Appeals Chamber is not convincedt hat this error occasioneda miscarriageo f justice. The Appeals Chamberr ecalls that the Trial Chamberr ejectedW itness T110's evidence on severalb ases,i ncluding his criminal history and the retractiono f his sworn confession.6al 219. Nzabonimanaf ails to demonstrateh ow the Trial Chamber's assessmenot f Witness T110, regarding what happenedt o Witness CNAZ after he left the meeting, warranted similar treatment to Prosecutionw itnesseso n other events.64A2 ccording to the Trial Chamber,W itness T110 admitted that he did not know what happened to Witness CNAZ after the latter left the meeting, yet he later denied that Witness CNAZ fell into a ditch.6a3O n this basis, the Trial Chamber doubted Witness T110's testimonyr egardingw hat happenedt o Witness CNAZ after he fled the meeting.6aC ontrary to what Nzabonimanac laims, the Trial Chamberd id not reproacht he witnessf or having expressed an opinion but consideredt hat his "willingness to deny material factso f which he admittedly had no knowledge" underminedh is credibility.6a5K eeping in mind that trial chambersa re best placed to assesst he evidence, including the demeanouro f witnesses,64t6h e Appeals Chamber finds that Nzabonimana has not demonstrated that the Trial Chamber erred in its assessment of WitnessT 110's testimonyc omparedt o Prosecutionw itnesses.

220. As to the Trial Chamber's treatment of the judicial records, the Appeals Chamber is not convinced that the Trial Chamber erred in applying caution to the testimonieso f WitnessesT 109 and T110 as a result of their convictions and Witness T110's retractiono f his sworn confession.6aT Furthermore,i ndependento f the Trial Chamber's assessmenot f WitnessesC NAA and CNAC, to which the Trial Chamber applied caution,648th e Trial Chamber had enough information in the *l friA Judgemenpt,a ns.121,722. *' NzabonimanaA ppeal Brief, para. 147 (French original), referring to Tnal Judgement,p ara.

726. The Appeals Chambear lsod ismisseNs zabonimana'ssu bmissiono n WitnessT 110'sh esitationa sh e doesn ot substantiataen y error nor demonstratwe hy the Trial Chamberw as not allowed to make an additionalo bservationo n WitnessT 110's d.gmeanoSre. ei bid.,p ara.1 46;T rial Judgemenpt,a ra.725. oo' Trial Judgementp, ara.7 26. @ Trial Judsemento.a ra.'726. *t Trial Judlement,p ara.726. *u Sre, e.g., KanyaruklgaA ppeal Judgement,p ara. 121;S imba Appea|J udgementp, ara.9; Ntagerura et al. Appeal Judsementp.a ras1. 2.2 13. *t iriut Judgement,p uas. 120-722.I n assessingth e credibility of WitnessT 109 the Trial Chambern oted that the witness was not directly implicated in any criminal activity with regard to the event at the Butare trading centre. However, it treatedh is testimony with appropriatec aution for his participationi n crimes committed in Gitarama prdfecturefo r whichh e wasc onvictedin absentiaS. eei bid., para.120T. he Trial Chambecr onsideredW itnessT l l0's admissionto fabricatingc onfessionto securer eleasef rom prison,a nd observedth at his retractiono f a swornc onfession was a seriousm attert hat raisedq uestionsre gardingc redibility.I t alson otedt he witness's1 1 -yearp risons entencein Rwanda.A ccordingt o the Trial ChamberW, itnessT 110 was not directlyi mplicatedi n any criminal activity with regardt o the presenta llegation;h owever,d ue to his convictiona nd sentencei,t treatedh is testimonyw ith appropriate cautionS. eei bil., paras7. 21,7 22. e8 Se e Tna)J udgementp, arus.1 064,1 1 4 2, 1210,1 480. e:"^\. CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

judicial recordso f WitnessesT 109 and T110 to apply caution to their testimonies.Accorfifi$$/lJ Nzabonimana'sa rgumento f unequalt reatmentf ails.

221. Concerningt he conducto f gendarmest,h e Trial Chamberd id not find it plausible,a ccording to the evidenceo f WitnessesT 109 and T110, that Nzabonimana'se scortsr emainedi n the car while he left the vehicle.6aTe he Trial Chamberr easonedt hat, given the President'sd eath less than a week prior to the meeting, it did not believe that Nzabonimana's security would allow a government minister to walk unescortedi n a crowcl.6s0N zabonimana fails to demonstratet hat this was an assessmentt hat no reasonablet rier of fact could make. Furthermore, based on the evidence of WitnessesC NAZ and CNBH, the Trial Chamber found that Nzabonimanat old gendarmesa nd the populationt o pursueW itness CNAZ and anotherT utsi.6srT he Appeals Chamber considerst hat Nzabonimanam erely disagreesw ith the Trial Chamber's assessmenat nd fails to demonstrateh ow the Trial Chambere rred.T he Appeals Chambert hus dismissesN zabonimana'sa rguments, 222. Finally, the Appeals Chamber is not convinced that the Trial Chamber treatedD efence and Prosecutionw itnessesu nequally in its assessmenot f contradictions.T he Appeals Chamber recalls that an enor, if any, made in the assessmenotf Defencee videncei s distinguishablefr om the issue of uncquala ssessmenotf Prosecutiona nd Defencee vidence.I n this regard,t he AppealsC hamber notes that the Trial Chamber consideredt he evidenceo f ProsecutionW itness CNAZ

incredible on severald etailst hat he exaggerated,6a5n2d it rejectedP rosecutionW itnessC NAY's evidenceo n the entire allegation since his account varied widely ftom other testimonies.6sN3 zabonimana fails to acknowledget hat the Trial Chamber also found some inconsistenciesin the accountso f Witnesses Tl09 and T110 to be minor.65aB asedo n the foregoing,t he AppealsC hamberf inds that the Trial Chamberd id not treat Defencew itnessesu nequallyc omparedt o Prosecutionw itnesses. (ii) ProsecutionW itnesses 223. Nzabonimanas ubmits that the Trial Chambera pplied a different standardw hen it found the silenceo f ProsecutionW itnessesC NBA, CNBT, CNAK, and CNAQ during Gacaca proceedingst o underminet heir credibility,w hile it was satisfiedw ith WitnessC NAZ's explanationo f why he did not testify againstN zabonimanai n Gacaca proceedings.6ss uoo Trial Judgemenpt,a ra.7 30.S eeu lsoT rial Judgemenpt,a ras.6 86,693. 6so Trial Judgementp, ara.730. t"' Trial Judgemenpt,a ras7. 08,7 34. utt Trial Judgementp, aras1. 11 ,7 12. utt Trial Judgemenpt,a ra7. 18. o5' Trial Judgementp, ara7. 23. n" NzabonimanAap pealB rief,p ara.1 44,r e.fbrrintgo Tial Judgemenpt,r uas.7131, 038,1 421,1 686. '78 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 .JL

2157/H 224. The Prosecution responds that the Trial Chamber evaluated the totality of evidence, considered many factors, and weighed individual reasons why witnesses did not mention Nzabonimana.65A6c cording to the Prosecution,N zabonimanai gnores that, in contrastt o all other witnessesh e mentions,W itness CNAZ did not testify in Gacacap roceedings.65T 225. The Trial Chamber found that the fact that Witness CNAZ did not accuseN zabonimana prior to giving his statementi n 2008 did not impact his credibility.658T he Trial Chambera ccepted the witness's explanationt hat he first spoket o Prosecutioni nvestigatorsi n 2008 and that he was never prosecuted for not appearing before a Gacaca court.65eIn contrast, the Trial Chamber consideredt hat WitnessesC NBA, CNBT, CNAK, and CNAQ, who previously testified before Gacaca proceedings,o mitted to raise allegationsr elated to Nzabonimanaa nd that this undermined their credibility.660T he Appeals Chamber therefore notes that the Trial Chamber had no information before it that Witness CNAZ testified before Gacaca proceedings,w hile it had such information for the other witnesses.G iven the different circumstancesb etweenW itness CNAZ and WitnessesC NBA, CNBT, CNAK, and CNAQ, Nzabonimanaf ails to demonstratet hat the Trial Chamber erred in reaching different conclusions on their credibility. (d) Conclusion 226. Based on the foregoing, the Appeals Chamber finds that Nzabonimana has failed to demonstrate that the Trial Chamber committed any error in its assessmento f evidence under his Fourth and Fifth, in part, Groundso f Appeal that would occasiona miscarriageo f justice.

3. Direct and Public lncitement to Commit Genocide 227. In relation to the Butare trading centre, the Trial Chamber found that Nzabonimana gave a speech: (i) with explicit instructions to kill Tutsis, and thus constituted a direct call on those assembledt o commit genocide;( ii) in a public location to 20 members of the generalp opulation; and (iii) with the requisitei ntent.661 228. Nzabonimana submits that the Trial Chamber erred in law and in fact in characterising the incitement as direct and public.662N zabonimana submits that the facts as found by the Trial Chamber do not constitute direct and public incitement, as defined by the Appeals Chamber's utu P rosecutioRn esponsBe rief.p ara.1 28. 65t ProsecutioRn esponsBe rief,p ara.1 28r. eferringt oTial,Judgementp,a ra.113. o'o Trial Judgementp,a ra.713. ute Trial Judgementp,u a.713.S eea lsoW itnessC NM, T. 12 Novembe2r 009p p.1 9-21( closeds ession). uuo Trial Judgemenpt,a ras.1 038,1 421,1686. uu' TrialJ udgemenpt,a ras1. 759-1?61. oo' NzabonimanNa oticeo f Appea.pl,a ra.4 ,2:N zabonimanAap pealB rief,p aras.1 53-162. '/9 r:\--1 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

jnrisprudence.66R3a ther,t he factsc onstituteda n improvisedm eetingw ith a very limited nu@ffi/H persons.ooIon particular, Nzabonimanas ubmits that the Trial Chamber erred in characterisingt he incitement as public becauseh e was found to addressa limited group of about 20 people, who were gathered to share a drink, and therefbre tantamount to a private conversation.66Ns zabonimana arguest hat the personsw ere gatheredi n an "ambiguousm anner" and that the verandao f a drinking place necessarilyl imited the number of individuals who could meet there.666N zabonimanaf urther argues that the Trial Chamber fails to specify the nature and the size of the audience,a nd that the number of personsp resenti s an indispensablef actor that should be consideredw hen assessingth e public charactero f the incitement.66T 229. Nzabonimanaa lso submits that the Trial Chamber erroneously found the incitement to be direct becauseit failed to specifyw hetheri t reliedo n WitnessC NAZ's or WitnessC NBH's account of Nzabonimana'sw ords,r enderingt he evaluationo f the directe ffect of the words impossible.66Ins addition, Nzabonimanac oncedest hat incitementd oes not require proof of a causalr elationship betweent he acts of the accuseda nd the genocide.66H' oweve., pointing to the Nahimana et al. Trial Judgement,h e arguest hat it must be establishedt hat the accused'sa ctions "were likely to

causet he commission of the crime of senocide" and that this was not done in the presentc ase.ott' 230. The Prosecutionr espondst hat the incitement was public becausei t happeneda t the Butare trading centre, a public spacew ith drinking establishmentsa nd shops.67Irt submits that, while the size of the audiencec an be relevant to determinet he public charactero f the incitement, the public natureo f Nzabonimana'si ncitement was alreadyp roven by the public spacew here he spoke.67T2h e Prosecutionf urther respondst hat the incitement was direct because,a s the Trial Chamber found, evidence demonstratedt hat Nzabonimanat old the audiencet o kill Tutsis and two Tutsis fled as a 663 Nzabonimana Appeal Brief, para. 153,r e.f'erringto Kulimanz,iraA ppeat Judgement,p aras. l5t-165. 664 Nzabonimana Appeal Brief, para.

162. Nzabonimana submits that the Trial Chamber erred in law by assessingt he public and direct nature of the incitement on the basis of unreliablee vidence.S ee ibid., para.

155. Nzabonimana's challengesto the assessmenotf evidenceh aveb eene xaminedi n the previouss ection. n"' Nzabonimana Appeal Brief, para. 157. 666 Nzabonimana Appeal Brief, para.

157. Nzabonimana also points to the fact that he was able to offer alcohol to the whole crowd and to the absenceo f strangersd uring his speech.S eei dem. on7 NzabonimanaA ppealB riet'.p aras.1 55.1 56. '-'-^ Nzabonimana Appeal Brief, paras. 158, 159. Nzabonimana recalls that, according to the jurisprudence, it has to be more than "a mere vague or indirect suggestion", and that the culture and context need to be taken into account. ,See ibid., pras.84, 159, fn. 2'/2, re.f'erringt u Nahimuna et ul. Appeal Judgement,p aras.6 86, 692, 694-'702. r"'e Nzabonimana Appeal Brief, para. 160. 67') Nzabonimana Appeal Brief, para. 160, re.ferring to Nahimana et al. Trial Judgement, para.

1015. Nzabonimana points to several facts, namely that he sharedd rinks with all the Tutsis who were present,t hat they came from the same locality, that no one in the audienced enounceda ny Tutsi, that the audienced id not agree with what Nzabonimana was sayinga nd that the personsw ho were allegedlyp ursuingW itnessC NAZ had no intentiono f killing him, and that there were no attacksf ollowing Nzabonimana'sv isit. Seei bid., para. l6l. o" ProsecutionR esponseB rief, para.

143. The Prosecutions ubmits that Nzabonimana made his speech" to a number of individuals in a public space", as required under the law. See ibid., para. 77, referring to Akayesu Trial Judgement, prrras.5 56. 6'74 and Akutesu Appeal Judgement,p . 143. o'- ProsecutionR esoonseB rief, para. 143. 80 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 [*t

2155/H result.673F inally, the Prosecution argues that the Nahimana et al. Tt'ral Chamber explained that direct incitement had the potential to result in genocide but did not stipulate this as an additional elemento f this crime.6ta 231. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide,p ursuantt o Article 2(3Xc) of the Statute,i f he or she directly and publicly incited the commissiono f genocide( actus reus) andh ad the intent to directly and publicly incite others to commit genocide( mens rea).67Ts he Appeals Chamberr ecalls that when assessing the "public" elemento f the incitement,f actors such as the placew here the incitement occurred and whether the attendancew as selectedo r limited can be taken into account.67I6t also recalls that the number of personsp resenti s not an essentialf actor in this assessment.6tTt he Appeals Chamber considerst hat, though not required, the number of personsa nd the medium through which the messagei s conveyedm ay be relevant in assessingw hethert he attendancew as selectedo r limited, thereby determining whether or not the recipient of the messagew as the general public.678 232. The Appeals Chamber observest he Trial Chamber's considerationt hat: (i) the audience consistedo f approximately2 0 memberso f the generalp opulation,i ncluding Tutsis, who happened to be present in

the area at the time; and (ii) the incitement occurred in an undeniably public location.6TTe herefore, the Appeals Chamber is satisfied that the Trial Chamber, in assessingt he public charactero f the incitement, properly consideredt he public location of the utterancesa nd whether the audience was selected or limited. The Appeals Chamber rejects Nzabonimana's argument that the Trial Chamber erred in failing to specify the size of the audience. While not determining the exact number of the persons present in the crowd, the Trial Chamber nevertheless determined the approximate number.680ln this regard, the Appeals Chamber considers that it is not required for a trial chamber to determine the exact number of people present. Given the foregoing, the Appeals Chamber finds that Nzabonimana has failed to demonstrate an error in the Trial Chamber'sf inding of the public elemento f the incitement and therefored ismissesh is argumentt hat the incriminatins messasew as tantamountt o a private conversation. 673 ProsecutionR esponseB rief, para. 144. 674 P rosecutionR esponseB rief. para. 145. u.'-t src supro,p ara.1 21. o'o Sees upra,p ua. 121. u" sr, ,rpro, para.126. u" C7.M uvunyi/ Trial Judgementp, ara.5 03;A kayesuT rial Judgementp, ara.5 56. 67e T ial Judgementp,a ra.1 160.S eea lsoT rial Judgemenpt,a ras.703,705W. ithrespectt o Nzabonimana'asr gument that that the verandao f a drinking place would necessarilyli mit the numbero f individuals who could meet there, the AppealsC hamberi s of the view that he does not demonstrateth at the Trial Chambere rred in its assessmenotf the oublice lement. 680 Trial Judgemenpt,a ras7. 03, 705,1760. 81 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 -D\

233. Turning to Nzabonimana'sa rgumentt hat the Trial Chamber erred in finding the inci@.ffi/H to be direct, the Appeals Chamber recallst hat direct and public incitement implies that the speechi s a direct appealt o commit any act ref'erredt o in Article 2(2) of the Statutea nd requiresm ore than a vague or indirect suggestion.6'T' he Appeals Chamber notes the Trial Chamber's finding that Nzabonimana'ss peech" included explicit instructionst o kill Tutsis" and thus constituted" an incontestablyd irect call on thosea ssembledto commit genocide".68I2n coming to this conclusion, the Trial Chamber noted that Witnesses CNAZ and CNBH provided different versions of Nzabonimana's words.683It considereclt he differences to be minor and attributed them to the passageo f time.68Ta he AppealsC hamberf rndst his assessmenrte asonableT. he AppealsC hamber is also not persuadedt hat these minor inconsistenciesim pact the Trial Chamber'sf inding that, according to both witnesses,N zabonimana made inflammatory statementsa bout the Tutsis and asked whether there were any Tutsis in the crowd.68sA ccordingly, the Appeals Chamber is not persuadedt hat the Trial Chambere rred in finding the incitement to be direct.

234. As for Nzabonimana'sc ontention regarding the likelihood of his actions causing the crime of genocide,68t6h e Appeals Chamber recalls that direct and public incitement is an inchoate crime and that it is punishablee ven if no act of genocicleh as resulted therefrom.6*tI n light of this, the actus reus of direct and public incitement is satisfiedw hen a persond irectly and publicly incites the commission of genocide,i rrespectiveo f whether his or her acts were likely to cause the crime of genocide.68A8c cordingly, the Appeals Chamberr ejects Nzabonimana'sc ontention that, to establish direct and public incitementt o commit genocide,it must be provent hat the accused'sa ctionsw ere Iikely to causet he commissiono f the crime of genocide.

235. Based on the fbregoing, the Appeals Chamber finds that Nzabonimana has failed to demonstratet hat the Trial Chambere rred in characterisingt he incitement as "direct and public" and 68t See Nuhimarut et al. Appeal Judgement, pua. 692, ref'erring to, inter alia, Kajelijeli Trial Judgement, para. 852; AkayesuT rial Judgement,p ara. 557. utt Triol Judgement,p ara. 1759. "" Trial Judgement,p zra.? 10, fn.910. WitnessC NBH, T.3 December2 009 p.22 (closeds ession)( "[Nzabonimana] told us that the fighting was intense at the front [...] that the way to bring an end to the war with the Tutsis was by eliminatinga ll the Tutsis [...]"); WitnessC NAZ, T. l2 November2 0()9p . 4 ("[Nzabonimana]t old us at the time that he had just launchedt he killings, the work in Nyabikenke comntltne,[ ...] since, the killings have already begun in Nyabikenke,t hey shoulda lsob egin in Rutobwec ommune"[ ...]). Seea lsoTrial Judgementf,n .9l0. o'o Trial Judgementp, ara.7l0. o*' Trial Juclgement,p ara.

708. The Trial Chamber found that "Witnesses CNBH and CNAZ provided consistent evidence that Nzabonimana made inflammatory comments about Tutsis after he stopped at the trading centre", "Nzabonimana asked whether there were any Tutsis in the crowd", they "corroborated each other's testimony that Witness CNAZ fled the trading centre as a result of Nzabonimana's speecha nd that Nzabonimana instructed others to oursueh im". Seei dem. 686 Nzabonimana Appeal Brief, para. 160,r e.f'erringt o Nahinwna et al.Trial Judgement,p ara. 1015. on Nohi*oro Appeal Judgement,p ara.678. 688 SeeN uhimuna AppealJ udgement,p ara.678. 82 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 fn

2153/H accordingly dismissesh is argumentsi n relation to direct and public incitement to commit genocide under his Fourth Ground of Appeal.

1. Conclusion 236. Accordingly, the Appeals Chamber dismissesN zabonimana's Fourth and Fifth, in part, Groundso f Appeal. 83 CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 t'-1

E. Alleged Errors Relating to Murambi (Ground 5, in part) 2152/H 231. Thc Trial Chamber convicted Nzabonimana of direct and public incitement to commit genocideb ased,i n part,o n his speecha t the Murambi trainingc entreo n l8 April 1994( Count3 ).0*' The Trial Chamber found that, on 18 April 1994, the Prime Minister of Rwanda Jean Kambanda and other members of the Interim Government, including Nzabonimana held a meeting for the bourgmestreso f Gitaramap rdfecturr.oe"I l found that during the meeting Nzabonimanao rderedt he killings of bourgmestresa ndotherl ocal otficialso pposedt o the massacreo f Tutsis.6er 238. The Trial Chamber also convicted Nzabonimana of conspiracy to commit genocide in relation to, inter alia, an agreementw ith the Prime Minister and other Ministers of the Interim Government to encouraget he destructiono f the Tutsi population, as such, in Gitaramap rdfecture (Count 21Ie2\tfound that the agreementm aterialisedo n l8 April 1994 atthe Murambi meeting.6e3 239. The Trial Chamberd id not find Nzabonimanag uilty of genocidew ith respectt o his conduct at the meeting but lbund that it provided circumstantiale videnceo f his intent to destroy, in whole or in substantiapl art,t he Tutsi ethnicg roup,a s such.oeo 240. Nzabonimanas ubmits that the Trial Chamber erred in fact and in law in convicting him of direct and public incitement and of conspiracyt o commit

genocidei n connection with the event at Murambi on 18 April 1994 and in consideringt his event as circumstantiale videnceo f his genocidal intent.6esIn this section, the Appeals Chamber considersN zabonimana's argumentsi n relation to: (i) notice;( ii) the assessmenotf evidence;( iii) directa nd public incitement;a nd (iv) conspiracy. l. Notice 241. Nzabonimanas ubmits that he lacked notice of the crime of conspiracy to commit genocide and that he was convicted beyond the scope of the Indictment for the crime of direct and public incitementt o commit senocide.6e6 o" Trial Judgementp, aras.1 773,1 775,1 800. t'et'Trial Judgementp, ara. I 158.S eeu lso ibid.,para. 1769. oe' Trial Judgement,p ara. 1179.S eea lso ihid., para. 1769. u" Trial Judgement, paras. 1147,1749, 1800. The Trial Chamber also entered a conviction for conspiracy to commit genocide in relation to an agreement with Jean-DamasceneU kirikyeyezu in May 1994 to encourage the killing of members of the Tutsi population in Tambwe commLtneS. ee ibid., paras.1 148, 1149. h"q"l'-T ria,l,J u,dgemenpta, ra1. 147. oeo Triaf Judgementp,u a. 1726. 6es NzabonimanNao ticeo f Appealp, nras5. .1-5.6N; zabonimanAap peaBl rief,p aras1. 70-1801, 82,1 83,1 85,1 88,l 9l- 301. 6eo NzabonimanNao ticeo f Appeal,p aras.5.3.l,5.5.l;N zabonimanAap pealB rief,p aras2. 42-252,258-21S2.e ea lso NzabonimanaR eply Brief, paras.5 7-64; AT. 29 April 2014 pp. 14-11. Nzabonimanaal so arguest hat the Prosecution droppeds ix out of l8 paragraphos n the chargeo f conspiracya few daysb eforef iling its ClosingB rief and that the 84 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 At"t

2157/H (a) Crime of Conspiracyt o Commit Genocide 242. Nzabonimana submits that the Trial Chamber erred in finding him guilty of entering into an agreementw ith the Ministers of the Interim Government to destroy Rwanda's Tutsi population becauseh e had not beeng iven notice of this allegation,h e did not presenta relatedd efence,a nd the defect was not cured.6eI7n particular,N zabonimanas ubmitst hat paragraph5 9 of the Indictment is vague and imprecisea s it did not inform him of the chargeso f participatingi n a conspiracy.unHt " claims that paragraph 59 of the Indictment fails to state specifically the circumstancesu nder which the conspiracy materialised,r efers to an extremely broad time period, and contains not iess than nine categories of people or entities with whom he allegedly entered into an agreement.6ee Nzabonimana maintains that the Trial Chamber could not have satisfied itself that paragraphs pleadedi n supporto f paragraph5 9 of the Indictment containedt he nameso f individuals with whom he allegedly conspired,a nd it could not find that he was provided with specific,c omprehensive,a nd detailed information on the conspiracy described in paragraph 59 of the Indictment.To0 Nzabonimana further contends that the circumstances of the conspiracy were only pleaded in the Prosecution Closing Brief and that the Trial Chamber reconstructed a posteriori the material

circumstanceso f a conspiracy that began with the Murambi meeting, and continued with the Musambira and Nyakabandae vents.7ol 243. Nzabonimana submits that paragraph 26 of the Indictment, concerning the Murambi meeting, provided him with neither clear and consistentn otice of the actus reus of conspiracy nor the circumstantiale videncef rom which the conspiracyw as to be inferred .702H e arguest hat notice of a meeting is insufficient to give notice of the charge of the crime of conspiracyi f the material fact underpinning the crime is not pleaded.7OF3u rthermore, he submits that paragraph 26 of the Indictment, considereds eparatelyo r togetherw ith paragraphs4 8, 54,59, and 60 of the Indicftnent, describes individual conduct of issuing an order, not a concerted agreementb etween several Trial Chambere rredi n failing to acknowledgeth e prejudicef rom the inflation of the Indictrnent.S eeN otice of Appeal, para.5.5.1(10),(11S).i ncet he argumentas ren ot developedin his AppealB riel the AppealsC hamberc onsidersth at Nzabonimanah asw ithdrawnt hem. 6e7 N zabonimanaN oticeo f Appeal,p ara.5 .5.1 (4);N zabonimanaA ppealB rief, paras.2 58-267. 6e8 N zabonimanaA ppealB rief, para.2 59.S eea lso NzabonimanaR eply Brief, paras.6 2, 63. 6ee NzabonimanaA ppealB rief, para.2 59. 7m NzabonimanaA ppealB rief, para.2 60. 70r N zabonimanaA ppeal Brief, paras. 262-264.N zabonimanan otes that

the only submissionst o which the Trial Judgementr efers in this regard are the ProsecutionC losing Brief and "three lines of rhetoric from the Prosecution OpeningS tatement"S. eei bid., para.2 61. Nzabonimanaa lso submitst hat the Trial Chamber" did not hesitatet o revive conspiraciesa llegedu nderp aragraph5 9 to makeu p for the Prosecution'sin articulatea nd non-existentc ase".S eei bid., paru.2 60 whereN zabonimanare fersi n a footnotet o the "conspiracyw ith governmentm inistersi n Murambi" and the "conspiracyw ith tlkirikyeyezuin Tambwe". to' NzubonimanaA ppeain ti.f, p".u. 265.S eea lso NzabonimanaR eply Brief, para.6 4. 703 NzabonimanaA ppealB ief , pan.265. 85 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 T"r

persons to commit genocide.ToaN zabonimana contends that the Trial Chamber "r"*to?@/H Prosecution'sc ase when it found that he issued threats with the ministers present.Tt'Hs e submits that, even if the Appeals Chamber were to find that the conduct alleged under paragraph2 6 of the Indictment could include threats, he was neverthelessn ot provided with specific notice that such threatsw ere part of the actus reus of paragraph5 9 of the Indictment.To6 244. Nzabonimanaf urther submits that he was not provided notice of the Musambira and Nyakabancla" meetingstt.To1T1 "a rguest hat the Trial Chamber erred in finding that paragraph4 8 of the Indictment had provided clear and consistentn otice of the allegationsc oncerningM usambira.708 Regarding Nyakabanda,N zabonimanas ubmits that paragraph5 4 of the Indictment did not provide notice as to the nature of his alleged conduct in respect of the crime of conspiracy to commit genocide.Toe 245. Nzabonimana also submits that he sulfered prejudice, which the Trial Chamber did not mention in its assessmenot f paragraph 59 of the Indictment.Tl('H e further argues that the Trial Chamber convicted him of conspiracy to commit genocide, which it inferred from "piecing togcther" circumstantiale videncet hat was not pleadedb y the Prosecution,a nd that he was not able to def'endh imself.TrrHe concludest hat the identified erors, combined with the

multitude of chargesb rought under the count of conspiracy,i mpaired his reading of the Indictment with respect to the count of conspiracya nd his ability to effcctively prepareh is defence.7l2 246. The Prosecution responds that the Trial Chamber found exactly what the Prosecution pleaded.Tr3It submits that: (i) paragraph5 9 of the Indictment pleadedt hat Nzabonimanaa nd others conspiredt o kill Tutsis and that memberso f the conspiracyi ncluded Interim GovernmentM inisters and others;7to1 ii; paragraphs6 0 and26 of the Indictment pleaded that the conspiracy occurred at Murambi on or about 18 April 1994;1tsa nd (iii) the Trial Chamberf ound that an agreementw ith the intent to destroy Rwanda's Tutsi populationi n whole or in part materialisedo n 18 April 1994 7'* NzabonimanaA ppeal Brief, paras.2 44,245,266. Seea /so NzabonimanaR eply Brief, paras.57,64. 705 Nzabonimana Appeal Brief, para.267. ?(b Nzabonimana Appeal Bief , para. 267. 707 Nzabonimana Appeal Brief, para.

268. Seea /sr.rN zabonimanaReply Brief, para.64. 708 N zabonimana Appeal Brief, paras. 269,2'70. Nzabonimana submits that paragraph4 8 of the lndictment fails to plead any actus reus for conspiracy and that, in any event, the Trial Chamber should have set aside this paragraph with Iglpect to the count of conspiracy in view of its vaguenessS. ee itlem. "o NzabonimanaA ppeal Brief, para.211.S eea /.soN zabonimanaReplyB rief, para.64. 7r0 Nzabonimana Appeal Brief , para.264. 7rr Nzabonimana Appeal Brief, para. 264. "' Nzabonimana Appeal Bief , para. 272. ?r3 ProsecutionR esponseB rief, para. 156.S eeu lxt AT.29 April 2014p . 41. 7ra ProsecutionR esponseB rief, para. 155. "'Prosecution ResponseB rief, para. 155. 86 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 (i"^?

2149/H between Nzabonimana, the Prime Minister, and other Interim Government Ministers.ttu Th" Prosecutiona lso submits that Nzabonimana'sw ords in Musambira, pleadedi n paragraphs6 0 and 48 of the Indictment, and his presencea t Kambanda'sw eaponsd istribution in Nyakabanda,p leaded in paragraphs6 0 and 54 of the Indictment, further proved the agreement and Nzabonimana's adherenceto it.717 247. The Prosecutionf urther respondst hat, regarding the date pleaded in paragraph4 8 of the Indictment, Nzabonimana merely repeats argumentsr ejected at tria1.7l8F inally, the Prosecution submits that it is irrelevant whether the removal of certain local authorities was sufficiently pleaded becauseN zabonimanaw as not convictedo n this basis.71e 248. Nzabonimanar eplies that if the concises tatemento f facts doesn ot specify the agreemento n which the conspiracy is based, the Prosecutor cannot invoke the general allegations of the "chapeau" paragrapho n the count of conspiracyt o submit that the said agreementw as p1eaded.720 He arguest hat paragraphs2 6, 48, or 54 of the Indictment, regarding Murambi, Musambira, or Nyakabanda,r espectively,d id not provide notice of any agreement.T"G iven that paragraph5 9 of the Indictment, even in conjunction with paragraphs 26, 48, and 54 of the Indictment, was insufficient to notify him of material facts of the conspiracy,N zabonimanas ubmits that he

was not provided notice of the actus reus ofthe crime a1leged.722 249. Paragraphs5 9 and 60 of the Indictmentr ead: CONSPIRACY TO COMMIT GENOCIDE as seto ut in articles2 (3)(b)a nd2 (2)(a)a nd (b) of the Statuteo f the Tribunali n that duringt he periodb etweenI January1 994a nd 31 July 1994' Callixte NZABONIMANA with other personsi,n cluding but not limited to Ministers, including those of the Interim Governmento f 9 April 1994, the leadershipo f Rwandan Armed Forces (FAR), Gendarmerie,P residentialG uard, the political leaderso f the MRND, the MRD-Hutu Powerf action, the PL-Hutu Power faction, other Hutu-Powerf actionso f opposition parties,a nd variousl ocal administrationo fficials, conspiredto kill or causes eriousb odily and mentalh arm to memberso f the Tutsi population,w ith the intent to destroyi n whole or in part, a racial or ethnical $oup. The Prosecutorh erebyr eiteratesa ndi ncorporatesb y referenceto PARAGRAPHS 17' 21,25, 26, 2gr 43-45,4 8, 49r5 1-58a s concises tatementosf factst o supportt he chargesu ndert his specific count.

250. Paragraph 26 of the Indictment reads: 716 ProsecutioRne sponsBe rief,p ara.1 56. 717 ProsecutioRne sponsBe rief,p ara.1 56. 718 ProsecutioRn esponsBe rief, para.1 57. 71e ProsecutioRn esponsBe rief, para.1 57. 720 N zabonimanaR eply Brief, para.6 3. 721 NzabonimanaR eply Brief, para.6 4. 722 NzabonimanaR eply Brief, para.6 4. 87 CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 i4

On or about l8 April 1994, at Muramhi Truding Centre, Callixte NZABONIMANA togethe, 2748/H with the Prime Minister, and other members of the Interim Government, including Prosper MUGIRANEZA, T82, T83, held a meeting with the Bourgmestreso f the communes in Gituranu prefecture. Callixte NZABONIMANA ordered the killing of Bourgmestres and other local officials opposed to the killings. Soon after the meeting, the Brrurg,mestreo f Mugina commune, Callixte NDAGIJIMANA, and lwo conseiller,s from Nyamabuye commune namely Bernard TWAGIRAMIJKIZA, conseiller of Ruli and Martin GASIGWA, conseiller of Musiba, were killed by personsi ncluding Hutu civilians and Interuhamwe. 25I. Paragraph4 8 of the Indictmentr eads: In May 1994, Callixte NZABONIMANA was present at the reinstatement ceremony of the Bourgmestre [slc] of Musamhira in Musambira Commune, Gitarama prefecture. During the ceremony, Callixte NZABONIMANA accusedt he Bourgmestresf sicf of not being supportive of the killings of Tutsi, and warned them that they could be replaced by Interahamwe.The Accused refused to denouncet he killings of Tutsi. Soon afterwards,t he hourgmestreo f Masango, the pre.fbt and other local authorities were removed.

252. Paragraph5 4 of the Indictment reads: In May 1994C, atlixteN ZABONIMANAa ndP rimeM inisterJ eanK AMBANDAl aunchetdh e Ndiz,a battalion at Kibangu secteur, Nyakubanrla Commune, where they distributed weapons and told the gathering that the purposeo f the weaponsw ere [slc] to fight the enemy who was the Tutsi.

253. The Trial Chamber found Nzabonimanag uilty of conspiracyt o commit genocidei n relation to an agreementt hat materialisedo n 18 April 1994.72T3h e Trial Chamber also consideredt hat the conduct of Nzabonimanaa nd Kambanda,a fter the 18 April 1994 meeting, reinforced the conclusion that Nzabonimana,o ther ministers, and the Prime Minister enteredi nto an agreementt o encourage the destructiono f the Tutsi population.T2Toh is conductc onsistedo f Nzabonimana'sp resencew hen Kambanda distributed weapons in Nyakabanda commune and Nzabonimana's words at a reinstatemencte remonyi n Musambit a commune.l25 254. The Appeals Chamber recalls that the Prosecutioni s required to state the chargesa nd the material facts underpinning those chargesi n the indictment with sufficient precision, but not the evidence by which such facts are to be proven.T2oA n indictment which fails to set forth material facts in suflcient detail is defective.72I7n determining whether an accusedw as adequatelyp ut on notice of the nature and causeo f the chargesa gainsth im, the indictment must be considereda s a whole.728T he Appeals Chamber recalls that a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certainc hargesa ltogether.T"W hile it is possiblet o ttt Trial Juclgemenpt,a ras.1 74 7, 1749,1 8 (n. tto TriafJ udgemenpt,a ra.1 747. t2t Trial Judgementp,

ara.1 146. '^20 5"" sultrtt,p ara.29. ''' Sees upra,p ara.29. "t Biz.i.un14Au ppealJ udgementp,a ra.9 9; Mugenz.ai rulMugiranez.Aa ppealJ udgementp, ara.7 | , quotingN tahakuze AppeaJl udgemenpt,a ra6. 5.S eeu lsoG acumbitsAip peaJludgemenpt,a ra.123. "" Sec, e.g., Bi:imuryl Appeal Judgementp, ara. 46.Mugenz.ui nd Mu14iranezaA ppeal Judgementp, ara. ll7; Ntabukuz.Aep pealJ udgemenpt,a ra.3 0. 88 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2147/H remedy the vaguenesso f an indictment, omitted chargesc an be incorporatedi nto the indictment only by a formal amendmentp ursuantt o Rule 50 of the Rules.730 255. Conspiracyt o commit genocideu nder Article 2(3Xb) of the Statuteh asb een defined as "an agreementb etween two or more personst o commit the crime of genocide".73Tl his agreement constitutest he actus ,rr.ts."'The actus reus canbe proven by establishingt he existenceo f planning meetingsf or the genocide,b ut it can also be infened, basedo n other evidence.t" For instance,t he concerted or coordinated action of a group of individuals can constitute evidence of an agreement.T'oT he Appeals Chamber recalls that when an accusedi s charged with conspiracy to commit genocidep ursuantt o Article 2(3Xb) of the Statute,t he indictment must plead the following material facts: (i) an agreementb etween individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreementp ossessedth e intent to destroy in whole or in part, a national,e thnical,r acial or religious group, as such.73s 256. The Appeals Chamber notes that paragraph 59 of the Indictment pleads that Nzabonimana conspired with other personst o kill or cause seriousb odily and mental harm to members of the Tutsi population, with the intent to destroyi n whole or in part, a racial or ethnic group. Therefore, both

actus reus and mens rea of the crime were pleaded in paragraph 59 of the Indictment. The Appeals Chamberd ismissesN zabonimana'sa llegationt hat he was not provided notice of the crime charged.C onsideringt hat the Indictment allegest hat Nzabonimanac onspiredw ith others,i ncluding Ministers of the Interim Government,T36a nd that paragraph 60 of the Indictment referred to the Murambi meeting to supportt he chargeo f conspiracyt o commit genocide,73t7h e Appeals Chamber finds that Nzabonimana was advised that the Murambi meeting would form part of the Prosecution'sa llegationo f conspiracy.

257. Turning to the material facts underpinning Nzabonimana's conviction for conspiracy to commit genocide, the Appeals Chamber dismissesN zabonimana's atgument that the Trial Chamber could not have satisfiedi tself that the paragraphsp leadedi n support of the count of conspiracy to commit genocide contained the names of his alleged co-conspirators.T he Appeals Chamber observest hat the Trial Chamber noted, as a prelirninary matter, that paragraph 59 of the Indictment "0 See, e.g., Bizimungr Appeal Judgement,p ua. 46; Mugenli and Mugiraneza Appeal Judgement,p an. ll7; NtabakuzeA ppealJ udgementp, ara.3 0. 731 S erombaA ppeal Judgement,p ara. 218; Nahimana et al. AppealJ udgement,p ara. 894, citing Ntagerura et al. AppealJ udgemenpt,a ra.9 2. "2'S"ro^bi Appealiudgementp, ara.2 18;N ahinana et al. AppealJ udgementp, ara.8 94. 733 S erombaA ppealJ udgementp, ua.221;Nahimanae t al. AppealJ udgementp, ara.896. '30 N ahi.ana et al. AppealJudgemenpt,a ra.8 97. "t Nahi^oro et al. AppealJ udgementp; ara.344.S eea lso Ntagerurae t al. AppealJ udgementp, ara.92. 736 S eeI ndictment.p ara.5 9. 137 See lndictment,p ara.6 0. CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 G'-n

sets out the basic elementso f conspiracy,b ut does not in and of itself specify the individuu8l,46/l! whom Nzabonimana allegedly conspired.T3nT he Trial Chamber concluded, however, that the Indictment read as a whole adequately informs the Defence of the identity of his alleged co- conspirators.ttoT he Appeals Chamber agrees that, reading paragraph 59 of the Indictment in conjunction with other paragraphsp leaded in support of the count of conspiracy, Nzabonimana receiveda dequaten otice as to the identity of his allegedc o-conspirators, 258. Similarly, the time frame for the agreementi ndicated in paragraph5 9 of the Indictment - between 1 January 1994 and 3l July 1994 - is very broad. However, the Appeals Chamber finds that when reading paragraph5 9 of the Indictment in conjunction with paragraphs6 0 and 26 of the Indictment, specifying the date of 18 April1994, Nzabonimana was provided with sufficiently precisen otice of the date of the facts underpinningt he chargeo f conspiracy.

259. With respect to Nzabonimana's argument on the circumstances of the conspiracy, the Appeals Chamber recalls that the agreementt o commit genocidec an be inferred from a concerted or coordinated action. The Appeals Chamber recalls that the Trial Chamber considered the concerteda nd coordinateda ctionso f Nzabonimanaa nd the Ministers of the Interim Governmentt o inf-ert hat an agreementw ith the specific intent to destroy Rwanda's Tutsi population in whole or in part materialisedo n 18 April Igg4.t40T he Appeals Chamber will examine whether paragraph5 9 of the Indictment, read in conjunction with paragraph2 6 of the Indictment, clearly allege concertedo r coordinated action as a basis fbr infening conspiracy between Nzabonimana and his co- conspirators.

260. Paragraph2 6 of the Indictment allegest hat Nzabonimanaa nd the other conspiratorsh eld a meeting at Murambi, where Nzabonimana ordered the killing of bourgmestres and other local officials opposed to the killings of Tutsis. However, the Indictment fails to plead a concerted or coordinateda ction of Nzabonimanaa nd his co-conspirators.W hile paragraph2 6 of the Indictment clearly statesN zabonimana'sc onduct, it merely allegest he presenceo f his co-conspiratorsw ithout setting out their conduct. The lact that paragraph5 9 of the Indictment pleads a general agreement and that paragraph6 0 of the Indictment ref'erst o paragraph2 6 of the Indictment to underpin the charged oes not resolvet his lack of precisioni n pleadingt he conduct of his co-conspiratorsT. he tt* Trial Judgement,p ara. 1143. tto Trial Judgement.p ara.1 143. to" Triol Judgement.p dra.1 141. 90 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2145/H Appeals Chambert hereforec oncludest hat the Indictment is defectivea s it fails to plead a material fact underpinningt he chargeo f conspiracyw ith the requiredp recision.Tal 26I. The Appeals Chamber recalls that defects may be cured if the Prosecution provides the accusedw ith timely, clear, and consistenti nformation detailing the factual basis underpinning the charges.TaIzn determining whether a defective indictment was cured, the Appeals Chamber has previously looked at information provided in the ProsecutionP re-Trial Brief, its opening statement, as well as the witnessc hartsa nnexedt o the ProsecutionP re-TrialB rief.7a3 262. The Appeals Chamber finds that the Prosecution Pre-Trial Brief provided Nzabonimana with further information on his alleged conduct at the Murambi meeting and the alleged conduct of his co-conspirators.U nder the subheading "Activities of the Accused in the Context of the Prevailing Situation in Rwanda", the Prosecutionr eferred specifically to the Murambi meeting.Taa The Prosecutiona llegedt hat "between 9 April and 17 luly 1994,t he Accused was a member of the Interim Governments worn in on 9 April 1994.T his Governmentc onstituted,p lanned,o rchestrated, pursued and/or implemented a scheme or strategy of killing Tutsi", and that "[t]he Accused voluntarily joined the Interim Government and knowingly participated in and directly and

substantiallyc ontributedt o the realization of the conspiracyt o eliminateT utsi".TatT h" Pros"cution also declared that it: t.. . ] will adduceev idencteo showt hatn oto nlyd id theA ccuserde maina membeor f theI nterim Governmenbt ut he participatedin variousm eetingsw ith other memberso f the Interim Governmeinnt Gitarampar efecturaen dw hosem ainp urposwe ast o encouragthee k illing of Tutsi therebsyh owinhgi ss upporotf theI nterimG overnmenct'osm plicitiyn them assacres.'-" It then went on to describet he course of events chronologically and argued that "on or about the 18 April 1994, during a meeting of the Interim Government at Murambi, Gitarama, with local authorities, Ministers including the Accused Mr. Callixte Nzabonimana,i ncited the killings of Tutsis" and "[t]hey issued threats to all local authorities who were not cooperating with the Interahamwe".747T he Prosecution also announcedt hat: t't However,t he AppealsC hamberc onsidersth at this failure to pleada materialf act with the requiredp recisionn either led to a radicalh ansformationo f the Prosecution'sc asea gainstN zabonimanan or did it support,o n its own, a separate charge,a s Nzabonimanas eemst o suggestw ith his mentiono f "reviving conspiracies("s eeN zabonimanaA ppealB rief, pwa.260.S eea lsoN zabonimanaNoticoef Appeal,p ara.5.5.1(3)). 1o' See, e.g., Bizimungu Appeal Judgement,p ua. 46; Mugenzi and Mugiraneza Appeal Judgement,p ara. 117; NtabakuzeA ppealJ udgementp, ara.3 0' 'ot Si^bo Appeal Judgement,p an.

64. Seea lso Simii AppealJ udgement,p ara.2 4; Muhimana Appeal Judgement, paras8. 2.201. ?a ProsecutionP re-TrialB rief, paras.3 1, 32. 7" Prosecutionh e-Trial Bief ,pua.27. tou ProsecutionP re-TrialB rief, para.3 0. 7a7 P rosecutionh e-Trial Brief, para.3 l. 9l CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 t)-,\

Specifically, the Prosecutor will adclucee vidence to prove that during a meeting at Murambi, -2144/H Gitarama, which took place on 18 April 1994 the Accused supportedt he massacresc ommitted by Interahamwe in Gitarama and demanded that"p rf€lfbts and bou[r]gme.slreso pposed to the killing of Tutsi be sacked. He publicly denounced those who were opposed to the massacres and threatenedt hem with unspicified action.Ta8 The Appeals Chamber finds that this inforrnation specified concerted and coordinated action between Nzabonimanaa nd his alleged co-conspirators,n amely that he and other ministers jointly incited the killings of Tutsis and threatenedl ocal authoritieso pposedt o the killings.Tae 263. The chart of witnessesa nnexed to the ProsecutionP re-Trial Brief also provide clear and consistent inlormation of Nzabonimana'sc onduct and the conduct of other ministers at the Murambi meeting.TsI0n particular,t he summarieso f WitnessesC NAA's and CNAO's expected testimonies, both linkecl to "Conspiracy" for the "offence charged" and paragraph 26 of the Indictment, clearly set fbrth a concerteda ction of threateningt he bourgmestr"t.tt' Witness CNAA was expected to testify about "a security meeting of 18 April 1994 which took place at Murambi centre, chaired by Prime Minister Jean Kambanda and attended by members of the [Interim Government], Bourgmestres"a nd other authorities.TsT2h

e summary further specifies:" Among the speakersw ere the [Prime Minister], Justin Mugenzi and [the] Accused. The latter two made some threats to the local authorities who were accused of supporting the RPF".75' The summary of Witness CNAO's expected testimony specifies that there were two meetings at Murambi on 18 April 1994, "[t]he first meeting was attended by the [Prime Minister], [the] Accused, J. Mugenzi, Pauline (Nyiramasuhuko), other ministers" and others.T-5It4 then explicitly provicles: "[The] Accused, Pauline ancl other speakersc riticized the bourgmestresw ho were not assisting killers. They said that they should assistt he killers and if they are unable to do so they should not obstructt he killers".T-5-5 264. Furthermore, in its Opening Statement, the Prosecution set out the allegation of an Agreementin general terms,7s6a nd specifically alleged that "Nzabonimana conductedm any public tat ProsecutioPn re-TrialB rief, para.3 2 (internarl eferenceosm itted). toe T he AppealsC hambern otest hata ll thoses pecificationws erec ontainedin thef irst versiono f the Prosecution'Ps re- Trial Brief dated 12 February 2009, nine months befbre the beginning of the Trial. See TheP rosecutort,.CallixteN zabonimaneCr,a se No. ICTR-98-44-1P, rosecutor'sP re-Trial Brief, l2 February2 009 (confidential)p, aras.2 6, 30, 33, 34, 54,6 2. The Prosecutionm adei ts openings tatemenot n 9

November2 009.T he AppealsC hambert hereforec onsidersth att he relevantin formationd etailingt he factualb asisu nderpinningth e charges wasp rovidedti mely. 7s" P iosecutionP re-TrialB rief, AnnexureA (Summaryo f theF actso n whichW itnessW ill Testify),p p. l , 8, 9, I 3, 14. 7sr P rosecutioPnr e-TriaBl rief,A nnexureA , WitnessC NAA' p. l, WitnessC NAO' pp.8 ' 9. 752 P rosecutioPn re-TrialB rief,A nnexureA , WitnessC NAA' p. 1. 7s3 P rosecutioPnr e-TriaBl rief,A nnexureA , WitnessC NAA, p. l. 7sa P rosecutioPn re-TrialB rief, AnnexureA ,WitnessC NAO' pp. 8, 9' t5t ProsecutioPn re-TrialB rief, AnnexureA , WitnessC NAO' p' 9' t"'Opening S tatemenTt,. 9 Novembe2r 009p . l1: "The interimg overnmenwt,h ichw asc omprisedo f ethnicH utus, passionateljyo ined in the conspiracyto kill Tutsisa n<Jm oderateH utus"; OpeningS tatementT, . 9 November2 009 92 CaseN o.:I CTR-98-44D-A 29 September2 014 t"\

2143/H meetings in which he instructed official bourgmestres,g endarmes,H utu civilians, Interahamwe, communalpolicemen to kill Tutsi civilians seekingp laceso f tefuge"TsTa nd that "on 18h of April 1994 atMurambi trading centre, Callixte Nzabonimana, together with other memberso f the interim government,o rderedt he killing of bourgmestresa ndotherl ocal officials opposedt o the killings".tt* The latter statement clearly alleged a concerted action with other members of the Interim Governmentt o order the killing of officials opposedt o the killings of Tutsi population.

265. Although the Indictment was defectiveb y not pleadingw ith sufficient precision the conduct of the alleged co-conspiratorsa t the Murambi meeting, its defect was subsequentlyc ured by the provision of timely, clear, and consistenti nformation.

266. In view of the Trial Chamber'sf inding that the conspiracy" materialisedo n 18 April 1994" and that the conduct of Nzabonimanaa nd Kambandaa fter the 18 April 1994 meeting reinforced this conclusion,T5teh e Appeals Chamberc onsiderst hat any defect in paragraphs4 8 and 54 of the Indictment would not invalidatet he Trial Chamber'sd ecisiont o convict Nzabonimanaf or the crime of conspiracy to commit genocide in relation to the Murambi meeting and therefore does not consideri t necessaryto addresst he argumentsi n relation to thosep aragraphs.

267. The Appeals Chamber finds that Nzabonimana was made aware that he could be held liable for conspiracy to commit genocide in relation to the Murambi meeting, and that he was afforded the opporrunity to defend himself in this respect. Accordingly, the Appeals Chamber rejects Nzabonimana'sa rgumentt hat he lackedn otice of the crime of conspiracyt o commit genocide. (b) Crime of Direct and Public Incitement to Commit Genocide 268. Nzabonimana submits that the Trial Chamber erred in fact and in law in convicting him beyond the scope of the Indictment when it found simultaneouslyt hat he issued an order at the Murambi meeting and a threat, jointly with the ministers present.760N zabonimana argues that, while it is clear from paragraph2 6 of the Indictment that he was chargedw ith issuing an order, the Trial Chamberr uled ulta petitain finding that he issuedt hreatsj ointly with the ministers.761 269. The Prosecution responds that there is no discrepancy between the conduct charged and conduct found, pointing that the Trial Chamber found exactly what was pleaded: "Nzabonimana p. 14: "Instead of preventingg enocide,t he Accusedc onspiredw ith others to kill Tutsis", "Now let's turn to the conspiracyt o commit genocide.I n this trial, Your Honours,y ou will hear evidenceo f a conspiracyt o kill Tutsis in whicht heA ccuseda greedw ith his supportertso destroyT utsip opulation[. ..]". 7tt OpeningS tatemenTt,. 9 Novembe2r 009p p. 14,1 5. 758 O peningS tatemenTt,. 9 Novembe2r 009p p. 15,1 6 (emphasiasd ded). '" Trial Judgemenpt,a ra.1 741. 7m N zabonimanAap pealB rief,p aras2. 44-252S. eea lsoN zabonimanRae plyB rief,p aras.5 7-61. CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

ordered the killing of bourgmestresa nd other local officials opposedt o themassacreosf TutfrK{H/H The Prosecutionf urther considerst hat since the order was meant to threatenbourgmestres,t he Trial Chambera lso referred to the order as a threat.763 270. Paragraph2 6 of the Indictment allegest hat during a meeting with the bourgmestreso f the communes in Gitarama prdfecture Nzabonimana "ordered the killing of Bourgmeslres and other local otficials opposed to the killings". The Appeals Chamber notes that paragraph 26 of the Indictment does not contain the word "threat". However, Nzabonimana'sa lleged criminal conduct underpinning his conviction of direct and public incitement was clearly set out. Whether his conduct constituted merely an order or also a threat is a question of evidence and the Trial Chamber's findings in this regard do not render the Indictment defective.T6aN zabonimana was notified of his criminal conduct comprisedo f his utterances.

271. The Appeals Chamber therefbre rejects Nzabonimana's argument that the Trial Chamber convicted him beyond the scopc of the Indictment when it found simultaneouslyt hat he issued an order and a threat at the Murambi meeting. (c) Conclusion 212. For the tbregoing reasons,t he Appeals Chamber dismissesN zabonimana's arguments in relation to notice under his Fifth Ground of Appeal.

2. Assessmenot f Evidence 273. Under his Fifth Ground of Appeal, Nzabonimana makes various challenges to the Trial Chamber's assessmenot f the Prosecutione vidence with respectt o fabrication of evidence, and to events at Rutobwe, Murambi, and Musambira.76I5n particular, Nzabonimanas ubmits that the Trial Chamber erred in assessinst he credibility of ProsecutionW itnessesC NAA and CNAC and in 76r Nzabonimana Appeal Brief, paras. 244,245. 762 ProsecutionR esponseB rief, para. 154.S eea lso AT.29 April 2014p.40. 763 ProsecutionR esponseB rief, para. 154. tt'o In its factual findings, the Trial Chamber concludes that during the meeting held at Murambi on l8 April 1994, Nzabonimana "ordered the killing of bourgmestre.ra nd other local officials opposed to the massacreso f Tutsis" (see Trial Judgement, para. 1179). It further found that "it has been proven that the Ministers present at the meeting, including Nzabonimana, used this meeting to threaten the bourgmestres" (seeT rial Judgement,p ara. 1179). In its legal findings on the crime of direct and public incitement to commit genocide,t he Trial Chamber holds that "Nzabonimana ordered the killings of bourgmestres and other local officials opposed to the massacreso f Tutsis during the meeting" (see Trial Judgement, para. 1169) and concludes that "Nzabonimana's speech,w hich consisted of an explicit threat to kill persons opposing

the massacre of Tutsis, constituted a direct call to commit genocide" (see Trial Judgement, para. l11l). Nzabonimana's argument on the alleged error of the Trial Chamber in finding that he ordered the killings (see NzabonimanaA ppeal Brief, para. 24'7)w ill be examined in another section.S ee infra, paras.3 39, 345. ?6s NzabonimanaN otice of Appeal,p aras.5 .1.1,5.2.1.1 ,5.2.1.2,5.2.2;N zabonimanaA ppeal Brief, paras.1 70-180, 196-24t.24'.7 94 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2141/H finding corroboration between them.766N zabonimana further challengest he assessmento f the Defencee videncew ith respectt o fabricationo f evidencea nd to eventsa t Rutobwe and Murambi.767 274. The Appeals Chamberw ill examinei n turn Nzabonimana'sa tgumentso n: (i) fabrication of evidence; (ii) the Trial Chamber's allegedp iecemeala pproacht o the assessmenot f evidence;a nd (iii) the Trial Chamber'sa ssessmenot f specifice vents.768 (a) Fabricationo f Evidence (i) Alleged Enors in AssessingP rosecutionE vidence 275. The Trial Chambero bservedt hat WitnessesC NAA and CNAC were imprisoneda t the time of their testimonies, that both held positions of authority in the prison system, and that both acknowledged their influence within the prison structure and over fellow inmates.T6eT he Trial Chamberf ound that "the Defencec laim that WitnessesC NAA and CNAC receivedt heir leadership positions in exchangef or their testimony to be mere speculation,"7 70a nd found that the evidence did not "substantiatet he claim that WitnessesC NAA and CNAC fabricatedt heir testimony against Nzabonimana".77l 276. Nzabonimana submits that the Trial Chamber failed to exerciset he extreme caution required to assessW itnessesC NAA and CNAC as both were detaineda ccomplicew itnessesw ith interestst o lie becauseo f direct benefitst hey gainedf rom their testimonies.'72H e contendst hat no

reasonable trier of fact could have failed to question whether there was a link between the circumstances of WitnessesC NAA and CNAC and the content of their testimoniesa gainstN zabonimana.TTIn3 this regard,N zabonimanaa rguest hat the Trial Chamberd ismissedt he impact of their circumstanceso n their testimoniess olely becauset he Defencep resentedn o direct evidencet hat Witness CNAA, in TtrNzabonimanaAppealBrief,pa l r T a 0 s - . 1 80,196-241,247.\eae/s oNzabonimanaReplyBrief,pa1r4a.. 767 N zabonimanNao ticeo f Appealp, aras5. .1.25, .2.1.1,5.2.1.N2;z abonimanAap peaBl rief,p aras1. 81-1952,0 2,205, 206,225-230.U ndert his section,t he AppealsC hamberw ill only addressN zabonimana'sc hallengesre latedt o Defence WitnessT 24's credibility and the allegedc orroborativee videnceo f duressa s it has alreadye xamineda ll challenges madet o the credibility assessmenotf DefenceW itnessM poranzi.S ees upra,p aras.1 96-204. 768 T he AppealsC hamberd ismissesN zabonimana'sa rgumentf rom the preliminaryi ssues ectiono f his AppealB rief, in relation to the Trial Chamber'sa lleged inconsistenta dmission of the testimonieso f Prosecutionw itnesses( see NzabonimanaA ppeal Brief, paras.l '7, 19). Nzabonimanafa ils to developh is argumenta nd fails to explain how the situationsw arranteds imilart reatmentb y theT rial Chamber. tun Trial Judgementp, arw. 224, 225, 228. The Trial Chambern

oted that WitnessC NAA testifiedt hat at differentt imes of his incarcerationh e wasc apitag dndral,c oordinatoro f the prisoners,a nd executives ecretaryo f the prison.I t further observedth at WitnessC NAC affirmed thath e wasi n chargeo f equipmentin Gitaramap rison.S eei bid., para.228. tto Trial Judgementp, ua. 229. "' Trial Judgemenpt,u a. 231. 772 N zabonimanaN oticeo f Appeal,p ara.5.1.1;N zabonimanaA ppealB rief, paras.1 70-180S. eea lso Nzabonimana Noticeo f Appealp, ara.6.1(3). 773 NzabonimanAap pealB rief,p aras.1 73,l'75,l '79. 95 CaseN o.: ICTR-98-,14D-A 29 Septembe2r0 14 u\

particular, became capita gdndral in exchange for his testimony before the Tribtnaflfl&/H Nzabonimana's view, the Trial Chamber possessed evidence from the Defence and from Witness CNAA that this witness and Witness CNAC received exorbitant and abnormal powers from the Rwandanj udicial authorities.TTs 217. Nzabonimana further submits that the Trial Chamber made a fundamental factual error when stating that Witness CNAA becamec apita g€ndral in 2003, before his 2005 testimony, while he testified in 199'7in theA kayesu trial.776H e also submitst hat the Trial Chamberf ailed to note that Witness CNAA lied when stating that he was capita gdndral for less than a year, while evidence showsh e held the post for a longerp eriod.777 278. The Prosecutionr espondst hat there is no contentiont hat WitnessesC NAA and CNAC held positions of authority in the prison system and that the Trial Chamber reasonablyf ound the claim, that they received their positions in exchangc fbr testimony, to bc mere speculation.tt* The Prosecutions ubmits that Nzabonimanas imply repeatsh is unsuccessfult rial argumentsa nd ignores the Trial Chamber's findings.77eIn any event, the Prosecutions ubmits that encouragings omeonet o testify is entirely different from bribing or forcing someonet o make f'alsea ccusations.Tso 279. The Prosecution further responds that nothing indicates that the positions of WitnessesC

NAA and CNAC were abnormal, or that thcse witnesses abused their authority.Tsl According to the Prosecution,t here is also no indication that Witness CNAA provided incorrect information about the duration of his position as capitct gdndral and that any conf'usionb etween WitnessesC NAA's and CNAC's testimoniesc ould be explainedb y the fact that the title, capita gdndral, was changedt o "executive secretary"."' 280. The Appeals Chamber notes that the Trial Chamber examined at length each allegation on fabrication of evidence that the Defence had raised.783R ecalling that detained or accomplice witnessesm ay be motivated to testify falsely lbr a number reasons,t he Trial Chamber considered that, as detainedw itnesses,W itnessesC NAA's and CNAC's testimoniesw ould be treatedw ith 774 Nzabonimana Appeal Brief, para. 171,r e.ferring toTrial Judgement,p ara.229. "5 NzabonimanaA ppealB riel'.p ara.1 72. "'' NzabonimanaA ppeal Brief, para. 174. 77? NzabonimanaA ppeal Brief, para. 176. 778 ProsecutionR esponseB rief, para. 159. 77u ProsecutionR esponseB rief. paras.1 58, 159. ''" Prosecution Response Brief, paras. 158, 159. The Prosecution refers to the availability of incentives to provide evidences ucha s in Rule 101(B)(ii)o f the Rules.S eei dem. TsrProsecution ResoonseB rief. oara. 159. 782 ProsecutionR esponseB rief. para. 163,r e.ferring toTi.al Judgement, para.228. t" In its section on fabrication of evidence, the Trial Chamber examined allegations that: (i) Rwandan Authorities and Witness CNAI recruited witnesses to testify falsely against Nzabonimana; (ii) prisoners fabricated evidence against 96 Case No.: ICTR-98-44D-A 29 Septembe2r0 14 R')

2139/H appropriatec aution.78T4h e Trial Chambera lso examineds pecific allegationst hatWitnessesC NAA and CNAC fabricatedt heir evidencei n order to receivel eniency and benefits in prison.785It heard extensive evidence on the role of the capita g,6ndrala nd the resultant authority of that position in prison.78I6t then found that: Having considered the totality of the evidence, however, the Chamber finds that the evidence does not substantiate the claim that Witnesses CNAA and CNAC fabricated their testimony against Nzabonimana. Nevertheless, the Chamber will consider their testimony with appropriate caution based on individual factors relevant to each witness which are considered in other sections of this Judgement.787 281. In rejecting as speculativet he Defence claim that WitnessesC NAA and CNAC received their leadership positions in exchange for their testimonies,t he Trial Chamber considered the following evidence: (i) Witness CNAA testified for the Prosecutioni n the Bizimungu et al., and Karemera et al., trials in 2005 and 2007 respectively,a fter he became capita gdndral in 2003; (ii) the hearsaya nd vague nature of testimoniesf rom Defence witnesses;a nd (iii) Witness CNAA denied that he received special treatment in prison as a result of his testimony.78N8 zabonimana therefore fails to demonstratet hat the Trial Chamber rejected the Defence claim solely for the lack of direct evidence.

282. The Appeals Chamber observes that the Trial Chamber found it unquestionably established that WitnessesC NAA and CNAC held positions of authority in the prison system and that both acknowledged their influence in the prison structue and over fellow inmates.TseT herefore, the Trial Chamberd uly consideredt he positions of authority and the influence of both witnessesi n prison. The Appeals Chambera lso notes that, on appeal,N zabonimanap oints to Defencee videncet hat the Trial Chambera lreadyc onsidered.TeAos to Nzabonimana'sa tgumentt hat Witness CNAA's written evidence showed an exchange and benefits scheme for his testimony,Telt he Appeals Chamber observest hat the Trial Chamberd uly consideredt he evidencei n its summary of Witness CNAA's testimony.TeT2h e Ttiul Chamber also noted that, in his testimony,W itness CNAA denied that the Rwandan Government forced him to testify and stated that the govemment merely authorised him Nzabonimana;a nd (iii) there was systematic" activismagainst Nzabonimana" in Rwanda. See Trial Judgement, oaras.93-25.7 ?* Trial Judgemenpt,a ns.226,231.S eea lsoi bid., parast.064t,r 42,121104, 80. ttt Trial Judgementp, aras.2 24-231. 'oo TrialJ udgemenpta, ra.23l. ttt Trial Judgemenpt,u a.23l. 788 Trial Judgementp, ara.229. tte Trial Judgementp, an.228. 7e0 ,S eeT rial Judgementp,a ras.1 93-200( Witnessf il), 203-213( WitnessT l09), 214-218( Witness Tll0), 219-221 (WitnessB atard),p ara.2 31, fn. 328. 7er SeeN zabonimanaA ppealB rief, para.1 77. 'e'Tial Judgementp, uas. 162, 163. 9'7 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

to leave the country and testify.Te3A ccordingly, the Appeals Chamber considerst hat Nzaboqfif,ffi/H withoul showing any error, repeats the same allegations of fabrication liom trial, and merely disagreesw ith the Trial Chamber'sf inding that claims of WitnessesC NAA and CNAC receiving leadershipp ositions in exchangef or testimoniesw ere speculative.

283. Finally, the Appeals Chamber dismissesN zabonimana's submissiont hat the Trial Chamber made a "fundamental factual error" on when Witness CNAA becamec apita gdndral.TeCa onsidering the confusing and vaguen ature of Nzabonimana'sa rgument,a nd that the Trial Chamber was aware of Witness CNAA's testimony\ n 1997i n the Akayesut rial.Testh e Appeals Chamber summarily dismissesN zabonimana'sa rgumenti n this regard.TeT6h e Appeals Chamber also finds that the exact durationo f WitnessC NAA's positiono f authorityi n prison,a nd any inconsistencieisn his evidence on this matter, are not determinative of the Trial Chamber's assessmento f his credibility. As already discussed,t he Trial Chamber consideredt hat WitnessesC NAA and CNAC held positions of authority in the prison system,TeaTn d, despitet hesep ositions, it reasonablyf ound the allegation of fabrication against these two witnessesi nsufficiently substantiated.O n this basis, the Appeals Chamber considerst hat the exact duration of their position of authority is immaterial to the Trial Chamber's deterrninationo n evidencef abrication.

284. In light of the foregoing, the Appeals Chamber linds that Nzabonimanaf ails to demonstrate that no reasonablet rier of fact could have concluded,a s the Trial Chamber did, that "the Defence claim that WitnessesC NAA and CNAC received their leadershipp ositions in exchangef or their testimony to be mere speculation".TeTsh e Appeals Chamber further finds that the Trial Chamber reasonablyd etermined that the evidenced id not substantiatet he claim that WitnessesC NAA and bNnC fabricated their tcstimony against Nzabonimana.'eeN zabonimana's arguments in this respecta re accordinglyd ismissed. (ii) Def'enceE vidence 285. Nzabonimanas ubmits that the Trial Chambere rred in finding that the credibility of Defence Witness T24 was undermincd becauseh e admitted to lying to the Prosecution.'uuI n particular, Nzabonimana submits that the Trial Chamber: (i) could not consider Witness T24's admission to -'Trial 7qt- ,.J u.dsemenpta, ra.1 63. 'oo S"eN zab-onimaAnpap eaBl riei.p ara.1 74. 7es SeeT rialJ udgemenpt,a ra.1 483S. eeu lsoi bid.,fn.243. 7e6 T he AppealsC hamberr ecallst hat it cannotb e expectedt o considera party's submissionsin detail if they are obscurec, ontradictoryv,a gue,o r suft-efrr om otherf brmala ndo bviousi nsufficienciesS. ees upra,p ara.1 2. to7 Trial Judgementp,a ra.228. t" Trial Judgementp, ara.229. t" Ttial Judgemenpt,a ra.2 31. 800 N zabonimanAap peaBl rief,p ara.1 81( Frencho riginal). 98 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 Q\

2137/H undermine his credibility becauseP rosecutioni nvestigatorsu sed unacceptablem ethods to obtain his testimony againstN zabonimanaa nd that he fearedr epercussions;8o1ii i; distortedW itness T24's testimony to find that the witness provided contradictory accountso n whether he gave his 2008 statementu nder pr"rsure;tota nd (iii) erred in determining that Witness T24 was free to testify and sufferedn o adversec onsequencesa s a Defencew itness.8ON3z abonimanaa dditionally submits that the Trial Chamber restricted its assessmento f duress to the testimonies of Defence Witness Mporanzi and Witness T24 andfailed to considere videncec orroboratingt heir claims of duress.80a 286, The Prosecutionr espondst hat Nzabonimanas imply re-arguesa nd misstatest he evidence.805 It submits that: (i) Nzabonimana ignores that several witnessesd etained in Rwanda, including Witness T24, testified that they suffered no consequencesb y testifying for the Defence;806a nd (ii) Nzabonimana's argument that Witness T24 was forced to testify for the Prosecution fails because the witness ultimately testified for the Defence and admitted that he suffered no repercussions.s0FTin ally, the Prosecutions ubmitst hat the Trial Chamberc onsideredo ther evidence of duress,t o which Nzabonimanar efers,b ut it either disbelievedo r found the evidencei rrelevant.sO8 287. The Appeals Chambero bservest hat the

Trial Chambere xplicitly consideredW itness T24's testimony that: (i) Prosecutioni nvestigators,e specially Djibo Moumouni, approachedh im several times and also approachedt he director of the Gitaramap rison, who askedW itness T24 whether he refused to testify againstN zabonimanu;801ei i; the witness felt pressureda nd spoke to Investigator Moumouni to avoid being labelled a "revisionist" and suffering negativec onsequencesfr om prison authorities;8to( iii) he obtained information regarding Nzabonimana's activities in 1994 from a fellow inmate, and not knowing if the information was true, conveyed the information to Prosecution investigators;*tt 1iv; he signed a statement in October 2008, which summarised discussionsb etweenW itness T24 andI nvestigatorM oumouni;tt' (u) he acknowledgedm aking the statemento f his own free will and did not act under the duressf rom anyone whatsoever;8l3a nd 801 N zabonimanaA ppeal Brief, paras. 191, 192. See also NzabonimanaN otice of Appeal, para. 1.1(3),(4); NzabonimanAap pealB rief,p aras2. 2,23; AT. 29 April 2014p . 50. 8@ NzabonimanAap pealB rief,p aras.1 93,194. 803 NzabonimanaA ppealB rief, para. 195. 8s NzabonimanAap pealB rief,p aras.1 82,1 83.S eea lsoN oticeo f Appeal,p ara.4 .1 .5(6). 80s P rosecutionR esponseB rief, para. 164. sffi ProsecutioRn esponsBe rief,p ara.1 68. 807 ProsecutioRn esponsBe rief,p ara.1 71. 808 ProsecutioRn esponsBe rief,p aras.1 65,1 66. 80e SeeTialJudgemenpt,a ras.1 81,1 82,233. tlo Trial Judgemenpt,a ras.1 83,2 33. tttT.ial Judgemenpt,a ra.1 84. 8lt Trial Judgementp, ara.1 84. 813 Trial Judgementp,a ras1. 84,235. 99 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 ftr1

(vi) the witness confirmed that since his acceptanceto cooperatwe ith the Defenceh, e hass fr{rffi/H no constraintd, uress,o r pressurein prison.sla 288. Given the above, the Appeals Chamber notes that the Trial Chamber explicitly considered the activitieso f Prosecutionin vestigatorsle adingu p to WitnessT 24's October2 008 statementI.t is unclear, from Nzabonimana's argument, how the Trial Chamber erred, how the activities of Prosecutioni nvestigators,o r how the witness's f'earsw ould undermine the Trial Chamber's finding that Witness T24 explicitly admitted to providing false infbrmation to the Prosecution,a nd that this admission seriously underminedt he witness's credibility.*t-tB eyond clisagreeingw ith the Trial Chamber's assessmentN, zabonimanaf ails to demonstrateh ow the Trial Chambere rred.

289. With respect to Nzabonimana's argument that the Trial Chamber distorted Witness T24's testimony, the Appeals Chamber notes the Trial Chamber's reference to Witness T24's statement that: "[a]s far as the declaration- the statemenits concernedI, did it of my own free will. I did not act under any cluressfr om anyonew hatsoever".slH6 aving reviewedW itness T24's testimony,t he Appeals Chamber notes that the witness seemedt o be respondingt o a questionr egarding a discrete portion of his October 2008 statement,r ather than characterisingt he entire statementa s made of his own fiee will.8r7 The Appeals Chamber finds that no reasonablet rier of fact could have relied on this part of Witness T24's testimony to determinet hat the entire October 2008 statementw as not made under pressure.H owever, the Appeals Chamber is not convinced that this error affects the Trial Chamber's assessmentt hat Witness T24's credibility was seriously undermined by his admission to making false statements,ttsa nd that appropriatec aution would be applied to detained witnessess, ucha sW itnessT 24.81e 290. In support of the argument that the Trial Chamber failed to consider other evidence of duress, Nzabonimana points to numerous paragraphsf rom the Trial Judgement that summarise witness testimonies.s2TOh e Appeals Chamber notes that the Trial Chamber consideredt his evidence.szAr lthough Witness

T24's fears might have been a possibility, Nzabonimanaf ails to t'o TrialJ udgemenpt,a rasI. 89,2 38. *'t Trial Judgementp, ara.2 34.T he AppealsC hambern otest hat theT rial Chamberd id not find WitnessT 24 generally not credibleb ut exercisedc autioni n its assessmeonft his evidenceS. eei nlra, paras3. 58-362. *'o T riulJ udgemenpt,a ra2. 35,r elbrringto Witness '1 24, T . 21 April2 010p p.5 0,6 1 (closeds ession). "" WitnesTs2 4,T.27A pril2 010p . 50( closesde ssion). trn TrialJ udgemenpto. ru,.234. ''u Trial Judgementp,a ra.239. 8:0 SeeN zabonimanAap peaBl rief,p aras1. 82,1 83. t:r SeeN zabonimanaA ppealB rief, paras.1 82, 183.N zabonimanpao intst o the following as evidencec orroborating duresst hat WitnessesM poranzi andT 24 confronteda nd that the Trial Chamberd id not consider:( i) the evidence presentedonNyabikenkecorroboratedfeabrostohfw itnesses(seeibipda.,r a.1 83,r e.f'erringtoTrialJudgement,paras. 120-135l,8 l-187); (ii) its own findingst hatd etaineewsh o did not confessb ecamev ictimso f discriminationo,r that somew itnessefsa bricatedc onfessionisn ordert o be released(s eei bid.,p ara.1 83,r e.fbrringt oTrial Judgementp,a ras. 236,231);( iii) WitnessC NAC testifiedto havingb eenu nlawfullyd etaineda ndt o havingd isappeare(sde ei bid.,para. 100 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2135/H explain how this undermines the Trial Chamber's assessmento f Witness T24's credibility. Nzabonimana merely offers a different interpretation without showing how the Trial Chamber erred in its assessment.

291. For the foregoing reasons, the Appeals Chamber finds that Nzabonimana fails to demonstratet hat the Trial Chambere rred in finding that Witness T24's credibility was undermined becauseh e admitted to lying to the Prosecution.H e also fails to demonstrateth at the Trial Chamber committed an error in assessingW itness T24's credibility that would occasion a miscarriage of justice. (b) PiecemealA pproach 292. Nzabonimanas ubmits that instead of consideringt he accumulatedi nconsistenciesb etween WitnessesC NAA and CNAC, the Trial Chambere rredb y assessinge videncer elating to paragraphs 24,26, and 48 of the Indictment separately.s2H2e contendst hat, by splitting up the testimonieso f WitnessesC NAA and CNAC into the events of Rutobwe, Murambi, and Musambira, the Trial Chamber failed to draw inferencesf rom their inconsistenciesw hich should have led it to exclude their testimonies.823In particular, he argues that the allegations set forth in paragraph 24 of the lndictment cannotb e assesseds eparatelyf rom thosei n paragraph2 6 of the Indictment, which relate to 18 April 1994.82H4 e arguest hat a holistic assessmenot f the evidencew ould have demonstrated that WitnessesC NAA and CNAC, who both testified on events in Rutobwe and Murambi, were mutually inconsistent,n otably on what Witness Mporanzi told them on 18 April 1994 with respect to the situationo f the prisonersi n

Rutobwe ,o**rnr.8" 293. The Prosecutionr espondst hat the Trial Chamber's assessmenot f Witnesses CNAA and CNAC was not piecemeala s the Trial Chamber considereda ll aspectso f their testimony and was correcti n finding that they corroboratede acho ther in key respects.826 294. The Appeals Chamberf ails to seeh ow the Trial Chambere rred by separatingi ts evaluation of the allegationsa nd of the evidence adducedi n relation to Indictment paragraphs.T he Appeals 183,r eferring ro Trial Judgementp, ara. 169);( iv) WitnessT 24recalledt hat he wasb eatenw heni n detention( seei bid., para.1 83,r eferring toTl;iralJ udgementp, ara. 192);( v) WitnessT 133 was told by WitnessC NAC that a casew as fabricateda gainstW itness CNAC (see ibid., para. 183, referring to Tt''al Judgement,p ua. 202); and (vi) witnesses spenty earsy earsi n prison without trial, somew ere later acquittedo, r after servingt heir sentencesfa, ced new charges (seei bid.,p ara.1 83,r eferuingto , intera lia, Trial Judgemenpt,a ras1. 83,233'1 85'1 90). 822 NzabonimanaA ppealB ief , pua.232. 823 NzabonimanaA ppealB rief, paras.1 91, 198. 824 NzabonimanaA ppealB rief, para. 198. 825 N zabonimanaA ppeal Brief, para.

198. Nzabonimana'ss ubmissiont hat the Trial Chamber overlooked the contradictionbse tweenW itnesseCs NAA andC NAC on thei ssueo f thep risonersis examinedb elow.S eei nfra, pans. 296-311. 826 ProsecutioRn esponsBe ief , pua. 174. 101 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 $a*

Chamber notes that having determined that the allegations of eviclence fabrication flC134/H undermine the credibility of WitnessesC NAA and CNAC,827t he Trial Chamber consideredt heir evidence in relation to the events they testified to, recalling each time that as detainedw itnesses,i t has treatedt heh testimony with appropriatec aution.82T8 he Appeals Chamber finds no error in this approach.T he Appeals Chamber further finds that Nzabonimanaf ails to demonstratet hat the Trial Chamberd id not assessc umulativelyt he inconsistenciebs etweenW itnessesC NAA and CNAC. The Appeals Chamber will examine below Nzabonimana's arguments on the assessmento f the credibility of Witnesses CNAA and CNAC in relation to the events at Rutobwe, Murambi, and Musambira.

295. The Appeals Chamber finds that Nzabonimana fails to demonstratea n error in the Trial Chamber'sa pproacht o consideringt he evidenceo f WitnessesC NAA and CNAC. (c) Rutobwe 296. The Trial Chamber found that in the days leading up to 18 April 1994, Nzabonimana encouraged the killing of Tutsis by causing the release of killers of Tutsis, who had been imprisoned by Bourgmestre Jean-MarieV ianney Mporanzi, in Rutobwe commun".*" The Trial Chamber mainly relied on WitnessesC NAA and CNAC who provided evidencet hat Nzabonimana causedt he releaseo f killers and threatene d Bourgme.r/reM poranzi for having arrestedt hem.830It found however, that basedo n the lack of specific evidenceo f the crimes committed by the prisoners it could not conclude that Nzabonimana'sf brcible releaseo f the Rutobwe communep risoners substantially contributed to any of the ensuing killings or other crimes.t3t Accordingly, the Trial Chamber did not convict Nzabonimanao f genocideb ased on this event.832T he Appeals Chamber hasu pheldN zabonimana'sa cquittali n respecto f this charge.833 297. Accordingly, the Appeals Chamberd eclinest o considerN zabonimana'ss ubmissionsr elated to the Rutobwe event,834e xcept for challcnges related to the assessmento f the credibility of 827 SeeT rial Judgement,p aras.1 065, 1143, 1211, 1448, 148l . The Appeals Chamber recalls that the Trial Chamber conducted an overall

credibility assessmenitn responset o Nzabonimana's contention that WitnessesC NAA and CNAC fabricated their evidence. SeeT t''al Judgement,p aras.2 24-231. 828SeeTria J l udgement,paras1. 045-1057,1064-107lf orthereleaseof Rutobwec ommunep risoners;T rial Judgement, paras.1 080-11051, 142-1152l,l 59-1169, ll82-ll8TfortheMurambi meeting;TrialJ udgement,paras1.1 96-1223for the reinstatementc eremony of the Bourg,mestreo f Musambira Commune.S eea Lsoi bid., para.226. "'Trial Judgementp, ara. 1076. ttt'Trial Judgementp, ara. 1075. *'' Trial Judgement,p ara.1 123. "t Trial Judgement,p ara.1 723. 8t3 See infra, paras.486-495. 8ra Specifically, the Appeals Chamber declines to consider Nzabonimana's submissionsr egarding Defence Witnesses Mporanzi and T24.,See Nzabonimana Appeal Brief, paras. 202, 206 (Defence Witness Mporanzi), para. 205 (Defence WitnessT 24). t02 Ca.seN o.: ICTR-98-44D-A 29 Septembe2r0 14

2133/l! WitnessesC NAA and CNAC.83t Th" Appeals Chamber will examine such challengesf or their potential impact on the overall credibility and reliability of WitnessesC NAA and CNAC,836w hom the Trial Chamberr elied upon for Nzabonimana'sc onvictionsi n relalion to the eventsa t Murambi. (D Witness CNAA's Credibility 298. Nzabonimana submits that the Trial Chamber failed to properly assessW itness CNAA's credibility arguing that the witness adjustedh is account in each trial in which he testified.837 Nzabonimana contends that in the Karemera et al. tial Witness CNAA testified that during the first Murambi meeting on 18 April 1994,B ourgmestreM poranzi complained to the Prime Minister, in the presence of Government officials and other authorities, that Nzabonimana had released prisonersi n Rutobwe communea nd slappedh im, an incident which Witness CNAA only confirmed during cross-examinationin the presentt rial.838N zabonimanaa rguest hat the Trial Chamber erred by excluding this major omission and by finding that it was "inconsequential"a s thesef acts were both crucial and unforgettable.83e 299. Nzabonimana further argues that the Trial Chamber failed to properly assess Witness CNAA's testimony that BourgmestreM poranzi complained on two occasions:d uring a meeting at the Gitarama prdfecture offrce prior to 18 April 1994, and during the first meeting at Murambi on 18 April

1994.*ooH e submits that the Trial Chamber overlooked the fact that this testimony contradictsW itness CNAC's testimonyo n this point and that there was no corroboration on the localion where the witnessesh eardB ourgmestreM poranzi's statements.84l 300. Finally, Nzabonimanas ubmitst hat the Trial Chambero verlooked the implausible character of Witness CNAA's testimony, and arguest hat in a "bid to embellish" his testimony the witness 8" The AppealsC hamberr ecallst hat, asa generarl ule, it declinest o discussa llegede rrorsw hich haven o impacto n the convictiono r sentenceS. eeK anyaruklgaA ppealJ udgemenpt ara.6 2; RenzahoA ppeal Judgementp, aras.2 51, 384; Krajiinik AppealJ udgementp, wa.20. The AppealsC hambern otest hat the Trial Chamberr elied on this event,a mong others, as .lt.u*.t-tiut evidence of Nzabonimana'sg enocidal intent. See Trial Judgement,p aras. 1?07 (Butare Trading Centre Meeting), 1724 (Releaseo f Killers in Rutobwe Commune), 1726 (Murambi Meeting), 1728 (ReinstatemenCt eremonyo f the Bourgmesfreo f MusambiraC ommune),1 '732( Destructiono f housesi n Nyamabuye Commune)1, 734 (WeaponsD istributioni n TambweC ommune)1, 736( TambweC ommuneC risis Committee)T. he AppealsC hamberf urther notes that Nzabonimanah as not challengedt he Trial Chamber'sf inding on his genocidal intent for his conviction relatedt o the Murambi event (for Nzabonimana'sc onviction

for the crime of conspiracyt o -fial commit genocidei n relation to the Murambi event, see Judgement,p ua. 1747; regarding Nzabonimana's convictionf or direct and public incitementi n relationt o the Murambi event,a s examinedi n the following section,t he AppealsC hambehr aso verturnedth is conviction). 836 SeeN zabonimanAa ppealB rief, para.2 08. 837 NzabonimanAap pealB rief.p ara.2 00. 838 NzabonimanAap pealB rief, para.1 99. 83e NzabonimanaA ppealB rief, para.2 00. &0 NzabonimanAap pealB rief, para.2 01. 841 N zabonimanaA ppeal Brief, para.

201. Nzabonimanaa rgued that Witness CNAC testified that Bourgmestre Mporanzi complained during the meeting of bourgmestresa t Gitarama prdfecture office on the morning of 18 April 1994.S eei dem. 103 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 v1 \r

mentioneda ttackso n his commune,w hile subsequenPt rosecutiond isclosuresl ed the Trial CWW2/H to believe that Witness CNAA may have been seeking to distance himself fiom any responsibility.8a2 301. The Prosecutionr espondst hat details about Nzabonimana's interaction with Bourgmestre Mporanzi only arose during cross-examination,w hen Witness CNAA was confronted with his testimony in Karemera et al. trial, and f-urthera rguest hat it was not a major omission that Witness CNAA did not mention during his examination-in-chief, that Bourgmestre Mporanzi was slapped.saA3 s to the alleged contradictionw ith Witness CNAC's testimony, the Prosecution submits that Nzabonimana fails to explain why Bourgmestre Mporanzi could not have raised Nzabonimana'so rders on more than one occasion.*aTa he Prosecutions ubmits that Nzabonimana's argllmentso n disclosurea reb asedo n materialn ot on the record.sa5 302. The Appeals Chamber observes that the Trial Chamber considered each of the alleged discrepanciest hat Nzabonimana raises. Specifically, it examined alleged contradictions between Witness CNAA's testimony in this case and in the Karemera et al. case, and accepted Witness CNAA's explanation that there was no contradiction between his testimonies as Bourgmestre Mporanzi told him of the prisoner release both at the Murambi meeting and at a meeting at the prdfecture office.*ouW hen examining

the Def-ence'sc hallenge to Witness CNAA's credibility, the Trial Chamber f'urther noted that the witness testified that Bourgmestre Mporanzi spoke of the prisoner release on cliff'erent occasions.*otW hen examining the consistency of Witnesses CNAA's and CNAC's testimonies concerning a meeting at the Gitarama prdJbcture office prior to the Murambi meeting, where BourgmestreM poranzi addressedt he prisoner release situation, the Trial Chamber recalled that Witness CNAC testified that the meeting occurredo n the morning of l8 April 1994 and that Witness CNAA could not recall the date or time of the meeting but testified that it occured on a different day.t'8 The Trial Chamber considered however that Witness CNAA's inability to give a precised ate for the meeting had "minimal impact upon his 842 N zabonimana Appeal Brief, para. 207, re.f'erringr o Callixte Nzabonimana's New Motion for Appropriate Remedies on Account of Further Violations of Rule 66(AXii) and Rule 68 of the Rules of Procedure and Evidence, 12 luly 2013 (original Frenchv ersionf iled on 25 June2 013). tar ProsecutionR esponseB rief, para. 182. 8ao P rosecutionR esDonseB rief, para. 178. *as ProsecutionR esponseB riei. para. I 8 l. *oo T rial Judgement, para.

1069. The Trial Chamber also considered the Det-ence'sc hallenge to Witness CNAA's credibility for having mentioned thal Bourg,mestreM poranzi had told him that he was struck by Nzabonimana,w hile in his 2007 testimony in the Karemera et al. trial Witness CNAA acknowledged that this was a rumour. The Trial Chamber noted that Prosecutiond id not elicit evidenceo f Nzabonimanas triking Mporanzi during its direct examination of Witness CNAA but that only the Defence raised the issue in its cross-examinationo f Witness CNAA. See ibid., para.1070. 'o'Trial Judgementp.a ra.l ()69. *on Trial Judgementp, ara. 1066. 104 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 f."-a

2131/H credibility, given the considerablep assageo f time since the events".84eN zabonimana fails to demonstratea ny error in the Trial Chamber'sa ssessment.

303. The Appeals Chamber also dismisses Nzabonimana's submission on the implausible charactero f Witness CNAA's testimony as unfounded.T he Appeals Chambern otes that, in support of his vague claim, Nzabonimanar efers only to his own motion on appeal, which the Appeals Chamberd enied.Sso 304. Accordingly, the Appeals Chamber considerst hat the Trial Chamberw as clearly seisedo f all of Nzabonimana's challenges,w hich on appeal amount to mere disagreementw ith the Trial Chamber's conclusions.M oreover, Nzabonimanaf ails to show how the allegedi nconsistenciesc ast the overall credibility of Witness CNAA into such doubt that no reasonablet rial chamber could have relied on parts of his testimonyt o sustainc onvictions.ssl 305. The Appeals Chamber therefore dismisses Nzabonimana's challenges to the Trial Chamber's assessmenot f Witness CNAA's credibility in relation to the release of prisoners in Rutobwe commune. (ii) Witness CNAC's Credibility 306. Nzabonimana submits that a reasonablet rier of fact would have questioned Witness CNAC's testimony that he heard BourgmestreM poranzi's accusationsa gainstN zabonimanaa t a bourgmestre.sm' eeting on 18 April 1994 atthe Gitaramap rdfecture office.852N zabonimanaa rgues that the manner in which Witness CNAC made theser evelationsw ere: (i) "abrupt", consideringt hat the Prosecutiont ook advantageo f a question in examination-in-chieft o

elicit information from Witness CNAC regarding the release of the Rutobwe commune prisoners;853 and (ii) "opportunistic", considering the "links" between Witnesses CNAC and CNAA who were housed together at the United Nations Detention Facility ("UNDF') in Arusha.854F urthermore, Nzabonimanas ubmits that the Trial Chamber should not have acceptedW itness CNAC's evasive explanationt hat a previouss tatementf rom 2008 failed to mention the complaintm ade by Mporanzi *n Trial Judgemenpt,a ra.1 066. 8t0 S eeD eciiiono n iulli^tr NzabonimanaN'se w Motionf or Remedies1, 6O ctober2 013. E t SeeN takirutimanaA ppeal Judgement,p ua.

252. The Appeals Chamberr ecalls that the findings concerningt he eventsa t Murambi on 18 April 1994a reb ased,in pa-rto, n the testimonyo f WitnessC NAA. 852 NzabonimanaA ppealB rief, para.2 03. 853 N zabonimanaA ppeal Brief, para. 203.In supporto f his argument,N zabonimanaa rguest hat neithert he Prosecution Pre-Trial Brief or any will-say statementsin dicated that Witness CNAC was going to testify on the releaseo f the Rutobwec oftimunep risonersth at the Trial Chambera t the time arguedt hat in askingt his questiont he Prosecutionw as "steppingo ut of line". He submitst hat the Trial Chamberv iolatedh is right to fair trial by relying on WitnessC NAC's testimonya s it was obtainedu nderu nfair circumstancesS. eei dem. E5a NzabonimanaA ppeal Bief , para.203. 105 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

atthe bourgmestres'meetinagt the Gitaramap rifecture offrceb ecauseh e wasa nsweringq ufr{EOJH put to him by investigators.s55 307. The Prosecution respondst hat Nzabonimana's claim, regarding the manner in which the witness made the revelations,i s incorrect and that, in any event, the Trial Chamber remedied any possible prejudice by postponingW itness CNAC's cross-examinationfo r three months.ss6T he Prosecutiona lso respondst hat WitnessesC NAA and CNAC did not discusst heir testimonyi n the case and, in any event, a mere risk of collusion is insufficient to render testimony inadmissible.8sT As to Witness CNAC's explanation on his 2008 statement,t he Prosecutionr esponds that Nzabonimana simply disagreesw ith the Trial Chamber's assessmentw ithout demonstrating any earor.*5' 308. The Appeals Chamber understandsN zabonimana's main argument to be that he lacked notice that Witness CNAC was going to testify on the releaseo f prisonersi n Rutobwe. The Appeals Chamber finds however that this issue has no impact on the Trial Chamber's assessmento f WitnessC NAC's credibilitya nd,t hereforeh, asn o impacto n Nzabonimana'sc onvictions.sse 309. As to the alleged links betweenW itnessesC NAA and CNAC, the Appeals Chamber recalls the Trial Chamber's finding that Defence evidence relating to the alleged fabrication of evidence did not undermine the creclibility of their testimonies.s6T0

he Appeals Chamber has found that Nzabonimana failed to demonstratet hat the Trial Chamber erred in this respect,86al nd considers that Nzabonimana's submission,r egarding the witnessess taying together at the UNDF at the time of their testimoniesd, emonstratenso error in the Trial Chamber'sa ssessmenotf WitnessC NAC's credibility. 8ss N zabonimanaA ppeal Brief, para. 204.S eea /sr.Er xhibit Dl00 (WitnessC NAC's Statemento f 11 November2 008). 8s6 ProsecutionR esponseB rief, para. I 80. 8s7 P rosecutionR esponseB rief, para. 187. *st ProsecutionR esponseB rief. para. | 83. t'e In any event, the Appeals Chamber notes that during Witness CNAC's examination-in-chief, the Trial Chamber ruled on a Defence's objection to a question, that the Prosecutionp osed and that the witness had not yet answered,o n whether Bourgmestre Mporanzi told the witness when he had been confronted by Nzabonimana.T he Trial Chamber did not, as argued by Nzabonimana, observe that the Prosecutionw as stepping out of line. Rather, the Trial Chamber noted that the Prosecutionc oncededt hat it was stepping out of line with regard to the question and agreed to withdraw it - or not proceed.O n that basis,t he Trial Chamber decidedt o sustaint he objection with regard to that question,t he third one, while it noted the observationsm ade by the Defence to the two first questions,a sked by the Prosecution and

answered by the witness without an objection raised by the Defence.S eeW itness CNAC, T. 16 December 2009 pp. 59, 65 (closed session).T he Appeals Chamber further observes that Nzabonimana elected to cross-examineW itness CNAC on the release of the Rutobwe commune prisoners. See Witness CNAC, T. 12 April 2010 pp. 21, 22 (closed session).T he Appeals Chamber also finds that Nzabonimana'su ndevelopeds ubmissiont hat "in-court testimony obtained under untair circumstancesi s inadmissible" is insufficient to demonstratet hat the Trial Chamber violated his fair trial right. to" Trial Judgement, paras.2 24-239. "" Seer upro, paras.2 15 - 284. t06 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2129/H 310. Regarding Witness CNAC's 2008 statement, the Appeals Chamber notes the Trial Chamber'so bservationt hat Witness CNAC did not mention either the releaseo f prisonerso r the assertiont hat Nzabonimanas truck BourgmesffeM poranzi in his 2003 or 2008 statements.eT2 he Trial Chamber further noted that Witness CNAC's 2008 statementi ndicated that it was the first time he was being interviewed about Nzabonimana and found the explanation that, during the interview, he simply answered the general questions posed to him by investigators to be reasonable.8uN3z abonimana fails to demonstratet hat no reasonablet rier of fact could have accepted this explanation.

311. The Appeals Chamber therefore dismisses Nzabonimana's challenges to the Trial Chamber's assessmenot f Witness CNAC's credibility in relation to the release of prisoners in Rutobwec ommune. (d) Murambi 312. The Trial Chamber found that the Defence evidence corroborated the Prosecution evidence with regard to a meeting at Murambi on 18 April 1994.864P rosecution Witnesses CNAA and CNAC as well as Defence Witnesses Mporanzi and T24 all attested to the meeting with the bourgmestresa nd to Nzabonimana's p."r"n.".tu' Based on the totality of evidence, the Trial Chamber found that on 18 April 1994 the Prime Minister of Rwanda and other members of the Interim Government, including Nzabonimana, held a meeting at Murambi for the bourgmestres of Gitaramap rdfecture.suWu itnessesC NAA, CNAC, Mporanzi, andT24, as well as a journalist from Radio Rwandaw ere among the attendeesa t the meeting.867 3i3. The Trial Chamber found that Nzabonimanao rderedt he killing of bourgmeslresa nd other local officials opposed to the massacre of Tutsis during a meeting held at Murambi on 18 April 1994, and the ministers present, including Nzabonimana, used the meeting to th"reatont he bourgmestre.s.s6Bsa sed on this event, the Trial Chamber convicted Nzabonimana of direct and public incitementt o commit genocidea nd conspiracyt o commit genocide.s6e (i) Alleged Errors in AssessingP rosecutionE vidence 862 Trial Judgementp, ara. 07t . tu' Trial Judgementp, ara. 071. 8e Trial Judgementp, ara. 158. 86s Trial Judgementp, ara. 158. 8* Trial Judgementp, ara.

158. Judgemepnatr,a .158. lll :lq """ lnal Juclgementp, ara.

179. R--6-0 -l nai. .J uo. gementp, arast74 7, t',|4 9, l'1'73 , 1715 , 1800. 10'7 r.\^-\ \f! CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

314. The Trial Chamberc onsideredt hat WitnessesC NAA and CNAC corroboratede achfr#Z8/H accounts regarding what occurred during the second Murambi meeting with the Gitarama bourgmestres, and found that Nzabonimana and other Government officials threatened the bourgmestresa s a meanso f ensuringt heir participationi n the genocide.870 315. Nzabonimana submits that the Trial Chamber erred in finding that the testimonies of WitnessesC NAA and CNAC corroboratede ach other.87rN zabonimanaa lso submits that the Trial Chamber erred in its assessmento f their credibility when it accepted their explanations for omissionsa nd inconsistenciews ith previouss tatements.sT2 316. The Prosecutionr espondst hat the Trial Chamber's assessmenot f the mutually corroborative testimonieso f WitnessesC NAA and CNAC was reasonable.sTIt3 f urther submits that Nzabonimana fails to show that it was wholly unreasonablefo r the Trial Chambert o consideri nconsistenciesw ith previous statements and find that diffbrences did not detract from the overall reliability of WitnessesC NAA and CNAC.87a ' a. WitnessesC NAA's andC NAC's Alleeed Contradictions 3l'7. Nzabonimanas ubmits that baseds olely on the first meeting at Murambi, the Trial Chamber could not find that WitnessesC NAA and CNAC corroboratede acho ther.87sN zabonimanap oints to diff'erencesb etween their testimonieso n Prime Minister Jean Kambanda'sr

eaction to Prdfet Fiddle Uwizeye's conccrns on the insecurity in Gitarama.876H e insists that the discrepanciesi n their testimonies cannot reasonably appear to be minor,*tt In Nzabonimana's view, their discrepant testimonies demonstrate strikingly different attitudes that Kambanda had towards the Tutsi population in Gitarama prdfectur,:.*7* Nzabonimana further submits that the Trial Chamber enoneously found no signillcant diff'erenceb etweent he accounto f Witness CNAC, that Kambanda ttu Trial Judgementp. ara. I l6 t . n" NzabonimanaA ppeal Brief. para. 196. 172N zabonimana Appeal Brief, para. 196. 873 ProsecutionR esponseB rief, para. 173. t'o ProsecutionR esponseB rief, para. I 89. n'' NzabonimanaA ppealB rief.p zra.2l3. t7o NzabonimanaA ppeal Brief para.2l0. Nzabonimanas ubmits that the diff'erencei s not minor as according to WitnessC NAA, the Prime Minister summarily dismissedU wizeye's the concern,w hile Witness CNAC testifiedt hat the Prime Minister reactedp ositively to a proposal to assistT utsi refugees.S eei dem. 877 NzabonimanaA ppeal Brief, para.2 11 . 8t' Nzabonimana Appeal Brief, para. 2l l. Nzabonimana further submits that the Trial Chamber contradicted itself by first acknowledging "substantial differences" between the testimonies of Witnesses CNAA and CNAA, and then finding the differencest o be minor. Seei bid., pua.209. 108 CaseN o.: ICTR-98-44DA- 29 Septembe2r0 14 cr\

2127/H was present at the second meeting on 18 April 1994, and the account of Witness CNAA, who refuted Kambanda'sp resenced uring the secondm eeting.sTe 318. The Prosecutionr espondst hat the Trial Chamber correctly found that WitnessesC NAA and CNAC corroborated each other in key respects.88I0t submits that Nzabonimana fails to show how the Trial Chamber unreasonablyf ound inconsistenciesin the testimonieso f WitnessesC NAA and CNAC to be minor.881 319. The Appeals Chamber recalls that every witness presentsw hat he has seen from his own point of view at the time of the events,o r accordingt o how he understoodt he events recountedb y others.882I t follows that conoboration may exist even when some details differ between testimonies,p rovided that no credible testimony describest he facts in questioni n a way which is not compatible with the description given in another credible testimony.sSI't is ultimately within the discretion of the trial chamber to evaluatei nconsistenciest hat may arise amongst witnesses' testimonies,t o consider whether the evidence taken as a whole is reliable and credible, and to accepto r reject the fundamentalf eatureso f the evidence.tso 320. The Trial Chamber expresslyn oted consistenciesa nd differencesb etween the accountso f Witnesses CNAA and CNAC.*tt It found that Witnesses CNAA and CNAC provided largely consistenta nd corroboratinga

ccountso f the eventso f 18 April 1994,l eading up to a meeting held for the bourgmestresa t Murambi.886 321. In particular, the Trial Chamber noted that "there were few substantiald ifferences" between the testimonies of WitnessesC NAA and CNAC, the most significant being the responseP rdfet IJwizeye received to his plea for assistanced uring the first meeiting.887A ccording to the Trial Chamber, Witness CNAA testified that Kambanda summarily dismissedU wizeye's concernsa nd then promptly left the meeting, while Witness CNAC testified that the Prime Minister reacted warmly to the Bishop of Kabgayi's offer to provide refuge for Tutsis at his diocese.t*tT he Trial 87e N zabonimanaA ppeal Brief, para.2 14. Nzabonimanas ubmitst hat, also accordingt o WitnessM poranzi, Kambanda w?sp resenat t thes econdm eetingo n 18A pril 7994.S eei dem,r eferringt oTial Judgemenpt,a ras.1 117-ll 19. oou ProsecutioRn esponsBe rief,p ara.1 74. E8r ProsecutioRn esponsBe rief,p aras.l '75,l '76,184. t8' See,e .g., GateteA ppealJ udgementp, ara.2 05; NtawukulilyayoA ppealJ udgementp, ua.24, referring to Munyakazi AppealJ udgemenpt,a ra.1 03;N ahimanae t al. AppeaJl udgementp,u a.428. "" See,e .g., BizimunguA ppeal Judgement,p wa. 327; Gatete AppealJ udgement,p ua. 205; HategekimanaA ppeal Judgementp, ara.82. t* Sr", e.g., NdahimanaAppeal Judgementp, ua. 93; MunyakaziA ppeal Judgementp, ua.7l; RukundoA ppeal Judgemenpt,a ra.207. 8t' Trial Judgemenpt,a ras.t146, ll4'7. t"R"'6 -I. na.l J- ud.gement,p a-ra. t46. I-t-7' -.l nal, .J ud,gement,p zua. t4'7. "t Trial Judgement, para. 147. i09 o-\ CaseN o.:I CTR-98-44D-A 29 Seotembe2r0 14

Chamber considered these differencesto be minor and outweighedb y the overall consfl{ffi/lJ betweent he two testimonies.8se 322. Having reviewed the relevant parts of the record8e0a nd the Trial Chamber's assessmenot f the evidence of WitnessesC NAA and CNAC, the Appeals Chamber finds that Nzabonimanah as not dcmonstratedt hat no reasonablet rier of fact could have concluded, as the Trial Chamber did, that this discrepancyo n Kambanda'sr eactionw as minor and outweighedb y the overall consistency between the two testimonies. By focusing only on this discrepancy in the first meeting at Murambi,8el Nzabonimana ignores that the Trial Chamber expressly noted substantial and numerollsc onsistenciebse tweenW itnessesC NAA and CNAC.8e2 323. With respect to Kambanda's presence during the second meeting, the Trial Chamber acknowledgedt he following discrepancyb etween WitnessesC NAA's and CNAC's accounts: "Witness CNAC indicated that during the first pafl of the meeting with the bourgmestres,P rime Minister Kambandaw as presenta nd listenedt o their problemsa nd dispenseda dvice. However, Witness CNAA made no mention of this occurrence".8eT3h e Trial Chamber did not find this discrepancyt o signilicantly diminish the credibility of the Prosecutione videnc".tnoI n reaching this conclusion,t he Trial Chambero bservedt hat WitnessC NAC's evidencew as clear that only after Kambanda left did the remaining government officials, including Nzabonimana,b egin describing the Tutsis as the "enemy" while threateningt he assembledb ourgmestrest o collaborate with the nt'Trial Judgement, para.

1141. The Appeals Chamber is of the view that the Trial Chamber's finding on the "most significant difference" reflects the comparison of all discrepanciesa mong themselves in order to identify which one deservesp articular consideration.T he Appeals Chamber finds no contradiction with the Trial Chamber's finding that this difference is rather minor when assessedi n the context of the overall consistency between the testimonies of WitnessesC NAA and CNAA. Seei dem. to" Witness CNAA testified that: "After the prime minister spoke, the former pr€tet of Citarama, Fiddle Uwizeye, also took the f-loor.H e said that we were facing important problems connectedt o the massacrea nd that [solutions] had to be found fbr those problems. He also talked about the numerous refugees who had just come to Kabgayi in Gitarama. When the prime minister heard those things, he said that he was very busy. He left the meeting" (see Witness CNAA, T. l5 December2 009 p.9 (closeds ession)( us conected in p. 10)). Witness CNAC testifiedt hat: "[Fidd]e Uwizeyel askeclt he meeting to take a decision concerning theser efugeesw ho were living in a situation of insecurity and who did not have any food to survive,a nd who simply were not receivinga ny assistance"a, nd FatherN sengiyumvar esponded promising that "the retugeesc ould be received in homes - in the housesi n the diocese,a nd that the government had

to ensuret he safety of those refugees,a nd that for his part, the diocesew as going to provide fbod to those refugees.P rime Minister Jean Kambanda acceptedt hat proposition - that proposal and asked that it be adopted as such" (see Witness CNAC, T. 16 December2 009 p. 68 (closeds ession)). 8e) See NzabonimanaA ppeal Brief, paras. 209-213. 8e2 A ccording to the Trial Chamber, these consistenciesi nclude: "[T]he series of events beginning at the prdlbcture office and culminating in a meeting convened by the Prime Minister at the seato f the Interim Government in Murambi; their depiction of the Prime Minister's speechd uring the first meeting at Murambi as providing a broad overview of the Government's military approach to fighting the RPF; their description of the composition of the invitees to the first rneeting; the presenceo f Ministers, including Nzabonimanaa nd Witness T82, and other high-ranking national Government officials; the fact that no Minister took the floor during the meeting; Prlfbt Uwizeye's impassionedp lea for assistanceo n behalf of his prlt'ecture: and the fact that the bourgmestres were not informed of a second meeting convened specifically fbr them until after the first meeting at Murambi" (seeT rial Judgement,p ara. I 146). tot Trial Judgement,p ara.1 162. n'o Trial Judgement,p ara.

1162. Il0 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 G"-1,

2125/H Interahamw".8esF rom these findings, the Appeals Chamber understands that the Trial Chamber consideredt he threats to have been made in the Prime Minister's absence.O n this basis, the Appeals Chamberf inds that the Trial Chamber did not en in finding that WitnessesC NAA's and CNAC's accountsc orroboratede ach other, while still acknowledginga discrepancyb etween both testimonies.se6T he Trial Chamber was therefore reasonablei n frnding that the difference did not diminish the credibilitv of the Prosecutione vidence.N zabonimanaf ails to demonstratea ny error in this regard.8eT 324. In light of the foregoing, the Appeals Chamber is not convinced that, based solely on the first meeting at Murambi, the Trial Chamber erred in finding that Witnesses CNAA and CNAC corroborated each other. Nzabonimana's arguments on the alleged contradictions between WitnessesC NAA and CNAC are therefored ismissed. b. WitnessC NAA's Credibility 325. Nzabonimana submits that the Trial Chamber erroneously accepted Witness CNAA's interpretationt hat the word "enemy" was synonymousw ith "Tutsis",8e8th us allowing the alteration of the words that the witness attributed to Nzabonimana.teeN zabonimanaa rgues that in a prior statement,W itness CNAA claimed that Nzabonimanar eferredt o "enemy", rather than "Tutsis" as he mentionedi n his testimonya t trial.eo0H e also points to a 1996 statement,w here

Witness CNAA did not mention Nzabonimana, nor threats against the bourgmestres,i n the context of the Murambi meeting.eolN zabonimana claims that the Trial Chamber overlooked the gradual transformation of Witness CNAA's successives tatementso n the content of the Murambi meeting.e02N zabonimana further submitst hat Witness CNAA cannot be consideredc redibleb ecause,g iven the small number 8e5 Trial Judgementp, ara.1 162. 8% T he AppealsC hambenr otest hat,a ccordingto WitnessC NAA's testimonyK, ambandaw asn ot presenat t thes econd meetingb ecauseh e left during the first meeting., SeeW itnessC NAA, T. 15 December2 009 p. 9 (closeds ession). Witness CNAC testified that the Prime Minister was still presentd uring the secondm eeting.S ee Witness CNAC, T. 16D ecembe2r0 09p . 69 (closeds ession). 8et T he Trial Chamberd id not make any determinationo n when the Prime Minister left or whetherh e left during the first or secondm eeting.T he AppealsC hamberf inds that it would haveb eenc learerf or the Trial Chambert o explicitly statet hat it found it unnecessartyo determinet he exactt ime whent he PrimeM inister left or whetherh e left during the first or secondm eeting.I n this respect,t he AppealsC hambern otest he Trial Chamber'sf inding that "[a]mong those who attendedt he meeting includedP rime Minister Kambanda,b ourgmestresn, ational headso f political partiesa nd Interim

GovemmentM inisters". While this finding doesn ot specifyw hich part of the meetingi s concerned,t he Trial Chamberc onsistentlyh eld that it further found that "the Ministersp resenat t the meeting,i ncluding Nzabonimanau, sed this meeting to threaten the bourgmestres",w ithout any referencet o the Prime Ministet. See Trial Judgement, para.1 179,D espitet he lack of clarity, the Appeals Chamberf inds that whethert he Prime Minister was still present during the secondm eetingh eld at Murambi is not materialt o the Trial Chamber'sf inding on the threatsm ade by the Ministersp resentS. eei nfra, pan.399. 6e6 NzabonimanaA ppealB rief, paras.2 20,2 21. 8ee N zabonimanaA ppealB rief, para.2 19,r efeting to Tial Judgementp, ara.I 163. em NzabonimanaA ppealB ief , para.220, eor N zabonimanAap pealB rief,p ara.2 19.S eea lso ExhibitD 87A (WitnessC NAA's Statemenotf 22 May 1996). 111 CaseN o.:I CTR-98-44D-A 29 Septembe2r 014

of participants and radio reports admittedinto evidencei,t was impossiblet o miss Kambfril.&l/H presenced uring the secondm eeting.e03 'oenemy" 326. The Prosecution responds that the words and "accomplices" were used interchangeablyt o refer to Tutsis.e0aIt addst hat Witness CNAA was respondingt o questionsa bout Bourgmestre Jean-PaulA kayesu in his 1996 statement.e0Asc cording to the Prosecution,t he fact that a witnessi ncriminatesa n accusedp erson,e veni f increasinglyo ver time or throughs uccessive testimonies,d oes not in itself provide a basis for rejecting the witness's testimony.eOToh e Prosecution further respondst hat, by simply assertingt hat it was impossible for a witness to err about when Kambanda left. Nzabonimana does not show how the Trial Chamber was unreasonable.eoT 32'/. With respect to Nzabonimana's words, the Appeals Chamber notes that the Trial Chamber explicitly consideredt he different words that Witness CNAA attributed to Nzabonimana- "Tutsis", in his testimony at trial, and "enemy" and "accomplices" in a prior statement.e0T*h e Trial Chamber recalled Witness CNAA's explanationd uring trial that: (i) the common goal of the ministers was to carry out the genocide; (ii) he could not recount what was said word for word, given the time elapsed;( iii) the enemy was the Tutsis during the genocide;a nd (iv) the idea behind the words was the same.eOTeh e Trial Chamberc onsideredth e witness'se xplanationsto be satisfactorye, specially given the context of the targetedk illings at the time and the fact that Tutsis were describeda s the enemy.e'nT he AppealsC hamberf lnclst he Trial Chamber'sa ssessmentot be reasonable.

328. With respect to Witness CNAA's 1996 statement,t he Trial Chamber expressly considered that the witness did not mention Nzabonimanai n relation to the Murambi meeting.ellThe Trial Chamber recalled the witness's explanationst hat the statementr eferred to the moming meeting, whereas Nzabonimanao nly spoke in the afternoon, and that the statementr elated specifically to BourgmestreA kayesu.et2T he Trial Chamberf ound the witness'se xplanationsr easonable.elT3h e eor NzabonimanaA ppeal Brief, para.2 15. et" NzabonimanaA ppeal Brief, para.2 14. e0'1 P rosecution Response Brief, para. 191, re.fbrrinS4to Trial Judgement, para. ll63; Witness CNAA, T. l5 Decembe2r 009p p.57.58. The Prosecutiotnhereforea rguesth ati t did not matterw hetherN zabonimansaa idt hat it was the Tutsis (WitnessC NAA T. l5 December2009p p.5 7,5 8)o r thee nemyo r thea ccomplice(sW itnessC NAA's Statemento f 14 August 2(X)3) who should not be supportedS. ee idem. See also Exhibit D89 (WitnessC NAA's Statemento f l4 August 2003). eos ProsecutionR esponseB rief, para. 192. e6 ProsecutionR esponseB rief, para. 197. et'7 ProsecutionR esponseB rief, para. 184. n"* Trial Judgementp. ara. I 163. u'' Trial Judgemenpt,a ra.I 163. ero TrialJ udgemenpt,a ra.I 163. '" TrialJ udgemenpt,a ra.1 1 49.Seea lsoE xhibitD 87A( WitnesCs NAA's Statemenotf 22May 1996). e'' Trial Judgemenpt,a ra.I 149 ''t Trial Judgemenpt,a ra.1 1 49 112 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 Cr^\

2123/H Appeals Chamberd oesn ot detect any error in this regard.T he Appeals Chambera lso doesn ot find that the Trial Chamber overlooked the gradual transformation of Witness CNAA's statements, especiallyi n light of the fact that the 1996 statementa lready mentionst hat none of the speecheso f the memberso f the governmentw as aimed at pacifying the situationo r stoppingt he killings.era 329. In the Appeals Chamber's view, Nzabonimana also fails to demonstratet hat the Trial Chambere rroneouslya ssessedW itness CNAA's credibility in relation to Kambanda'sp resenceA. s already discussed,t he Trial Chamber consideredt hat, compared to Witness CNAC's testimony, Witness CNAA made no mention of Kambanda'sp tesenced uring the second meeting with the bourgmestrrr.nttT h" Trial Chamberd eterminedt hat this discrepancyd id not significantly diminish the credibility of Prosecutione vidence.el6N zabonimanaf ails to demonstrateh ow Witness CNAA's testimony that Kambanda left during the first meeting, comparedt o Witness CNAC's testimony, that he left during the secondm eeting, impactsW itness CNAA's credibility as a whole. Contrary to what Nzabonimanas ubmits,t he questioni s not whether it was possiblef or Witness CNAA to miss Kambanda's presence,b ut rather when the Prime Minister left and when the threats were made. Recalling that the Trial Chamberr easonablyf ound that both witnessesc onsistentlyt estified that the threats were made after Kambanda's departure,elT the Appeals Chamber finds no merit in Nzabonimanas' arguments.

330. Nzabonimana'sa rgumentso n WitnessC NAA's credibility are accordinglyd ismissed. c. WitnessC NAC's Credibility 33I. Nzabonimana submits that the Trial Chamber erroneously consideredi t immaterial that Witness CNAC, in his 2001 confession, omitted to mention the threats during the Murambi meeting.el8H e arguest hat it also erredi n acceptingW itness CNAC's explanationo n the absenceo f Nzabonimana'sn ame in the Prosecution'si nterview notes.eleA ccording to Nzabonimana,t he Trial Chamber erroneouslyf ound the interview notes to be hearsay,e ven though the witness confirmed that their content reflected statementsh e gave in the Karemera et al. tial.e2o Nzabonimana further claims that the Trial Chamber failed to consider that the words Witness CNAC attributed to Nzabonimana in this trial were the same as those the witness attributed to Karemera in the eto E xhibit D87A (WitnessC NAA's Statemenot f 22May 1996),p . 4 ("n'alLaienpt as dans le sensd e pacifier ou d'a rr|ter les tueries"). trial Judgementp,a ra.1 162. l't ''o Trial Judgemenpt,a ra.1 162. o" l? J - ee supra, pila. JlJ. e18 NzabonimanaA ppeal Brief, para.2 16. Nzabonimanaa rguest hat eveni f WitnessC NAC did not namet he speakers in his 2001c onfessiont,h e witnessa lsom aden o mentiono f the threats.S eei dem. ere N zabonimanaA ppealB rief, para.2 17,r eferringt o, inter alia, Trial Judgementp, ara.I 168. 113 /l\--1 CaseN o.: ICTR-98-44D-A 29 Seotembe2r0 14

Karemera et al. proceedings.e2Nl zabonimana submits that the Trial Chamber overlooW$ gradualt ransformationo f WitnessC NAC's successives tatementsw ith respectt o the contento f the Murambi meeting,ez?a nd consistentlya cceptedW itness CNAC's evasive explanationsf or his omissions.e23 332. The Prosecutionr esponds that the Trial Chamber reasonably found it unproblematic that Witness CNAC did not mention Nzabonimanai n his 2001 conf'essionb ecauset he witness did not name any other participantso f the meeting.e2Aa s for the interview notes, the Prosecutionr esponds that: (i) there was no contradictionb etweenW itnessC NAC's testimonya t trial and interviewsh e gave in Karemera et al.;ezs( ii) Nzabonimanaf ails to acknowledget he Trial Chamber's finding that all the ministers made similar statementss upporting the genocide;e2a6n d (iii) Nzabonimanas hows no error in the Trial Chamber'sf inding thatW itnessC NAC's testimonyc ould not be impeachedb y the interview notes,w hich the witness neitherp reparedn or signed.e2T 333. The Appeals Chambern otes the Trial Chamber'so bservationt hat Witness CNAC's 2001 confessiond id not mention Nzabonimanai n relation to the Murambi meeting.e2sA ccording to the Trial Chamber, this omission was not material since in the confession he did not name any attendees.e2Teh e Appeals Chamber further observes that the Trial Chamber did not expressly

considert he witness's omission of the threatsi n the 2001 confession.e3Hoo wever, the Appeals Chamber notes that in the 2001 confession,a Pro Justicic document, Witness CNAC was answering questionsr egarding his role in killings, not about the conduct of the accusedb efore this Tribunal.e3l 334. As for the interview notes, the Trial Chamber consideredt he document to be hearsaya nd thus unreliable to impeach Witness CNAC's testimony.e32In this regard, the Trial Chamber observed that the witness did not. sign the document, which was an interview summary that the Prosecution prepared.e3tT he Appeals Chamber finds that the Trial Chamber reasonably e2" NzabonimanaA ppeal Brief, para.2 18. err NzabonimanaA ppeal Brief, para.2 18. er2 NzabonimanaA ppeal Brief, para.2 15. e2r NzabonimanaA ppeal Brief, para.2l1. e?a ProsecutionR esponseB rief, para. 198. e2s ProsecutionR esponseB rief, para. 200. e26 ProsecutionR esponseB rief, para.2 01. e27 ProsecutionR esponseB ief, para.202. ':* Trial Judgement,p ara. I 152. ete Trial Judgementp, ara. I 152. ero SeeT rial Judgement,p ara. 1152. "' Exhibit D97 (WitnessC NAC's Pro Justiciuo f 29 November2 001), ot'Triaf Judgement,p ara.1 167. "t Trial Judgement,p ara.1 167. tt4 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 O-\

2121/H characterisedth e interview notes as hearsay,a nd that, in any event, any elror in this regard would have no impact on its assessmenotf Witness CNAC's credibility.

335. The Appeals Chamber further observest hat the Trial Chamber specifically addressedt he Defencea ssertiont hat WitnessC NAC attributedt he samew ords to Nzabonimanaa nd Karemera.e3a The Trial Chambern otedW itnessC NAC's testimony that severalm inisterss pokea t the meeting,e35 and that, according to Witness CNAA, the ministers reiterated the same messagee ncouraging genocide.e3A6c cording to the Trial Chamber, that similar words were attributedt o Nzabonimana and Karemera did not undermine the consistent and conoborated testimony that important personalitiesd elivered essentiallyt he same messaget o the bourgmestres.e3TTh e Appeals Chamber considerst he Trial Chamber'sa ssessmentto be reasonableT. he Appeals Chamberf urther observes that Nzabonimana simply repeats arguments that the Trial Chamber already addressed, without demonstratinga ny enors.

336. The Appeals Chamber also observes that the Trial Chamber additionally did not find discrepanciesb etweenW itness CNAC's testimony and the interview notest o be significant.e3Ts he Trial Chamber acceptedt he witness's explanation that Nzabonimanaw as not mentioned because the interviews were conductedi n the context of Karemera's conduct, and that he had no reasont o mention Nzabonimana'sp resenceo r utterancesa t this meeting.e3Teh e Trial Chambera lso observed that the interview notes specifically stated that the list of GovernmentM inisters present was not exhaustive.eoGoi ,ren the above,t he Appeals Chamberi s not convincedt hat the Trial Chambere rred in acceptingt he witness'se xplanation.N zabonimanaa lso fails to demonstratea ny "transformation" of Witness CNAC's evidencei n successives tatementsa boutt he Murambi meeting.

337. Nzabonimana'sa rgumentso n Witness CNAC's credibility are therefored ismissed. d. Reliance on Witnesses CNAA and CNAC for findings on Nzabonimana's order to kill bourgmestres 338. Nzabonimanas ubmits that, given WitnessesC NAA's and CNAC's varying accountso ver time on who spoke at the Murambi meeting and what Nzabonimana allegedly said, the Trial n'o Trial Judgemenpt,a ra.1 169. e35 Trial Judgemenpt,a ra.1 169. Judgemepnatr,a I. l 6e. lll:lq "' Trial Judgemenpt,a ra.I 169. n" Trial Judgemenpt,a ra.1 168. n'n Trial Judgemenpt.a ra.1 168. noo Trial Judgemenpt,a ra.I 168. I lf CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

Chamber adopteda "holistic approach"t o "circumvent the quest" for his exact wfififlP/lJ Nzabonimana argues that the Trial Chamber merely repeatedW itness CNAA's interpretation of Nzabonimana'sa llegedu tterances,b ut ignored that the utterancesw ere made in a different context than those to which Witness CNAC testifiecl.eaA2 ccording to Nzabonimana, the Trial Chamber simply concludedt hat the "ministers presenta t the meeting", including Nzabonimana,u sed this meeting to threaten the bourgmestres,b ut did not identily the ministers present, or what they said.ea3N zabonimana adds that the Trial Chamber prejudiced him when it refused to admit transcriptso f Prdfet Uwizeye's testimony in theB izimungu et al. trial.eaa 339. Nzabonimanaf urther submits that the Trial Chambere rroneouslyc onvicted him of ordering the killing of bourgmeslresw ithout determining his exact words, his alleged order, or the intended audience.easF inally, he submits that the Trial Chamber erred by accepting the testimonies of WitnessesC NAA and CNAC with respectt o the order to kill, but not for the killings that allegedly resultedf rom the Murambi meetins.ea6 340. The Prosecution responds that Nzabonimana fails to show that the Trial Chamber's assessmento f evidence and findings on the Murambi meeting were unreasonable.eaTT he Prosecutions ubmits that Nzabonimana'sc laim, that the Trial Chamber should

have admitted Prdfet Uwizeye's transcript from Bizimungu et al., is undeveloped.e4W8 ith regard to the subsequent killings, the Prosecutiona rguest hat the Trial Chamberh ad the discretion to rely on some but not all of WitnessesC NAA's and CNAC's testimony.eae 341. The Trial Chamber consideredt hat WitnessesC NAA and CNAC corroboratede ach other's accounts on circumstances during the second meeting at Murambi with the Gitarama bourgmestrrr.etuA cco.ding to the Trial Chamber: Both witnesses described a scenario where the bourgmestres were intimidated by various high- ranking Government officials, including Nzabonimana, who took turns making various threats toward the bourgmestre^si,n cluding death or removal from office, if they did not participate in the Government agenda to eliminate the "enemy," which was understood to be the Tutsis. Both attributed similar menacing quotes to Nzabonimana, namely that if they did not collaborate with the Interuhamwe, they would be deemeda ccompliceso f the Inkotanyl, or Tutsis. As a result, there woufd be no security in their communes and they would suffer the consequences.T he Trial Chamber considered that Witnesses CNAA and CNAC have provided internally credible and ear NzabonimanAa ppealB rief, para.2 22. ea2 NzabonimanAa ppealB rief, para.223. ear NzabonimanAa ppealB ief , para.223. eaa NzabonimanAa ppealB rief, para.2 24. eas NzabonimanAap pealB rief,p aras2. 22,223,24,12 48. ea6 NzabonimanAa ppealB rief,p ara.2 3l . ea7 ProsecutioRn esponseB rief,p ara.2 34. ea8 ProsecutioRne sponsBer ief,p ara.1 77. eae ProsecutioRne sponsBer ief,p ara.1 85. "t'Trial Judgemenpt,a ra.I l6l. 116 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

21 19/H consistent accounts of a meeting in which Nzabonimana and other Government officials threatened the bourgmestres as ameans ofensuring their participation in the genocide.esl 342. The Appeals Chambero bservest hat WitnessC NAA testified that : [...] Callixte Nzabonimanal,i ke other ministers who were plesent- well, they imposed tlemselveso n us who werea t them eetingA. nd he told us- or, rather,h e imposedh imselfo n us and told us that anyonew ho was working for the administrationw ho would show any supportt o theT utsiw ould be seena sa ne nemy". t [...] [...] CallixteN zabonimansaa idt hat someb ourgmestrenso longere njoyedt hec onfidenceo f their peopleb ecauseth oseb ourgmestrewse res upportingtheIn kotanylsa nd the Tutsis,a nd that those bourgmestrehsa d to be removedfr om their post.[ ...] In a nutshell,a ll the ministerss aida lmost the same thing, saying that we had to stop supportingt he Tutsis. This was actually the first meeting in Gitarama during which high-level officials in the country were making such statements.[e.5..3] 343. WitnessC NAC testifiedth at: [Nzabonimana]a lso took the floor and he gaves omee xplanationso n the problemsw hich we had raiseda nd which concernedt he Interahamweg rorrpw hich was armeda nd which was using those weaponst o kill people.H e said that the peoplew ho were claiming that the Interahamwesw ete worseningt he securitys

ituationw erep eoplew ho were againstt he InterahamwesH. e said that the Interahamwesh ad shownt heir authorityi n Kigali town becausea, s he said, if they had not been there, Kigali town would have fallen into the handso f the enemy.H e askedt he bourgmestreto collaboratew ith the Interahamwesif they wanteds ecurityt o reign in their communesA. nd he also warnedu s by saying," If you do not collaboratew ith the Interahamwet,h ercw ill be no securityi n your communesa nd you will suffer the consequencesT."h at is what he told us during that meetins.g5a 344. The Appeals Chamber notes that both witnesses do not attribute the same words to Nzabonimana. Specifically, the utterances the Trial Chamber referenced appear to stem largely from Witness CNAC's testimony.e5Ht owever, this does not mean that the Trial Chamber erred in observing that both witnesses "attributed similar menacing quotes to Nzabonimana".e56B oth Prosecution witnesses provided consistent accounts of the meeting at Murambi, where Nzabonimana and other government officials threatened the bourgmestres to ensure their participation in the genocide.esTA lso, the Trial Chamber reasonably found that both witnesses described a scenario where high-ranking government officials, including Nzabonimana, took turns threateningb ourgmestresa nd where theb ourgmestresf eltintimidated.e58In the AppealsC hamber's view, it was not

necessaryf or the Trial Chamber to determine Nzabonimana's exact words, the identity of all the ministers present, or precisely what they said. The Appeals Chamber also recalls ntt Trial Judgementp, ara. 1161( internalr eferenceo mitted). e52 W itnessC NAA, T. 14D ecembe2r 009p .64 (asc orrectedb y p.64,lines2 8, 31'32). et3 w itnessC NAA, T. 15D ecembe2r 009p . 10( closeds ession). eto W itnessC NAC,T . 16D ecembe2r 009p . 71 (closeds ession). e5s S eeT rial Judgementp, ara.1 161,r eferringt o WitnessC NAA, T. 15 December2 009 pp. 10, 1l (closeds ession); WitnessC NAC,T . 16D ecember200p9p .10,71(closesde ssion). e56 SeeT rial Judgemenpt,a ra.1 161. Judgemepnatr. aI. 1 61. lll {r" I{"1 "o .SeeT rial Judgemenpt,a ra.I 161. t1"7 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 S"^\

that two prima facie credible testimonies need not be identical in all aspects in ordefrdrS /H corroborativea nd that corroborationm ay exist even whensomed etails differ.e5q 345. Turning to Nzabonimana's alleged "orders", the Appeals Chamber recalls the Trial Chamber's finding that "Nzabonimanao rdered the killing of bourgmestresa nd other local officials opposedt o the massacres"d uring the Murambi meeting.e6Tt' he Appeals Chamber is unable to see how this finding was supportedb y the evidenceo f WitnessesC NAA and CNAC. Indeed,W itness CNAC only referenced the killing of bourgmestres when explaining how he understood Nzabonimana's threat and the possible consequences.'oAt s noted earlier, Witness CNAA only statedt hat "Callixte Nzabonimanas aid that some bourgmestresn o longer enjoyed the confidenceo f their people becauset hose bourgmestresw ere supporting the Inkotanyi and the Tutsis, and that those bourgmestresh ad to be removed from thcir post".e62A t no point do the testimonies of WitnessesC NAA and CNAC reveal that Nzabonimanai nstructed a person under his authority to commit an off'ence.T he Appeals Chamber therefore finds that the Trial Chamber erroneously determined that Nzabonimana ordered the killing of bourgmestres and other local officials. However,s inceN zabonimanaw as not convictedo f orderingg enocideb ut of conspiracyt o commit genocide and direct and public incitement to commit genocide in relation to the Murambi meeting,e6t3h e Appeals Chamberc onsiderst hat this error has no impact on the verdict.

346. The Appeals Chamber notes that Nzabonimana's argument regarding Prdfet Uwizeye's transcriptf rom the Bizimungu et al. casei s undevelopeda s he fails to indicate any requesth e made to admit the transcript.ebFa urtherrnore,N zabonimanap oints to a decision that does not relate to Prdfet Uwizeye's transcript from the Bizimungu et al. proceedings.e6Tsh e Appeals Chamber thus summarily dismissesh is argumenti n this regard.

347. The Appeals Chamber now turns to argumentst hat the Trial Chamber ened by accepting WitnessesC NAA's and CNAC's testimonieso n the orderto kill, while rejectingt heirevidenceo n the deathsf bllowing the Murambi meeting.e6R6 ecalling that it is not unreasonablef or a trier of fact "tuS eer upro, para.1 84. 'uu Trial Judgementp,a ra.1 179. uu' W itnessC NAC, 16D ecembe2r 009p .71 (closeds ession()" Q. Now,W itnessw, hatd id you understanhdim to mean by the words,'you would suffer the consequencesW'?h at was he referringt o? A. For us, the consequencehse was referringt o wast he fact thatw e ran the risk of beingr emovedfi om our positionso r thatw e coulde venb e killed"). Sae alsoTial Judgemenpt,a ra.1 160. 'o' WitnessC NAA,T , 15D ecembe2r( X)9p . 10( closeds ession). e63 SeeT rialJ udgemenpt,a ras1. 147,1 749,1 773,1 1'75. et'o SeeN zabonimanAap pealB rief, para.2 24. eos SeeN zabonimanAap pealB rief, para.2 24,r eferringt o 30 April 2012D ecision' et"' NzabonimanAa ppealB rief,p ara.2 3l . u8 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 s\

21 17/H to accept some,b ut reject other parts of a witness's testimony,e6tth e App"uls Chamber notes the Trial Chamber'so bseryationt hat the testimonieso f WitnessesC NAA and CNAC on the killing of local officials after the Murambi meeting were inconsistent, vague, and based entirely on hearsay.e6S8p ecifically, it consideredt hat the witnessesm erely asserted,in a conclusory manner, that the deathsr esultedf rom the meetings,a nd that only WitnessC NAA testified to the killings of ConseillersB ernard Twagiramukiza and Wallace Gasigwa.e6Ae s a result, the Trial Chamber held that the Prosecution demonstrated no evidentiary nexus between the Murambi meeting and the deaths and did not establish beyond a reasonabled oubt that Nzabonimana's utterancesa t the Murambi meeting substantiallyc ontributedt o the deathso f local officials.e7OTh e Appeals Chamber seesn o enor in this assessmentT. herefore,t he Appeals Chamberf inds that Nzabonimanaf ails to demonstrateh ow the Trial Chamber erred in accepting the testimonieso f WitnessesC NAA and CNAC as corroborateda nd consistento n the Murambi meeting, while rejecting their evidence on the killings as inconsistent,v ague,a nd hearsay.

348. Based on the foregoing, the Appeals Chamber considers that Nzabonimana fails to demonstrate the Trial Chamber committed any error warranting the Appeals Chamber's intervention. e. Conclusion 349. Accordingly, the Appeals Chamber finds that Trial Chamber did not err in finding that the testimonies of ProsecutionW itnessesC NAA and CNAC corroboratede ach other. The Appeals Chamber also considerst hat the Trial Chamberd id not err in the assessmenot f WitnessesC NAA's and CNAC's credibility. Nzabonimana's arguments challenging the Prosecution'se vidence with respectt o the eventa t Murambi on 18 April 1994 ared ismissed. (ii) DefenceE vidence 350. Nzabonimanas ubmits that the Trial Chamber excluded, without providing valid reasons, Defence evidence showing that Witnesses CNAA and CNAC could not be believed beyond reasonable doubt.eTl In particular, Nzabonimana submits that the Trial Chamber erred, to his prejudice, by excluding Defence Witness T24's testimony on the incorrect basis that the witness "did not hearm uch of what was said", while, Nzabonimanaa rgues,t he witnesst estifiedt hat he "did eu' S "r, e.g.,N dnhimanAa ppealJ udgemenpt,a ra.1 83;B agosoraa nd NsengiyumvAap peaJl udgemenpt,a ra.2 43; y^!,a! AppeaJl udgemenpla raI. 55. 'oo ik:tli2ayo Trial Judgemenpt,a ra.I 187. eue Trial Judgemenpt,a ra.1 187. nto Trial Judgemenpt,a ra.1 187. e71 NzabonimanaA ppeal Bief , paru.221. 119 a\--1 CaseN o.: ICTR-98-44DA- 29 Seotembe2r0 14 \J I,

th€vil6/H not expect much from that meeting"."'In Nzabonimana'sv iew, without this error Chamber would not have found Witness T24's testimony to have little probative value or overlooked that Witness 724 corroboratedW itness Mporanzi on the absenceo f threatsmade by Nzabonimana and on the general dissatisfaction from the bourgmestres regarding security problems.eT3 351. Nzabonimana also submits that the Trial Chamber erred by failing to devote the requisite attentiont o Exhibit D86.e74H e claims that Exhibit D86 revealst he "lies" of WitnessesC NAA and CNAC and corroboratesW itnessesT 24's and Mporanzi's evidence that the Murambi meeting was intended to find solutions to reinstatep eace,t hat Prime Minister Kambanda announcedm easurest o maintain security, that the bourgmestrese xpressedc oncernsd uring the secondm eeting, and that the governmentp romisedt o help them.eTs 352. Nzabonimana further submits that the Trial Chamber erred by dismissing the evidence of Defence Witness T133, which it erroneously categoriseda s hearsay evidence, while admitting Witness CNAC's hearsay evidence.eT6N zabonimana submits that, by erroneously dismissing Witness T133's evidence, Nzabonimana was deprived of evidence corroborating Witnesses Mporanzi and T24, which would have in turn led the Trial Chamber to further question the credibility of WitnessesC NAA and CNAC.e77 353. The Prosecutionr

espondst hat WitnessT 24 admittedt o lying,e78a nd that his recollectiono f the Murambi meeting was vague.'7eI t thereforea rguest hat the Trial Chamber's possibly erroneous reliance on the English transcriptsd oes not affect its overall conclusion that Witness T24's testimony had "little probative value".e80T he Prosecutionf urther submits that Nzabonimanaf ails to show how it was unreasonablefo r the Trial Chambert o reject the "second-handa ccount" contained in Exhibit D86.eurF inally, the Prosecutiona rguest hat contraryt o Nzabonimana'sc laim, Witness e72 N zabonimanaA ppeal Brief, para. 226, re.ferringt oTrial Judgement,p ara. 1176a nrlWitness T24,T.21 April 2('t10 p.,s. ''' NzabonimanaA ppeal Briel'.p rua.2 26. e7a Nzabonimana Appeal Brief , para.228. e75 Nzabonimana Appeal Brief, para. 228. e?6 Nzabonimana Appeal Brief , para.229. e77 N zabonimana Appeal Brief, para.

229. Nzabonimanac ontends that Witness T133 conoborated WitnessesM poranzi and T24 on the fact that the main purpose of the Murambi meeting was the issue of refugees, that no one was threatened,a nd that Nzabonimana did not speak.S ee idem. Nzabonimanaf urther submits that the Trial Chamber did not proceed to look fbr corroboration between Defence witnesses when their testimonies were assessedi n light of the Defence evidence. See ibid., para.

230. The Appeals Chamber notes that Nzabonimana's submissions relating to corroboration of Def'encee vidence are dealt with in the following section.S eei nlra, paras. 358-362. e78 P rosecutionR esoonseB rief. para. 205. "'Proseculion ResoonseB rief. para.2 05. u*" P rorecutionR esponseB rief. para.2 06. '*r ProsecutionR esponseB rief. para.2 32. 120 CaseN o.; ICTR-98-44D-A 29 Septembe2r0 14

2115/H T133's testimony about the meeting was hearsay,e8a2n d that in any event his evidencet hat Witness Mporanzi did not mention the threats Nzabonimana made at the meeting is undermined by Witness T133's concessiont hat Witness Mporanzi did not tell him what every speaker said during the meeting.es3 354. The Appeals Chamber notes that according to the English version of the transcript, Witness T24 statedt hat "[...] I did not hear much at that meeting",e84w hile in the French version of the transcriptW itness T24 statedt hat "[. ..f je n'attendaisp as grand-chosed e cette rdunion".essT he Appeals Chambero bservesa differenceb etweent he transcripts- the witness stating that he did not hear much or he was not expectingm uch from the meeting. However, the Appeals Chamber is not persuadedt hat the Trial Chamber's assessmenot f Witness T24's testimony would have been different on the basis of the French version of the transcript. In this respect, the Appeals Chamber notes that the Trial Chamberf ound Witness T24's evidencet o have little probative value because Witness T24 was unable to: (i) provide many details of the meeting,i ncluding the identities of the ministers in attendancea pafi from Nzabonimana;e86(i i) provide details of what was said during the meeting;e8a7n d (iii) recall whetherN zabonimanao r any other bourgmestret ook to the floor,ett Th" Appeals Chamber further

notes that the Trial Chamber's finding of the limited probative value was in addition to its determination that the witness's credibility was seriously undermined by his admissiont o providing a false statement.e8Gei ven the Trial Chamber's findings on Witness T24, the Appeals Chamber finds that Nzabonimana fails to demonstratet hat the Trial Chamber erred in not consideringc orroborationb etweenW itnessesM poranzi's and T24's testimony.

355. As to Exhibit D86, the Appeals Chamber observest hat the Trial Chamber consideredt he exhibit and its contents.eeT0h e Trial Chambera cceptedW itness CNAA's explanationt hat the radio report mentioned only part of what was said at the meeting and it noted that the report containeda second-hand account of the proceedings.eerN zabonimana fails to demonstrate how it was unreasonablef or the Trial Chamber to prefer and rely on the first-hand testimony of Prosecution witnesses. e8t ProsecutionR esponseB ief , para.2 01. e83 P rosecutioRn esponsBe ief , pwa.207. e*Witness T 24,T.27A pril 2010p.5 (closeds ession.l. e85 W itnessT 24,T.27 Apil2010 p. 6 (French)( closeds ession). etu Trial Judgementp, ara.1 116. Judgemepnatr,a 1.l ?6. l'olloll q Trial Judgemenpt,a ra.1 176. ttt Trial Judgemenpt,a ra.I 175. nno Trial Judgementp, ara.1 164. eet T rial Judgementp, an. 1164.S eea lso Exhibit D86 (Transcripto f Radio RwandaB roadcast,1 9 April 1994). t21 CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 S"\

356. Finally, the AppealsC hambern otest hat the Trial Chamberf ound WitnessT 133's tes8frM/H of limited probative value becausei t was entirely hearsaya nd the witness acknowledgedt hat his bourgmestred id not inforrn him of everything that occurred during the meeting.o" kt this regard, the Trial Chamber consideredt hat Witness Tl33 did not attendt he Murambi meeting and conceded that his bourgmestrew as his sole sourceo f information.ee3T he Appeals Chamber finds no error in the Trial Chamberc lassifyingW itnessT 133's evidencea s hearsayN. zabonimanat hereforef ails to demonstratet hat the Trial Chamber erred in preferring the first-hand testimony of the Prosecution witnesseso ver the hearsayt estimony of Witness T133, and in not using Tl33's testimony to corroborateW itnessesM poranzi andT 24.

357. Nzabonimana'sa rgumentsa rea ccordinglyd ismissed. (iii) Use of Corroboration 358. Nzabonimanas ubmits that the Trial Chamber erroneouslyu sed corroboration to favour the Prosecution.eeNa zabonimana argues that, on one hand, the Trial Chamber consistently reliecl on Witnesses T24 and Mporanzi, whom it found generally not credible, to corroborate Prosecution witnesses- an approacht he Tribunal has deemedu nreasonable.eeNsz abonimana submits that, on the other hand, the Trial Chamber consistentlyd isregardedt he testimonies of WitnessesT 24 and Mporanzi, on the pretext that they were not generallyc redible, when they contradictedP rosecution evidence.ee6 359. Nzabonimanaf urther submits that the Trial Chambere rred by relying on Defence witnesses to corroborate Prosecutionw itnesseso n disputed facts.eeTH e submits that based on the witnesses acknowledgmento f facts not in dispute,t he Trial Chamber erroneouslyc oncluded that Prosecution and Defence witnesses corroborated each other in all aspects of their testimonies, including contentiousi ssuess uch as Nzabonimana'sp resencea t the Murambi meeting.eeSs pecifically,h e argues that Witnesses T24 and Mporanzi rebutted the accounts given by Witnesses CNAA and eer Trial Judgement,p ara. 1171. e" Trial Judgementp, aras.1 1 28-l l3 l. eea N zabonimana Appeal Brief, para.6. The Appeals Chamber notes that Nzabonimana's argumentsa re made under the "preliminary issue" section of his Appeal Brief and it has decided to examine them as they are linked to his challenges made under his Fifth Ground of Appeal. ee5 Nzabonimana Appeal Brief, paras. 1,9, re.t'erringt o Muvunyi / Appeal Judgement, para. 131; Rutaganda Appeal Judgement paras. 496-506; NsengimanzlT rial Judgement,p ara.

443. Nzabonimana submits that this approach enabled the Trial Chamber to establisha nd enhancet he credibility of Prosecutionw itnesses.S ee ibid., para.7. eet' Nzabonimana Appeal Brief, para. 8. ee7 Nzabonimana Appeal Brief, para. 10. ee8 Nzabonimana Appeal Brief, para. 10. t22 CaseN o.: ICTR-98-44DA- 29 Septembe2r0 14 y,

2713/H CNAC regarding, inter alia, the Murambi meeting on 18 April 1994, and yet the Trial Chamber found that they corroboratede acho ther.eee 360. The Prosecutionr espondst hat contrary to Nzabonimana's argument, trial chambers can consider witnesses to partially corroborate each other, and argues that the jurisprudence Nzabonimana refers to is not on point.l0o0T he Prosecution further submits that Nzabonimana inconectly claims that the Trial Chamberf ound corroborationw here witnessesi n fact contradicted each other.tootI t argues that the Trial Chamber did not find that WitnessesM poranzi and T24 corroborateda ll allegationso n the Murambi meeting, it simply found that they corroboratedc ertain 1002 elementso f Prosecutione vidence. 36I. The AppealsC hambern otest hat, contrary to Nzabonimana'ss ubmission,t he Trial Chamber did not find WitnessesT 24 and Mporanzi "generally not credible" but that their credibility was "seriously undermine[d]" due to their admissiono f having provided false statementsto Prosecution investigators.tooT' hus, in the Appeals Chamber's view, the Trial Chamber's finding on their credibiiity did not amount to a conclusion that the witnessesc ould not be relied upon at all, but reflected a cautiousa pproachi n its assessmenot f their evidence.T his did not bar the Trial Chamber from considering some aspectso f WitnessesT 24's and Mporanzi's

testimonies to corroborate Prosecutione vidence.R ecalling again that it is not unreasonablefo r a trial chambert o accepts ome parts of a witness's testimony while rejecting others,1OOthae Appeals Chamberf inds no error in the Trial Chamber'sr eliance on WitnessesT 24's and Mporanzi's evidencet o corroborateP rosecution evidence while rejecting it elsewh".".toot Nzabonimana fails to demonstratet hat the Trial Chamber used corroborationt o favour the Prosecution.

362. In addition, the Appeals Chamber observes that, contrary to Nzabonimana's claim, the witnessesd id not dispute his presencea t the Murambi meeting.loouA ll four witnessest estified to the existenceo f the Murambi meeting on 18 Aprit 1994 and Nzabonimana'sa ttendance.l00T7h e Trial Judgementa ccurately reflected the testimony of the four witnesses,f rom which the Trial eee NzabonimanaA ppealB rief, para. ll, referring,i nter alia, to Tial Judgementp, ara.I 158. '* ProsecutioRn esponsBer ief,p ara.1 0. '* ProsecutioRn esponsBer ief,p ara.I l. '*'Prosecution ResponsBer ief,p ara.1 l . '*' Trial Judgemenpt,u as. 143,234. t*,Srr, ,.g.1N dohi*ona AppeaJl udgemenpt,a ra. 183;B agosoraa nd NsengiyumvaA ppeaJl udgementp, ua.243; NtawukuLilyayAop pealJ udgemenpt,a ra.1 55. t*t Cf.Sainovii et al. AppeaJl udgementp, wa.632,w heret he AppealsC hamberfo und that the Trial Chamberw as entitled to partly rely on a witness'st estimonya s corroborationo n one part of his evidence,w hile placing little weight on otherp artso f his evidence. '* Sr" NzabonimanAap pealB rief,p ara.l l, referringt o, inter alia,TialJudgementp ara.1 158. 'mt Trial Judgemenpt,a ras.1 0821- 089( WitnessC NAA), 10911- 103( WitnessC NAC), 1108I- 121( WitnessM poranzi), | 124-| 125( WitnessT 24). LZJ [v. CaseN o.: ICTR-98-44D-A 29 Septembe2r0 i4 \-) v

,\art49/H Chamber found that they corroborated each other on this fact.l(n8 Accordingly, the Chamberd ismissesN zabonimana'sa rgumentso n the use of corroborationi n their entirety. (e) Musambira 363. The Trial Chamber found that in May 1994 Nzabonimanaw as present at the reinstatement ceremony of the bourgmestre of Musambta commurzed uring which Nzabonimana accusedt he attending bourgmestreso f not being supportive of the killings of Tutsis, warned them that they could be replaced by Interahamwe, and refused to denounce the killings of Tutsis.""'' The T.ial Chamber relied on the eyewitnesse vidence of WitnessesC NAA and CNAC whose testimony it found credible.r0r('Howevert,h e Trial Chamber found that there was insufficient evidencet hat Nzabonimana's words at the meeting substantially contributed to any subsequentc rime, and, accordingly,i t did not convict him of genocideb asecol n this event.l0ttT he Trial Chamberf ound, neverthelesst,h at the evidence provided circumstantiale vidence of Nzabonimana'sg enocidal intent.lol2 364. Nzabonimanac hallengest he Trial Chambcr's assessmenot f the discrepanciesb etween Witness CNAA's testimony and previous statementsa nd makes various other challenges with respectt o this event.lol3 (i) WitnessC NAA's Credibility 365. Nzabonimana submits that the Trial Chamber tailed to consider a substantialm odification betweenW itness CNAA's

testimony, where he addedt he fact thatbourgmestresw ould be replaced by memberso f Nzabonimana'sp arty, and a previous statementf rom 2008, which was the only time WitnessC NAA mentionedt he Musambiram eeting.l0laN zabonimanaf urther submitst hat the Trial Chamber ered in assessing differences between Witness CNAA's testimonies in the Karemeraetal. andN zabonimanat rials.l0l5I n particular,h e contendst hat, at trial, he was alleged to have accusedt he bourgmestreso f not supporting the killings, threatenedt o replace them with "t'* Trirl Judgementp. ara. | 158. 'o'Trirl Judgement,p ara.1 224.S eea lso ibid.,para.1727. r"r" Trial Judgement,p ara.1 223.S eei bid., paras.1 213, 1214, 1221. r0" Trial Judgement,p ara. 1728.S eea lso ibid., para. 1225. 'n'2 Trial Judgement, para. 1728.ln the Trial Judgement's legal finding section on conspiracy to commit genocide, the Trial Chamber found that the words spoken by Nzabonimana in the Musambira meeting established the intent to encouraget he bourgmestresa nd the population to kill Tutsis. Seei hid., para. 1746. r"rt Nzabonimana Appeal Brief, paras. 233-241.C ontrary to what Nzabonimana submits in paragraph2 32 of his Appeal Brief, he does not develop any argument on the alleged inconsistenciesb etween Witnesses CNAA and CNAC with resDectto thls event. r0r4 N zabonimanaA ppeal Brief, paras. 233, 23'7. Nzabonimanaa ssertsthat WitnessC NAA did not mention the Musambiram eetingi n his earliers tatementsin 1996a nd 2003 and that inthe 2008s tatementt,h e witnesso nly accused the bourgmestreso f being uselessa nd inefficient. Seei dem. r')rs NzabonimanaA ppeal Brief, para.2 34. t24 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 tr"\

2111/H Interahamwe, and refused to denounce the massacreso n the radio.101N6 zabonimana arguest hat WitnessC NAA's evidencei n theK aremera et al. tialwas that Nzabonimanad enied responsibility for blaming the bourgmestres for not doing anything to addresst he security situation, and that he challengedt he fact that he had to denouncet he situation for which he did not consider himself responsible.lol7I n Nzabonimana's view, Witness CNAA attributed different words to him and provided "radically different" testimonies in the Karemera et al. trial and in this case when describingt he samem eeting.lol8 366. The Prosecution responds that the omission in mentioning the Musambira meeting in Witness CNAA's earlier statements was not significant since they did not focus on Nzabonimana.l0leT he Prosecutionf urther submitst hat the Trial Chamberr easonablyf ound that the substanceo f Witness CNAA's recollection was the same between his testimony at trial and his 2008 statement.lO2oT he Prosecution responds that Witness CNAA's testimony in the Karemera et al. lrrtal was consistent with his testimony in this case where the witness simply provided additional information.to" It argues that Nzabonimana has not shown that the Trial Chamber erred in accepting the wiLness'se xplanation that he gave the additional information regardingN zabonimana'st hreatt o replacet he bourgmeslress inceN

zabonimanaw as the accusedi n this case.lo22 361. The Appeals Chamber notes that the Trial Chamber explicitly considered the alleged omissions and contradictions raised by Nzabonimana. In particular, with respect to Witness CNAA's 2008 statement,t he Trial Chamber noted that the witness indicated that he testified in three previous casesa nd that he was "willing this time around to.talk in more detail about [...] Nzabonimanu *.1023T he Trial Chamber considered that this reasonably accounted for the previous omissions on the Musambira meeting, as the 2008 statement was Witness CNAA's first to specifically addressN zabonimana.l02Na zabonimanam erely repeatso n appealt he same arguments raiseda t trial without demonstratingh ow the Trial Chambere rred.102In5 the samev ein, the Appeals Chambero bservest hat the Trial Chamber explicitly consideredt hat the witness did not mention that Nzabonimanaw anted to replace the bourgmestresi n Witness CNAA's 2008 statement.l026 10'6 NzabonimanAap pealB rief,p ara.2 36. l0lt Nzabonimannap pealB riel para.2 36. ror8 NzabonimanAap pealB rief,p aras.2 34-236. 'u'' ProsecutioRn esponsBe rief,p ara.1 93. Ito ProsecutioRne sponsBe rief.p ara.1 95. 102 P 1 r osecutioRn esponsBer ief.p ara.1 94. Io2 P 2 rosecutioRn esoonsBer ief. para.l 9a. r@3 Trial Judgementp, an. 1218,'referringto Exhibit D94A (WitnessC NAA's Statemenot f 2 October2 008). l'o Trial Judgemenpt,a ra.1 218. '*t Sr" Trial Judgemenpt,a ra.1 2l8; NzabonimanCa losingB rief,p aras.5 42,543, 'tu Trial Judgementp,a ra.1 219,r eferringr o NzabonimanCal osingB rief,p ara.5 43. 125 E)-\ CaseN o.:I CTR-98-44D-A 29 September2 014

Nzabonimanamerelyd isagreesw ith the Trial Chamber'sc onclusionsw ithout sttbstant\atiftftlfl/lJ allegede ror.

368. The Trial Chamber also addressedt he alleged contradictionb etween Witness CNAA's testimony in the Karemera et al. and Nzabonimanat rials regarding the Musambira event. In the Appeals Chamber'sv iew, the Trial Chamberr easonablya cceptedW itness CNAA's explanation that he was not providing comprehensivei nformation about Nzabonimanai n the Karemera et al. case since Nzabonimanaw as not on trial in that case.l02Tt he Appeals Chamber considerst hat the fact that Witness CNAA did not testify that Nzabonimanat hreatenedt o replace the bourgmestres with Interahamwe, in a separatep roceeding involving difl'erent accused,d oes not undermine the witness's credibility. Furthermore, a review of the trial record shows that Witness CNAA only mentioned the threat to replaceb ourgmestresi n responset o follow-up questionso n who, according to Nzabonimana,w ould be in a position to perform the work of the bourgmestr"r.'n'* The Appeals Chamber further finds that the Trial Chamber reasonablyl bund that the two testimonies were not materially inconsistent,lt'tea nd that "[i]n both instances,W itnessC NAA recounted that the bourgmestres accused Nzabonimana of being responsible for violence in Gitarama, and Nzabonimana dismissed their calls to denounce the violence".l030 Nzabonimana has not demonstratedh ow the Trial Chamber ered in its assessmenot f the differences between Witness CNAA's

testimony inthe Karemera et al. andN zabonimanat rials. (ii) Other Alleged Errors 369. Nzabonimana submits that the Trial Chamber erred in concluding that Nzabonimana was not necessarilya gainst the killings despitef inding that: (i) the reinstatemento f the bourgmestreo f Musambira commune was requestedb y the bourgmestres;( ii) his presencew as welcomed by the population; and (iii) he did not support the illegal activities of the Interahamwe against the legitimate authority of the bourgmestre.r.""' He further submits that the Trial Chamber erred in "blaming" him lbr refusing to denouncet he killings on the radio since he denied any responsibility during the meeting and WitnessesC NAA and CNAC doubted whether he spoke on the radio.1032 Nzabonimana also submits that the Trial Chamber erred in "disassociating the testimonies of WitnessesC NAA and CNAC" on the words attributedt o Nzabonimanaa nd ignoring the fact that he t"tt Trial Judgementp, ara.1 211. 'ut' .SeWe itnessC NAA, T. l5 Decembe2r0 09p p.6 ,'7( closeds ession). "'" Trial Judgementp, ara.1 217. "'tt'Trial Juclgemenpt,a ra.1 211. '0rr NzabonimanaA ppeal Brief, para.2 39. Nzabonimanasu bmitst hatthe Trial Judgemenits basedo n "speculative argumentms adeu p of inferencesS".e ei tlem. ""- NzabonimanAap peaBl rief.p ara.2 40. t26 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2109/H could not be held responsible for the subsequentr eplacement of officials.to33A ccording to Nzabonimana,t he Trial Chamber erred in concluding that Witness CNAC's testimony established that Nzabonimanaa ccusedt he bourgmestreso fnot supportingt he killing of Tutsis.l03a 370. The Prosecutionr espondst hat Nzabonimanap resentsn o analysis to support his claim that the Trial Chamber erred in finding that he was not necessarily against the killings.lo" Th" Prosecution responds that Witnesses CNAA and CNAC were not doubtful about whether Nzabonimanag ave a radio addressd enouncingt he killings but rather testified that Nzabonimana refused to denouncet he violence.103A6c cording to the Prosecution,t he fact that the Trial Chamber simply found the evidencew as too generalt o establisha causall ink betweenN zabonimana'sw ords and any subsequendt ismissal of officers, did not preclude the Trial Chamberf rom crediting other aspectso f WitnessesC NAA's andC NAC's evidence.l03t 37I. The Trial Chamber found that Nzabonimana's support for the reinstatement of the bourgmestreo f Musambira communed id not necessarilye stablisht hat Nzabonimanaw as against the killings,lo'8 The Appeals Chambern otes that the Trial Chamber consideredW itness CNAC's testimony, which it found consistent with Witness CNAA's testimony, that the bourgmestres confronted Nzabonimana about the violence committed

by the Interahamwe and asked him to publicly denouncet he violence on Radio Rwanda.r03Te he Trial Chamber also consideredW itness CNAC's testimony that Nzabonimana:( i) told the bourgmestrest hat they were "not fully assuming their responsibilities";( ii) accusedt hem of collaboratingw ith the enemy; (iii) told them that if they were tired, they should resign and allow the Interahamwet o take over; and (iv) refused to denounce the violence.t*o The Appeals Chamber finds that Nzabonimana fails to demonstrate that no reasonablet rier of fact could have made the impugned finding or that the Trial Chamber speculated in making it.

372. With respectt o Nzabonimana'sa rgumentt hat he was "blamed" for refusing to denouncet he killings on the radio, the Appeals Chamber understandst hat he is challenging the Trial Chamber's finding that he refused to denouncek illings. In this respect,t he Appeals Chamber notes the Trial Chamber's finding that Witnesses CNAA and CNAC provided consistent evidence that the bourgmestresv oiced their concernst o Nzabonimanaa bout the killings and requestedN zabonimana 1033 NzabonimanAap pealB rief,p ara.2 41. l03a Nzaboniman,aL ppeaBl rief,p ara.2 38. '0" ProsecutioRn esponsBe ief , pan.226. 1036 ProsecutionR esponseB ief , pan.

229. ResponsBe rief,p ara.1 86. ,'"i."_ l r9r.":",1"n Trial Judgemenpt.a ra.1 222. '"" Trial Judgemenpt,a ra.1 221. '*o Trial Judgementp.a ra.1 221. t27 v CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 \,)

to publicly denounce the killers, but Nzabonimana refused.'uoI'n the Appeals Chamber'9ffi8/H irrespectiveo f whether the witnessesk new if Nzabonimanas poke on the radio, there is no error in the Trial Chamberf indins that Nzabonimanar efusedt o denouncet he killings of Tutsis.

313. Nzabonimana provides no referencesa nd fails to articulate his argument that the Trial Chamber erred by "disassociatingt he testimonieso f WitnessesC NAA and CNAC" on the words attributed to Nzabonimana.'ootT he Appeals Chamber rejects Nzabonimana's contention that the Trial Chamber overlooked the fact that the subsequentr eplaccment of officials could not be attributed to him. Indeed, the Trial Chamber fbund that, given the generaln ature of the Prosecution evidence and the time elapsed after the reinstatement ceremony, a causal link between Nzabonimana'sin volvementi n the Musambirae venta nd the subsequendt ismissalso f officials was not established.l"ttT he AppealsC hambera lso dismissesN zabonimana'sa rgumentt hat the Trial Chamber erred in considering Witness CNAC's testimony to find that Nzabonimana accusedt he bourgmestreso f not supporting the killing of Tutsis.lOaaN zabonimana fails to provide references and equally fails to substantiateh is allegationo ferror.

374. Nzabonimana'sa rgumentsa re therefores ummarily dismissed. (iii) Conclusion 375. The Appeals Chamber therefored ismissesi n their entirety Nzabonimana'sa rgumentso n the asses smento f evidencei n relation to the Musambira event. (f) Conclusion 376. Based on the foregoing, the Appeals Chamber dismissesN zabonimana'sa rgumentsi n relation to the assessmenot f evidenceu nder his Fifth Ground of Appeal. "'r Trial Judgementp,a ra.1 214,r e.ferringto , interc lla, WitnessC NAA, T. 15D ecembe2r 009p p.5-'7( closeds ession); WitnessC NAA, T. 16 Decembe2r 009p .20 (closeds essionW); itnessC NAC,T . 17 December200p9p .3,4 (closed session)W; itnessC NAC, T. l3 April 2010p p. 6,27,29 (closeds essionT).h e AppealsC hambenr otest hatW itness CNAA testifiedt hat Nzabonimanaw as askedt o addressth e populationo ver Radio Rwandai n ordert o condemnt he massacresa,n dn everd id. SeeW itnessC NAA, T. 15 Decembe2r 009p . 5 (closeds ession)W. itnessC NAC testifiedt hat Nzabonimanrae fusedw hena skedt o denounceth ea ctso f violencea, ndt hath e wasa skedt o publiclyc ondemnth emo n RadioR wandaS. eeW itnessC NAC,T . l7 Decembe2r0 09p . 3 (closeds ession). t*t Src NzabonimanAap peaBl rief,p ara.2 41. "" Triol Judgementp, aia.1225. t'*o SeeN zabonimanAa ppealB rief, para.2 38. t28 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2107/I{ 3. Direct and Public Incitement to Commit Genocide 377. The Trial Chamber convicted Nzabonimana for direct and public incitement to commit genocide, based,i n part, on his conduct at the Murambi meeting, in Gitarama prdfecture.lootI n particular, the Trial Chamber found that, on 18 April 1994, the Prime Minister of Rwanda and other members of the Interim Government, including Nzabonimana, held a meeting for the bourgmestres of Gitaramap rdfecture.looTuh e Trial Chamberf ound that Nzabonimana'ss peech,w hich consisted of an explicit threat to kill persons opposing the massacreo f Tutsis, constituted a direct call to commit genocide,a nd also concluded that Nzabonimanah ad the requisite mens rea to incite the 1oa7 genocidep ublicly.

378. Nzabonimanas ubmitst hat the elementso f direct and public incitementw ere not established and that the Trial Chamber ened by characterising as public the alleged incitement of 18 April lgg4.1o48Inp articular, Nzabonimanaa rguest hat the Trial Chambere rred in confusing the mens rea and the actus reus of the crime when it determinedt hat the incriminating messagew as "intended to be broadcastt o the public", in lieu of assessingw hether it was made public.lOae Nzabonimanac ontendst hat, despitet he presenceo f a joumalist, the incriminating messageh ad not been made public by the media and was only addressedt o a limited group of local and national authorities gatheredi n Murambi.1050N zabonimana further contendst hat the Trial Chamber erred in law and in fact by finding that the incriminating message directly incited the commission of genocideb ecauseit was ambiguousa nd distorted.l0sl 379. The Prosecutionr espondst hat the Trial Chamber did not confuset he public elemento f the actus reus of the incitementw ith the mens rea but rather identified both of them in its discussiono f the law and assessede ach element separately,a lbeit in the same paragraph.l0t'T he Prosecution submits that an inciting speech,d ealing with public matters,105d3e livered to a gathering of public 1045 Trial Judgemenpt,a ras.1713,17751,8 00. t*u Trial Judgemenpt,a ra.1 158.S eea lso ibid.,para. 1769.TheT rial Chambefru rtherf oundt hat duringt he meeting Nzabonimanao rderedt he killing of bourgmes,tesa nd otherl ocal officials opposedto the masiacreo f Tutsis.S eei bid., para.

1179. Seea lso ibid., para.

1769. The Appeals Chamberr ecalls that it found that the Trial Chambere rred in enteringth is finding.S ees upra,p aras.339,345. 1047 Trial Judgemenpt,a ras1. 711,1772. 1s8 N zabonimanaN oticeo f Appeal,p ara.5 .4; NzabonimanaA ppealB rief, paras.2 53-257. lse NzabonimanaA ppealB rief, paras.2 53-255. 105 N 0 zabonimanaA ppealB rief, para.2 56; NzabonimanaR eply Brief, para. ' 7 5 . Seea lso AT . 29 Apnl ?014 pp. 52, 53. Nzabonimanas ubmib that the Trial Chamber relied on Exhibit D86 (Transcript of Radio Rwanda Broadcast, 19 April 1994) to establisht he intent to broadcasta nd that despitei ndicatingt hat the documenti n questiond id not mention threatsi ssuedb y the Government,it still convictedN zabonimanao f direct and public incitementt o commit g^enocideS.e eN zabonimanAa ppeal Bief , pan.254. 'u'' NzabonimanAap pealB ief , para.257. 105 P 2 r osecutionR esponseB rief, para.2 48. ros3 AT. 29 Apmzoiapp.26,36-38. 129 CaseN o.: ICTR-98-44D-A 29 September'2014

offlcials, addressedi n their function as public officials, is public.l0saT herefore, it arguest s:{M/H incitement was public as Nzabonimana'st hreat was made in a public setting when he spoked uring a large meeting of public officials.lossT he Prosecutiona dds that the public nature of the incitement was further demonstratedb y the presenceo f a journalist, who subsequentlyb roadcasta report of the meeting to the public at large.105I6t finally contendst hat it is clear from the Trial Judgementt hat Nzabonimana's incitement consisted of ordering that persons opposing the massacress hould be killed, thus directlyi nciting genocide.r057 380. Nzabonimana replies that the fact that public officials were convened in their function as public officials excludes the characterisationo f the meeting as public.r0s8N zabonimana contends that these officials were selecteda nd convenedi n their official capacity and that the meeting was purely private.roseH e turther replies that the meeting was held in a closed room devoid of any public character.l060 381. The Appeals Chamber recalls that a pcrson may be found guilty of direct and public incitement to commit genocide,p ursllant to Article 2(3Xc) of the Statute,i f he or she directly and publicly incited the commission of genocide( actus reus) and had the intent to directly and publicly incite otherst o commit genocide( mens, ro)."tot 382.

In the legal findings slrpportingN zabonimana'sc onviction for direct and public incitement to commit genocide in relation to the Murambi meeting, the Trial Chamber found that Nzabonimana's speech constituted a direct call to commit genocide and that "Nzabonimana 'public' possessedt he requisite mens rea to satisfy the element of the crime of direct and public incitement to commit genocide".lt'6'W ith respectt o the "public" element, the Trial Chamber stated the followine: The Chamberr ecallst hat presendt uringt his meetingw eret he Prime Minister,o therm emberso f the InterimG overnmentb, ourgmestreosf Gitaramap rdfecturea ndo therl ocalp oliticalo fficials.I n addition,a journalistf rom RadioR wandaw as presendt uringt he meetingw ith the bourgmestres. Thej ournalists ubsequentlbyr oadcasat reportr egardingth e meeting.G iven thesec ircumstances, theC hambecr onsidertsh att hee videncees tablishethda tt hem essaqoef them eetincw asi ntended r05a ProsecutionR esponseB rief, para.2 39.S eea lso AT.29 April 2014pp.26,36-40. r"5t ProsecutionR esponseB rief, paras.2 38,239. Seea lso AT.29 April 2014 pp.26,36-40. ros" Prosecution ResponseB rief, para.

243. See also AT.29 April 2014 pp. 26, 40. In the Prosecution's view, the fact that the subsequentm edia coverage did not include Nzabonimana's threats does not detract from the public nature of the meeting. See Prosecution Response Brief, para.

243. According to the Prosecution during oral submissions, bourgmestres attending the Murambi meeting later spread the genocidal message to the general public. See AT.29 April 2014p p. 38. 39. r0s7 ProsecutionR esponseB rief, para.

235. Io58 NzabonimanaR eply, para.77. r"te NzabonimanaR eply, para.1 7. Seeu LsoA T.29 April 2014 p.52. '*" Nzabonimana Reply, para.

78. Seea lso AT. 29 April 2014 p. 52. "'n' S"e .sr/pr.ip. aras.l 2l ,231. 'uot Triol Judgementp.u ras.1 77l . l'712. 130 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2105/H to be broadcast to the public at large and evinces that Nzabonimana had the requisite mens rea to rft3 incite genocidep ublicly.

383. The Appeals Chambero bservest hat the Trial Chamberd id not make an expressf inding that the allegedi ncitement was public. The Trial Chambero nly analysedw hetherN zabonimanah ad the requisitem ensr ea to publicly incite genocide.l06Aac cordingly, the Appeals Chamberc onsiderst hat the Trial Chamberf ailed to assessw hethert he incitementw as actually public and enter a finding on this element of the crime. The Trial Chamber therefore erred in law by failing to provide a reasoned opinion on this aspect of the actus reus of the crime of direct and public incitement to commit genocide.

384. In these circumstances,t he Appeals Chamber has reviewed the Trial Chamber's factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that the incitement was public.r065T he Appeals Chamberr ecalls that when assessingth e "public" elemento f incitement,i t can take into accountt he place where the incitement occurred and whether the attendancew as selected or limited.l066 Additionally, the Appeals Chamber recalls that the number of persons and the medium through which the messagei s conveyedm ay be consideredin assessingw hethert he attendancew as selected or limited, thereby determining whether or not the recipient of tho message was the general public.1067 385. The Appeals Chamber notes that the attendancea t the Murambi meeting appeared to be limited and selecteda s it only involved a group of public officials,106a8n d did not involve the public at large.106Teh e Appeals Chamber observest hat the meeting was first convened by the pr€fet of Gitaramap rdfecturelo10a nd that the group of public officials was then reconvenedb y the Prime Minister.r0TrI n addition, there is no evidenceo n the record showing that members of the public were invited or attendedt he meeting.tot'The AppealsC hamberi s therefores atisfiedt hat the public at large could not attend this meeting. The Appeals

Chamber considers that the mere presenceo f a '*' Trial Judgementp, ara.7 17 2 (internalr eferenceo mitted). '* Trial Judiement,p ara.1 772. '*t C7.B iTiiungu AppealJ udgementp, ara.23;N dindiliyimanae t al. AppealJ udgementp, ara.293iB agosoraa nd N^sengiyumAvpap ealJ udgemenpt.a ra.6 83. '* ,Seseu pra,D aras1. 2',12 31. 'ou' S rc su.prap,a n.231. '*t Trial iuOgementp, ara.1 158.T he AppealsC hambern otest hat a journalist,W itnessM poranzia nd WitnessT 24 werea lsoD resentS. eei dem. t*e WitnessC NAA, T. 14 December2 009 p. 64; WitnessC NAA, T. 15 December2 009 pp. 7-9 (closeds ession); WitnessC NAA, T. 16 December2 009 p. 2 (closeds ession)W; itnessC NAC, T. 16 December2 009 pp. 57,59,66 (closedsession);WitnessT24,T.26April2010pp.57,59(closedsWesistnioens)s;T 24,T.27A pnI2010pp.2,3; WitnessM ooranziT. .25 Mav 2010p.'70. t070 TrialJ udg"m"rrpqa rast.b 82,f iigt, l,osz,1 106,1 123,1138I ,1 44,1 145,1 153,I 154,1 155. 'i]] rriai Judgemenpt,a ras1. 082,1 083,1 092,1 093,I l0?, 1123,1 124,11441,1 45I, 153,I 154,I 155,1 1 58. '"'' TrizlJ udgemenpt,a ras1. 080-l141. (-\.< lJ t \\ CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

journalistrOtt do"r not automatically render the meeting public, rather it is the broadcasfrlfu4/H incriminating messagew hich would render the incitement public. In this respect, the Appeals Chamber notes the Trial Chamber's acknowledgementt hat the incriminating messagew as not disseminatedb y the media.lt'70F urthermore,t he Appeals Chamber is of the view that the evidence doesn ot supporta finding that the meetingo ccurredi n a public place.")7s 386. The AppealsC hamberi s alson ot persuadedb y the Prosecution'ss ubmissionth at an inciting speech,w hich discussedp ublic matters, delivered to a gathering of public ofticials, addressedi n their function as public oflcials, is necessarilyp ublic. In support of this argument the Prosecution underlinest hat, in light of the purposea nd object of the crime of incitement,i nciting public officials rather than "a gathering of random memberso f the population" createsa greaterr isk that genocide will actually occur because public offlcials "have the authority and the means to trigger massacres"."'toW hile this may be the case,t he Appeals Chamber fails to seeh ow this supportst he public natureo f the incitement at the Murambi meeting.

387. In light of the fbregoing, the Appeals Chamber finds that the attendancea t the Murambi meeting was selected and limited, that the location was not a public place, and that the incriminating message was not broadcasted.T he Appeals Chamber therefore finds that no reasonablet rier of fact could have found that the incitement was public.

388. The Appeals Chamber accordingly finds that the Trial Chamber ened in convicting Nzabonimana for direct and public incitement to commit genocide in relation to the Murambi meeting and that it need not addresst he remaindero f Nzabonimana'sa rguments.

4. Conspiracyt o Commit Genocide 389. The Trial Chamberc onvicted Nzabonimanao f conspiracyt o commit genocidei n relation to, inter alia, the agreement beginning on 18 April 1994 at the Murambi meeting.'ntt Having consideredt he concerteda nd coordinateda ctions of Nzabonimanaa nd the Ministers of the Interim Government, the Trial Chamber fbund the only reasonablei nference to be that an agreementw ith the specific intent to destroy Rwanda's Tutsi population in whole or in part materialised on 18 April Ig94.ttt78It further consideredt hat the conduct of Nzabonimanaa nd Prime Minister Jean '013 SeeT rial Judgemenpt,a ra.I 18 0. "'to Trial Juilgementf,n . 2195w heret he Trial Chambern otedt hat the broadcas"td id not includea summationo f the threatsissuedbytheGovernment".seeai.roExhibitD86(TraRnsacdriiopRtowfa ndaBroadcal9sAt,p ril 1994). "'t' WitnersC NAA, T. 15 Decembe2r (X)9p p. 7, 8 (closeds ession)W; itnessM poranzi,T . 25 May 2010p .'70; WitnesTs 24,T.26A pril2 010p . 57( closesde ssion). r{)76 ProsecutioRne sponsBer ief,p aras2. 39,240S. eea lsctA T.29A pril 2014p . 39. 'ntt Trial Judgementp, aras.1 741, 1749,l 8(X).S eea lsoi bid., para.1 811. ""* Trial Judgementp, ara.1 141. tJz Ca"^eN o. : ICTR-98-44D-A 29 Septembe2r0 14

2103/H Kambanda after the 18 April 1994 meeting reinforced its conclusion that Nzabonimana, other ministers, and the Prime Minister of the Interim Government entered into an agreement to encouraget he destructiono f the Tutsi population,a s such,i n Gitaramap rdfecture.rjle 390. Nzabonimanas ubmits that the elementso f the conspiracy were not establisheda nd that, assuming they were established,t he inference drawn by the Trial Chamber from the circumstantial evidencew as not the only reasonableo ne.lo*o 39I. The Appeals Chamberr ecalls that conspiracyt o commit genocide,u nder Article 2(3Xb) of the Statute, requires "an agreement between two or more persons to commit the crime of genocide"lo8la nd the individuals involved must have the intent to destroy in whole or in part a national, ethnical,r acial or religious group as such.108T2h e agreementc onstitutest he actus reus.t083 This actus reus canb e proven by establishingt he existenceo f planning meetingsf or the genocide, but it can also be inferred, based on other evidence.topoIn particular, a concerted agreementt o commit genocidem ay be inferred from the conduct of the conspirators.losF5u rther, the agreement need not be formal and a tacit agreementm ay be sufficient as evidenceo f conspiracy to commit genocide.1o86 392. The Appeals Chamber also recalls that where the Prosecution intends to rely on circumstantiale

videncet o prove a particularf act upon which the guilt of the accusedd epends,t he finding of the existence of a conspiracy to commit genocide must be the only reasonablei nference basedo n the totality of the evidence.tott (a) Murambi 393. The Trial Chamber determined that beginning on 18 April 1994 at"t he Murambi meeting, Nzabonimanaa greedw ith other memberso f the Interim Government,s pecifically Prime Minister r07e Trial Judgementp,a n. 1147S. eea lsoi bid., par:a1. 746. ro80 NzabonimanaN oticeo f Appeal,p aras.5 .5.2,5 .5.3;N zabonimanaA ppealB rief, paras.2 73-300.N zabonimana's challenget hat the Murambi meeting was not establishedh as been examinedi n anothers ection., SeeN zabonimana Notice of Appeal,p ara.5 .5.2(5).S ees upra, pwas.3 12-362.T he AppealsC hamberc onsidersth at Nzabonimana's a.rgumentosn WitnessC NAL haveb eenw ithdrawns incet hey are not developedin his AppealB rief (seeN zabonimana Notice of Appeal, pwa. 5.5.2(7),(8)).I t also notest hat Nzabonimanaf ails to developi n his Appeal Brief his argument that the Trial Chambere rred in finding the eventsi n Nyakabandae stablished( see NzabonimanaN otice of Appeal, para5. .5.2(6). l'o-R"'r J^ee supra, pafa. Z)). 'ot' Nahimanait at. AppealJudgement,p ara. 894. 1083 Sero^ba Appeal Judgement,p aras. 218, 22li Nahimana et al. Appeal Judgement,p ara.

894. See also Gatete App.ul Judgement,p ua. 260. "n Seromba Appeal Judgement,p ara.22l; Nahimanaet al. Appeal Judgement,p ara. 896. '08s Nahimana et al. AppealJudgement, para. 896. 'o* Nohi^oro et al. AppealJudgement, para. 898. '0" Sero*ba Appeal Judgement, para. 221; Nahimana et al. Appeal Judgement, para.

896. See also Mugenzi and Mugiraneza Appeal Judgement, para.

88. IJJ CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 W\

KambandaP, rospeMr ugiranezaa sw ell asD efenceW itnesseTs 82 andT 83 to encouragteh 8fiAle/H of members of the Tutsi population.rossT he Trial Chamber recalled that at the Murambi meeting, the ministers directed their threats at the assembledb ourgmestrer.tut'According to the Trial Chamber, the evidence establishedt hat in the days prior to the Murambi meeting some of the bourgmestresi n Gitarama prdfecture wert-a ctively protecting Tutsis.l0e0T he Trial Chamber then held that "members of the Interim Government therefore assembled the bourgmestres at the Murambi meeting, where they threatenedt o remove Lheb ourgmestresf rom their posts if they did not stop supportingt he Tutsi population".l0el (i) Elementso f Conspiracy 394. Nzabonimana submits that the Trial Chamber convicted him for events at the Murambi l0e2 meeting absente vidence of an agreement. Nzabonimanac ontendst hat the Trial Chamber made no finding on whether, by virtue of a pre-existing agreementt o kill Tutsis, bourgmestre.tw ere brought together in Murambi with the premeditatedp urpose of issuing threats to stop them from protecting Tutsis.r0e3N zabonimana argues that the Trial Chamber clisregardede vidence that the meeting was organised on an impromptu basis, without prior consultation between the Prime Minister and the other ministers.lt'eH4 e also claims that the Trial Chambero verlookede vidence

contradictingt he ex ecution of a prior agreem ent.l0e5N zabonimanaa vers that, if conspiracyr equires premeditation,n o evidence was adducedt hat other ministers, aside from the Prime Minister, were informed about the first or secondm eeting at Murambi before they took place.tt'eo 395. Nzabonimanaf urther contendst hat no evidencew as adducedt o support an agreementb eing reachedd uring the Murambi meeting, and that the Trial Chamber failed to characteriset he factual circumstanceso f the agreement.loeITn this regard, he arguest hat the Trial Chamber could not base the conspiracyc onvictiono n section3 .5.7.3.2o f the Trial Judgementw, here it neitherd etermined "'** Trial Judgement.p ara.1 744. "'t'Trial Judgement,p ara. 1744,r et'brringt o section3 .5.7.3.2," Murambi Meeting - NzabonimanaO rderedt he Killing of Bourgntestresa ndO ther Local Officials" (seei bid.,p aras.1 1 59-l 181).S eea lso ibid.,para.1145. rt)et'TrialJudgement, para. 1145.T heTrial Chamberrecalledthattheb ourgme.streo f Nyabikenkecommunes tavedotf attacks upon the refugees at the commune office on 13 April 1994 (see idem, re.f'erringt o section 3.5.2.3.2, "Cyayi Centre and Nyabikenke Commune Office Attacks - Attempted Attack on 13 April 1994", paras. 862-866). It further considered that Witness Mporanzi, bourgmeste of Rutobwe commune, placed killers in prison prior to 18 April 1994 (seei dent,r e.ferring/

o section3 .5.6.3," Releaseo f Killers in RutobweC ommune".p aras.1 063-1076). 'oo' Triol Judgement.p ara.1 145. "'" Nzabonimana Appeal Brief, paras. 273-283; NzabonimanaR eply Brief, para.66. r')er NzabonimanaA ppeal Brief, paras.2 '75,2'76. r(Da NzabonimanaA ppeal Brief, para. 278. tuot See Nzabonimana Appeal Brief, ptua. 279, where Nzabonimana submits that Kambanda's attitude of reacting "warmly" to the offer by the bishop of Kabgayi to provide refuge to Tutsis, as testified to by Witness CNAC, ruled out a.prior agreement., tde a1.ir.Nr zabonimanaR eply Brief, para. 67. "''" NzabonimanaA ppeal Brief, para.2 77 (Frencho riginal). r')et NzabonimanaA ppeal Brief, paras.2 80-283. t34 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 c,)."\

2101/H the ministers present nor what they said.10eN8 zabonimanaa vers that the Trial Chamber limited itself to the vague and imprecises tandardo f "the ministersp resent",lOebeu t then proceededt o infer ex-nihilo that an agreemente xisted between him, Kambanda, Mugiraneza, Witness T82, and WitnessT 83.110N0 zabonimanaa rguest hat, given Kambanda'sa bsenced uring the secondm eeting at Murambi, the Trial Chamber could not find the second meeting to be an expression of a 11 01 conspiracyt hat included Kambanda.

396. The Prosecution responds that the conspiracy was proved through the concerted and coordinateda ctions of Nzabonimanaa nd other ministers,w ho threatenedb ourgmestreso pposedt o the genocide.l1oI' t arguest hat: (i) a premeditatedp lan is not required for conspiracy,a nd even if the meeting was "impromptu" an agreement existed to present a unified force to threaten the bourgmestres;1r0(3ii) the Trial Chamberwas notrequired to identify every co-conspiratorby name and it makes no difference exactly what each minister said becauset heir speechesa ll struck the sameg eneralt heme;lloaa nd (iii) even if Kambandaw as not presentd uring the threatsa t Murambi, Kambanda was a co-conspiratora nd showed his agreementd uring the weapons distribution at Nyakabanda.ll05 397. Nzabonimana replies that the Prosecution does not contradict his arguments but instead follows the contradictoryr easoningo f the Trial Chamberr egardingK ambanda,ll06 398. The Appeals Chamberi s not persuadedt hat premeditationo r the existenceo f a pre-existing agreementi s an element of the crime of conspiracy to commit genocide and Nzabonimana fails to provide any supporting referencet o the Tribunal's jurisprudence.ttotO n this basis, the Appeals Chamber dismisses Nzabonimana's arguments related to a prior agreement or to the "impromptu" nal"ureo f the meetine. 1@8 NzabonimanaA ppeal Brief, para. 282, referring

toTdral Judgement,p ara. 1744.S ee also NzabonimanaR eply Brief.p ara.6 6. l@e NiabonimanaA ppeal Brief, para. 283, referring toTiral Judgementp, ara. 1l'79. See also NzabonimanaR eply Brief, para.6 6. Itm NiabonimanaA ppeal Brief, para. 283, refening to Trial Judgement,p ara. 1744.S ee also NzabonimanaR eply Brief. oara.6 6. ttot NzaborrimanAap pealB rief, para.2 80,r eferring toTial Judgemenpt,a ras.1 144,l l'79; NzabonimanRa eplyB rief, nua.6'7. 11@ ProsecutioRne sponsBe rief,p aras.1 72,173,209. t103 hosecutionR esponsBe rief,p ara.218. r18 ProsecutioRne sponsBe rief,p aras.2 13,221. r105 ProsecutionR esponseB rief, para.2 21,r eferring to Tial Judgementp, uas. 1292,1 14 6. 11tr NzabonimanRae plyB rief,p aras6. 8,6 9. r1o7 The Appeals Chu*U". obierves that, in support of this contention,N zabonimanam erely cites an article. .!ee NzabonimanaA ppeal Brief, para.2 '7',7 f n. 466,r efening to "lz procdsd e Nurembergd evantl es principesm odernesd u droit pdnal internationaf', The HagueA cademyo f InternationaLl aw, Donnedieud e Vabres,p . 529. r 135 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

399. The Appeals Chamber is also not convinced that the Trial Chamber convicted Nzaboflilt0f,/H of conspiracy to cornmit genocide without factual basis.rrOTs he Trial Chamber determinedt hat an agreemenmt aterialiseda t the Murambi meetingo n 18 April l994.ttn'The AppealsC hambern otes the Trial Chamber's determination that Interim Govemment Ministers, including Nzabonimana, used the Murambi meeting to threatent o remove bourgmestresf iom their posts if they did not stop supportingt he Tutsi population.rrrt'Accordingto the Trial Chamber,t he purposeo f the agreement was to encouraget he killing of Tutsis.ltt'The AppealsC hambero bservest hat thesec onclusions were based on the Trial Chamber's factual determinationsf iom section 3.5.7.3.2o f the Trial Judgement.rrrI2n this regard,t he Trial Chamberc onsidereda nd found that: (i) Kambandaa nd other members of the Interim Government, including Nzabonimana, "held a meeting for the bourgmestres of Gitarama prdfecture";"'t (ii) Nzabonimana and other Interim Government officials took turns making various threatsa t the assembledb ourgmestresa s a meanst o ensuret heir participationin the genocide;rrraa nd (iii) the bourgmestresw ere intimidated.rrr5 400. As for Nzabonimana'sa rgumento n the presenceo f other ministers,t he Appeals Chamberi s not convinced that the Trial Chamber's referencet o "the ministers present" is too vague.ttto

Recallingt hat a conspiracyr equiresa n agreemenbt etween" two or more persons".tttTth e Appeals Chamber considers that finding that Nzabonimana agreed with "other members of the Interim 's Government"lll8 a sufficientb asisf or the finding of conspiracyt o commit genocide.T hus, any possiblee rror with respectt o the identification by name of the memberso f the Interim Government wonld not result in a miscarriageo f justice nor impact the Trial Chamber's finding of a conspiracy.

401. The Appeals Chamber is equally not convinced that the Trial Chamber was required to determinet he exact utteranceso f the ministersp resent.rrreIn the Appeals Chamber's view, the ministers' specific words were not material to the Trial Chamber's finding of a conspiracy.I n this rr('' NzabonimanaA ppeal Brief, paras. 280-283. "'Trial Judgement,p ara.1 147. "'u.SeeT rial Judgementp, aras.1 179,1745. rrrrTrial Judgementp, ara.1 744, '' " Trial Judgement.p ara.1 144. "'t Trial Judgementp,a ra.l 158. "'oTrial Judgement,paras1.1 61,1162,1 l'79.Seealsoibid.,paras1.1 44,1 745. ' t'' Trial Judgementp, ara. I I 6l . "to Sr" Nzabonimana Appeal Brief, para. 283, re.f'ercingto Trial Judgement,p ara. 1179. t"1 Seromba Appeal Judgement,p aras.2 18, 221 Nahimana et al. AppealJ udgement,p ara. 894. "'' Trial Judgement,p ara.1 144. "'o Sre Nzabonimana Appeal Brief, para.

281. Nzabonimana additionally submits that it was paradoxical that two of Nzabonimana's co-conspirators,M ugiraneza and T82 were acquitted in separatej udgements. See idem. The Appeals Chamber recalls that two reasonable triers of fact may reach different but equally reasonable conclusions when assessingt he reliability of a witness and determining the probative value of the evidence presenteda t trial and an error cannot be establishedb y simply demonstratingt hat other trial chambers have exercised their discretion in a different way. See Lukii and Luki( Appeal Judgement,p ara.396, re.t''eringt o Krnojelac Appeal Judgement,p aras. Il, 12. See ulso Rutagunda Appeal Judgement, para.

188. The Appeals Chamber therefore finds that the Trial Chamber was entitled to reach a dift'erentc onclusion than casesi nvolving Mugiraneza and Witness T82. 136 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 lr*\

2099/H regard, the Trial Chamberc onsideredc onsistente vidence,f rom WitnessesC NAA and CNAC, that the ministers present at the second meeting took turns threatening bourgmestrest o ensure their participation in the genocide, and all "reiterated the common theme" that bourgmestres who i20 supportedT utsis would be removedf rom their posts.l 402. In light of the foregoing, the Appeals Chamber finds that Nzabonimana fails to demonstrate any error occasioninga miscarriageo f justice and thus dismissesh is submissionso n the absenceo f evidence of an agreement. (ii) Inferencesf rom CircumstantialE vidence 403. Nzabonimanas ubmitst hat the agreementt o destroyR wanda's Tutsi population was not the only reasonablei nference that could be drawn from the evidence.ll2l He argues that the Trial Chamber failed to consider other equally reasonable inferences,l122s pecifically that: (i) the objective of the meeting was to deal with the war and security issues,w ithout a pre-conceivedp lan to eliminate Tutsis;1123a nd (ii) since the second meeting was "impromptu", the ministers' statementsre flected" consciousp arallelism"r athert han "concerted"a ctions.l124 404. The Prosecutionr espondst hat the ministers' conduct allowed no other reasonablei nference than a conspiracy to commit genocide.ll2sT he Prosecution submits that Nzabonimana ignores direct evidenceo f tr-iso wn and other

ministers' explicit calls for genocide.1126 405. The Appeals Chamber recalls that Nzabonimanaf ailed to demonstratet hat the Tribunal's jurisprudence requires premeditation or the existence of a pre-existing agreement to establish conspiracyt o commit genocide.1l2Tt hus, the questiono f a pre-conceivedp lan is irrelevant to the finding of conspiracy and Nzabonimana's arguments could be dismissed on this basis only. Regarding the meeting's objective, the Appeals Chamber notes the Trial Chamber's explicit consideration that during the frst meeting Kambanda provided an overview of the Interim Government'sm ilitary approacht o fighting the RPF.1r28T he Appeals Chamberf inds that the fact that the state of war was also discussed is insufficient to demonstrate an error from the Trial rr20Tria.lJudgement,paras.1086,1087,1100,1101,1103,1159-1161, ll'l9.Seealsoibid.,paras.1744,1745. "'' NzabonimanAap pealB rief,p aras2. 90-294. "" NzabonimanaA ppealB rief, para.2 90, refening to Trial Judgementp, aras.l 7 44-174 1. "" NzabonimanAap pealB ief , pua.292. "'" NzabonimanaA ppealB rief, para.2 93, reJerringt o Nahimanae t al. Apped,J udgementp, ara.8 97. Itb ProsecutioRn esponsBe rief,p ara.1 73. 112 P 6 r osecutioRn esponsBe rief.p ara.2 37.S eea lsoi bid.,para.220. ,rn Srcs Upra,pua.'39g. "'8 SeeT rial Judgementp, ara. 1146.T he AppealsC hambera lso notest hat the Trial Chamberc onsideredK ambanda's conductS. ee,e .9.,i bid., pwas.1 096,1 1 44-1147T. he AppealsC hamberc onsidersth ath is conductd oesn ot undermine that a conspiracyt o commit genocidew as the only reasonablein ferenced rawn from the concerteda nd coordinated actionso f Nzabonimanaa ndt he Ministerso f theI nterim Government. I3'7 CaseN o.: ICTR-98-44D-A 29 Septembe2r 014

Chamber in linding that the only reasonableinference was that an agreementm aterialiffi9u/IJ l8 April 1994t o encourageth e killing of Tutsis.

406. The Appeals Chamber is equally not convinced by Nzabonimana'sa rgument that, since the meeting was "impromptu", the conduct of ministers was more consistent with "conscious parallelism"r athert han "concerted"a ctions.t't'Itrespectiveo f the impromptuo r plannedn atureo f the meeting, the Trial Chamber found that the agreementm aterialisedo n l8 April 1994.A s already discussed,t he Appeals Chamber recalls the Trial Chamber's considerationst hat: (i) the Interim Government helci a meetingf or the bourgmestres;113a0n d (ii) ministers, including Nzabonimana, "imposed themselves" on the bourgmestres,s upported the killings, took turns making various threats,a nd "uscd" the meeting to threaten the bourgmestrest o stop protecting the Tutsis.ll't This <leterminationa, long with the assemblingo f bourgmeslres,l brmed the basis of the Trial Chamber's finding of a conspiracy.t't'The AppealsC hamberf inds no error in the Trial Chamber'sf inding that the only reasonablei nference that could be drawn liom the concerted and coordinated actions of Nzabonimana and other members of the Interim Government was that an agreementt o commit senocidem aterialiseda t the meetinso n 18 April 1994.

407. Given the above, the Appeals Chamber dismissesN zabonimana's argumentst hat the Trial Chamber failed to consider other reasonablei nferences in relation to the Murambi meeting of l8 April 1994. (iii) Conclusion 408. Basedo n the foregoing, the Appeals Chamberf inds that Nzabonimanad oes not demonstrate an error in the Trial Chamber's determinationo f conspiracy to commit genocide in relation to the Murambi meeting to warrant the Appeals Chamber'si ntervention. (b) Musambira and Nyakabanda 409. Nzabonimanas ubmits that the Trial Chamber erred by relying on events at Musambira and Nyakabandaa s circumstantiael videnceo f an agreemenat t Murambi.ll33N zabonimanaa rguest hat the reinstatementc eremonya t Musambira communec ould not be used as circumstantiale videnceo f the conspiracy because the ceremony was antithetical to the ministers' encouragement,a t the 1r?e NzabonimanAap pealB rief,p ara.2 93. "t" TrialJ udgemenpt,a ra.I 158( emphasiasd ded)S. eea lsoi bid.,paras.1144-1146. "t' ,SeTe rialJ udgemenpt,a ras.1 159-1162\l,' 79,l'744,1 145. r'tt TrialJ udgemenpt,a ras1. 744,1 '745l,' 74'.7 rrtt NzabonimanNao ticeo f Appealp, ara5. .5.3(6)-(8N);z abonimanAap peaBl rief,p aras2. 84,286. 138 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2097/H Murambi meeting, to kill Tutsis.1l3aA ccording to Nzabonimana, while ministers allegedly threatenedb ourgmestresa t Murambi for not supporting massacresc ommitted by the Interahamwe, they neverthelessg rantedt he reinstatemento f a bourgmestrei n Musambira who had been driven away by the Interaho^.r.tt3t Nzabonimana also submits, as alternate inferences, that: (i) the political opposition explained the controversyb etween him and the MDR bourgmestres;113a6n d (ii) the Interahamwe, rather than Interim Government orders, were to blame for insecurity concerns t" thatb o urg meslresr aiseda t Musambi ru.l 410. As to the weapons distribution at Nyakabanda, Nzabonimana submits that the Trial Chamber could not infer a concertedo r coordinateda ction from his mere presence,a neutral fact and passivec onduct.r13R8 efening to paragraph 1729 of the Trial Judgement,N zabonimanaa vers that the Trial Chamber found that he could not be held liable for his mere presencea t Nyakabanda, yet used the same facts to find an expression of conspira"y.tttt According to Nzabonimana, assumingt hat the Trial Chamberw as justified to rely on his mere passivep resence,t his fact alone was insufficient to infer the crime of conspira"y.ttooH e also argues that words attributed to Kambanda at Nyakabanda could not be linked to incriminating utterancesf rom the second meeting at Murambi becauseK ambandaw

as not presenta t that meeting.llal 4II. Finally, according to Nzabonimana, the fact that no criminal consequencef ollowed the Murambi and Musambira events is a strong indication that another equally reasonablei nference, consistentw ith the absenceo f a conspiracv.c ould be drawn.lla2 412. The Prosecution responds that, after the Murambi meeting, members of the conspiracy, including Nzabonimanaa nd Kambanda,c ontinued to act in accordancew ith their agreement.ll43 The Prosecution responds that Nzabonimana's complicated arguments of another reasonable inferencea t Musambirai gnore his explicit refusai to publicly denouncet he killings, even when the bourgmestresr equestedh im to do so.1l4 It maintains that Nzabonimanar epeatede ssentiallyt he rrv NzabonimanAap pealB rief,p aras.2 86,295;N zabonimanRa eplyB rief, pua.73. rrr5 NzabonimanAap pealB rief,p ara.2 95.S eea lsoN zabonimanRae plyB rief, para.7 3. "'o NzabonimanAap pealB rief,p aras2. 96,297,r eferringt oTi'al Judgemenpt,a ras.1 198,1 205,1 207,l2l'7. "'' NzabonimanAap pealB rief,p aras2. 98,3 00. "'o NzabonimanaA ppealB rief, para.2 84. Seea lso NzabonimanaR eply Brief, para.7 3. 1r3e NzabonimanAap pealB rief,p ara.2 84. rrao NzabonimanAap pealB rief,p ara.2 85.S eea lsoN zabonimanRae plyB rief,p ara.7 3. rrar NzabonimanaA ppealB rief, para.2 84. I ra2 NzabonimanaA ppealB rief, para.2 94, referring to Til;alJ udgementp, aras.I 18 2-1 I 87, 1225. rra3 ProsecutioRn esponsBer ief,p ara.2 76,r eferringt o Ti.al Judgemenpt,a ra.l 7 46. rr* ProsecutioRn esponsBer ief,p ara.2 21, referringt oTialJudgementp, aras.1 198,1 205,1224. 139 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

same threatsa gainst the bourgmestresa t Musambira commune,ll4sa ndthatt heT rial Cham&086/frf entitled to rely on theset hreatsa s further eviclenceo f the conspiracy.tta6 413. The Prosecutionl urther respondst hat Nzabonimana'sp resencea t Nyakabandas ignalledh is sllpportf br Kambanda'sm essagea nd was consistentw ith Nzabonimana'sc onducta t the Murambi meeting.llaTF inally, the Prosecutionre spondsth at the lack of "establishedc onsequencesf"o llowing the Murambi and Musambira events is irrelevant since conspiracy to commit genocide is an I Ia 8 inchoateo fl'ence.

414. The Appeals Chamber recalls the Trial Chamber's finding that the conspiracy to destroy Rwanda'sT utsi populationi n whole or in part materialisedo n 18 April 1994 based,i nter alia, on the conduct of memberso f the Interim Governmenta t the Murambi meeting.lto' As fbr the concluct of Nzabonimana and Kambanda after 18 April 1994 at Musambira and Nyakabanda, the Trial Chamber explicitly stated that these events "reinforced the messageo f the Murambi meeting"ll50 and "reinfbrce[d]t he conclusiont hat Nzabonimanao, ther Ministersa nd the Prime Minister of the Interim Governmente nteredi nto an agreementt o encouraget he destructiono f the Tutsi population, as suchi n Gitaramap r,lfeclure".tts\ 4I5. With respectt o events at Musambira commune,t he Trial Chamber found that Nzabonimana was present at the reinstatement ceremony of the bourgmestre of Musambira, he accused bourgmestreso f not supporting the killings of Tutsis, he warned bourgmestrest hat they could be replaceclb y Interahamwe, and he refused to denouncet he killings.tttt On this basis, the Appeals Chamber finds it reasonablef or the Trial Chamber to conclude that the reinstatementc eremony at Musambira reinforced the message from the Murambi meeting to encourage the killing of Tutsis.rts3T he Appeals Chamber is thus not persuadedb y Nzabonimana'sa rgument that the reinstatement ceremony was antithetical to the

conspiracy that materialised at the Murambi rra5 ProsecutionR esponseB rief, para. 216, re.f'erringt oTrial Judgement,p uas. 1224, 1146. "06 ProsecutionR esponseB rief, pua. 225, relbrring toTrial Judgement,p ara. 1746. lloT P rorecutionR esoonseB rief. para.2 22. "on Pr.rsecutionR esoonseB rief. para.2 3(). 'ro'Trial Judgementp, aras.1 744'1. 745.1 747. "to Trial Judgement,p ara. 1746. rtt'Trial Judgement,p ara.

1141. ConsideringN zabonimana'sp resenced uring Kambanda'sw eaponsd istributiona nd speech at Nyakabanda as well as Nzabonimana's conduct at the reinstatement ceremony at Musambira, the Trial Chamber determined that the words spoken at these events "establish that these activities were undertaken with the intent to encouraget he bourgmestresa nd the population to kill Tutsis" . Seei bid., para. 174 6. "tt Trial Judgement, para.

1224. The Trial Chamber explicitly considered that Nzabonimana's support for the reinstatementd id not necessarilye stablish that he was against the killings since the public reinstatements erved as an assertion of the legitimate public tbrce by the Government in Musambira commune and that "[i]n his capacity as Minister, Nzabonimana thus served as a representativeo f the Government at the ceremony. Nzabonimana could both supportt he supremacyo f the nationalG overnmenta nd supportt he killings". Seei bid., paras.1 220-1222.TheA ppeals Chamberr ecallst hat it dismissedN zabonimana'sa rgumentso n the assessmenotf evidencei n relationt o the Musambira event. Seei nfra, paras.3 63-3'/5 . 140 CaseN o.: ICTR-98-44DA- 29 Seotembe2r0 14

2095/H meeting.1lsaT he Appeals Chamber is also not convinced by either of Nzabonimana's alternative inferencesr elating to the political oppositioni n Gitaramaa nd the Interahamwea s the sourceo f the bourgmestres'i nsecurity concerns.T he Appeals Chamber considerst hat these alternativesf ail to negate the Trial Chamber's finding that Nzabonimana'sa bove-mentionedc onduct at Musambira reinforced the conclusion that he and his co-conspiratorse ntered into an agreementt o commit 11 - 55 genocide,w hich materialiseda t Murambi.

416. Turning to events at Nyakabanda,t he Appeals Chamber is not persuadedt hat the Trial Chambere rroneouslyf ound Nzabonimana'sm ere presencea t the weaponsd istribution to reinforce the conclusion that he and his co-conspirators entered into an agreement at Murambi to commit genocide.T he Appeals Chamber observest he Trial Chamber's determination that Nzabonimana was present at Nyakabanda when Kambanda distributed weaponst o the Ndiza Battalion for the purposeo f fighting the Tutsi "enemy".l1suT h" App.als Chamber finds it reasonablef or the Trial Chamber to rely on and conclude that this event reinforced the finding on the existence of an agreementb etween Ministers of the Interim Governmentt o encouraget he killing of Tutsis.ll57I n addition, the Appeals Chamber finds Nzabonimana's reference to paragraph 1129 of the Trial Judgementt o be misguided.rr58A t paragraph ll2g, the Trial Chamber found Nzabonimana not guilty of genocide for merely attending the meeting because the Indictment alleged an active conduct. Furthermore, the Appeals Chamber finds Nzabonimana's submission, that the Trial Chamber relied only on his mere presence to infer the crime of conspiracy, devoid of merit. As stated earlier, the Trial Chamber inferred the agreement based on events at the Murambi meeting.llse The Appeals Chamber thus dismisses Nzabonimana's argument in relation to Nyakabanda.

417. Finally, recalling that conspiracyt o commit genocidei s an inchoateo ffence,l160th e Appeals Chamber does not see how, in itself, the lack of criminal consequencesf ollowing events at Murambi and Musambira supports another reasonablei nference.

418. For the reasons above, the Appeals Chamber dismisses Nzabonimana's arguments in relation to eventsa t Musambira and Nyakabandac ommunes. 11s3 Trial Judgementp, an. 1146. "to 5", NzabonimanaA ppealB rief, para.2 95. 1155 Tdal Judgemenpt,a ras1. 74 6, l7 47. 115 T 6 r ial Judgementp, aras.1 285, 1292.W ith respectt o Nzabonimana'sa rgumentso n Kambanda'sw ords,t he Appeals Chamberr ecallst hat the group of other memberso f the Interim Governmentw as sufficient to find that Nzabonimana conspiredw ith oneo r morep ersonsto commitg enocideS. ees upra,p ara.400.A ccordinglyN, zabonimana'asr gument is moot. I r57 Trial Judgementp, ans. l7 46, l7 47. "tt Src NzabonimanAap pealB rief, para.284. 141 f\-. '? u CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

20941H (c) Conclusion 419. Based on the fbregoing, the Appeals Chamber finds that Nzabonimanaf ails to demonstrate any error warranting the Appeals Chamber's intervention and therefore dismissesh is argumentsi n relation to his conviction fbr conspiracyt o commit genocideu nder his Fifth Ground of Appeal.

5. Conclusion 420. For the fbregoing reasons,t he Appeals Chamber dismisses Nzabonimana's submissions concerningh is conviction for conspiracyt o commit genocideu nder his Fifth Ground of Appeal and grants the Fifth Ground of Appeal, in part, as it relates to his conviction for direct and public incitement to commit genocide in relation to Murambi. The Appeals Chamber therefore reverses Nzabonimana'sc onviction for direct and public incitement to commit genocide based on his conduct at the Murambi meeting. The impact of this finding, if any, on sentencing will be consideredin the relevants ectionb elow. "to Sees upra,p arus.394-402. tt6o SeeG oteteA ppeaJl udgementp,a ra.262. 142 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

20931H F. Alleeed Errors Relatine to Nyamabuye (Ground 6) 421. The Trial Chamber found that, in April 1994, Nzabonimana visited the Nyamabuye commune office and told the Hutu civilians present to destroy the house of a deceasedT utsi, Jeand e Dieu Mpambara,a nd to cover it up so that in the event of an enquiry his deathw ould not be known.rr6l The Trial Chamber did not flnd Nzabonimana guilty of genocide with respect to his statement at the Nyamabuye commune office but found that it provided circumstantial evidence of his intent to destroy,i n whole or in substantialp art the Tutsi ethnic group, as such.ll62I t further found that the fact that Nzabonimana'ss tatementw as ultimately obeyedp rovided further evidence of Nzabonimana'si nfluencea t that time.l163 422. Nzabonimana submits that the Trial Chamber erred in fact and in law in making unfavourablef actual findings with respectt o the Nyamabuye event.116I4n particular, Nzabonimana submits that he did not receive clear and consistentn otice of the allegeda cts.l16Ns zabonimanaa lso submits that the Trial Chambere rred in its assessmenot f ProsecutionW itness CNAA's credibility and erroneously found that Defence Witness T71 conoborated Witness CNAA's testimony.ri66 Nzabonimana argues that the Trial Chamber failed to consider contradictions within Witness CNAA's testimony,a s well as betweenh is testimony at trial and earlier

statementst hat he had made in the Bilimungu et al. and Karemera et al. tials.ttut He argues that Witness T71's testimony contradictsW itnessC NAA's testimonyi n every respect.l168 423. The Prosecutionr espondst hat Nzabonimana's claim that the Indictment was defective is moot becauseN zabonimanaw as not convictedf or the Nyamabuyee vent.ll6eI t further respondst hat Nzabonimanai gnoresa nd fails to explain why the Trial Chamber'sa cceptanceo f Witness CNAA's explanation was unreasonable.llTT0h e Prosecutions ubmits that Witness T71 corroboratedW itness CNAA on key aspectse, ven though he disagreeda bout Nzabonimana'si mplication in the event.rrTr "u' Trial Judgemenpt,a ra.1 730.S eea lsoi bid.,para.1491. r162 Trial Judgementp, an. 1132. 1163 Trial Judgementp, ara.1 132. rle NzabonimanNa oticeo f Appeal,p aras6. .1-6.[4];N zabonimanAa ppealB rief,p aras.3 02-315. 1165 NzabonimanNa oticeo f Appeal,p ara.6 .3;N zabonimanAap pealB rief,p aras3. 10-314. 116 NzabonimanAa ppealB rief,p aras.3 02-309,312,313S. eea lso ibid.,pwas 14, 15.N zabonimanaal sos ubmitst hat the Trial Chamber ened by distorting and setting aside the testimony of Witness T'11. See Notice of Appeal, para.6.2(2).T he AppealsC hamberc onsiderst hat Nzabonimanah as withdrawnt he argument,s incei t is not developed ilhis AppealB rief. "o' NzabonimanAa ppealB rief,p ara.3 02. "ooN zabonimanAa ppealB rief,p aras3. 06-309. l'6e hosecutionR esponsBer ief,p ara.2 53. lr?0 P rosecutioRn esponsBer ief.p ara.2 50. "7r ProsecutioRn esponsBe nef, para2, 5l . t43 CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 t"\

20921H 424. The Appeals Chamber recalls that, as a general rule, it declines to discuss alleged elrors which have no impact on the conviction or sentence.t't'The Trial Chamber did not convict Nzabonimana fbr his statementa t the Nyamabuye comml ne office, but relied on his statementa s circumstantial evidence of his genocidal intent and as turther evidence of his influence at the time.lr73 As the Trial Chamber relied on several other events as circumstantial evidence of Nzabonimana'sin tent to destroy,i n whole or in substantiapl art,t he Tutsi ethnicg roup,a s such,ll74 the Appeals Chamber finds that the Nyamabuye event does not underpin Nzabonimana's convictions. Similarly, the Trial Chamber's reference to this event as further evidence of Nzabonimana'si nfluence has no impact on his convictions or his sentence.l'tt The Appeals Chamber therefore declines to consider Nzabonimana's challengesi n relation to the Nyamabuye event.

425. As to the assessmenot f the credibility of Witness CNAA, the Appeals Chamber finds that Nzabonimana fails to demonstrateh ow the alleged contradictions within his testimony and with r76 prior statementsm ade in other proceedingsu nderminet he overall credibility of Witness CNAA.T In any event, the Trial Chamber did consider that Witness CNAA's omission to provide all the information about Nzabonimanai n previous trials did not impact his credibility regarding this event becauset hose casesc oncernedd ifferent defendants.117T7h e Appeals Chamber does not detect any enor in the Trial Chamber'sa ssessment.

426. For the foregoing reasons,t he Appeals Chamber dismissesN zabonimana'sS ixth Ground of Appeal. "72 Kunyurukiga Appeal Judgement para. 62; Renzaho Appeal Judgement, paras. 251, 384; Krajiinik Appeal Judgement,p ara.

20. In this respect,t he Appeals Chamber notes Nzabonimana's contradictory submissionsc laiming on the one hand that the Trial Chamber did not convict him, and on the other hand, that he be acquitted in respect of the eventa t Nyamabuye.S eeN zabonimanaN oticeo f Appeal,p aras.6 .1(2),6 .[4]. "tt Trial Judgement,p ara. 1732. "to Trial Judgement,p aras. 1707 (Butare Trading Centre Meeting), 1724 (Releaseo f Killers in Rutobwe Commune), 1726 (Murambi Meeting), 1728 (Reinstatement Ceremony of lhe Bourgmestre of Musambira Commune), 1734 (Weapons Distribution in Tambwe Commune), 1736 (Tambwe CommuneC risis Committee). Lr75 T ie Appeals Chamber recalls that the Trial Chamber relied on Nzabonimana's influence among other factors to establishh is substantialc ontribution to the attacksi n relation to the Cyayi and Nyabikenke events (seeT rial Judgement, paras.1 712,1 11 3, l'714).Seesuprup,a ras.1 36,l 3'/,140-144.F urther,influenceisnotarequiredelementfbrgenocide or any other crime of which Nzabonimana was convicted. It also recalls that the Trial Chamber consideredt he abuseo f influence, not influence alone, as an aggravatingf actor in sentencing.S eei nl\a, para.464. "tu The Appeals Chamber recalls that the findings concerning the events at Murambi on 18 April 1994 are based, in part.o n thet estimonyo f WitnessC NAA. " " Trial Judgementp.a ra.1 483. 144 CaseN o.:I CTR-98-44D-A 29 September2 014

2091|H G. Alleeed Errors Relating to Tambwe (Ground 7) 427. The Trial Chamber convicted Nzabonimanao f conspiracy to commit genocide (Count 2) based, in part, on its conclusion that, in May 1994, he entered into an agreement with Jean-DamasceneU kirikyeyezu to encourage the killing of members of the Tutsi population in Tambwe ,oun".tttt The Trial Chamberr eachedt his conclusionh aving found that Nzabonimana and Ukirikyeyezv entered into an agreement to form a Crisis Committee with the purpose of disguising the killings from the international community and on another occasion distributed weaponsa nd encouragedt heir use for the killing of Tutsis.lrTe 428. Nzabonimana submits that the Trial Chamber erred in convicting him of conspiracy to commit genocide based on the events in Tambwe ,ourr."8o In this section, the Appeals Chamber considers whether the Trial Chamber erred in assessing:( i) the notice provided to Nzabonimanaf or this crime; and (ii) the legal elementso f the crime' l. Notice 429. Nzabonimana submits that the Trial Chamber erred in finding that paragraphs4 9 and 58 of the Indictment provided him with notice that he entered into a conspiracy with Ukirikyeyezu to kill Tutsis.ll8l In particular, Nzabonimana submits that the Trial Chamber erred in finding that the Indictment reasonablyi dentified his alleged co-conspirators.1l8H2e argues that the Prosecution's

OpeningS tatementm erely referst o the Interim Government'sr ole in the conspiracy.lts3 430. Moreover, Nzabonimana contends that the Indictment failed to notify him of the circumstanceso f the agreement with Ukirikyeyezu and instead merely described two isolated events,t he formation of a Crisis Committee and the distribution of weapons, in which Ukirikyeyezu allegedly participated.ll8aN zabonimana contendst hat the Indictment does not allege any nexus between these two events.ll85A ccording to Nzabonimana, it is impossible to tell from the ls6 lndictment whether thesei ncidentsa re part of the samec onspiracyo r two separatec onspiracies.l Furthermore, Nzabonimana argues that the Prosecution failed to present any evidence concerning 1r78 TrialJ udgementp,a ras1. 148,1 149. 1r7 T e r ialJ udgemenpt,a n. 1748S. eea lsoi bid.,puas.1 5381, 583,1 591,1 599. 1r8 N 0 zabonimanNao [iceo f Appeal,p was.7.l-7.3;N zabonimanAap pealB rief,p aras.3 16-384. 1r8 N 1 zabonimanNao ticeo f Appeal,p aras7. .1,7 .2;N zabonimanAap pealB rief,p aras3. 16-328. 1r82 NzabonimanaA ppeal Brief, para.3 20. 1183 N zabonimanaA ppeal Brief, para. 320, referring to Trial Judgement,p ara. 1743, fn. 2182, cirlng Prosecution OpeningS tatemenTt,. l9 Novembe2r 009p . I 1. "* NzabonimanAap pealB riei para.3 17. 1r85 NzabonimanAap pealB rief, para.3 19. 1186 NzabonimanAap pealB ief , para.319. t,{< CaseN o.:I CTR-98-,14D-A 29 Septembe2r0 14

2090/H what transpiredp rior to the Crisis Committee meeting and the distribution of weaponsi n Tambwe communew hich might indicatea conspiracy.tttt 431. Nzabonimanac ontendst hat the allegationsi n the Indictment "radically" differed from the evidence presented.lr8sI n particular, Nzabonimana submits that the Trial Chamber lacked an evidentiary basis fbr finding that the Interim Governmenth ad a policy to disguiset he killings from the internationalc ommunity and the role that Nzabonimanao r Ukirikyeyezu played in the design or adoption of that policy.rrseN zabonimanaf urthor arguest hat the meeting did not take place in Ruhangoc ellule as the Trial Chamber fbund.rre0F inally, Nzabonimanas ubmits that the Prosecution failed to prove any of the criminal consequenceso f the incidents alleged in paragraphs4 9 and 58 of lel the Indictment.l 432. The Prosecutionr espondst hat the Indictment sufficiently pleadsN zabonimana'sc onspiracy with Ukirikyeyez\ at Tambwe ,o**urr.tto' 433. Count 2 of the Indictmentc hargesN zabonimanaw ith conspiracyt o commit genocide.rre3 Specifically, paragraph5 9 of the Indictment allegest hat: [...] between l January and 3l July 1994, Callixte NZABONIMANA with other persons, including but not limited to Ministers, including those of the Interim Government of 9 April 1994, the leadership of Rwandan Armed Forces (FAR), Gendarmerie, Presidential Guard, the political leaders of the MRND, the MRD-Hutu Power faction, the PL-Hutu Power faction, other Hutu- Power factions of opposition parties,a nd various local administration officials, conspired to kill or cause senous bodily and mental harm to members of the Tutsi population, with the intent to destroy in whole or in part, a racial or ethnic group.

434. In the Trial Judgement,t he Trial Chamber observed that paragraph 59 of the Indictment referred only to the categorieso f people with whom Nzabonimana allegedly conspired.rreaT he Trial Chamber noted, however, that the Indictment identified the specific individuals with whom Nzabonimanaa llegedly conspiredi n other paragraphsp leadedi n support of the count of conspiracy and that, thns, the Indictment when read as a whole adequately infbrmed Nzabonimana of the identity of his allegedc o-conspirators.rre5 435. In particular, paragraphs4 9 and 58 of the Indictment pertain to eventsi n Tambwe commune. Paragraph4 9 of the Indictment states: rr*? NzabonimanAap peaBl rief,para.321. rr*t NzabonimanAap peaBl rief.para.3 25. rr8e NzabonimanAap pealB rief,paras.322,326. Ire" NzabonimanAap pealB rief,para.326. rrer NzabonimanAap pealB rief,paras.323,327. rre2 ProsecutioRne sponsBer ief,paras.255-261. "" Indictmenpt,a ras5. 9,6 0. "" Trirl Judgemenp(a. ru.1 743. "" TriafJ udgemenpt.a ra.1 743. t46 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2089/H On or about 15 May 1994,i n collaborationw ith the Interim Government'sp olicy of forming Crisis Committees throughout the country as a way of disguising the killings from the internationalc ommunity,C allixte NZABONIMANA, in the companyo f Major JeanD amascene UKIzuKYEYEZU, a member of the Civil Defence in Gitarama, presidedo ver a meeting in Ruhangoc ellule, Nyamaganas ecteur,T ambwec ommune,G itarama prefecture,w here the Crisis Committeeo f thatc ommunew ass electedT.h e meetingw asa lsoc onvenedto addrestsh ei ssueo f Huru's [slc] fightingo vert }rep ropertyo f Tutsi.M any Tutsi caughto n roadblocksw erek illed on the orders of this committee and they included NYABUGAJU, RUHEZAMBIGO AND LANGUIDA. Paragraph 58 of the Indictment states: In May 1994,C allixteN ZABONIMANA,a ctingi n concerwt ith T92 andJ eanD amascene UKIRIKYEYEZUb roughat lony full of weapontso theT ambweco mmunaol ffice.T heA ccused orderedth att hew eaponbse d istributetdo thep opulationT.h ew eaponws ered istributeadn dw ere usedt o kill Tutsii n variousa ttackisn Tambwceo mmune.

436. The Trial Chamber found that Nzabonimana and Ukirikyeyezu enteredi nto an agreement to establish a Crisis Committee to disguise the killings from the international community.ttnu In addition, the Trial Chamber found that, in late April or early May 1994, Nzabonimana and Ukirikyeyezu distributedw eaponsa nd encouragedt heir use againstT utsis.rtetT h" Trial Chamber consideredt he concerteda nd coordinatedn atureo f thesea ctionsa nd inferred,b asedo n the totality of the evidence,t hat an agreementw ith the specific intent to destroy the Tutsi population in whole or in part materialised between Nzabonimana and Ukirikyeyezu in May Igg4.tte8 437. The Appeals Chamber recalls that charges against an accused and the material facts supportingt hosec hargesm ust be pleadedw ith sufficient precisioni n an indictment so as to provide notice to the accused.lleeT he Appeals Chamber further recalls that in determining whether an accusedw as adequatelyp ut on notice of the nature and cause of the charges against him, the indictment must be considereda s a whole.1200 438. The Appeals Chamber observest hat paragraph5 9 of the Indictment alleges that between l January1 994 and 31 July 1994 Nzabonimanac onspired with, inter alias, Ministers, including those of the Interim Government of 9 April 1994, mihtary, and political party officials, to kill or causes eriousb odily and mental harm to

memberso f the Tutsi population with the intent to destroy in whole or in part a racial or ethnic group. Paragraphs4 9, 58, and 60 of the Indictment provide greater specificity as to the material facts underpinning Nzabonimana's conviction for conspiracy to commit genocide, namely his participation with Ukirikyeyezu in a Crisis Committee meeting and I re6 Trial Judgementp,a n. 1148. "'' Trial Judeemento.u a. l'148. "et Trial Judiementp. ara.1 748. "nn Srr, niriiurgn Appeal Judgement,p ara. 46i Ndindiliyimanae t al. Appeal Judgement,p an. l7l; ".i., et al. AppeaJ) udgementp,a ra.262. $ginovii "* Sees upra,p ara.254. t4"7 CaseN o.: ICTR-98-44D-A 29 Septembe2r 014

2088/H their role in the distribution of weapons in Tambwe commune for the purpose of killing Tutsi civilians.

439. Specifically, for the purposeso f notice, these allegationsp rovide a basis for infening that Nzabonimanaa nd Ukirikyeyezu conspiredt o commit genocide.C onsequently,t here is no merit in Nzabonimana'ss ubmissiont hat the Trial Chambere rredi n finding that paragraphs4 9 and 58 of the Indictment provided greater specificity as to the identity of the specific individuals with whom Nzabonimana conspired. Indeed, Ukirikyeyezu is clearly identified in paragraph 49 of the Indictment as a member of the Rwandan army, which is among the categories specified in paragraph 59 of the Indictment, and he is again mentioned in paragraph 58 of the Indictment. Moreover, paragraph6 0 of the Indictment clearly statest hat the acts alleged in paragraphs4 9 and 58 of the Indictment are intended to support the charge of conspiracy.F or the purposeso f notice, the Appeals Chamberi s not convinced that any greaters pecificity was required.

440. In addition, the Appeals Chamber finds no merit in Nzabonimana's submission that the Indictment did not clearly indicate whether these two incidents formed a single conspiracy or two conspiracies.A s mentioned above, it follows from paragraph6 0 of the Indictment that both events were pleadedi n support of the count of conspiracy.I n addition, paragraphs4 8 and 59 refer to both Nzabonimanaa nd Ukirikyeyezu and relate to events in the same locality. In these circumstances, the Appeals Chamber is not satisfied that any greater specificity was required to connect the two events to the allegation of Nzabonimana's participation in a conspiracy to commit genocide.T he Appeals Chamber also summarily dismisses Nzabonimana's argument relating to the alleged insufficiency of evidence to establish that the events in Tambwe commune demonstrate the existenceo f a conspiracy.S ubmissionsr elating to the insufficiency of evidenceh ave no bearing on determining whether a trial chambere red in finding that the requisiten otice was provided.

441. Finally, the Appeals Chamber is not satisfied that Nzabonimana has demonstrateda ny dif-ferenceb etween the Trial Chamber's findings and the allegationsp leadedi n the Indictment. The Trial Chamber clearly found that the purpose of the Crisis Committee was to conceal the killings from the international community and that the meeting occurred in Ruhango cellule, as alleged in paragraph4 9 of the Indictment.l2t'lN zabonimana'sm ere assertiont hat the evidenced id not support thesef indings or provide greaterc ontext for his role in formulating the policy does not impugn the notice he receivedi n the Indictment of the material lacts underpinning his conviction. Furthermore, the fact that the evidence did not establish that Tutsis were in fact killed as a result of these 'r"'Trial Judgemenpta, ras1. 5781, 5911, 5991, 748. 148 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2087tH incidents does not have any bearing on the sufficiency of notice for the inchoate crime of conspiracy,w hich requireso nly the act of enteringi nto an agreementto commit genocide.1202 442. Accordingly, the Appeals Chamber finds that Nzabonimana has failed to demonstrate that he lacked notice of the material facts underpinning his conviction for conspiracy to commit senocide.

2. Conspiracyt o Commit Genocide 443. Having considered the concerted and coordinated actions of Nzaboni4ana and Ukirikyeyezu, the Trial Chamber found the only reasonable inference to be that an agreement materialised between them in May 1994 with the specific intent to destroy the Tutsi population in whole or in part, as such.1203In reaching this finding the Trial Chamber considered that: (i) Ukirikyeyezu and Nzabonimanae nteredi nto an agreementto establisht he Crisis Committee, the purposeo f which was to disguise the killings from the internationalc ommunity;r2]4 and (ii) in late April to early May 1994, Nzabonimana and Ukirikyeyeza distributed weapons and encouraged that the weapons be used against the Tutsis.r20sO n this basis, the Trial Chamber convicted Nzabonimanao f conspiracyt o commit genocide.l206 444. Nzabonimana submits that the Trial Chamber accepted evidence on events in Tambwe communet hat do not support the inference that he and llkirikyeyezu entered into an agreement to destroy the Rwandan Tutsi population.1207N zabonimana maintains that the Trial Chamber erroneously found Ukirikyeyezu a co-conspirator because llkirikyeyezu was not reliably identified.120N8z abonimanac ontendst hat ProsecutionW itness CNAK was unable to identify the military officer present during the weapons distribution or the establishment of the Crisis Committee.r2oeN zabonimana argues

that the Trial Chamber ened by considering that Defence Witness T92's evidenceo n Ukirikyeyezu's identity corroboratedW itness CNAK's evidence.12ll0n this respect, Nzabonimana submits that Witness T92 denied the occurrence of the "meetings", including his presence,a s Witness CNAK alleged.r2rlN zabonimanaa dds that Witness T92 was '.'* SeeG ateteA ppealJudgemenpta, ra.2 60. ''"'Trial Judsemenpt,a ra.1 148. 'j! SeeT rial Judgemintp, ara.7 '748S. eea lsoi bid.,paras1. 583,1 591,1 599. "ut SeeT rial Judgemenpt,a ra.1 748.S eea lsoi bid.,p ara.1 538. tt* Trial Judgemenpt,a ras.1 148,1 749. ''u' NzabonimanNao ticeo f Appeal,p an.1.l.3; NzabonimanAap pealB rief,p ara.3 29. 1208 NzabonimanaA ppealB rief, para.3 43. r2@ NzabonimanaA ppealB rief, para.3 43. Nzabonimanas ubmitst hat,w hile it is allegedi n paragraphs4 9 and5 8 of the Indictmentt hat Nzabonimana'sc o-conspiratorre gardingT ambwec hargesw as Llkirikyeyezu,W itnessC NAK testified that he did not remembert he name of the military officer who accompaniedN zabonimanain Tambwe. See idem, referringl o WitnessC NAK, T. 25 November2 009 p. 5 l. r2r0 NzabonimanAap pealB rief,p ara.3 43,r eferringt o Trial Judgemenpt,a ra.1 527. ''" NzabonimanAap pealB rief,p ara.3 43,r eferringt oTiaJ Judgemenpt,a ra.1 527. 149 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

20861H found not to be credible.'212N zabonimanaf urther contendst hat the Prosecutiond id not producea ny evidence relating to Ukirikyeyezll's conduct, and that the finding that Ukirikyeyezt distributed weaponsi s erroneouss ince Witness CNAK testified that Nzabonimanaa lone spoke and distributed t2l3 weapons.

445. With respectt o the establishmenot f the Crisis Committee,N zabonimanas ubmitst hat the Trial Chamber erroneously found evidence to justify the inference that he and Ukirikyeyezu had entered into an agreement to kill the Rwandan Tutsi population.l2la Regarding the weapons distribution at Tambwe commltne, Nzabonimana submits that the Trial Chamber erred by: (i) relying on Witness CNAK's testimony to determine that Nzabonimana brought weapons to allow the people to ensuret he security of the country and themselvesf rom the "enemy", meaning Tutsis;r2r5a nd (ii) concludingw ithout evidentiaryb asist hat, after the weaponsd istribution,h e and Ukirikyeyezu" encouragedth e population"t o uset he weaponsa gainstT utsis.12r6 446. The Prosecutionr espondst hat the Trial Chamber reasonablyf ound an agreementt o destroy the Tutsi population based on the cooperation between Nzabonimana and Ukirikyeyezu at Tambwe.l2lTT he Prosecutionr espondst hat WitnessT 92 corroboratedW itness CNAK's evidence that an ottlcer responsiblefo r the Civil Defencew as presenti n Gitaramaa t the time.r2r8It submits that WitnessT92 simply supplementedt he name, Ukirikyeyezu, fbr the officer in charge of the Civil Defence, about whom Witness CNAK testified.r2reT he Prosecutiona dds that the Trial Chamber correctly fbund that Nzabonimana and Ukirikyeyezu were involved in the weapons distribution,l220 and that

Nzabonimana fails to demonstrate that the Trial Chamber was unreasonablein acceptingW itness CNAK's testimony that it was public knowledge that the enemy wast heT utsis.l22l 44'7. Nzabonimanar eplies that the Trial Chamber merely refers to the totality of evidence,w hile the evidenced oes not reveal coordination."" He submitst hat the Trial Chamber'sc onclusiono n r:r2 Nzabonimana Appeal Brief, para. 343, rel?rring toTrial Judgement,p ara. 1535. r2r3 Nzabonimana Appeal Brief, para. 344, rel'erring /o Witness CNAK, T. 25 November 2009 p. 52. 'r'o NzabonimanaA ppeal Brief. paras.3 37-342. '-'' NzabonimanaA ppealB rief.p ara.3 31. r216 Nzabonimana Appeal Brief, para. 333, referring /o Trial Judgement,p ara. 1748. rrrT ProsecutionR esponseB rief, para.2 54. rrrt ProsecutionR esoonseB rief. oara.267. r:lu P rosecutioRn esDonsBe riel',p ara.267. ll:" ProsecutionR esponseB riel',p ara.2 68. I2rr ProsecutionR esponseB rief. para. 262,r e.ferring/o WitnessC NAK, T.25 November2009 p. 52 (closeds ession). rttt NzabonimanaR enlv Brief. nara.81. 150 CaseN o.:I CTR-98-44D-A 29 Seotembe2r0 14 C"\

2085/H the existence of a plan is not sufficiently reasoned,a nd further that the Trial Chamber was drawing inferenceu pon inferen ""."" 448. The Appeals Chamber recalls again that conspiracy to commit genocide, under Article 2(3Xb) of the Statute,r equires "an agreemenbt etweent wo or more personst o conmit the crime of genocide".l"o The Appeals Chamber further recalls that where the Prosecutioni ntends to rely on circumstantiale videncet o prove a particular fact upon which the guilt of the accusedd epends,t he finding of the existenceo f a conspiracyt o commit genocidem ust be the only reasonablei nference basedo n the totality of the evidence.1225 449. As recalled above, the Trial Chamber convicted Nzabonimana of conspiracy to commit genocideo n the basis of an agreementb etweenN zabonimanaa nd Lkirikyeyezu to encouraget he killing of Tutsis, which it inferred from Nzabonimana'sa nd Ukirikyeyezu's agreementt o establish the Crisis Committee and from their distribution of weapons.T he Appeals Chamber will consider whether the Trial Chamber erred in finding that llkirikyeyezu was Nzabonimana's co-conspirator.

450. With respect to both events which form the basis of Nzabonimana's conviction for conspiracy concerning Tambwe commune, the Trial Chamber considered Witness CNAK's testimonyt hat a military officer who was responsiblef or Civil Defence accompaniedN zabonimana and concludedt hat that officer was Ukiriky Specifically, with respectt o the distribution of "y"zu.\"u weapons,t he Trial Chambero bservedt hat Witness CNAK did not know the name of the individual who accompaniedN zabonimana, but that he described him as "a military officer who was responsible for Civil Defence".12" The Trial Chamber then stated that "Witness T92 gave corroboratinge videncet hat Jean-DamascenUe kirikyeyezu was a Major and was Presidento f Civil Defence in Gitarama".122W8 ith respectt o the Crisis Committee,t he Trial Chamberd eterminedt hat "fa]lthough Witness CNAK did not provide the name of the officer, [it] noto[d] that Witness T92 testified that Jean-DamasceneU kirikyeyezu was a major and was Presidento f Civil Defence in Gitarama".1"' The Trial Chamber then found that Nzabonimana came to establish the Crisis Committee with Ukiriky"y"t .t"o The AppealsC hamber therefore considerst hat, for both events, the Trial Chamber relied on Witness T92's evidence regarding Ukirikyeyezu's positions in the 1223 NzabonimanRae ptyB rief, para.8 1. '2=t Sero^ba Appeal Judgement,p ara.2 21; Nahimanae tal. AppealJ udgement,p ara.

896. See also Mugenzi and AppealJ udgemenpt,a ra.8 8. !(l4giraneza '"o Trial Judgemenpt,a ns. 1495,1 544. "'' Tnal Judsemenpt,u a. 152'7. "" Src Trii Judgementp, ara. 1527 (intemalr eferenceomitted). The Appeals Chamber observest hat the Trial Chamber did not mention llkirikyeyezu's presenceo r involvementi n its factual conclusionso n the weaDons distributionS. eei bid..o ara.1 538. t"e Se Trial Judgemenpt,a ra.1 570. 151 CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 S\"

20841H military and Civil Defence as corroborativea nd supplementaryo f Witness CNAK's evidence that Nzabonimanaw as accompaniedb y an officer responsiblefo r Civil Defence.r23r 451. The Appeals Chamber observes that, in relation to both events, the Trial Chamber had befbre it no evidence that Ukirikyeyezu was present. The Trial Chamber concluded that Ukirikyeyezu was present on the basis of Witness CNAK's testimony that a military officer who was responsiblefo r Civil Def'encea ccompaniedN zabonimanaa nd WitnessT92, and WitnessT 92's evidencec oncerningU kirikyeyezu's positionsi n the military and Civil Defence.r23T2h e Appeals Chamber notes that while Witness T92 testified that he knew Ukirikyeyezu and his positions,1233 Witness T92 denied seeing Nzabonimana and Ukirikyeyezu during the 1994 events, denied attending the meeting during which the Crisis Committee was established,a nd denied distributing arms with Nzabonimana and Ukirikyeyezu.t"t The Appeals Chamber further notes that the Trial Chamberl bund Witness7 92 notcrediblew ith respectt o both events.r235 452. In these circumstances,t he Appeals Chamber flnds that no reasonablet rier of fact could have consideredW itness T92's evidence as corroborativeo f Witness CNAK's evidence. As Witness CNAK did not identify Ukirikyeyezu, and as the Trial Chamber had before it no other evidencet hat it was Ukirikyeyezu who accompaniedN zabonimana,t he Appeals Chamberf inds that the Trial Chamber erred in determining that Ukirikyeyezu was presentd uring the establishmento f the Crisis Committee and the weapons distribution and that he was, therefore, Nzabonimana's co-conspirator.

453. Accordingly, the Appeals Chamber finds that the evidence before the Trial Chamber in respect of Tambwe commune could not lead a reasonablet rier of fact to conclude that the only reasonablei nf'erencew as that Nzabonimanaa nd Ukirikyeyezu enteredi nto an agreementt o destroy the Rwandan Tutsi population. The Appeals Chamber therefore dismisses Nzabonimana's 1236 remaininga rgumentsa s moot. rr3t'Trial Judgemenpt,a ra.1 583. 'tt'Trial Judgemenpta, ras1. 5271, 570. r2rr TrialJ udgemenpt,a ras1. 495,1 503,1 544,1 5?0. 'rrr Whena skedi f he knew UkirikyeyezuW, itnessT 92 answeredth at he knew the namea ndt hat "[h]e wasa major,a membero f parliamentJ, ean-DamascdnUek ulikiyeyezuI. know thath e was alsoa ppointedp rdfeto f Gitaramaa ndt hat he wasa lsoa ppointeda member- or, thep residenotf civil defencein Gitarama"S. eeW itnessT 92,T.19 May 2010 o.16. rtt'Witne., Tg2,T.l9 May 2010p p. 18,1 9;W itnesTs 92,T . 19M ay 2010p p.5 3,7 1 (closedse ssionS).e ea lsoTiral Judgemenpt,a ras1. 503,1 534,1 564,1 579. 'ttt SeeT rialJ udsemenpt.a ras1. 535.1 580. tt'u 5"" NzaboniianaN oiiceo f Appeal.p ara.7.2N: zabonimanAa ppealB rief,p aras.3 45-384. t52 Car^eN o.: ICTR-98-44D-A 29 Septembe2r0 14 r

2083tH 3. Conclusion 454. For the foregoing reasons,t he Appeals Chamberg rantsN zabonimana'sS eventh Ground of Appeal. The Appeals Chamber reverses Nzabonimana's conviction for conspiracy to commit genocidei n relation to Tambwe commune.T he impact of this finding, if any, on sentencingw ill be consideredb elow. 153 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2082tH H. Alleged Errors Relating to Sentencing (Ground 8) 455. The Trial Chamber sentencedN zabonimanat o a single term of life imprisonment fbr his convictions for genocide (Count 1), conspiracy to commit genocide (Count 2), direct and public incitement to commit genocide (Count 3), and extermination as a crime against humanity (Count4 ).t"' 456. Nzabonimanas ubmits that the Trial Chambere rred in fact and in law in imposing a patently disproportionates entence.'"t In the alternativet o quashingh is convictions,N zabonimanas ubmits that a reduction of sentence is warranted as the Trial Chamber engaged in double-counting aggravatingc ircumstancesa nd failed to properly exercisei ts discretion when consideringm itigating circumstances.l23Nez abonimanas ubmits that, although the Trial Chamber was not obliged to considerm itigating circumstancesg iven his refusal to addresst hem, the Trial Chamber erred in the exerciseo f its discretionb y failing to considero ther mitigating circumstancest hat were availablei n the evidence,t he allegedp rejudice suffered,a nd the conduct of the Prosecution.l2a0 457. The Prosecution responds that, by failing to make any submission on mitigating circumstancesa t trial, Nzabonimanaw aived his argumentso n appeal.tto'S imilarly, the Prosecution argues that Nzabonimana waived on appeal his argumentso n the Trial Chamber's assessmenot f aggravating

circumstancesa s he failed to identify the substanceo f the Trial Chamber's alleged errors in his Notice of Appeal. 124I2n any event, the Prosecutions ubmits that the Trial Chamber did not engagei n double-countinga nd Nzabonimanad oesn ot presenta ny arguments howinga ny abuse of discretion.l2al 458. In addressingt his ground of appeal,t he Appeals Chamber bearsi n mind that trial chambers are vested with broad discretion in determining an appropriates entenced ue to their obligation to individualise penalties to fit the circumstanceso f the convicted person and the gravity of the crime.'2aaA s a rule, the Appeals Chamber will not substitutei ts own sentencef or that imposed by '23t Trial Judgementp, aras.1 800, 1822. r238 NzabonimanaN otice of Appeal,p . 59; NzabonimanaA ppeal Brief, paras.3 85-395. '23e NzabonimanaN otice of Appeal,p p. 59-61;N zabonimanaA ppeal Brief, paras.2 9,385-395. '200 Nzabonimana Appeal Brief, paras. 385, 390-395. Nzabonimana argues that in choosing to exercise its discretion to consider mitigating circumstances,t he Trial Chamber was obliged to do this according to the law. He further arguest hat having been acquitted of the majority of the charges,t here was no way he could have anticipated being convicted on "the basis of a t-ewp aragraphsi n the Indictment". See ibid., para.390. rzor P rosecutionR esponseB rief, paras.3 05,306. l:ol ProsecutionR esponseB rief, para.3()7. 'rot ProrecutionR esponseB riefl.p aras.3 08-3| 2. "^^ Srr, e.g., Biz,imunguA ppeal Judgement,p ara.372; Ndindiliyimana et al. Appeal Judgement,p ara. 418; Ntlahimana Appeal Judgementp, ara.2 l 8. 154 CaseN o.;I CTR-98-44D-A 29 Septembe2r0 14 n^\

2081|H the trial chamber unless it has been shown that the trial chamber committed a discernible error in exercisingi ts discretion,o r failed to follow the applicablel aw.l2as 1. Preliminary Matters 459. The Appeals Chamberr ecalls that under Rule 86(C) of the Rules, the parties shall address matterso f sentencingi n their closing arguments.I t is thus the accused'sp rerogativet o identify any mitigating circumstances before the trial chamber and he cannot raise them for the first time on appeal.l2aA6s Nzabonimanam ade no submissionso n sentencingi n his closing brief and arguments at tt'ral,t2at1h e Appeals Chamber will not consider his contention that the Trial Chamber should have consideredt he Prosecution'sa llegedp oor conduct,a llegedp rejudice sufferedi n presentingh is case,a nd the fact that he welcomedT utsis into his housed uring the events.12a8 460. The Appeals Chambern otes that Nzabonimanar efers to aggravatingc ircumstanceso nly in the subheadingo f Ground 8 of his Notice of Appeal but that he does not allege any error in this respect.l24Teh e Appeals Chamberf inds that this cursory referencet o aggravatingc ircumstancesis insufficient to provide the requisite nolice within the meaning of Rule 108 of the Rules.r250 Consequently,N zabonimana's submissionsi n his Appeal Brief on alleged enors pertaining to aggravating circumstancesi mpermissibly exceed the scope

of his Notice of Appeal.l"l The Appeals Chamber neverthelessc onsiderst hat it is in the interests of justice to examine these arguments.A s the Prosecutionr espondedt o thesec ontentionsd espitei ts implicit objection to their consideration,t he Appeals Chamberc onsiderst hat there is no unfairnesst o the Prosecutioni n this respect.1252 "ot Srr, e.g.,B izimungzA ppealJ udgementp,a ra.372N; dindiliyimanae t al. AppealJ udgemenpt,a ra.4 18;N dahimana AppeaJl udgemenpt,a ra.2 18. "6 Srr, Koryirukiga AppealJudgemenpt,a n.214; Bikindi AppealJ udgementp, ara. 165;K upreikii et al. Appeal Judsem ". e {. n ,p ta, ra.474. "o'\"" Triai Judgemenpt,a ra.1 816S. eea lsoN zabonimanAap pealB rief, para.3 85.D espiteN zabonimannao t making sentencings ubmissions,t he Trial Chamberd id addressm itigating circumstancesa nd consideredh is contribution towardst he developmenot f Gitaramap rtfecnre and lack of expressiono f negatives entimentsa gainstT utsis prior to thee ventso f April 1994t o be of limited weight.S eeT rial Judgementp, aras.I 812 , 18 16, I 820. "o' SeeN zabonimanaA ppealB rief, paras.3 92-394.Ina ddition,t he AppealsC hamberc onsidersth at theT rial Chamber did not en in the exerciseo f its discretioni n choosingt o considerm itigating circumstancesw hen it was under no obligation to do so, or becauseit did not considert he circumstancesth at Nzabonimanar aisesf or the first

time on appealS eei bid., puas. 390, 391. '209 Src NzabonimanNa oticeo f Appeal,p . 59. ttto R ule 10 8 of the Rulesr equires, inter alia, thatt he appellant" indicatet he substanceo f the allegede rrors". l25l I n this respect,t he AppealsC hambero bservesth at the issuei s aboutt he scopeo f the appealr athert han waiver, as mentionedb y the Prosecution..S eeP rosecutionR esponseB rief, paras.3 05, 307. tu' C7.G otrt" AppealJ udgementp, ara.20 NtabakuzeA ppealJ udgementf,n . 255; Bagosoraa nd NsengiyumvaA ppeal Judgemenpt,a ra.3 81. 155 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2080/H 2. Alleged Double-CountingB etweenA ggravating Circumstancesa nd Elementso f the Crime 461. In determining the appropriate sentence,t he Trial Chamber considered as aggravating circumstancesN zabonimana's abuse of influence, the large number of victims at the Nyabikenke commune office in excesso f the threshold for extermination as a crime asainst humanitv. and the fact that thc victims werep articularlyv ulnerable.l2s3 462. Nzabonimanas ubmits that the Trial Chamber erred by finding that the releaseo f prisoners fiom Rutobwe communea nd the order to destroya Tutsi housei n Nyamabuyec ommunec onstituted aggravatingc ircumstancesw hile also consideringt hesee ventsi n inferring his genocidal intent, one of the clementso f the crime of genocide,o f which he was convicted.l25Naz abonimanaa ddst hat the Trial Chamber could not consider influence as an aggravatingc ircumstancew hile consideringi t in relation to the commission of certain crimes.r2ssH e argues that the Trial Chamber also ened by considering the number of victims at the Nyabikenke commune office as an aggravating circumstancew hile also relying upon this fact in satisfactiono f one of the elementso f the crime of exterminationa s a crime againsth umanity.l2s6 463. The Prosecution responds that the Trial Chamber did not rely on the Rutobwe and Nyamabuye incidents to double-count any element of an off'ence,b ut

cited these events alongside other findings to infer Nzabonimana'sg enocidali ntent and to illustrate Nzabonimana'sa buseo f his positiono f influence.l2'sT7h e Prosecutions ubmitst hat the abuseo f his positionw as not relied upon by the Trial Chamber to establish Nzabonimana's genocidal intent or any other element of his convictions,'2tt The Prosecution also submits that the Trial Chamber did not engage in double- counting regarding the number of victims at the Nyabikenke communeo ffice incident and properly consideredi t as an aggravatingc ircumstancea s the Trial Chamber only consideredt he number of victims beyond thoser equired to establishe xterminationa s a crime againsth umanity.r2se 464. The Appeals Chamber recalls that a factor consideredb y a trial chamber as an element of a crime cannot also be considereda s an aggravatingc ircumstance.'toTuh e Appeals Chambera lso recalls that the Trial Chamber convicted Nzabonimanao f instigating genocide for the killings of rr5r Trial Judgementp,a ras.1 818,1 819. r2so NzabonimanaA ppeal Brief, paras.3 86, 387. 'tt' NzabonimanaA ppeal Brief, para. 388. r256 Nzabonimana Appeal Brief, para. 389. r257 ProsecutionR esponseB rief, para. 309. r2s8 ProsecutionR esponseB rief, para. 309. r2se P rosecutionR esponseB rief, para. 310, re.ferringt oNdindabahizA.ip pealJ udgemenpt,u a. 135. t26o D orrJevi( Appeal Judgement, para.

936. See also Biz.imungAu ppealJ udgementp, tua.3 80; NdindabahizA.i ppeal Judgement,p ara. 137; Bluiki( Appeal Judgement,p ara.693,r e.f'errintgo Vasiljevi(A ppealJ udgemenpt,a ras.1 72,1 73. 156 Ca.seN o. ; ICTR-98-44D-A 29 Septembe2r0 14

2079|H Tutsis at the Nyabikenke commune office on 15 April 1994.t'6t The Trial Chamber noted "the extensive circumstantiale vidence of Nzabonimana'sg enocidal intent" which included, inter alia, Nzabonimana's forcible release of prisoners in Rutobwe commune and his statement at the Nyamabuye commune office to destroy the house of a dead Tutsi.r262T he Appeals Chamber observes that the Trial Chamber considered Nzabonimana's abuse of influence, not his mere influence, as an aggravatingc ircumstance,a nd specifically, Nzabonimana'se ncouragementf or the intensificationo f the massacresin steado f using his position of authority and his influence to protect Tutsis.1263F urthermore, contrary to Nzabonimana's submission, the release of the Rutobwe commune prisoners and his order of destruction of a house in Nyamablye commune served as examples of Nzabonimana's abuse of his position of influence and were not aggravating circumstancesin themselves.l26Tah us, the Appeals Chamberr ejectsN zabonimana'sc ontentiont hat the Trial Chamber engaged in double-counting in relation to his influence and the events in Rutobwe and Nyamabuyec ommunes.

465. Turning to Nzabonimana'ss ubmissionr egarding double-countingt he number of victims at the Nyabikenke commune office as both an element of extermination as a crime against humanity and an aggravating circumstance, the Appeals Chamber recalls that, with respect to extermination as a crime against humanity, "a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination".1265A s the Trial Chamber considered that the large number of victims at the Nyabikenke commune offrce exceeded the threshold for extermination as a crime against humanity, the Appeals Chamber finds that it did not err in taking the number of victims into consideration as an aggravating circumstance. The Appeals Chamber therefore rejects Nzabonimana'ss ubmissiont hat the Trial Chamber engagedi n impermissibled ouble-counting in considering the number of victims at the Nyabikenke commune office as an aggravating circumstance.

466. In light of the foregoing,t he Appeals Chamber dismissesN zabonimana'sE ighth Ground of Appeal. 126r Trial Judgemenpt,a ras.1 718,1 737. 1262 Trial Judgemenpt,a ras.1 717,l '724,1 732. ttu'Trial Judgemenpt,a ra.1 818. tt* Trial Judgemenpt,a ra.1 818. 126 N 5 dahimana Appeal Judgement,p an. 231; Ndindabahizi Appeal Judgementp, ara.

135. The Appeals Chamber recallst hat while exterminationa s a crime againsth umanityh as beenf ound in relation to the killing of thousandso f persons,it has also beenf ound in relation to fewer killings, such as the killings of approximately6 0 individuals and less.S eeN dahimanaA ppealJ udgementp, ara.231,r eferringt o Lukii and Lukii AppealJ udgementp, uas.531, 544, fns.1564-1567. 15't CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 e-\

20781H IV. APPEAL OF THE PROSECUTION A. Alleged Error Relating to Nzabonimana's Conviction for Instigating Genocide and Extermination in Nyabikenke Conznane Office (Ground 1) 467. The Trial Chamber convicted Nzabonimanao f instigating genocide and exterminationa s a crime againsth umanity under Article 6(l) of the Statuteb asedo n his role in the killing of Tutsis at the Nyabikenke commune office, Gitaramap rdfecture, on l5 April 1994.126A6s recalled earlier, the Trial Chamber found that on l3 April 1994, assailantsa ttempted an unsuccessfula ttack against Tutsis who sought refuge at the Nyabikenke commune office.1267It further found that in the afternoono f 14 April 1994,N zabonimanah eld a meeting at the Cyayi centre,w here approximately 30 people were present,r26d8u ring which he told thom to prioritise the massacreo f Tutsis before taking their propertyt26ea nd threatenedE variste Munyagatare.t2tt'The Trial Chamber also found that the night and day following Nzabonimana's remarks, Hutu civilians, Interahamwe, and commune policemen attacked the Nyabikenke commune offrce,l27l resulting in the deaths of betweenl 5 and 60 Tutsi refugeesi,n cludingM unyagatare.r2T2 468. The Trial Chamber observedt hat, following Nzabonimana'sr emarks,t he attacksa gainstt he Tutsis in the commune office "escalatedi n their intensity and character".127R3e calling, inter alia, that Nzabonimana was

an influential figure in Gitarama prdfecture and based on the totality of evidence, the Trial Chamber concluded that the only reasonablei nference from the evidence was that Nzabonimana'sr emarks substantiallyc ontributed to thc "continuancea nd ultimate success"o f the attack.r"o The Trial Chamber lurther found that by saying that Tutsis should be massacred, together with issuing a threat against a Tutsi, Nzabonimana prompted others to carry out and continuet he genocidala ttacku pon the communeo fflce, and thath e intendedt o do so.r275 469. The Prosecutions ubmits that the Trial Chamber erred in convicting Nzabonimanao nly for instigating rather than for committing or, alternatively, ordering, genocide and extermination as a 'tt"' T rial Judgementp, aras.1 718, 1'73'7l,' 186, 1787,1 790,1 '795,18 (X). '26t Trial Judgementp, aras.8 66, 938.S eea lso ibid., para. 1709. 'tt't Trial Judgementp, aras.8 87, 938.S eea lso ibid., ptuas.1 710,1711. to'Trial Judgementp, aras.8 87, 938.S eea lso ibid., para. 1710. '-"'Trial Judgementp, aras.9 38. Seea lso ibid., para.1 11 0. 'tt' Trial Judgemenpt,a ras9. 02,9 10,913,9 2'7,936,939S. eea lsoi bid.,p ara.l 7l l. TheT rial Chambefro undt hatt he attacko ccurredb etween3 .00 and4 .00 a.m.a nd at approximately1 0.00a .m.u ntil the afternoono n 15 April 1994.S ee ibid.,p was9 13,9 36,1 71 1 . "" Tiial Judgemenpt,a ras9. 36,9 39.S eeu tsoi bicl.p, aras1. 71l, 1785,1 195S. eea /.soR ule1 15D ecision. '"t TrialJ udgemenpt,a ra.1 71 4. Judgemenpt,a ras1. 712-1115S.e ea lsoi bid.,p ara.92. l'-;] 'i It:rl TrialJ udgemenpta. ra1. 11 1. t58 Ca.seN o.: ICTR-98-44D-A 29 Septembe2r0 14 C'\

2077tH crime againsth umanity in relation to the killings at the Nyabikenke commune offtce.tzT6Ita rgues that the Trial Chamber failed to provide an explanation as to why it rejected these modes of liability,l277a nd requesis the Appeals Chamber to enter a conviction on this basis for genocide (Count 1) and extermination (Count 4), or alternatively murder, as a crime against humanity (Count 5), in order to fully reflect the criminality of Nzabonimana'sc onduct.1278 470. Nzabonimanar espondst hat the Prosecution'sa ppeal should be dismissed.t2'eH e further requestst hat the Appeals Chamber refrain from entering a new conviction basedo n a more severe legal characterisationa t this stage,a s it would deny him the right to appealt he new conviction.r2s0 471. As a preliminary matter, in so far as the Prosecution arguest hat the Trial Chamber failed to provide an explanation for rejecting the modes of liability of committing and ordering, a review of the Trial Judgement reflects that the Trial Chamber explained in detail the legal elements of each mode of liability underArticle 6(1) of the Statuter elevantt o the crimes, including committing and ordering.r2sSt ince the Trial Chambers tatedt hat it would discusst hesem odes of liability in its legal findings "where applicable",t"' th" Appeals Chamber considerst hat the Trial Chamber implicitly consideredt he applicability of thesem odeso f liability to the allegedc rimes. The Appeals Chamber finds no error in the Trial Chamber's decisiont o only explicitly discusst he form of responsibility it concluded was most appropriate. Accordingly, the Prosecution has not shown that the Trial Chamber erred in this respect.

472. The Appeals Chamber now considers, in turn, whether the Trial Chamber erred in not convicting Nzabonimanao n the basis of the modes of responsibility of committing or ordering in relation to the events at the Cvavi centre and the Nyabikenke commune office.

1. Committins 473. The Prosecutions ubmits that Nzabonimanas hould have been convicted under the mode of liability of committing since his role in the attack at the Nyabikenke commune office was "integral to its commission" and that his actions went far beyond mere instigation.128T3 he Prosecution contends that "[a] person providing a contribution that is equally important as - or more important 1276 Prosecution Notice of Appeal, para. 2; ProsecutionAppeal Brief, paras. 2, 4, ll, 23-57, 69. See also April 2014p . 56. #'-I". 29 ProsecutioAnp pealB rief,p aras2. 4,2 5. r2t8 ProsecutionN otice of Appeal, pan.2; ProsecutionA ppealBrief,p aras2. 3,2 5, 50, 56, 57, 69. 127e NzabonimanRae sponsBe rief,p aras.1 2,1 7,9 3, 1280 NzabonimanRa esponsBe rief,p ara.1 5. r28 T r rial Judgemenpt.a ras.1 692-1700. "tc"e'Tt*r.i d --J ud.-gemenpt,a ra.1 700. 1283 ProsecutionA ppeal Brief, paras.4 , 11, 24, 26, 49, 50. See a/so ProsecutionR eply Brief, paras.3 1, 32: AT.2 9 Aprn2 014p p.5 6,6 3. 159 CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 m

20761H than - the carrying out of the aclus reus, cannot be assesseda s a mere accessory".l"o The Prosecution further submits that the accused's presence is not required for "integral part commission:rl2tt5u n6 that, with the exception of Nzabonimana's absence during the attack, Nzabonimana'sc onduct meets all of the indicatorsc onsideredb y the Appeals Chamber in previous cases,r2un6a mely that: (i) he fully exercisedh is influenceo ver the physicalp erpetrators;r2(ui7i) he fully embracedt he decision to commit the crime as his own;r288a nd (iii) his conduct enabledt he crimes.l2n9 474. The Prosecution argues that Nzabonimana's power and influence were establishedf rom, inter alia, the fact that he was highly respectedi n his hometown, Nyabikenke commune, and throughout Gitaramap rdfecture as he was "one of the highest ranking officials in Rwanda".l2e0T he Prosecutionf urther arguest hat Nzabonimanaf ully embracedt he decision to commit the crimes as his own considering "[h]is leadershipr ole, his personalo rder to massacret he Tutsis and his threat thal.t he Tutsis'time would come soon".l2elTheP rosecutionc ontendst hat the fact that, following his remarks, Nyabikenke authorities turned "fiom defending the Tutsis [at the Nyabikenke communeo ffice] to massacringt hem" demonstratest hat Nzabonimana'se xerciseo f influence was as compelling as that inthe Seromba,G acumbllsi,a nd

Munyakazi caser.tt" The Prosecutiona sserts that Nzabonimanae nabledt he killings as much as or more than Gacumbitsi or Munyakazi who had simply led assailantso n the ground.l2e3T he Prosecutionc ontendst hat Nzabonimana's conduct is part of "his wider campaigno f genocide".r2ea 415. Nzabonimana responds that the Prosecution's theory in relation to his influence and authoritya s well as "campaigno f genocide"i s new and distorted.l2eNsz abonimanac ontendst hat the Trial Chamber only made vague isolated findings on his influence and never found that he exercised" compelling authority" over anyone.t'e6A ccording to Nzabonimana,h is conduct is not r:*o ProsecutionA ppeal Brief, pnra.

26. Seea i.sr.Pr rosecutionR eply Brief, ptra.32. r:*s ProsecutionA ppeal Briei. pnras.44-48. '-'" ProsecutionA ppeal Brief. paras.2 7,49. '-"' Prosecution Appeal Brief, paras. 28-38, re.t'brringt o, inter alia, Seromba Appeal Judgement, pzras. 170, 171, Gut'unhitsi AppealJ udgement,p aras.2,6O;M unyukaz.Ai ppeal Judgementp, aras.2 , 136. ''*t Prosecution Appeal Brief, paras. 39-41, ref'erring to, inter alia, Seromba Appeal Judgement, para.

171. The Prosecution contends that although the relevant indicator was not specifically considered by the Appeals Chamber in Gacumbitsi or Munyakaz,i,t he leadership roles of the accused showed that they embraced the decision to commit the crimes.S eei bid..p ara.39. 't*e ProsecutionA ppeal Brief, paras,4 2,43, re.f|rring to, inter alia, Gacumbirsi Appeal Judgement,p ara. 60; Munyakazi Judgementp, ara. 135.S eea lso 1.T.2 9 April 2014 p.

63. A'-p'"p .ol ProsecutionA ppeal Brief, paras.2 9-31.S eea /so ProsecutionR eply Brief, paras.l 7-27. r}r ProsecutionA ppeal Briel'.p iua.4 (). '"- ProsecutionA ppeul Brief, ptras. 29,35. Seea lso ibid., paras.3 2-38. r2e3 ProsecutionA ppeal Brief, para. 43. rrea ProsecutionA ppeal Brief, ptras. l5-22. r2es NzabonimanaR esponseB rief, paras.1 3, l8-20, 22,24-29, 41. rt"t'Nzabonimana ResponseB rief, paras.1 9,25. Seea lso AT.29 Apri| 2014pp.68,69. 160 CaseN o.;I CTR-98-44D-A 29 Seotembe2r0 14 0"1

2075tH comparable to that found to constitute committing in the Seromba, Gacumbitsi, and Munyakafi cases,w here the accusedw ere either present,l ed, or supervisedt he attack.l2etC omparing other casesw hete "exhortationst o kill [...] prior to a criminal attack" were characteriseda s instigating, Nzabonimanac ontendst hat the elevationo f the legal characterisationo f his conduct to committing is unwarranted.l2eH8e stressesth at liability for committing should be limited to casesi nvolving the active participation at the time of the crime and that adopting a broader interpretation would blur the distinctionb etweent his mode of criminal resoonsibilitva nd others.r2ee 416. The Prosecution replies that Nzabonimana's submissions are unfounded and without merit.1300It further asserts that the Prosecution's case regarding Nzabonimana's power and authority was not new as it was alleged in the Indictment, the Prosecution Pre-Trial Brief, and the l30l ProsecutionO pening Statement.

471. As correctly recalled by the Trial Chamber, acts other than physical perpetration can constituted irect participation inthe actus reus of a crime.130T2h e questioni s whether an accused's conduct "was as much an integral part of the genocidea s were the killings which it enabled".130k3r the casesw here the Appeals Chamber has concludedt hat an accused'sr ole constituteda n integral part of the crimes, the accusedw ere presenta t the sceneo f the crime and participated,s upervised, directed, played a leading role, or otherwise fully exercised influence over the perpetrators.l304 However, in this case, the Trial Chamber did not find that Nzabonimanaw as present during the attack and, further, did not find that he supervised,p layed a leading role, or fully exercised influence over the perpetrators.

478. Consequently,t he Prosecutionh as failed to demonstratet hat the Trial Chamber erred in not concluding that Nzabonimana committed genocide and extermination, or alternatively murder, as a crime against humanity at the Nyabikenke commune office. l2e7 NzabonimanaR esponseB rief, paras.4 4-66. r2e8 NzabonimanaR esponseB riei, paras. 67, 68, refening to Ndindabahizi Tial Judgement,p aras. 458, 464; NchamihigoT rial Judgemenpt,a ras.3 69-3'71,3'73-37K8a1r'e ra Trial Judgementp,a ras.5 43,546,548;K ajelijeliTial Jg$gemenpt,a ras8. 29,8 32,8 33,8 36. "" NzabonimanRae sponsBe rief,p aras.1 3,44,69. ''* ProsecutioRn eplyB rief,p aras.1 1-16,28-30,44-49. "- ProsecutioRne plyB rief,p aras4. ,6-10,20. Judgemenpt,a ra.1 696.S eeM unyakazAl ppealJ udgemenpt,a ra.1 35;S erombaA ppealJ udgementp,a ra.1 61; G-acumbitAsip pealJ udgemenpt,a ra-6 0. ""' Gacumbitsl Appeal Judgement, para.

60. See also Munyakazi Appeal Judgement,p ara. 135; Seromba Judgemenpt,a ra.l 6l. App.ut "n See SerombaT rial Judgementp, aras.2 39,269; SerombaA ppeal Judgementp, an. 111; CacumbitsiA ppeal Judgementp, ara.6 0. Seea lso MunyakaziA ppealJ udgementp, ara.1 36. 161 e-1 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

20741H 2. Ordering 419. The Prosecutions ubmits that, in the alternative,N zabonimana should have been convicted fbr ordering the attack.l3ntT he Prosecutions ubmitst hat the Trial Chamber lbund that Nzabonimana ordered the massacre.ttuI6t also contendst hat Nzabonimanao ccupied a position of authority which would have compelled the physical perpetratorst o carry out the crimes, meeting the actus reus ot ordering.l30tT he Prosecutiona rgues that Nzabonimanap ossessedt he required mens rea for this mode of liabiliry.r3orr 480. Nzabonimanar espondst hat the Trial Chamber did not establisht hat the perpetratorso f the attack were those presenta t the Cyayi centre when Nzabonimanag ave his remarks.t3t'eH e submits that the required causal link was absent as the offence should be committed by the person who received the order.l3loN zabonimana also submits that there was no direct evidence that an order was issuedt o the bourgmestreo r to policemen,l3lland that the circumstantiale videnced oes not lead to the only reasonablec onclusion that Nzabonimana gave an order to attack the commune otrlce.l3l2 481. The Prosecutionr eplies that there was direct evidence that he gave an order at the Cyayi centrem eetingr3ra3n d that it was the only reasonableco nclusionf iom the factualf indings.l3ra 482. The Appeals Chamber recalls that ordering requires that a person in a position of authority

instructa notherp ersont o commit an offence.rtttT he authoritye nvisagedb y orderingr equiresn o fbrmal superior-subordinater elationship between the accuseda nd the perpetratorl316a nd may be informal or of a purely temporaryn ature.l3lTIt is sufficient that there is proof of a position of authority on the part of the accusedt hat would compel anotherp ersont o commit a crime.l3lsA person in a position of authority may incur responsibility fbr ordering if the order has a direct and rr05 P rosecutionN otice of Appeal, para.2; ProsecutionA ppeal Brief, paras.2 , 4,25,51, 56, 5"7.S eealso AT.2 9 April 2014p p.5 6,6 3,6 4,6 6. rr(b P rosecutionA ppealB rief',p ara. 52,r ejbrringt o Trial Judgementp, aras.1 785,1 195.S eea lso AT.29 April20t4 pp. 63,66. '"" ProsecutioAn ppealB rief.p aras5. 1,5 3. 54. r3t)t ProsecutionA ppeal Brief, pnra. 55. r30e NzabonimanaR esponseB rief, paras.7 3, 75. lrl" NzabonimanaR esponseB rief, paras.? 5, 76. ''" NzabonimanRa esponseB riel.p aras.77-79. '3'2 NzabonimanaR esponseB rief, paras.8 0-92. rrrr ProsecutionR eply Brief, para.5 9. r3ra ProsecutionR eply Brief, para.6 1. t"t Bug,,roru and iViengiyumva AppealJ udgement, para.217; Setuko AppealJ udgement, para.240; Kordii and Cerkez. AppealJ udqementp,a ra.2 8. "l( Srtuk,,"A ppeal Judgement, para. 240; Nahimana et al. Appeal Judgement, fn. 1162; KorrJii antl aerkez, AppealJ udgementp. ara.2 8. t"' SetukrA, ppeal Judgement,p ara.240;S emanzaA ppealJ udgementp, ara.3 63. 162 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 0"\

2fJ731H substantiale ffect on the commission of the illegal act.l3leR esponsibility is also incurred when an individual in a position of authority ordersa n act or omissionw ith the awarenesso f the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committeds ubsequentlyb y the personw ho receivedt he order.1320 483. The Appeals Chamber notes that the Trial Chamber found that Nzabonimana was an influential political personality in Gitaramap r€fecture during the events of April to July lgg4.t321 However, the Trial Chamber made no findings on his position of authority, informal or tsmporary, over the recipients of the alleged order or the direct perpetratorso f the attack sufficient to establish Nzabonimana's responsibility for ordering under Article 6(1) of the Statute.ttt'The Appeals Chambern otest hat in paragraphs1 785 and 1795 of the Trial Judgement,t he Trial Chamber indeed referredt o Nzabonimana'sr emarks as "orders".132H3o wever, nowherei n the Trial Judgementd id it find that the attacka t the Nyabikenke communeo ffice was subsequentlyc ommitted by the persons who received the alleged order.l32aIn fact, the Trial Chamber made no findings that the persons who were present at the Cyayi centre, where Nzabonimana made the remarks, were the same as those who committed the killings at the Nyabikenke communeo ffice.

484. Accordingly, the Appeals Chamberf inds that the Prosecutionh as failed to demonstratet hat the Trial Chamber erred in not concluding that Nzabonimana ordered the killings at the Nyabikenke communeo ffice.

3. Conclusion 485. Accordinglyt,h eA ppealsC hambedr ismissetsh eP rosecution'Fsi rstG roundo f Appeal. tt" Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para.

361. See also Gacumbitsi AppealJ udgemenpt,a ra.1 82. '''" Ndindiliyintnnae t al. AppealJ udgementp, aras.2 91, 365:,S etakoA ppeal Judgement,p an.240:' RenzahoA ppeal Judgemenpta, ra3. 15. "'o-Bogoroio and NsengiyumvaA ppeaIJ udgement,f n. 642; RenzahoA ppealJ udgementp, ara. 315; Nahimarn et al. AppealJ udgemenpt,a ra.4 8l . 'j, Tdal Judgemenpt,a ra.92S. eea lsoi bid.,pan. 1712. t32 C 2 7.R enzahoA ppealJ udgementp,w a.320;B oikoskia ndTariulovs&Al ppealJ udgemenpt,a ra.7 5. 1323 Tdal Judgemenpta, ras1. 785,1 795. "'o C7.N dindiliyimanae t al. AppealJ udgementp, ara.3 68. 163 CaseN o.:I CTR-98-44D-A 29 Seotembe2r0 14

2fJ721H B. Alleged Errors Relating to the Releaseo f Prisoners in Rutobwe Comnrzne (Ground 2) 486. The Trial Chamber found that, in the days leading up to l8 Aprill994, Nzabonimana encouraged the killing of Tutsis by causing "the release of killers of Tutsis", who had been imprisoned by bourgmestre Jean-MarieV ianney Mporanzi, in Rutobwe communr.t"t It further found that killings in Rutobwe communei ntensified after the releaseo f the prisoners.l3'oH owever, the Trial Chamber found that there was insufticient evidence to conclude that the releaseo f the prisonerss ubstantiallyc ontributedt o the commissiono f a speciflcc rime.l32A7 ccordingly,i t did not I32tt convictN zabonimanao f senocideb asedo n this event.

481. The Prosecutions ubmits that the Trial Chamber erred in failing to convict Nzabonimanao f aiding and abetting the killing of Tutsis in Rutobwe commune through the forcible release of prisoners.rs2Aec cordingt o the Prosecutiona, ll of the elementso f aiding and abettingg enocidew ere found by the Trial Chamber: (i) the killings fbr the actus reus of genocide; (ii) Nzabonimana's substantialc ontribution by releasingt he killers for the actus reus of aiding and abetting;a nd (iii) his knowledge of the killers' genocidal intent for the mens ,ro.t"" The Prosecution submits that the Trial Chamber acceptedt he evidencet hat the prisoners,o nce set free, committed genocidal killings when it found that the killings in Rutobwec ommunein tensifieda fter the releaseo f the prisoners.l33l The ProsecutionI 'urthers ubmits that the Trial Chambere rred when concluding that it could not find that Nzabonimana's conduct had substantiallyc ontributed to any of the ensuing crimes since he released the very criminals who later killed Tutsis in the same commune where they had been imprisoned.'"t The Prosecutions ubmits that the Trial Chamber erred in fact when finding that no detail was provided as to the victims, dates or locations,l333a nd erred in law in requiring such details in addition to the elementso f the crime that were proven.ttto In this respect,t he Prosecution argues that the

Trial Chamber's error is further compounded by its reliance on the Kalimanzira 'tt5 TrialJ udgemenpt,a ra.1 076S. eeu lst.itb id.,para1. 719. rt2o Trial Judgemenpt,a ra.1 076.S eea lsoi bid.,para.1 719.T heT rial Chambefru rtherf oundt hatN zabonimanmau st genocidailn tento f ther eleasedp risonersS. eei bid.,p ara.1 720. l', 'q-'y ._k"9yn.rhe TrialJ udgemenpta. ra1. 723. rs2t Trial Judgementp, ara.1 723. '32e ProsecutioNno ticeo fAppeal,p ara.3;P rosecutioAnp pealB rief,p aras.5,1 4,58-69.S eea lsoP rosecutioRne ply Brief,p aras9. 0,9 1; AT.2 9 April 2014p p.5 6,6 6. rr30 ProsecutioAnp peaBl rief'p, tras.5,59-61S. eea lsoP rosecutioRne plyB rief,p aras8. 2,83. r33r ProsecutioAn ppealB rief, pira. 59. r332 ProsecutioAn ppealB rief, paras.6 0, 63.S eea /sr.Pr rosecutioRn eplyB rief, paras8. 3, 86-88. r3r3 ProsecutionA ppeal Brief, para. 62, reJeting tr.rT rial Judgementp, aras. 1067, 10'76,1 '719,7722.S ee also ProsecutioRn eplyB rief, para.8 3. r3ra ProsecutioAn ppealB rief, paras5. , 64-66,r e.fbrringto Kareru AppealJ udgementp,a ra.3 | 8; NtakirutimanaA ppeal Judgemenpt,a ra.517S. eeu l.roP rosecutioRne plyB rief,p ara.83. t64 CaseN o.:I CTR-98-44D-A 29 September2 014 tr-\

2071lH Appeal Judgements ince the Appeals Chamber in that case did not require additional details,b ut insteadf ound the evidencei nsufficient in relation to the existenceo f killings.r335 488. Nzabonimanar espondst hat the Trial Chamber correctly acquitted him due to insufficient evidenceo f killings.1336N zabonimanas ubmits that the Prosecutione rroneouslyc ontendst hat the Trial Chamber implicitly acknowledged the existence of crimes committed by the released prisonersa nd that the evidenceo f thesec rimes was sufficient.133N7z abonimanaf urther submitst hat the Prosecutionc onfusest he Trial Chamber'sf inding that killings intensified following the release of the prisoners with proof beyond reasonabled oubt of "crimes specifically connected" to the reprehensiblec onduct.133N8z abonimanac ontendst hat the evidenceo f ProsecutionW itness CNAA was vague hearsaya nd that DefenceW itness Mporanzi's testimony mentionedn o particular crime and provided no specific elements,r enderingi t impossiblet o establisha nexusb etweent he murders and the release of prisoners.l"e Nzabonimanas ubmits that the Trial Chamber simply required specific and sufficient evidencet hat murdersw ere committed.l3a0N zabonimanaf inally arguest hat the Trial Chamberc orrectly relied on theK alimanzira AppealJudgement.l3al 489. The Appeals Chamber recalls that in determining substantial contribution for

aiding and abetting, it has assessedw hether a "link" or "connection" between the conduct of the aider and abettora nd the crime has been demonstrated.l3aS2u ch conduct must have a substantiale ffect upon the perpetrationo f the crime.l3a3W hether a particular contribution qualifies as "substantial" is a "fact-based inquiry", and need not "serve as condition precedent for the commission of the . .. t'14'4 cnme".-- 490. The Trial Chamber recalled that it had heard evidence that the released prisoners: (i) organisedt hemselvesa fter their releasea nd then carried out various crimes against Tutsis in Rutobwe communeb etween 2I and 30 April 1994,i ncluding demolishingh ousesa nd killings; and 133 P 5 r osecutionA ppeal Brief, para.6 1, refemingt o KalimanziraA ppealJ udgementp, aras.7 7- 79. Seea lso Prosecution ReplyB rief,p ara.8 9. "'o NzabonimanRae sponsBe rief, paras.ll 4, 128. 1337 NzabonimanRae sponsBe rief, para.I 18. 133 N 8 z abonimanRae sponsBe rief. para.1 19. r33eNzabonimanaResponseBrief,paras. l2l,125,126.SeealsoAT.29Apnl2014p.73. 110 NzabonimanRae sponseB ief , para.1 27. lsr NzabonimanaR esponseB rief, paras.1 23, 124, 126. Nzabonimanaiu gues that the Prosecution'sr eferencet o the Ntakirutimonn and Karera Appeal Judgementsis irrelevant and further points to the Muvunyi 1 Appeal Judgement whereh e submitst he AppealsC hamberr everseda convictionf or genocided ue to

the imprecisen atureo f the hearsay evidenceinrelationtorelevantmurdSeerse.i bid.,parals2.3 ,124,126,12'7. t*t See,e .g.,N dindabahiziA ppealJ udgementp, aras.I 16-117;K amuhandaA ppealJ udgementp, arus.6 8,72. tx3 See,e .g.,N dahimanaA ppealJ udgementp, ua. 141;K alimanziraA ppealJ udgementp, aras.7 4, 86; RukundoA ppeal Judgemenpt,u a.52. lw Ntawukulilyayo Appeal Judgement,p ata. 214; Kalimanzirct Appeal Judgement,p ara. 86; Rukundo Appeal Judgemenpt,u a.52. 165 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14 S-^"1

2070|H (ii) carriedo ut attacksi n Nyamabuyec ommun .''ot Th" Trial Chamber nonethelesslb und that the Prosecutionf ailed to provide specific evidence of the crimesthe releasedp risoners had allegedly committed after their release.l3*oT he Trial Chamber noted that no detail had been provided concerningt he allegedv ictims,d ates,o r locations.l3aT 491. Contrary to the Prosecution's submission,t he Trial Chamber did not accept the evidence that the criminals, once set free, committed genocidal killings nor did it find that details were providcd.r3atT he Appeals Chamber finds that it is clear that the Trial Chamber considered the evidencet o be insufficientt o connectN zabonimana'sc onducti n releasingt he prisonersin Rutobwe communet o the commission of any specilic crime.l3aeF urthermore,t he Appeals Chamber is of the view that the Trial Chamber did not require "additional details" as a matter of law, but rather noted examples of evidence that were not befbre it.1350N owhere in its findings did the Trial Chamber require the Prosecution to "specifically identify the perpetrators" or provide "certain named or described" victims, as assertedb y the Prosecution. Thus, the Appeals Chamber considers that Nzabonimana's acquittal was not based on any additional legal requirements,b ut rather on the insufficiencyo f evidence.

492. In this respect,t he Appeals Chamber notes that the Prosecutionp oints to the evidence of Witness CNAA and Witness Mporanzi to support its submissiont hat the Trial Chamber accepted evidencet hat the releasedc riminals committed genocidalk illings.r35lT he Trial Chamber statedt hat it heard evidence that between 21 and 30 April 1994 the prisoners carried out various crimes inclnding demolishing housesa nd killings in Rutobwe com*unr."tt The Trial Chamber found that Witness Mporanzi corroboratedW itness CNAA's testimony that prisoners committed crimes after their release, and that after about 20 April 1994, the "perpetrators were doing whatever they wanted", including killing Tutsis.l3s3T he Appeals Chamber observes,h owever, that neither Witness CNAA nor Witness Mporanzi referred to a particular incident or provided details of the killings. Moreover, Witness CNAA testifred to attacks in Nyamabuye communr,t"^ and not 'to'Trial Judgement,p ara.1 122. 'rot'Trial Judgement,p ara.1 123. 'tot Trial Judgement,p ara. 1123. 'to* ,S"eP rosecutionA ppeal Brief, para. 62, where the Prosecutions ubmits that the victims were Tutsis, the location was Rutobwe commune, and the dates were between 2l and the end of April 1994. See ai.so Prosecution Reply Brief, oara.83. 1to' SeeT rial Judgement,p aras. 1723, 1'724. 'ttt',See Trial Judgement,p ara. 1723. "t' SeeP rosecutionA ppeal Brief, piua. 59. 't" Trial Judgement,p ara.1 722. llrTrial Judgement,para1.0 67,r e.fbrringtoWitnessMporanzi,T.26May20l0pp.l 0, ll.Seeatsoibid.,para.1 062. 'ttt witnesr CNAA, T. l5 December2 009 p. 2 (closeds ession). 166 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2069/H Rutobwe commune as alleged in the Indictment,l355a nd he provided no description of the attacks.135H6 is testimony that he learned from the released prisoners that they were given authorisationb y the governora nd "one of the ministers" to kill Tutsis,135i7s similarly vague.W hile Witness Mporanzi testifiedt hat after the release,t he prisonerso rganisedt hemselvesto attack Tutsis and startedk illing cows, demolishing houses,c utting down bananat rees, and "killing people that they could fi.nd",135h8i s testimony is vague and devoid of detail. Furthermore,i t is unclear from Witness Mporanzi's testimony whether he was referring to the releasedp risonersw hen describing the events between 21 April 1994 and towards the end of April 1994 where "perpetrators" were "killing if they wanted".135eT he Appeals Chamber finds, therefore, that the Trial Chamber reasonably concluded that there was insufficient evidence to find that the release of prisoners substantiallyc ontributedt o the commissiono f a specific crime.l'on 493. Finally, the Appeals Chamber dismisses the Prosecution's argument concerning the Kalimanzira Appeal Judgement.r36Li ike in Kalimanzira, the Trial Chamber in the present case found insufficient evidence of the underlying crimes which precluded a finding of substantial contribution.l362 494. The Appeals Chamber therefore finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in not finding Nzabonimana guilty of aiding and abetting genocide for the releaseo f prisonersi n Rutobwe commune.

495. Accordingly, the Appeals Chamberd ismissest he Prosecution'sS econdG round of Appeal. '3tt See Indictment, para.

24. Witness CNAA testified that Nyamabuyec ommuneb ordersR utobwe commune.S ee WitnessC NAA, T. l5 Decembe2r 009p . 2 (closeds ession). t3s 5 6 " , WitnessC NAA,T . 15D ecember2009pp.2,(3c loseds ession). 13tt W itnessC NAA, T. 15D ecember200p9. 2 (closeds ession)' rr58 witnessM poranzTi,. 26May2 010p p.1 0,1 1. '"' WitnessM ooranziT. .26 Mav 2010p . 10. 1360 T he nppeals Chambern otes that, in his Response,N zabonimanac hallengest he Trial Chamber's credibility assessmenotf ProsecutionW itnessesC NAA and CNAC and DefenceW itnessM poranzi whosee videnceu nderpinst he Trial Chamber'sf inding that Nzabonimanar eleasedt he Rutobwe communep risoners.. lee NzabonimanaR esponse Brief, paras.9 6-113.T he AppealsC hamberu nderstandsth at Nzabonimanais seekingt o providea dditionala rguments to supporth is acquittali n respecto f this event,w ithout having usedt he provisionf oreseenin Article 5 of the kactice Direction on Formal Requirementfso r Appealsf rom Judgement5, July 2005. As the AppealsC hamberf ound no error under this ground of appeal,t here is no needt o examine further Nzabonimana'sa rgumentsc hallengingt he factual findings. Further, any challenget o the assessmenotf evidenceo n this event has been examinedi n Nzabonimana's appeal, to the extent that such error could have an impact on Nzabonimana'sc onviction or sentence.S ee infra, paras.2 96-3I 1. 1361 SeeT rialJudgemenpt,a ra.1 723,fn.2168. ttu' SeeK alimanziraA ppealJ udgementp, aras.7 6-78. lo/ CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 S-\

2068/H V. IMPACT OF THE APPBALSC HAMBER'S FINDINGSO N NZABONIMANA'S SENTENCE 496. The Appeals Chamber recalls that it has reversedN zabonimana's conviction for direct and public incitement to commit genocidei n relation to the Murambi meeting on 18 April 1994,t30a3n d for conspiracy to commit genocide in relation to the establishmento f a Crisis Committee and weapons distribution at Tambwe ,o**urr.ttoo Ho*"u"r, the Appeals Chamber has affirmed Nzabonimana'sc onvictions for genocidea nd exterminationa s a crime againsth umanity in relation to the events at the Cyayi centre on 14 April 1994 and at the Nyabikenke commune offrce on 15 April lgg4.I36sT he Appeals Chamber has also affirmed his convictions fbr direct and public incitement in relation to events at the Butare trading centre and the Cyayi centre,136a6s well as his convictions lbr conspiracy to commit genocide in relation to the Murambi meeting on l8 April lgg4.t36tI n the circumstanceso f this case,t he AppealsC hamber,a ffirms Nzabonimana's sentenceo f life imprisonment. 'tt" .tees upra,p aras3. 88,4 20. t'oo se supra,p ara.454. "ot Srcs upra,p aras1. 49,1 56,157. "uuS rc supra,p aras.1 33,2 35. t'u' Srcs upra,p a't's.419,420. r68 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2067|H VI. DISPOSITION 497. For the foregoing reasons,T HE APPEALS CHAMBER, PURSUANT to Article 24 of the Statutea nd Rule 118 of the Rules; NOTING the written submissionso f the parties and their oral argumentsp resenteda t the appeal hearingo n29 Apil20l4 SITTING in open session; GRANTS Nzabonimana's Fifth Ground of Appeal, in part, and REVERSES his conviction for direct and public incitement to commit genocide in relation to the Murambi meeting on 18 April 1994in Gitaramap rdfecture; GRANTS Nzabonimana's Seventh Ground of Appeal and REVERSES his conviction for conspiracyt o commit genocidei n relation to eventsa t the Tambwe commune; DISMISSES Nzabonimana'sa ppeali n all other respects; DISMISSES the Prosecution'sa ppeali n its entirety; AFFIRMS Nzabonimana's convictions for instigating genocide and extermination as a crime againsth umanity at the Cyayi centre on 14 April 1994 resulting in the killings of Tutsis at the Nyabikenkec ommuneo ffice on 15 April 1994; AFFIRMS Nzabonimana's convictions of direct and public incitement to commit genocide in relation to events at the Butare trading centre on 12 April 1994, and at the Cyayi centre on 14 April 1994; AFFIRMS Nzabonimana's conviction of conspiracy to commit genocide in relation to the Murambi meetingo n 18 April 1994; AFFIRMS the sentence of life imprisonment imposed on Nzabonimana by the Trial Chamber, subjectt o credit being given under Rules 101(C)a nd 107 of the Rules for the period he has already spenti n detentions inceh is anest on 18 February2 008; RULES that this Judgements hall be enforcedi mmediatelyp ursuantt o Rule 119 of the Rules;a nd ORDERS that, in accordancew ith Rules 103(8) and 107 of the Rules, Nzabonimanai s to remain r69 CaseN o.:I CTR-98-44D-A 29S eptemb2e0r 14 e'"\

2056/H in the custody of the Tribunal pending the finalisation of arrangementsfor his transfer to the State where his sentencew ill be served. Judge Afande appendsa separateo pinion. Done in English and French,t heEnglish text heins authoritative. o*f\ ',. li i- i ...- i*- l'tr l. I, ii i 'ri-':"'L \'t';;j'; i,.,'';: Judge Mehmet Gi.iney,P residing JudseW illiam H. Sekule Judee Arlette Ramaroson rylry@ JudgeK halida Rachid Khan Judge Koffi Kumelio A. Afande Done this 29th day of September 2014at Arusha,T anzania. [Seal of the Tribunal] lru . \.r [;l't iv / a\t t't0 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2065/H VII. SEPARATEO PINION OF JUDGE KOFFI KUMELIOA. AFANDE 1. In this Judgement,t he Appeals Chamber rejects Nzabonimana's submissiont hat the Trial Chamber engaged in impermissible double-counting between aggravating circumstances and elements of the crime in relation to his influence and the events in Rutobwe and Nyamabuye ,o**unes.' While I agree with this conclusion,I have a degree of uneasew ith the reasoning in paragraph 464 of this Appeal Judgement,w hich, in my view, does not necessarilys upport the outcome but rather suggestst hat there was, indeed, double-counting.I wish to clarify very briefly my own position as to why the Trial Chamberd id not commit any error in this regard.

2. The Trial Chamber found that, in the days prior to 18 April 1994, Nzabonimanae ncouraged the killing of Tutsis by causingt he releaseo f killers of Tutsis in Rutobwe commune,w ho had been imprisoned.2I t further found that, in April 1994, Nzabonimana visited the Nyamabvye commune office and told the Hutu civilians presentt o destroy the house of a dead Tutsi.3T he Trial Chamber consideredt hat Nzabonimana'sa ctionsi n relation to the releaseo f the prisonersa nd his order for the destructiono f the Tutsi house provided circumstantiale vidence of his genocidali ntent.4I n its sentencing considerations, the Trial Chamber found that the two incidents "further display Nzabonimana's abuseo f his position of influence to stoke the genocidei n Gitaramap refecture."s The Trial Chamber considered Nzabonimana's abuse of influence as an aggravating factor in determining his sentence.6 3. While Nzabonimana'sa ctionsi n relation to the releaseo f the prisonersa nd his order for the destructiono f the Tutsi house constitutedc ircumstantiale videncer elevant to the Triai Chamber's determination that he possessedg enocidal intent, they are not, per se, an element required to establish criminal iiability for genocide. The Trial Chamber further considered that these events constituted evidence supporting the conclusion that Nzabonimana abused his influence, which abuse,i n turn, was,c

onsideredb y the Trial Chambert o be an aggravatingf actor.A ccordingly, while the Trial Chamber relied on these events as circumstantial evidence showing that Nzabonimana possessedg enocidali ntent and abusedh is position, in themselvest hey were neithere lementso f the crime of genocide nor aggravatingc ircumstances.B y attributing to Nzabonimana's actions the evidentiary value it deemed relevant in the overall circumstances of this case, the Trial Chamber actedw ithin the scopeo f its discretion. t AppealJ udgementp, alla'.464. ' Trial Judgementp, aras.1 0'76 , I7 19. ' Trial Judgementp, aras.1 488-14911, 730. o Trial Judgementp, aras.1 724,1 732. ,(.x .A *4. 1'7| CaseN o.: ICTR-98-44D-A 29 Septembe2r 014

20641H 4. For the reasonss et out above,I believe that Nzabonimana'sa rgumentt hat the Trial Chamber engagedi n impermissible double-countingb etweena ggravatingc ircumstancesa nd elementso f the crime is unsubstantiated. Done in English and French,t he English versionb eing authoritative. Brtw Donet his 29th dayo f Septembe2r0 1 At Arusha, JudeeK offi Kumelio A. Afande Tanzania [Seal of the Tribunal] t Trial Judgement, para.

1818. The Trial Chamber explicitly held that Nzabonimana could not be held criminally responsiblef or his actions in relation to the two incidents.S eeT rial Judgement,p ara. 1818. o Trial Judgement,p ara. I 818. r72 CaseN o.:I CTR-98-44D-A 29 Septembe2r 014

20631H VIII. ANNEX A - PROCEDURALH ISTORY 1. The main aspectso f the appeal proceedings are summarisedb elow. A. Notices of Appeal and Briefs 2. Trial ChamberI II of the Tribunal renderedt he judgement in this case on 31 May 2012 and issuedi ts written Trial Judgementi n English on 25 lune 2012.B oth partiesa ppealed.

1. Nzabonimana'sA ppeal 3. Nzabonimanaf rled his notice of appeal on 24 llly 20I2.t On 7 September2 012, the Pre- Appeal Judge granted, in part, a motion filed by Nzabonimana for an extension of time to file his briefs, and ordered him to file his appeal brief no later than 40 days from the date on which he was servedw ith the French translation of the Trial Judgement,a nd to file his responseb rief no later than 15 days from the date on which he was served with the French translation of the Trial Judgement or the French translation of the Prosecution appeal brief.2 The French versions of the Trial Judgement and of the Prosecution appeal brief were served on Nzabonimana on 18 and 26June20l3, respectively.3 4. On 22 July 2013, the Pre-AppealJ udged enied Nzabonimana'sm otion for an extensiono f the word limit for his appealb rief.aO n23 July 2013, Nzabonimanaf iled a motion seekingt o amendh is notice of appeal.sO n29 July 2013, Nzabonimanaf iled his appealb rief.6 5. On 30 August 2013, the Appeals Chamber grantedi n part Nzabonimana'sM otion to Amend Notice of Appeal, where it: (i) instructed Nzabonimanat o file a revised notice of appeal no later than 4 September2 013; (ii) grantedt he Prosecution'sm otion to strike Nzabonimana'sa ppealb rief; (iii) orderedN zabonimanat o file a revised appealb rief not exceeding3 0,000 words no later than I Acted 'appel,24| uly 2012. '

Decisiono n Extensiono f Time Limits, 7 September2 012.S eea lso RequAtee n extensiond e ddlai pour Ie ddp)t du Mdmoired 'appelante t du memoired 'intimd,26 Jlly 2012;P rosecutor'Rs esponsteo CallixteN zabonimana'Rs equAte en extensiond e dllai pour le ddp6t du mdmoire d'appelant et du mlmoire d'intim6, 30 July 2012 Rdpliqued la Prosecutor'sR esponseto Callixte Nzabonimana'sR equAtee n extensiond e ddlai pour le ddpdtd u mimoire d'appelant et du memoired 'intimi, 1 Aueust2 012. 3 The French version of thelrial Judgementw as filed on 17 June 2013 and the French version of the Prosecution appealb rief wasf iled on 3 April 2013. o Decision on Callixte Nzabonimana'sM otion for an Extension of the Word Limit for his Appellant's Brief, 22 July 2013. 5 SeeC allixte Nzabonimana'sU rgent Motion for Leave to Amend Notice of Appeal,7 August 2013 (original French versionfi led on 23 July 2013)( "Motiont o AmendN oticeo f Appeal"). o Mdmoired 'appelant,29J uly 2013,a s correctedb y Mdmoired 'appelant,9A ugust2 013.S eea lso Corrigendumau Mdmoired 'appelant,1 August2 013;C orrigenduma u Mimoire d'appelant,5A ugust2 013. 1'73 CaseN o.:I CTR-98-44D-A 29 Seotembe2r0 14

20621H 4 September 2013; (iv) and instructed the Prosecution to file its responseb rief to the amended appealb rief no latert han 13 September2 013.1 6. On 4 September2 013, Nzabonimanafi led his amendedn otice of appeala nd amendeda ppeal brief.s On 13 September2 013, the Prosecutionf rled its responseb rief.eO n 30 Septembe2r 013, Nzabonimana filed his reply brief.r0 On 7 October 2013, the Pre-Appeal Judge ordered Nzabonimanat o file a confidential version of the amendeda ppealb rief filed on 10 September2 013 no later than 14 October 2013 and the Prosecutiont o file a public redactedv ersion of its response I briel no latert han l4 October2 013.I 2. Prosecution'sA ppeal 7. The Prosecution filed its notice of appeal on 29 June 2Ol2.t' On 12 September2 012, the Prosecutionf iled its appealb rief.rr On 9 July 2013, Nzabonimanaf iled his confidentialr esponse brief.raO n24 July 2013 the Prosecutionfi led its reply brief.rs 3. Otheri ssues 8. On 16 October2 013, the AppealsC hamberd eniedi n its entirety Nzabonimana'sm otion for remediesi n relationt o the Prosecution'sa llegedv iolationso f Rules 66(AXii) and 68 of the Rules.r6 7 Decisiono n CallixteN zabonimana'Ms otion to Amendh is Noticeo f Appeala nd the Prosecution'Ms otion to Strike NzabonimanaA'sp peaBl rief,30A ugust2 013. E AmendedN otice of Appeal,3 December2 013 (original Frenchv ersionf iled on 4 September2 013);

Mdmoire tl'Appelunt Amend(, 4 September2 013, us corrected by Amended Appellant's Brief Public Corrigendum, 3 Decembe2r 013( originalF renchv ersionf iled on l0 Septembe2r 013).S eea lso Corrigenduma u Mlmoire d'appelant amenrld,l0S eptembe2r0 13;C orrigendumbi sa u mlmoiret l'appelanat mendy',l3S eptembe2r0 13. ' ProsecutioRne sponsBer ief,I 3 Septembe2r0 13 (confidential). "' Briefi n Reply,l 9 Decembe2r0 13( originaFl renchv ersionfi ledo n 30 Septembe2r0 13). " Order on the Statuso f Briefs,T October2 013 ("Order on the Statuso f Briefs").T he Prosecutionfi led its public redactedre sponseb rief on 8 October2 013( seeP rosecutioRn esponseB rief, 8 October2 013),a ndN zabonimanfail ed a confidentiavl ersiono f his amendeda ppealb rief on 10 October2 013 (seeM dmoired 'appelanta menddc onJidentiel crtrrigenduml0, Octobe2r 013). 12 P rosecutor'Ns oticeo f Appeal,2 9 June2012C orrigendumto Prosecutor'Ns oticeo f Appeal,2 3 August2 012. r3 ProsecutioAnp peaBl rief,1 2S eptembe2r0 12. 'o NzabonimanaR'se sponsBe rief,5 Septembe2r0 13( confidentia(l)o riginalF renchv ersionf iled on 9 July 2013). Pursuantto the Order on the Statuso f Briefs,N zabonimanafi led a public redactedv ersiono f his responseb rief on l0 Octobe2r0 13. rs ProsecutioRn eplyB rief,2 4 July2 013. rt'Decision o n CallixteN zabonimanaN'se w Motionf or Remediesl,6 October2 013;C allixteN zabonimanaN'se w Motion

for AppropriateR emedieso n Accounto f FurtherV iolationso f Rules6 6(AXii) and6 8 of theR uleso f Procedure and Evidencel,2 July 2013 (originalF renchv ersionf iled on 25 June2 013) (publicw ith confidentiaal nd public annexes)O. n l7 June2 013,t he Pre-AppeaJlu dged ismissedw ithoutp rejudicep reviousm otionsf or violationo f practiced irections,S. eeD ecisiono n ProsecutionM'so tionst o Strikea ndf br Extensiono f Time,a ndo n Nzabonimana's Motionst or Extensiono f Wordsa ndf or Remedies1, 7 June2 013;R equ?ted e CulLixteN z,abonimanua.f ind 'obtenirl es rdparutktnsa ppnrytrilesc omptet enud e nouvellesv iolatbnst lesa rticles6 6(A)iie t 68 du Rdglemendt ep rrtctduree t de preuve,1 l June2 013 (public with confidentiaal nd public annexes)R; equ€te abrlgde de CaLLixteN z,abonimanaafi n d'obtenir les rlparationsa pproprilesc omptet enu de nouvellesv ktlationsd esa rticles6 6(A)ii et 68 du Rdglemendt e procttluree t dep reuve,l3 June2 013. 174 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2061tH On22 April 20i4, the Appeals Chamberd eniedN zabonimana'sm otion seekingt o admit additional evidenceo n appeal.17 B. Assisnment of .Iudges 9. On 3 July 20L2, the PresidingJ udgeo f the AppealsC hamber assignedt he following Judgest o the appeal:J udgeM ehmet Giiney (Presiding),J udgeF austoP ocar, JudgeA rlette Ramaroson,J udge Andr6siaV az, and JudgeK halida Rachid Khan.rsO n 7 September2 012,t he PresidingJ udge,J udge Mehmet Gi.iney,d esignatedh imself as the Pre-AppealJ udge.le 10. On 19 March 2013,t he PresidingJ udgeo f the AppealsC hamberr eplacedJ udgeA ndrdsia Vaz with JudgeW illiam H. Sekule.2Oo n 29 January2 014, the PresidingJ udgeo f the Appeals Chamberre placedJ udgeF austoP ocarw ith JudgeK offi KumelioA . Afande.2r C. Appeal Hearing 11. On29 April 2014, the parties presentedt heir oral arguments at a hearing held in Arusha, Tanzania,i n accordancew ith the SchedulingO rder of 31 March 2014.22 ' ' Decisiono n Callixte Nzabonimana'sM otion for Admissiono f Additional Evidenceo n Appeal Pursuantt o Rule 1I 5 of the Rules,2 2 Aprtl2014. t* Order AssigningJ udgest o a CaseB eforet he AppealsC hamber,3 IuIy 2012. le OrderA ssigninga Pre-AppeaJl udge7, Septembe2r0 12. 'o Ord"r Replacinga Judgein a CaseB eforet heA ppealsC hamber1, 9M arch2 013. " OrderR eplacinga Judgei n a CaseB eforet he AppealsC hamber2, 9 January2 014. " SchedulingO rder,3 1 March2 014. 175 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 $\

2060/H IX. ANNEX B - CITBD MATERIALS AND DBFINBD TERMS A. .Iurisprudence l. Tribunal AKAYBSU Jean-Paul The Prosecutor v. Jean-Paul Akayesu,C aseN o. ICTR-96-4-A, Judgement, I June 2007 ("Akayesu Appeal Judgement"). The Prosecutor v. Jean-Paul Akayesu,C ase No. ICTR-96-4-T, Judgement,2 September1 998 (" Akayes u Trial Judgement"). BAGILISHEMA Ignace The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2002 ("Bagilishema Appeal Judgement"). BAGOSORA Th6oneste et al. Th4oneste Bagosora and Anatole Nsengiyumva v. The Prosecutor, Case No. ICTR-98-41-A, Judgement,l4 December2 0Il ("Bagosoraa nd NsengiyumvaA ppeal Judgement"). BIKINDI Simon Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Judgement, 18 March 2010 (" Bi kindi AppealJ udgement"). BIZIMUNGU Augustin Augustin Bizimungu v. The Prosecutor,C ase No. ICTR-00-56B-A, Judgement,3 0 ltne 2014 (" Bi zimungaA ppeal Judgement"). BIZIMUNGU Casimir e/aL The Prosecutor v. Casimir Bizimungu, Justin MugenTi,J dr6me-Cl6mentB icamumpaka,a nd Proper Mugiraneza, Case No. ICTR-99-50-T, Judgement and Sentence, pronounced on 30 September 2011,f iled on 19 October2 011 ("Bizimungue t al. Trial Judgement"). GACUMBITSI Sylvestre SylvestreG acumbitsi v. The Prosecutor,C ase No. ICTR-2001-64-A, Judgement,7 July 2006 (" GacumbitsiA ppeal Judgement"). HATEGEKIMANA Ildephonse Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Judgement,8 May 2012 (" H ateg e kimana AppealJ udgement"). KAJELUBLI Juv6nal The Prosecutor v. Juvinal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence, 1 December 2003 (" Kai el ii el i T rial Judgement"). t76 CaseN o.:I CTR-98-44D-A 29S eptemb2e0r1 4 r\

2059/H KALIMANZIRA Callixte Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement,20 October 2010 (" Kali mnnlira Appeal Judgement"). The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Judgement, 22 June 2009 (" K alimnnz ir a T ial Judgement"). KAMUHANDA Jean de Dieu The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-A, Judgement, 19 September2 005 ("Kamuhanda AppealJ udgement"). KANYARUKIGA Gaspard Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-A, Judgement, 8 i|/{.ay 2012 (" Kanyarukiga Appeal Judgement"). KARBRA Franqois Frangois Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009 (" Kar er a Appeal Judgement"). The Prosecutor v. Frangois Karera, Case No. ICTR-01-74-T, Judgement and Sentence, 7 December2 007 ("KareraTial Judgement"). MUGENZI Justin and MUGIRANEZA Prosper Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, CaseN o. ICTR-99-50-A, Judgement, 4 February2 013 ("Mugenzi and Mugiraneza Appeal Judgement"). MUHIMANA Mikaeli Mikaeli Muhimnna v. The Prosecutor, Case No. ICTR-95-18-A, Judgement, 2l May 2001 (" Muhimana Appeal Judgement"). MUNYAKAZI Yussuf The Prosecutor v. YussufM unyakali, Case No. ICTR-97-36A-A, Judgement,2 8 September2 011 (" MunyakaqiA ppeal Judgement"). MUVUNYI Tharcisse Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 1 April 2011 (" M uvu

nyi 11A ppeal Judgement"). The Prosecutor v. TharcisseM uvunyi, Case No. ICTR-00-55A-T, Judgement,1 1 February 2010 (" M uvu nyi 11T rial Judgement"). Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement,2 9 August 2008 (" Muvunyi 1 Appeal Judgement"). The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement and Sentence, i2 September2 006 ("Muvunyi lTriat Judgement"). n7 CaseN o.: ICTR-98-44D-A 29S eptemb2e0r 14 G'^

2058/H NAHIMANA Ferdinand et aI. Ferdinand Nahimana, Jean-Bosco BarayagwiT,a, and Hassan Ngeze v. The Prosecutor, CaseN o. ICTR-99-52-A, Judgement,2SN ovember 2007 ("Nahimana et al. Appeal Judgement"). The Prosecutor v. Ferdinand Nahimana et al., CaseN o. ICTR-99-52-T, Judgementa nd Sentence, 3 December2 003, filed on 5 December2 003 ("Nahimana et ctl.Trial Judgement"). NCHAMIHIGO Sim6on Simdon Nchamihigo v. The Prosecutor,C ase No. ICTR-01-63-4, Judgement,l 8 March 2010 (" N ch amihigo Appeal Judgement"). The Prosecutor v. Simdon Nchamihigo, Case No. ICTR-01-63-T, Judgement and Sentence, 12 November 2008 (" N ch amih ig o T rial Judgement"). NDAHIMANA Gr6goire Grigoire Ndahimanav . The Prosecutor,C aseN o. ICTR-01-68-A, Judgement,1 6 December2 013 (" Nd ahimanaA ppeal Judgement"). NDINDABL}IIZI Emmanuel EmmanuelN dindabahiziv . The Prosecutor,C aseN o. ICTR-01-71-A,J udgement,1 6 January2 007 (" Nd indaba hizi AppealJ udgement"). The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-O1-71-T, Judgement and Sentence, 15 July 2004 ("Ndindabahizi Trial Judgement"). NDINDILIYIMANA Augustin el a/. Auguslin Ndindiliyimana, Frangois-Xavier Nluwonemeye, and Innocent Sagahutu v. The Prosecutor,C aseN o. ICTR-00-56-A, Judgement,1 l February 2014 ("Ndindiliyimana et al. Appeal Judgement"). NIYITEGEKA Eli6zer The Prosecutor v. Elidzer Niyitegeka, Case No. ICTR-96-14-T, Judgement, 16 May

2003 (" N iyiteg eka Trial Judgement"). NSENGIMANA Hormisdas The Prosecutor v. Hormisdas Nsengimana, Case No. ICTR-O1-69-T, Judgement, I 7 November2 009 (" Ns e n g i m anaT r\al Judgement"). NTABAKUZE Aloys Aloys Ntabakuze v. The Prosecrzlor, Case No. ICTR-98-41A-A, Judgement, 8 May 2012 (" N tabakuzeA ppeal Judgement"). NTAGERURA Andr6 e/a/. The Prosecutor v. Andrd Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, CaseN o. ICTR-99-46-A, Judgement,7 July 2006 ("Ntagerura et al. AppealJ udgement"). 178 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14 e"\

2057tH NTAKIRUTIMANA Elizaphan and Gdrard The Prosecutor v. Elizaphan Ntakirutimana and Gdrard Ntakirutimana, CasesN os. ICTR-96-10-A & ICTR-96-I7-A, Judgement,1 3 December2 004 ("Ntakirutimnna AppealJ udgement"). NTAWUKULILYAYO Dominique Dominique Ntawukulilyayo v. The Prosecutor, Case No. ICTR-05-82-A, Judgement, 14 December2 0lI ("Ntawukulilyayo Appeal Judgement"). NZABONIMANA Callixte Callixte Nzabonimana v. The Prosecutor, CaseN o. ICTR-98-44D-A, Decision on Callixte Nzabonimana'sM otion for Admission of Additional Evidence on AppealPursuantt o Rule 115 of the Rules,2 2 Apnl2014 ("Rule 115D ecision"). Callixte Nzabonimana v. The Prosecutor, CaseN o. ICTR-98-44D-A, Decision on Callixte Nzabonimana'sN ew Motion for Remedies.1 6 October2 013. The Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Decision on Defence Motion for Appropriate Relief in Light of Exculpatory Material Disclosed by the Prosecution on 23 February2 012 Relating to Witness T77, 30 April2012. The Prosecutor v. Callixte Nzabonimana, CaseN o.ICTR-98-44D-T, Consolidated Decision on Defence Motion for Appropriate Relief in Light of Prosecution's Delayed Disclosure to the Accusedo f Exculpatory Evidence, DefenceM otion in Light of The Trial Chamber's Proprio Motu Order of 15 March2012, and Defence Motion Pursuantt o the Trial Chamber's Order of 4 April 2012,30 Apil2012 ("30 April2012 Decision"). The

Prosecutor v. Callixte Nzabonimana, CaseN o. ICTR-98-44D-T, Decision on Defence Motion for Appropriate Relief in Light of Exculpatory Material Disclosed by the Prosecution on 15 November2 011,3 0 April 2012. The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-AR91, Decision on Callixte Nzabonimana'sA ppeal Against the Trial Chamber'sD ecision on Motion for Rule 91 Proceedings Against Pros ecution Investi gators , 27 Apil 20 12. The Prosecutorv . Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Decision on Defence Motion for Proceedingsa gainstO TP Investigators,2 5 November 20II. The Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Decision Following Amicus Curiae Report Pertaining to Allegations of Co[n]tempt of the Tribunal by Prosecution Witness CNAI and/or a Member of the ProsecutionO ffice.21 October 20Il ("2I October 2011 Decision AcceptingA micus Report"). The Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Decision on Defence Motion for Admission of Documents.2 1 October 20Il ("21 October 2011 Decision on Admission of Documents"). The Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Order for the Prosecutiont o Review Indictment and to File Public Version, 8 April 2011 ("Order of 8 April 2011"). The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on "Callixte Nzabonimana's Motion for Summon of OTP Investigators Adamou Allasouma and Almahamoud Sidibe, sous-prdfet Ms. Immaculde Mukamasabo"7, April 2011. 179 CaseN o.:I CTR-98-44D-A 29 Septembe2r 014

2056/H The Prosecutor v. Callixte Nzabonimana, CaseN o. ICTR-98-44D-T, Decision on Nzabonimana's Reneweda nd Confidential Motion for Appointment of Anicus Curiae to InvestigateA llegations of Contempto f the Tribunal AgainstP rosecutionW itnessC NAI, 8 December2 010. The Prosecutor v. Callixte Nzabonimana, CaseN o. ICTR-98-44D-T, Decision on Defence Motion to RecallW itnessC NAL. 17 December2 0O9. RENZAHO Tharcisse Tharcisse Renzaho v. The Proseulor, Case No. ICTR-97-31-A, Judgement, l April 2011 (" Ren zahoA ppeal Ju dgement"). RUGGIU Georges The Prosecutorv . GeorgesR uggiu,C aseN o. ICTR-97-32-I,J udgementa nd Sentence,1 June2 000 (" Rug g iu Judgemenat nd Sentence"). RUKUNDO Emmanuel EmmanuelR ukundov . The Prosecutor,C aseN o. ICTR-2001-70-A,J udgement,2 0 October2 010 (" RukundoA ppeal Judgement"). RUTAGANDA GeorgesA nderson Nderubumwe GeorgesA ndersonN derubumweR utagandav . The Proseculor,C aseN o. ICTR-96-3-A, Judgement, 26May 2003 ("RutcrgandaA ppeal Judgement"). RWAMAKUBA Andr6 The Prosecutor v. Andrd Rwamakuba,C ase No. ICTR-98-44C-T, Judgement,2 0 September2 006 (" Rwa makuba T rial Judgement"). SEMANZA Laurent Laurent Semanzav . The Prosecutor,C aseN o. ICTR-97-20-A, Judgement,20 May 2005 ("Semanza Appeal Judgement"). SEROMBA Athanase The Prosecutor v. Athanose Seromba,C ase No. ICTR-01-66-A, Judgement, 12 March 2008 (" Se r om ba Appeal Judgement"). The

Proseculor v. Athanase Seromba,C ase No. ICTR-2001-66-I, 13 December 2006, original Frenchv ersionf iled on l9 December2 006 ("SerombaT rial Judgement"). SETAKO Ephrem Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Judgement,2 8 September2 011 (" Se tako Appeal Judgement"). SIMBA Aloys Aloys Simba v. The Prosecutor,C aseN o. ICTR-01-16-A,J udgement,2 7 November2 007 ("Simba AppealJ udgement"). 180 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2055|H 2. InternationalC riminal Tribunal for the Former Yueoslavia (ICTY) BLASKId Tihomir Prosecutovr. TihomirB laikii, CaseN o. IT-95-14-AJ, udgement,2J9u ly2 004( "Blaikii Appeal Judgement"). BOSKOSKI Ljube and TARdULOVSKI Johan Prosecutor v. Ljube Boikoski and Johan Tariulovski, Case No. IT-04-82-A, Judgement, 19M ay 2010( "Boikoskia nd TariulovskiA ppealJ udgement"). DORDEVIi Vlastimir Prosecutovr . VlastimirD ordevii, CaseN o. IT-05-87/1-AJ, udgement,2TJa ntary2 014( "Dordevii AppealJ udgement"). KoRDIi Dario ana dERKtrZ Mario Prosecutor v. Dario Kordii and Mario aerkez, Case No. IT-95-I412-A, Judgement, 17D ecembe2r 004( "Kordii and CerkezA ppealJ udgement"). KRAJISNIK Momiilo Prosecutorv . Momiilo Krajiinik, CaseN o. IT-00-39-A,J udgement1, 7 March 2009 (*Krajiinik AppealJ udgement"). KRNOJELAC Milorad Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement,1 7 September2 003 ("K rnoje I a c AppealJ udgement"). KRSTId Radislav Prosecutorv . RadislavK rstii, CaseN o. IT-98-33-A,J udgement1, 9 April 2004( "Krstii Appeal Judgement"). KUNARAC Dragoljub el a/. Prosecutorv . DragoljubK unarac,R adomirK ovai, and hran Vukovii, CasesN os. IT-96-23 & IT-96-2311-4.J,u dgement1, 2J une2 002( "Kunarace t al. AppealJ udgement"). KIIPRESKICZoTan et al. Prosecutor v. Tnran Kupreikii, Mirjan Kupreikii, Vlatko Kupreikii, Drago Josipovii, and Vladimir Santii, CaseN o. IT-95-16-A,A ppeal Judgement2, 3 October2 00I ("Kupreikii et aL AppealJ udgement"). LUKId Milan and Sredoje Prosecutor v. Milan Lukii and Sredoje Lukii, Case No. n-g8-321I-A, Judgement, 4 December2}l2 ("Lukii andL ukii AppeaJl udgement"). 181 CaseN o.: ICTR-98-,+4D-A 29 Septembe2r0 14 C)-\"

20541H MRKSIC Mile and SulvnN{dANIN veselin Prosecutor v. Mite Mrkiii and Veselin Sljivanianin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 ("Mrk{ii and Sljivanianin Appeal Judgement"). Sa.INovti Nikola e/a/. Prosecutor v. Nikota Sainovii, Nebojia Pavkovii, Vladimir Lazarevii, and Sreten Lukii, CaseN o. IT-05-87-A, Judgement2, 3 January2 014( Sainovii et a/. Appeal Judgement"). SIMIC Blagoje Prosecutor v. Blagoje Simii, Case No, IT-95-9-A, Judgement,2 8 November 2006 ("Simii Appeal Judgement"). STRUGAR Pavle Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008 ("Strugar Appeal Judgement"). vASILJBvti tuitar Prosecutor v. Mitar Vasiljevi(, Case No. IT-98-32-A, Judgement,2 5 February 2004 ("Vasiljevi( AppealJ udgement").

3. Other Judgementsa nd Documents Draft Code of Crimes againstt he Peacea nd Security of Mankind with commentaries,1 996,R eport of the lnternational Law Commission on the delibcrations of its forty eighth meeting, 5l U.N. ORGA Supp.( No. 10),r eproducedin the Yearbooko f InternationaLl aw Commission,1 996,v ol. II (Part Two) ("Dra1l Code of Crimes againstt he Peacea nd Security of Mankind"). Mugesera v. Canada (Minister of Citizenshipa nd Immigration), [2005] 2 SCR 100. Hirad Abtahi & Philippa Webb, The Genocide Convention: The Travaux Prdparatoires (Leiden- Boston:M artinusN ijhoff Publishers2, 008). 182 Ca.seN o.: ICTR-98-44D-A 29 Septembe2r0 14 R'^I

2053/H B. Defined Terms and Abbreviations Iranscript from hearingso n appeali n the presentc ase.A ll referencesa re to the AT. cfficial English transcript,u nlesso therwisei ndicated. Senocide lonvention on the Preventiona nd Punishmento f the Crime of Genocide, lonvention ) December 1948,e nteredi nto force on 12 January1 951 lnternationalT ribunal for the Prosecutiono f PersonsR esponsiblef or Serious tCTY Violations of International Humanitarian Law Committed in the Territory of the FormerY ueoslavia since 1991 CallixteN zabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, Amended !,lzabonimana Appellant'sB rief Public Corrigendum,3 December2 013 (original French A,ppeaBl rief rersionf iled on 10 September2 013). All referencesa re to the English version, rnlesso therwisei ndicated. \zabonimana TheP rosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, ClosingB rief \zabonimana's Abridged Final Brief, confidential,1 3 July 2011 fhe Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-PT, lndictment lndictment, 24 luly 2009 CallixteN zabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, Amended \zabonimana \{otice of Appeal, 3 December2 013 (original Frenchv ersion filed on \otice of Appeal l September 2013). All referencesa re to the English version, unless otherwise .ndicated. \lzabonimana TheP rosecutor v. Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Revised

Pre-Defence and Amended Pre-DefenceB rief, 8 April2010 (original French version filed on Brief 12 March 2010) CallixteN zabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, Brief in \zabonimana R.eplyp, ublic and confidential,1 9 December2 013 (original French versionf iled Reply Brief rn 30 September2 013) \zabonimana Nzabonimana'sR esponseB rief, confidential,5 September2 013 (original French ResponseB rief version filed on 9 July 2013) (10 October 2013 public redactedv ersion) I{DR Mou ve men t ddmoc rati que r 6p ubl i ca in r83 CaseN o.:I CTR-98-44D-A 29 Septembe2r0 14

2052tH Mouvementr dvolutionnaire national pour la ddmocralie et le ddveloppement [befbre5 July 1991] lrrnxo Mouvementr dpublicain national pour la ddmocratiee t le ddveloppementla fter 5 July 19911 Prosecution ffice of the Prosecutor Prosecution Callixte Nzabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, AppealBrief ProsecutionA ppealB rief',l 2 Septembe2r 012 i--- tion The Prosecutor v. Callixte Nzabonimana,CaseN o. ICTR-98-44D-T, lProsecu ClosingBrief Prosecutor'sC losingB rief, 5 July 2011 i i*.or""u iCallixte Nzabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, rsecutionr lProsecutor'sN otice of Appeal, 29 June2 012; Corrigendum to Prosecutor's Nottiiccee oo f Arppeal Noticeo f Appeal2, 3A ugus2t 012 ProrsseeccuuutitoionrPre- e Prosecutor v. Callixte Nzabonimana,C aseN o. ICTR-9S-44D-PT, 'frial ial BBirrriieeff Prosecutor'sR evisedP re-Trial Brief, confidential, I October 2009 lProsecution allixte Nzabonimanav . The Prosecutor,C aseN o. ICTR-98-44D-A, iReplyB rief ProsecutioRne plyB rief,24J uly2 013 lProsecution ,ResponsBer ief l*u i iRwandan( also Rwandese)P atriotic Front l.*' uleso f Procedurea ndE videnceo f theT ribunal tatute tatuteo f the Tribunal establishedb y SecurityC ouncil Resolution9 55 (1994) ranscript from hearingsa t trial in the presentc ase.A ll referencesa re to the ficial English transcript,u nlesso therwisei ndicated. rial Chamber III of the Tribunal 184 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14

2051tH TheP rosecutorv . Callixte Nzabonimana,C aseN o. ICTR-98-44D-T, Judgement Trial Judgement md Sentencep, ronouncedo n 31 May 2012,i ssuedi n writing on25 June2Ol2 lnternationalC riminal Tribunal for the Prosecutiono f PersonsR esponsiblef or 3enocide and Other Serious Violations of International Humanitarian Law fribunal or lommitted in the Territory of Rwanda and Rwandan Citizens responsible for ICTR genocidea nd other suchv iolations committedi n the territory of neighbouring Statesb, etween I January1 994 and 31 December 1994 UNDF UnitedN ations DetentionF acilitv 185 CaseN o.: ICTR-98-44D-A 29 Septembe2r0 14