Nyiramasuhuko et al. (Butare) (ICTR-98-42A) VoL II

Nyiramasuhuko et al. (Butare) (ICTR-98-42A) VoL II

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

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19623/H Before: Registrar: Judgement of: Tribunal Pénal International pour le Rwanda International Criminal Tribunal for Rwanda ICTR-98-42-A 14th December 2015 {19623/H - 19058/H} S/GNATURE:. ICTR Appeals Chamber 14 DEG 2015 Date: Action: Tuma R. Chamburs, Defens, Copied TO: OTRALAAS JIAS

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

THE PROSECUTOR V. Pauline NYIRAMASUHUKO Arsène Shalom NTAHOBALI Sylvain NSABIMANA Alphonse NTEZIRYA YO Joseph KANYABASHI Élie NDAYAMBAJE Case No. ICTR-98-42-A Volume Il Judgement

CERTIFIED TRUE COPY OF THE ORIGINAL SEEN BY ME COPIE CERTIFIEE CONFORME A L'ORIGINAL PAR NOUS NAME/ NOW:ROSETTE MUZIGO-MORRISON 14 DEG 3. 2015 DATE. International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda Counsel for Pauline Nyiramasuhuko Nicole Bergevin and Guy Poupart Counsel for Arsène Shalom Ntahobali Normand Marquis and Mylène Dimitri Counsel for Sylvain Nsabimana Josette Kadji and Pierre Tientcheu Weledji Counsel for Alphonse Nteziryayo Frédéric Titinga Pacéré and Gershom Otachi Bw'Omanwa Counsel for Joseph Kanyabashi Michel Marchand and Alexandra Marcil Counsel for Élie Ndayambaje Pierre Boulé and Claver Sindayigaya Office of the Prosecutor Hassan Bubacar Jallow James J. Arguin Deborah Wilkinson François Nsanzuwera Althea Alexis-Windsor Steffen Wirth Tajesh Adhihetty Jane Mukangira Alison McFarlane Chelsea Fewkes Ghazalch Meskoob Nicole Rangel Mickael Herz ти.

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19623/H Before: Registrar: Judgement of: Tribunal Pénal International pour le Rwanda International Criminal Tribunal for Rwanda ICTR-98-42-A 14th December 2015 {19623/H - 19058/H} S/GNATURE:. ICTR Appeals Chamber 14 DEG 2015 Date: Action: Tuma R. Chamburs, Defens, Copied TO: OTRALAAS JIAS

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

THE PROSECUTOR V. Pauline NYIRAMASUHUKO Arsène Shalom NTAHOBALI Sylvain NSABIMANA Alphonse NTEZIRYA YO Joseph KANYABASHI Élie NDAYAMBAJE Case No. ICTR-98-42-A Volume Il Judgement

CERTIFIED TRUE COPY OF THE ORIGINAL SEEN BY ME COPIE CERTIFIEE CONFORME A L'ORIGINAL PAR NOUS NAME/ NOW:ROSETTE MUZIGO-MORRISON 14 DEG 3. 2015 DATE. International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda Counsel for Pauline Nyiramasuhuko Nicole Bergevin and Guy Poupart Counsel for Arsène Shalom Ntahobali Normand Marquis and Mylène Dimitri Counsel for Sylvain Nsabimana Josette Kadji and Pierre Tientcheu Weledji Counsel for Alphonse Nteziryayo Frédéric Titinga Pacéré and Gershom Otachi Bw'Omanwa Counsel for Joseph Kanyabashi Michel Marchand and Alexandra Marcil Counsel for Élie Ndayambaje Pierre Boulé and Claver Sindayigaya Office of the Prosecutor Hassan Bubacar Jallow James J. Arguin Deborah Wilkinson François Nsanzuwera Althea Alexis-Windsor Steffen Wirth Tajesh Adhihetty Jane Mukangira Alison McFarlane Chelsea Fewkes Ghazalch Meskoob Nicole Rangel Mickael Herz ти.

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19622/H VI. APPEAL OF SYLVAIN NSABIMANA 2142. The Trial Chamber found Nsabimana guilty of genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for aiding and abetting by omission the killings of the Tutsi refugees abducted from the Butare Prefecture Office during attacks committed by Nyiramasuhuko, Ntahobali, and Interahamwe by failing to discharge his duty to provide assistance to people in danger and to protect civilians against acts of violence. 4971 2143. Nsabimana raises challenges related to his indictment. He also contends that the Trial Chamber erred in finding that he tacitly approved the inflammatory speeches given by Kambanda and Sindikubwabo at his swearing-in ceremony. He further raises challenges related to the admission of, and reliance on, alleged prejudicial evidence. Finally, Nsabimana contends that the Trial Chamber erred in finding that he was responsible for aiding and abetting by omission the killings of Tutsi refugees abducted from the Butare Prefecture Office. The Appeals Chamber will address these contentions in turn. 4971 Trial Judgement, paras. 5893, 5900, 5903, 5906, 5972, 6057-6059, 6102, 6103, 6122, 6170, 6171, 6186. The Appeals Chamber notes that, read in context, the references to Nsabimana's responsibility for aiding and abetting "the 743 Case No. ICTR-98-42-A 14 December 2015

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19621/H A. Indictment (Grounds 1, 2, and 11) 2144. The Trial Chamber found that Nsabimana, in his capacity as prefect, was under the legal duty to provide assistance to people in danger and to protect civilians against acts or threats of violence pursuant to Rwandan law and international humanitarian law.* It also determined that Nsabimana was aware of the night-time attacks conducted against the Tutsis who had sought refuge at the Butare Prefecture Office from mid-May to mid-June 1994 and was presented with multiple requests for assistance from refugees but refused to help. 4973 The Trial Chamber held that, "[b]y refusing to take action in the midst of the continuing attacks at the [Butare Prefecture Office], Nsabimana assisted Nyiramasuhuko, Ntahobali and the Interahamwe in the perpetration of their attacks" and that his failure to act had a substantial effect on the realisation of their crimes. 4974 It also found that Nsabimana: (i) knew that those taking refuge at the prefectoral office were being abducted, raped, and killed; (ii) was aware of the perpetrators' genocidal intent; and (ili) knew that his failure to act assisted in the commission of the crimes. 4975 2145. On this basis, the Trial Chamber convicted Nsabimana of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively), and violence to life, health, and physical

or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 9) pursuant to Article 6(1) of the Statute for aiding and abetting by omission the killings of the Tutsi refugees abducted from the Butare Prefecture Office during attacks committed by Nyiramasuhuko, Ntahobali, and Interahamwe by failing to discharge his duty to protect civilians. 4976 2146. When reaching its findings on Nsabimana's responsibility for the crimes committed at the prefectoral office, the Trial Chamber primarily referred to paragraphs 6.36 and 6.42 of the Indictment. 4977 The Indictment indicates in relevant parts that the allegations in paragraph 6.36 were 4972 Trial Judgement, paras. 5893, 5895-5899. See also ibid., para. 5894. 4973 Trial Judgement, paras. 2807, 5900, 5904, 5905. 4974 Trial Judgement, para.

5900. See also ibid., paras. 5903, 5906, 5972. 4975 Trial Judgement, paras. 5904, 5905. See also ibid., para. 5972. 4976 Trial Judgement, paras. 5906, 5972, 6057-6059, 6102, 6103, 6122, 6170, 6171, 6186. 4977 Trial Judgement, paras. 2783, 2785, 2789, 2790, fn.

7796. To facilitate readability, the Appeals Chamber will use the term "Indictment" in the body text of the present section when referring to the Nsabimana and Nteziryayo Indictment. Paragraphs 6.36 and 6.42 of the Nsabimana and Nteziryayo Indictment read as follows: 6.36 As early as 7 April 1994, numerous members of the Tutsi population sought refuge at the Butare town préfecture offices. As from 19 April 1994, Interahamwe militiamen and soldiers took advantage of this nd repeatedly went to the préfecture offices to attack the refugees. The attacks took place while Préfe svlvain Nsabimana was present and going about his daily business at the préfecture offices. Some of the refugees asked Préfet Sylvain Nsabimana to protect them from the violent acts of the militiamen and soldiers. Sylvain Nsabimana did nothing to put a definitive end to the attacks. Refugees were often forcibly abducted, assaulted and sometimes killed outright. The entire préfecture of Butare was the scene of massacres of the Tutsi population involving Pauline Nyiramasuhuko, André Rwamakuba, Alphonse Nteziryayo, Joseph Kanyabashi, Ladislas Ntaganzwa, Elie 744 Case No. ICTR-98-42-A 14 December 2015 cu

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19620/H being pursued against Nsabimana under all counts, except Count 4, pursuant to Articles 6(1) and 6(3) of the Statute.4978 Paragraph 6.42 was not relied upon in support of any count in the Indictment. 4979 2147. The Trial Chamber noted that the sentence "The attacks took place while Préfet Sylvain Nsabimana was present and going about his daily business at the préfecture offices" in paragraph 6.36 of the Indictment "could mean either: (1) that Nsabimana would go to his office during the time period in which the attacks occurred at the [Butare Prefecture Office]; or (2) that the attacks occurred while Nsabimana was sitting in his office at the [Butare Prefecture Office]"4980 The Trial Chamber concluded that, from reading paragraph 6.36 in conjunction with paragraph 6.42 of the Indictment and the fact that paragraph 6.36 was pleaded in support of both Articles 6(1) and 6(3) of the Statute, 498l "it [was] clear that the Prosecution sought to prove that Nsabimana, as préfet, was responsible for attacks occurring throughout Butare préfecture including those occurring at the [Butare Prefecture Office], whether or not he was physically present. 4982 The Trial Chamber also found that Nsabimana was charged with the "culpable omission" on the basis of which he was convicted. 4983 2148. With regard to the circumstances and timeframe of the attacks at the prefectoral office,

the Trial Chamber found that, when read as a whole, the Indictment adequately pleaded that: (i) the attacks included the forcible abduction, assault, and killing of refugees;4984 and (ii) the refugees' requests for assistance to Nsabimana occurred between his swearing-in as prefect on 19 April 1994 and his replacement on 17 June 1994, while he was going about his daily business at the prefectoral office. 4985 The Trial Chamber considered that details such as the prefect's "attitude and reactions" as well as the form of the requests for assistance constituted evidence which did not need to be pleaded in the Indictment. 4986 2149. Nsabimana submits that the Trial Chamber erred in law and in fact in expanding the scope of paragraph 6.36 of the Indictment by reading it in conjunction with paragraph 6.42 of the Indictment to conclude that he was charged with responsibility for all attacks that occurred at the Ndayambaje, et [sic] Shalome [sic] Arsène Ntahobali. These massacres occur[r]ed while Sylvain Nsabimana was exercising his authority as Préfet of Butare 4978 Nsabimana and Nteziryayo Indictment, pp. 41-48. 4979 Nsabimana and Nteziryayo Indictment, pp. 41-48. 4980 Trial Judgement, para. 2789. 4981 The Trial Chamber observed that neither Article 6(1) nor Article 6(3) of the Statute requires the accused to be present during the commission of the crime to be held accountable. See

Trial Judgement, para. 2789 982 Trial Judgement, para. 2789 4983 Trial Judgement, para. 5906, referring, inter alia, to Mrksié and Sjivaneanin Appeal Judgement, paras. 140, 141. 498A Trial Judgement, para. 2790, referring to Nsabimana and Nteziryayo Indictment, para. 6.36. 4985 Trial Judgement, para. 2790, referring to Nsabimana and Nteziryayo Indictment, paras. 6.21, 6.34, 6.36. 745 Case No. ICTR-98-42-A 14 December 2015

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19619/H prefectoral office whether or not he was present.4987 He contends that paragraph 6.36 gave him notice of his responsibility related to day-time attacks conducted in his presence and that the night-time attacks conducted in his absence were material facts which were not pleaded in the Indictment. 4988 He argues that, if anything, the fact that paragraph 6.36 was subject to two interpretations demonstrates that the paragraph was not as clear as required by the jurisprudence. 4989 According to Nsabimana, paragraph 6.42 - which he notes was not specifically pleaded in support of any charge - could not reasonably be relied upon as explaining or particularising the specific charge pleaded in paragraph 6.36 because it was too general and vague. 499 He also argues that the Trial Chamber erred in taking into account the fact that paragraph 6.36 of the Indictment was pursued under both Articles 6(1) and 6(3) of the Statute when interpreting it 4991 2150. Nsabimana further contends that neither paragraph 6.36 of the Indictment nor paragraph 6.42 of the Indictment contains the necessary details regarding his acts or course of conduct that formed the basis of the charges against him." 4992 He also submits that the Trial Chamber erred in law in convicting him based on a duty to act imposed under Article 256 of the Rwandan Penal Code and provisions of international humanitarian law,

in particular Articles 7 and 13 of Additional Protocol Il, because the Indictment failed to plead that he incurred criminal responsibility for failing in a duty to act under these provisions. 4993 Nsabimana argues that these legal obligations constituted material facts that should have been pleaded in the Indictment and that, by merely referring to his "omission" in the Indictment, the Prosecution failed to sufficiently inform him of the nature and cause of the charges against him. 4994 2151. In addition, Nsabimana contends that the Trial Chamber erred in: (i) considering that the details concerning his attitude and reactions did not need to be pleaded in the Indictment; and ii) failing to find that the Indictment did not plead with sufficient specificity the identities of the 4986 Trial Judgement, para. 2790. 4987 Nsabimana Notice of Appeal, paras. 16, 18, 19; Nsabimana Appeal Brief, paras. 9, 10, 28, 33. See also AT. 16 April 2015 pp. 48-53 (French). 4988 Nsabimana Appeal Brief, paras. 7, 8, 12, 17, 18, 23, 29, 32-34, 38. See also ibid., para. 129; Nsabimana Reply Brief, paras. 5, 6. Nsabimana Appeal Brief, para. 39; Nsabimana Reply Brief, para. 7; AT. 16 April 2015 pp. 50, 51 (French). 4990 Nsabimana Appeal Brief, paras. 11, 13, 20-22; AT. 16 April 2015 pp. 49, 50 (French). See also Nsabimana Reply Brief, para. 4. 4991 Nsabimana Appeal Brief, paras. 14-16. Nsabimana argues

that the fact "[t]hat responsibility under Articles 6(1) and 6(3) does not require the presence of the accused is a matter relating to the constituent elements of the crime, and has Judgement, para. 25. 4993 Nsabimana Notice of Appeal, paras. 90-92; Nsabimana Appeal Brief, paras. 349-353. 4994 Nsabimana Appeal Brief, paras. 353-358. Nsabimana points out that, in the Mrksid and Stjivaneanin Appeal Judgement relied upon by the Trial Chamber with respect to pleading of his culpable omission, the Appeals Chamber noted that the relevant indictment referred to the legal provisions imposing obligations on Veselin Sljivancanin as an 746 Case No. ICTR-98-42-A 14 December 2015

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19618/H refugees who requested assistance from him, the dates of those requests, and the time period. 4995 He also argues that it was erroneous for the Trial Chamber to rely on paragraph 6.34 of the Indictment regarding the timeframe of his alleged criminal conduct since this paragraph was not pleaded in support of any counts. 4996 In his view, the fact that the Trial Chamber needed to read several paragraphs of the Indictment together to conclude that he received notice proves that the charge in paragraph 6.36 of the Indictment was ambiguous and not properly pleaded. 4997 Nsabimana contends that the Prosecution did not cure these defects. 4998 2152. For these reasons, Nsabimana submits that he was not fully informed of the charge against him and could not adequately prepare his defence and that, as a result, the verdict against him should be set aside. 4999 2153. The Prosecution responds that the Trial Chamber correctly found that the Indictment, when read as whole, provided Nsabimana with adequate notice that he was being charged with attacks that occurred between 19 April and 17 June 1994 at the prefectoral office whether or not he was present. 500º It asserts that paragraph 6.42 of the Indictment set the parameters for Nsabimana's responsibility and that paragraph 6.36 of the Indictment more precisely pleaded his responsibility for the killings that took place at the

prefectoral office. 5001 It also argues that it was under no obligation to plead the legal provisions which imposed the duty to act on Nsabimana in the Indictment.5002 The Prosecution submits that paragraphs 6.36 and 6.41 of the Indictment clearly pleaded the nature of its case and Nsabimana's role in the alleged crimes.5003 4995 Nsabimana Notice of Appeal, paras. 26, 28, 29; Nsabimana Appeal Brief, paras. 25-27, 40-44, 49. See also AT. 16 April 2015 pp. 39, 40. Under Ground 6 of his appeal, Nsabimana also argues that the Trial Chamber erred in relying on Prosecution Witness TQ's evidence that he sought Nsabimana's assistance to bury the orphans killed at the Groupe scolaire but that Nsabimana told him he was a madman as this allegation was not pleaded in the Nsabimana and Nteziryayo Indictment. See Nsabimana Appeal Brief, paras. 210, 211. 4996 Nsabimana Appeal Brief, para. 42. 4997 Nsabimana Appeal Brief, paras. 39, 41, 43-46, 53. 4998 Nsabimana Notice of Appeal, para. 30; Nsabimana Appeal Brief, para. 52. 4999 Nsabimana Notice of Appeal, paras. 20, 31, 93; Nsabimana Appeal Brief, paras. 26-29, 36, 54, 56, 355, 361; Nsabimana Reply Brief, para. 20. 5000 Prosecution Response Brief, paras. 1242-1247, 1256, 1261; AT. 16 April 2015 pp. 52, 53. 5001 Prosecution Response Brief, para.

1250. See also AT. 16 April 2015 p. 52. 5002 Prosecution Response Brief, paras. 1371-1375; AT. 16 April 2015 pp. 54, 55. At the appeals hearing, the Prosecution also argued that paragraphs 2.6 and 3.4 of the Nsabimana and Nteziryayo Indictment set out "the duty that Nsabimana was under" as well as the fact that the victims referred to in the Nsabimana and Nteziryayo Indictment were protected persons under Article 3 common to the Geneva Conventions and Additional Protocol II. It added that the Nsabimana and Nteziryayo Indictment "gave comparable detail as the indictment that was 'approved' in the Mrksic and Sivancanin [A]ppeal [Judgement." See AT. 16 April 2015 pp. 53, 54. Prosecution Response Brief, paras. 1248, 1256, 1373; AT. 16 April 2015 pp. 53, 54. The Prosecution further together with the annotated indictment disclosed on 25 August 1999 and prior written statements of several witnesses, provided him with further timely, clear, and consistent notice of the charges against him. It adds that Nsabimana's conduct during the proceedings reflected that he was on notice of the allegations against him, including concerning the night-time attacks. See Prosecution Response Brief, paras. 1267, 1268, 1271-1276, 1279-1282; AT. 16 April 2015 pp. 54, 55. In reply, Nsabimana disputes that the Prosecution cured any defects in the Nsabimana and Nteziryayo 747 Case No. ICTR-98-42-A 14 December 2015

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19617/H 2154. The Appeals Chamber finds no merit in Nsabimana's contention that the Trial Chamber impermissibly expanded the scope of paragraph 6.36 of the Indictment by convicting him in relation to night-time attacks conducted in his absence. The Appeals Chamber finds that paragraph 6.36 could be reasonably interpreted in two different ways regarding whether or not the attacks referred to therein were conducted in Nsabimana's presence at the prefectoral office. Nsabimana is nonetheless correct that the fact that the paragraph was open to two interpretations in this regard created ambiguity and that this ambiguity was not eliminated by paragraph 6.42 of the Indictments or the fact that the allegation set forth in paragraph 6.36 was pursued under both Articles 6(1) and 6(3) of the Statute. 5005 2155. However, the Appeals Chamber is of the view that the ambiguity in paragraph 6.36 of the Indictment as to whether or not Nsabimana incurred responsibility solely in relation to the attacks that took place during the day in his presence was eliminated by paragraph 6.41 of the Indictment in which the Prosecution pleaded that refugees were abducted from the prefectoral office and later killed, without specifying what time of day those events occurred or if Nsabimana was present. 5006 The Prosecution specifically relied upon paragraph 6.41 against Nsabimana in support of all

counts, except Count 4.5007 Moreover, by expressly pleading in paragraph 6.36 that some of the refugees asked Nsabimana to protect them from the violent acts of the militiamen and soldiers, the Prosecution unequivocally gave notice to Nsabimana that he was alleged to have known that the Tutsis who had sought refuge at the prefectoral office were the victims of abductions and killings, and that his source of knowledge was not premised on him being present during the attacks. As such, the Appeals Chamber finds that, read as a whole, the Indictment provided Nsabimana with adequate notice that he was charged with having failed to protect the refugees at the prefectoral Indictment and that his conduct during the proceedings reflected that he was aware of the allegations concerning the sight-time attacks, See Nsabimana Reply Brief, paras. 22-40. See also AT. 16 April 2015 pp. 51, 52 (French). In the view of the Appeals Chamber, the allegation that the massacres of the Tutsi population occurred "while Sylvain Nsabimana was exercising his authority as Préfet of Butare" pleaded in paragraph 6.42 of the Nsabimana and Nteziryayo Indictment did not clarify this particular matter. s0o5 The Appeals Chamber considers that the fact that the allegation set forth in paragraph 6.36 of the Nsabimana and Nteziryayo Indictment was pursued under both Articles 6(1) and 6(3) of the Statute is

irrelevant to the question of whether Nsabimana was alleged to have been present during the attacks; the question is not whether Nsabimana was put on notice that he could be held liable for a failure to act - which is clear from paragraph 6.36 - but whether he was alleged to have been present or not during these specific attacks. 500% Paragraph 6.41 of the Nsabimana and Nteziryayo Indictment reads as follows: Between 19 April and late June 1994, Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, accompanied by Interahamwe militiamen and soldiers, on several occasions went to the préfecture offices to abduct Tutsi refugees, whom they later killed. Those who attempted to resist were assaulted and sometimes killed outright. [...]. 5007 See Nsabimana and Nteziryayo Indictment, pp. 41-48. 748 Case No. ICTR-98-42-A 14 December 2015

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19616/H office who he knew were subjected to various forms of abuse at any time of day, regardless of whether he was present or not. 5008 2156. The Appeals Chamber also rejects Nsabimana's undeveloped contention that the Indictment did not contain the necessary details regarding his acts or course of conduct that formed the basis of the charge against him concerning the crimes committed as a result of the attacks at the Butare Prefecture Office. Paragraphs 6.32, 6.53, and 6.59 of the Indictment expressly allege that Nsabimana "aided and abetted" the population, his subordinates, or others in massacring the Tutsis in Butare Prefecture and several other paragraphs of the Indictment repeatedly refer to Nsabimana's failure as prefect of Butare to take measures to stop the massacres of Tutsis taking place in the prefecture during his tenure as prefect, including his failure to put an end to the killing of the Tutsis who had sought refuge at the prefectoral office.5010 As noted by the Trial Chamber,011 the charging section of the Indictment also made it clear that Nsabimana was charged with "the acts and omissions described" in these paragraphs. The Appeals Chamber does not consider that the legal provisions from which Nsabimana's duty to act arose were material facts that needed to be pleaded in the Indictment as it was clear from the Indictment that his duty arose from his position

as prefect of Butare. 5012 2157. The Appeals Chamber further finds that Nsabimana fails to show any error in the Trial Chamber's determinations that the details regarding his "attitude and reactions" did not need to be pleaded in the Indictment and that the name of a particular refugee who requested help from him and was later abducted was not a material fact but evidence relevant to the issue of Nsabimana's knowledge of the attacks at the prefectoral office.5013 Likewise, Nsabimana does not demonstrate 5008 To the extent that Nsabimana argues that the Trial Chamber erred by interpreting the Nsabimana and Nteziryayo Indictment as charging him with responsibility for attacks that occurred throughout Butare Prefecture, the Appeals Chamber notes that the Trial Chamber did not find that Nsabimana was criminally responsible in relation to all attacks occurring throughout Butare Prefecture, but only in relation to the attacks that occurred at the prefectoral office. See Nsabimana Appeal Brief, paras. 9, 33. The Appeals Chamber therefore finds no merit in Nsabimana's submission. 50x09 See also Nsabimana and Nteziryayo Indictment, para. 6.61. 5010 See Nsabimana and Nteziryayo Indictment, paras. 6.26, 6.36, 6.60. See also ibid., paras. 6.35, 6.37, 6.42. 5011 Trial Judgement, para. 5906, fn. 14770, referring to Mrksié and Sljivancanin Appeal Judgement, paras. 140-141; Nsabimana and Nteziryayo Indictment, pp. 41-49. 5012 The Appeals Chamber recalls that Nsabimana points out that, in the Mrksié and Sljivancanin Appeal Judgement relied upon by the Trial Chamber with respect to the pleading of his culpable omission, the Appeals Chamber noted that the relevant indictment referred to the legal provisions imposing obligations on Veselin Sljivancanin as an army officer. See supra, fn.

4994. The Appeals Chamber notes that, when examining whether Veselin Sljivaneanin was put on adequate notice that he was charged with aiding and abetting by omission, it referred, inter alia, to the fact that, in the indictment against him, Veselin Sljivaneanin was alleged to be subject to specific laws and regulations as an army officer which obliged officers and their subordinates to observe the laws of war. See Mrksié and Sljivancanin Appeal Judgement, paras. 139-141. However, the Appeals Chamber does not consider that its reference to this aspect of Veselin Sijivancanin's indictment should be interpreted as requiring the Prosecution to plead these specific facts in the indictment to provide adequate notice to the accused of the nature and cause of the charge against him. $013 With respect to Nsabimana's argument that the Trial Chamber erred in relying on Witness TQ's evidence that he sought Nsabimana's assistance to bury the orphans killed at the Groupe scolaire but that Nsabimana told him he was a madman as this allegation was not pleaded in the Nsabimana and Nteziryayo Indictment, the Appeals Chamber Case No. ICTR-98-42-A 14 December 2015

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19615/H that the Trial Chamber erred in concluding that the information in the Indictment that the alleged requests for assistance took place between his swearing-in as prefect on 19 April 1994 and his replacement on 17 June 1994 was sufficient to give him adequate notice given the sheer scale of the crimes allegedly committed at the prefectoral office ranging over a period of nearly three months.5014 In this respect, the Appeals Chamber sees no error in the Trial Chamber's reliance on the indication in paragraph 6.34 of the Indictment that Nsabimana was replaced as Butare Prefect on 17 June 1994. Given that this indication provided mere contextual background and did not constitute an allegation that should have been pleaded as a charge, the fact that it was not pleaded in support of any count was therefore irrelevant. Nsabimana's argument that the fact that the Trial Chamber needed to read several paragraphs of the Indictment together demonstrates that the Indictment was ambiguous also fails to appreciate that, in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole. 5015 2158. In light of the foregoing, the Appeals Chamber concludes that Nsabimana has failed to demonstrate that the Trial Chamber erred in finding that he was put on adequate notice of the charge on the basis of which he was convicted. Accordingly, the Appeals Chamber dismisses Grounds 1, 2, and 11 of Nsabimana's appeal. observes that the Trial Chamber relied on this evidence as indicative that Nsabimana refused to help. See Trial Judgement, para.

5900. The incident recounted by Witness TQ was therefore merely used as evidence of Nsabimana's failure to act and not treated as a separate allegation. The Appeals Chamber recalls that the evidence by which material facts are to be proven need not be pleaded in the indictment. See, e.g., Nzabonimana Appeal Judgement, para. 29; Ntagerura et al. Appeal Judgement, para. 21; Kupreskié et al. Appeal Judgement, para.

88. Consequently, the Appeals Chamber also dismisses Nsabimana's contention in this respect. 5014 Trial Judgement, para. 2790. 5015 See, e.g., Ntabakuze Appeal Judgement, para. 65; Bagosora and Nsengiyumva Appeal Judgement, para. 182; Gacumbitsi Appeal Judgement, para. 123. 750 Case No. ICTR-98-42-A 14 December 2015

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19614/H B. Nsabimana's Swearing-In Ceremony (Ground 4) 2159. The Trial Chamber found that the speeches given at Nsabimana's Swearing-In Ceremony on 19 April 1994 by President Sindikubwabo and Prime Minister Kambanda were inflammatory and encouraged the population to kill Tutsis 5016 The Trial Chamber determined that these speeches advocated and incited genocide by substantially contributing to triggering the subsequent widespread killings and large-scale massacres in Butare Prefecture. 5017 The Trial Chamber found that Nsabimana attended his swearing-in ceremony as a political appointee and failed to dissociate himself from the statements made by Sindikubwabo and Kambanda on that occasion 5018 The Trial Chamber concluded that, in doing so, Nsabimana "gave his tacit approval to the President's and Prime Minister's inflammatory statements."S019 2160. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he gave his tacit approval to Kambanda's and Sindikubwabo's Speeches.5020 He submits that the Trial Chamber's error occasioned a miscarriage of justice as his "speech relates directly to the material fact which led the Judges to find [him] guilty of aiding and abetting the crime of genocide and other crimes against humanity by omission.'$021 2161. The Prosecution responds that this ground of appeal should be summarily dismissed as the Trial Chamber did

not convict Nsabimana on the basis of the impugned factual finding. 5022 2162. Nsabimana replies that, in finding that he had knowledge of a plan to exterminate the Tutsis, the Trial Chamber considered that he understood the inflammatory nature of Sindikubwabo's Speech.5023 2163. The Appeals Chamber observes that the Trial Chamber did not find Nsabimana guilty of any crime connected to his swearing-in ceremony as it did "not find it established beyond a reasonable doubt that [...] Nsabimana's tacit approval of [Kambanda's and Sindikubwabo's] speeches substantially contributed to the killings that followed" 5024 The Trial Chamber concluded that it was not proven that Nsabimana "[was] responsible for aiding and abetting genocide in relation to these 5016 Trial Judgement, paras. 890, 898, 925, 5671, 5690, 5712, 5722, 5738, 5990. 5017 Trial Judgement, paras. 932, 5673, 5741, 5753, 5992. See also ibid., paras. 933, 5742, 5746. 5018 Trial Judgement, para. 924. 5019 Trial Judgement, para. 924. 5020 Nsabimana Notice of Appeal, heading "IV" at p. 5, paras. 37-41; Nsabimana Appeal Brief, para.

61. See also AT. 16 April 2015, pp. 42, 43. 5021 Nsabimana Appeal Brief, para.

105. See also Nsabimana Reply Brief, para. 44. 5022 Prosecution Response Brief, paras. 1283, 1284. 5023 Nsabimana Reply Brief, para. 44. 5024 Trial Judgement, para. 5747. 751 Case No. ICTR-98-42-A 14 December 2015 TuL

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19613/H events'5025 and did not convict him on the basis of his conduct at the swearing-in ceremony.5026 The Trial Chamber convicted Nsabimana solely for aiding and abetting by omission the killing of Tutsi refugees abducted from the Butare Prefecture Office. 5027 2164. The Trial Chamber noted that it would nonetheless consider Nsabimana's conduct at the ceremony in determining whether he possessed the requisite intent for genocide. 5028 However, in light of its finding that Nsabimana participated in the crimes at the prefectoral office as an aider and abettor, the Trial Chamber did not determine whether he possessed genocidal intent and solely considered his knowledge and awareness5029 The Trial Chamber further did not rely on Nsabimana's conduct at the ceremony in concluding that he possessed the requisite knowledge to be held responsible for aiding and abetting the killings of Tutsi refugees abducted from the prefectoral office.5030 Contrary to Nsabimana's contention, the Trial Judgement reflects that his convictions are not based on the finding that he gave his tacit approval to Kambanda's and Sindikubwabo's Speeches. Any error in respect of this factual finding could therefore not have any impact on the Trial Chamber's verdict against Nsabimana.

2165. Recalling that the Appeals Chamber only reviews errors of law which have the potential to invalidate the decision of the trial chamber and errors of fact which have occasioned a miscarriage of justice and that arguments which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits,5031 the Appeals Chamber dismisses Ground 4 of Nsabimana's appeal without further consideration. 5025 Trial Judgement, para. 5747. 5026 See Trial Judgement, paras. 5972, 6058, 6059, 6102, 6103, 6122, 6170, 6171. 5027 See Trial Judgement, paras. 5972, 6057-6059, 6102, 6103, 6122, 6170, 6171, 6186. 5028 Trial Judgement, para. 5747. 5029 See Trial Judgement, paras. 5904-5906. 5030 See Trial Judgement, paras. 5904, 5905, fins. 14768, 14769. 5031 See supra, para. 34. 752 Case No. ICTR-98-42-A 14 December 2015

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19612/H C. Admission and Reliance on Prejudicial Evidence (Grounds 5, 6 and 13 in part) 2166. In finding Nsabimana responsible for aiding and abetting by omission the killings of the Tutsi refugees abducted from the Butare Prefecture Office during attacks committed by Nyiramasuhuko, Ntahobali, and Interahamwe, the Trial Chamber relied, in part, on the testimonies of Prosecution Witnesses QBP, RE, SU, SS, TK, and TQ 5032 Specifically, the Trial Chamber relied on their evidence to conclude that: (i) Nsabimana was aware of the night-time attacks at the prefectoral office; (ii) he was presented with multiple requests for assistance from Tutsi refugees but refused to help; (iii) his omission to act had a substantial effect on the perpetration of the crimes committed at the prefectoral office; and (iv) he knew that his failure to act assisted in the commission of the crimes.5033 The Trial Chamber also relied, inter alia, on the evidence of Prosecution Witnesses FAP, QBQ, SD, and TA in finding that Nyiramasuhuko, Ntahobali, and Interahamwe committed or participated in abductions, rapes, and killings at the prefectoral office. 5034 2167. Nsabimana submits that the Trial Chamber erred in admitting and relying on the evidence of Witnesses FAP, QBP, QBQ, RE, SD, SS, SU, TA, TK, and TQ to find him responsible for aiding and abetting by omission the killings of Tutsi refugees because he

received no notice that these witnesses would testify against him.035 He further submits that the Trial Chamber erred in admitting and relying on Witness TK's evidence because it concerned an allegation that was not pleaded in the Indictment, 5036 The Appeals Chamber will address these contentions in turn. 5032 Trial Judgement, paras. 2803-2812, 2815, 5900, 5904-5906. The Trial Chamber also relied on Nsabimana's testimony, Expert Witness Des Forges's testimony, and Exhibits P113 and P114. See ibid., paras. 2801, 2802, 2807, 2808, 2810, 5904, 5905. Trial Judgement, paras. 2804-2807, 5900-5906. See also ibid., para.

5972. The Trial Chamber relied on: (i) Witness TK's "credible" evidence of the abduction of a young man named Alphonse who had been forced out Nsabimana's office after calling for help; (ii) Witness TQ's description of Nsabimana's attitude regarding the witness's request to bury the bodies of orphans who had been killed at the Groupe scolaire; (ili) Witness RE's "significant[ly] detailed]" testimony that she saw a young man and woman leave Nsabimana's office, and that the young woman told her that they had just seen the prefect asking him for help and "that the young man was now being dragged away"; (iv) Witnesses SS's and SU's testimonies that, in a separate incident after attacks occurred at the prefectoral office, three women went to see Nsabimana on behalf of the refugees and that, although neither witness was present at the meeting, they were told that Nsabimana denied knowledge of the attacks and said he would post gendarmes to protect them; (v) Witness QBP's evidence that a woman who was attacked by an Interahamwe and wounded on her ear complained to Nsabimana but that he did nothing for her; and (vi) Witness SS's claim that Nsabimana did nothing for those who asked for help. See ibid., paras. 2804-2806, 2810, 5900. 5034 Trial Judgement, paras. 2644, 2650, 2653, 2654, 2656, 2658, 2660, 2703, 2712, 2715, 2731, 2734-2736, 2738, 5035 Nsabimana Notice of Appeal, paras. 42-50, 70-73; Nsabimana Appeal Brief, paras. 106-126, 203-211, 233, 234, 252-261. 432-441. See also Nsabimana Reply Brief, paras. 48-67, 109-111; AT. 16 April 2015 pp. 43-45. 5036 Nsabimana Appeal Brief, paras. 217-229. 753 Case No. ICTR-98-42-A 14 December 2015

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19611/H 1. Evidence of Witnesses Not Identified As Testifying Against Nsabimana 2168. When determining Nsabimana's responsibility for ordering the transfer of Tutsi refugees from the Butare Prefecture Office to Nyange Sector, the Trial Chamber addressed Nsabimana's contention that the evidence of Witnesses QBP, RE, SU, and TA should be excluded insofar as it related to him because he had no notice that these witnesses would be called to testify against him.5037 The Trial Chamber determined that, although these witnesses were not listed as being brought to testify against him, Nsabimana did not suffer any prejudice that warranted the exclusion of their evidence, particularly because he raised no objections to their testimonies at the time they were given and had the opportunity to cross-examine them. 5038 2169. Nsabimana argues that the Trial Chamber erred in relying on the evidence of Witnesses FAP, QBP, QBQ, RE, SD, SS, SU, TA, TK, and TQ because he received no notice that these witnesses would testify against him. 039 He contends that his right to a fair trial was violated as a consequence and that the Trial Chamber erred in finding that he suffered no prejudice from this absence of notice. 5040 In particular, Nsabimana argues that he was prejudiced by having insufficient time to prepare for his cross-examination of these witnesses because he had instead focused his efforts

on challenging the evidence of the witnesses he expected to testify against him.$041 He asserts that his cross-examination of these witnesses was therefore not meaningful and that its occurrence alone should not be considered as a waiver of his rights or as a remedy to the prejudice he suffered. 5042 Nsabimana further argues that, although the Trial Chamber may admit any relevant evidence which it deems to have probative value pursuant to Rule 89(C) of the Rules, "evidence whose credibility cannot be challenged and rebutted by the Defence during a well-prepared cross-examination, cannot have probative value."$043 He also appears to argue that his right to be tried in a joint trial as if tried separately was violated because, had he been tried alone, he would not 5037 Trial Judgement, paras. 4053-4058. 5038 Trial Judgement, paras. 4054-4056, 4058. 5039 Nsabimana Notice of Appeal, paras. 42-50, 70-73; Nsabimana Appeal Brief, paras. 106-126, 203-208, 216, 233, 234, 252-261, 432-441; Nsabimana Reply Brief, paras. 48-67, 109-111. See also AT. 16 April 2015 pp. 43-45. The Appeals Chamber observes that Nsabimana argues that, by not giving notice that these witnesses would testify against him, the Prosecution failed to fulfil its obligation under Rule 73bis of the Rules. See Nsabimana Appeal Brief, paras. 252, 253. The Appeals Chamber also notes that Nsabimana refers to an except of the Kamuhanda Appeal Judgement that refers to the accused's right to be informed of the charges against him. See ibid., para. 207, referring to Kamuhanda Appeal Judgement, para.

21. As Nsabimana's contentions relate to admission of evidence as opposed to notice of charges, the Appeals Chamber considers this reference irrelevant. Nsabimana Appeal Brief, paras. 111-120, 206-208, 254, 259, 260, 431-,439, referring to Trial Judgement, paras. 4053-4058. See also AT. 16 April 2015 pp. 43-45. Nsabimana Notice of Appeal, para. 46; Nsabimana Appeal Brief, paras. 114-117, 208, 233, 234, 259, 439; Nsabimana Reply Brief, para.

66. See also AT. 16 April 2015 pp. 44, 45. 5042 Nsabimana Notice of Appeal, para. 47; Nsabimana Appeal Brief, paras. 115, 118-120; Nsabimana Reply Brief, aras. 59.

61. See also AT. 16 April 2015 p. 44 043 Nsabimana Appeal Brief, para. 231 (emphasis omitted). See also ibid., paras. 230-232 754 Case No. ICTR-98-42-A 14 December 2015

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19610/H have had to confront evidence of witnesses not announced against him. 5044 Nsabimana requests that the violation of his rights be remedied by excluding the relevant Prosecution witnesses' testimonies and vacating his convictions which are based upon their evidence. 5045 2170. The Prosecution responds that Nsabimana objected to the evidence of Witnesses FAP, QBP, QBQ, RE, SD, SS, SU, TA, TK, and TQ only in his closing brief and that he cross-examined all of them, with the exception of Witness FAP, on issues directly relevant to the theory of his defence.5046 It contends that Nsabimana fails to explain why his "comprehensive cross-examinations" of these witnesses had no meaning.5047 It further argues that Nsabimana's contention that these witnesses would not have been called against him if he had been tried separately is speculative 048 and that Nsabimana fails to demonstrate that he was prejudiced by the Trial Chamber's reliance on the impugned evidence.5049 2171. Nsabimana replies that he objected to the evidence of these witnesses in his closing brief because it was only after the filing of the Prosecution Closing Brief that he became aware that the Prosecution intended to rely on their testimonies to establish his guilt.5050 He asserts that, had he been aware that the Prosecution sought to do so earlier, through a clear indication in the Prosecution Pre-Trial Brief,

he would have objected sooner and requested additional time to prepare for his cross-examinations.5051 He emphasises that his cross-examination of Witnesses FAP, QBP, QBQ, RE, SD, SS, SU, TA, TK, and TQ was aimed at establishing that the attacks occurred during the night in his absence or that he did not receive any complaints from the refugees. $052 2172. The Appeals Chamber observes that, contrary to Nsabimana's assertion, he was notified by the Witness Summaries Grid appended to the Prosecution Pre-Trial Brief that Witness TQ would testify that he informed Nsabimana of attacks that took place near the prefectoral office and that Nsabimana did not react, which corresponds with the evidence the witness provided at trial and upon which the Trial Chamber relied against Nsabimana 5053 Likewise, Nsabimana was notified that. Witnesses FAP, QBQ, SD, and TA would testify that Tutsis who had sought refuge at the 504 Nsabimana Notice of Appeal, paras. 48, 49; Nsabimana Appeal Brief, paras. 121-124; AT. 16 April 2015 p. 44. 5045 Nsabimana Notice of Appeal, para. 50; Nsabimana Appeal Brief, paras. 125, 126, 216. See also AT. 16 April 2015 Sho Prosecution Response Brief, paras. 1287, 1288. See also AT. 16 April 2015 pp. 55, 56. 5047 Prosecution Response Brief, paras. 1287-1289. The Prosecution also points out that Nabimana fails to identify any error that could change the verdict and that his arguments should therefore be dismissed because he fails to reference any findings by the Trial Chamber on which the verdict relies. See ibid., para.

1285. In his reply brief, Nsabimana acknowledges his error and points to the relevant paragraphs of the Trial Judgement. See Nsabimana Reply Brief, paras. 48-50. The Appeals Chamber will therefore consider his submissions. $048 Prosecution Response Brief, para. 1288 5049 Prosecution Response Brief, para. 1289. 5050 Nsabimana Reply Brief, paras. 56, 57. 5051 Nsabimana Reply Brief, paras. 55-59. S0S2 Nsabimana Reply Brief, paras. 63-66. 755 Case No. ICTR-98-42-A 14 December 2015

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19609/H prefectoral office were subjected to abductions, killings, and rapes during attacks conducted by Nyiramasuhuko, Ntahobali, and Interahamwe in May and June 19945054 The Trial Judgement reflects that the Trial Chamber relied only on these specific aspects of Witnesses FAP's, QBQ's, SD's, and TA's testimonial evidence to establish Nsabimana's guilt.5055 Nsabimana's contention that he was not given notice that these witnesses would provide evidence relating to him is therefore ill-founded.

2173. Turning to Nsabimana's arguments concerning the evidence of Witnesses QBP, RE, SU, SS, and TK, the Appeals Chamber notes that it is not disputed that the Prosecution did not notify Nsabimana in its pre-trial brief or any other pre-trial submissions that these witnesses would implicate him,5056 which constitutes an infringement of Rule 67 of the Rules. 057 Although Nsabimana argued in his closing brief that the Trial Chamber should have excluded the evidence of these witnesses for the same reasons he adduces on appeal,5058 the Trial Chamber did not address his contention in the context of its assessment of the evidence pertaining to the attacks at the prefectoral office. As noted above, the Trial Chamber limited its consideration of Nsabimana's contention to Witnesses QBP's, SU's, and RE's evidence concerning Nsabimana's involvement in the transfer of refugees from the prefectoral office to Nyange in carly June 1994,5059 an allegation in relation to which Nsabimana was acquitted. 5060 2174. While a trial chamber is not obliged to respond to each and every submission made at trial and has discretion to decide which argument to address,506l the Appeals Chamber is of the opinion that, because it deemed it necessary to address Nsabimana's contention as it related to the evidence of the transfer to Nyange, the Trial Chamber should have also discussed the merits of Nsabimana's 5053 Witness Summaries Grid, item 95, Witness TQ; Trial Judgement, para.

5900. See Witness Summaries Grid, item 76, Witness SD, Witness TA's Summary, Witness QBQ's Summary, Witness FAP's Summary. The Appeals Chamber considers that the fact that the summaries of Witnesses FAP's, QBQ's, SD's, and TA's anticipated testimony were not linked to Nsabimana's indictment in the Witness Summaries Grid is relevant in the context of notice of the charges but not in the context of notice of the evidence. 5055 See Trial Judgement, paras. 2644, 2650, 2653, 2654, 2656, 2658, 2660, 2703, 2712, 2715, 2731, 2734-2736, 2738, 2773. The Trial Chamber did not refer to this evidence directly in assessing Nsabimana's responsibility for aiding and abetting the killings of Tutsi refugees abducted during the attacks at the Butare Prefecture Office, but its analysis was sependent on its findings that these attacks occurred. Prosecution Response Brief, paras. 1285-1289. See also Trial Judgement, para.

4054. The Prosecution provides no indication in its response brief that it provided any additional indication to Nsabimana prior to the commencement of trial that it intended to rely on these witnesses to establish his guilt. 5057 Rule 67(A)(i) of the Rules states that the Prosecutor shall "[als early as reasonably practicable and in any event prior to the commencement of the trial ([...J notify the Defence of the names of the witnesses that he intends to call to establish the guilt of the accused [...]." The Appeals Chamber also notes that, by failing to summarise all material facts its witnesses were expected to testify about in the Witness Summaries Grid filed as part of its pre-trial brief pursuant to Rule 73bis(B) of the Rules, the Prosecution did not fully comply with Rule 73bis(B)(iv)(b) of the Rules which provides that the Prosecution's list of witnesses should include "[a] summary of the facts on which each witness will testify". 5058 Nsabimana Closing Brief, paras. 63-66. 5059 Trial Judgement, paras. 4053, 4056, 4058. 5060 See Trial Judgement, paras. 4206, 5934, 5935. 756 Case No. ICTR-98-42-A 14 December 2015

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19608/H contention in the context of Witnesses QBP's, RE's, SS's, SU's, and TK's evidence concerning the prefectoral office attacks. The Appeals Chamber finds proprio motu that the Trial Chamber's failure to fully address Nsabimana's contention infringed his right to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules. Nonetheless, the Appeals Chamber finds that this error does not invalidate the Trial Chamber's decision to rely on the impugned evidence because, as discussed below, Nsabimana does not show how the Trial Chamber's reliance thereon violated his right to adequate time to prepare his defence or, if it did, caused him prejudice.

2175. The Appeals Chamber observes that Nsabimana did not object to Witnesses QBP's, RE's, SS's, SU's, and TK's testimonies in court and instead proceeded to cross-examine them without any request for a stay of proceedings.5062 The Appeals Chamber is not persuaded by Nsabimana's contention that he delayed his objection to this evidence until his closing brief because he only became aware of the Prosecution's intention to rely on their evidence against him at that point in time. Indeed, the Appeals Chamber emphasises that his Indictment put Nsabimana on notice that he was charged in relation to attacks at the prefectoral office. The Appeals Chamber also finds that the material facts of Nsabimana's responsibility for aiding and abetting by omission crimes committed as part of these attacks - including his knowledge of the attacks against the Tutsi refugees and the fact that they sought his assistance but that he took no measures - were properly pleaded.5063 In addition, the Prosecution Pre-Trial Brief reflected that the evidence of Witnesses RE, SS, SU, and TK concerned the prefectoral office attacks, which Nsabimana knew formed part of his case. 5064 Notably, the specific excerpts of Witnesses QBP's, RE's, SS's, SU's, and TK's evidence relied on by the Trial Chamber all describe incidents in which refugees at the prefectoral office notified Nsabimana of the violence inflicted

upon them during the attacks 5065 Given the relevance of this evidence to Nsabimana, and his awareness that the witnesses were not marked as relevant to him in the Witness Summaries Grid, the Appeals Chamber considers that his failure to raise a 5061 See, e.g., Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para. 165; Krajisnik Appeal Judgement, para. 139; Kvocka et al. Appeal Judgement, para. 23. 5062 Witness QBP, T. 29 October 2002 pp. 57-95 (closed session), T. 30 October 2002 pp. 4-56 and 64-73 (closed session); Witness RE, T. 26 February 2003 pp. 40-47 (closed session), 48-62, T. 27 February 2003 pp. 4-41; Witness SU, T. 21 October 2002 pp. 84-104 (closed session), T. 22 October 2002 pp. 5-81 (closed session); Witness TK, T. 23 May 2002 pp. 136-173, T. 27 May 2002 pp. 5-53; Witness SS, T. 10 March 2003 pp. 4-17 (closed session), 18-39. 5063 See Nteziryayo and Nsabimana Indictment, paras. 6.36 ("Some of the refugees asked Préfet Sylvain Nsabimana to protect them from the violent acts of the militiamen and soldiers.") (emphasis omitted), 6.60 ("Knowing that massacres of the civilian population were being committed, political and military authorities, including Sylvain Nsabimana and Alphonse Nteziryayo took no measures to stop them.") (emphasis omitted). See also ibid., Section 7 "Charges" in conjunction with paras. 5.1, 5.8, 6.21, 6.22, 6.25, 6.26, 6.28, 6.32-6.38, 6.41, 6.51-6.59; Prosecution Pre-Trial Brief paras. 22, 26, 28. 29. 30. 064 See Witness Summaries Grid, item 8, Witness TK, Witness RE's Summary, Witness SU's Summary, Witness SS's Summary. 5065 See Trial Judgement, paras. 2804-2806, 2810. 757 Case No. ICTR-98-42-A 14 December 2015

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19607/H contemporaneous objection to their evidence indicates that he considered himself able to adequately cross-examine them, and that he was not prejudiced.

2176. Moreover, the record shows that Nsabimana directly cross-examined Witnesses QBP, RE, SU, SS, and TK with respect to the specific segments of their evidence relied on by the Trial Chamber. 506 The transcripts indicate that Nsabimana asked the witnesses pertinent and relevant questions, challenging their recollections that the refugees notified him of the attacks, or that he had been aware of them.$067 Nsabimana's argument that his cross-examination was limited to establishing "that either the atrocities at the préfecture office, if any, occurred in Nsabimana's absence particularly at night, or [that] the refugees had some free movement, or that they received food, or that [he] never received their complaints"5068 does not demonstrate that he had insufficient time to prepare his defence or that his defence was prejudiced. Rather, his admission that he attempted to establish that he did not receive complaints from the refugees supports the conclusion that he was not prejudiced because it was this aspect of Witnesses QBP's, RE's, SS's, SU's, and TK's evidence that the Trial Chamber relied on to establish his guilt. Beyond this assertion, Nsabimana fails to substantiate how he would have conducted his defence differently and how that would have impacted his conviction in light of the totality of these witnesses' evidence.5069 2177. In the view of the Appeals Chamber,

Nsabimana's assertion that his cross-examination of these witnesses does not mean that he waived his fair trial rights is irrelevant. Nsabimana fails to appreciate that it is not the fact that he conducted some form of cross-examination of 5066 Witness QBP, T. 29 October 2002 pp. 57-95 (closed session), T. 30 October 2002 pp. 4-56 and 57-73 (closed session); Witness RE, T. 26 February 2003 pp. 40-47 (closed session), 48-62, T. 27 February 2003 pp. 4-41; Witness SU, T. 21 October 2002 pp. 84-104 (closed session), T. 22 October 2002 pp. 5-81 (closed session); Witness TK, T. 23 May 2002 pp. 136-173, T. 27 May 2002 pp. 5-53; Witness SS, T. 10 March 2003 pp. 4-17 (closed session), 18-39. See, in particular, Witness QBP, T. 30 October 2002 pp. 31, 47 48 (Nsabimana's counsel cross-examining Witness QBP as to whether refugees met the prefect to raise problems with him and whether the witness knew of a delegation of three women who met the prefect, in response to which, Witness QBP recollected the woman with the ear who complained to the prefect); Witness RE, T. 27 February 2003 pp. 5, 6. (Nsabimana's counsel cross-examining Witness RE on her account of the young man and woman who sought assistance from Nsabimana and that the young man was then taken away); Witness SU, T. 22 October 2002 p. 49 (Nsabimana's counsel cross-examining Witness SU about whether Nsabimana took measures

following the delegation of refugees who complained to him); Witness TK, T. 27 May 2002 pp. 18-32 (Nsabimana's counsel extensively cross-examining Witness TK with respect to the abduction of Alphonse); Witness SS, T. 10 March 2003 pp. 14, 15 (closed session), 23, 30, 31 (Nsabimana's counsel not following up on Witness SS's statement that Nsabimana knew there were problems, and cross-examining the witness in relation to whether he spoke to Nsabimana). 5068 Nsabimana Reply Brief, para. 63. 5069 In particular, Nsabimana advances that, had he had more time to prepare, he would have asked different questions, without identifying what these questions might have been and why the hypothetical answers would have impacted his conviction. The Appeals Chamber also observes that sabimana challenged at length the testimonies of these witnesses n his closing brief. See Nsabimana Closing Brief, paras. 1449-1473 (under the heading "Allegation of a request fol protection against atrocities by militiamen and soldiers addressed by some refugees to Préfet Nsabimana"). See ibid., paras. 1451-1456, 1459-1465 (challenging the evidence of Witnesses SU, SS, QBP, and RE in this regard). See also ibid., paras. 1246-1258, 1266-1270, 1276-1283, 1306-1338, 1339-1371, 1393-1405. See, in particular, ibid., paras. 1314-1316, 1335, 1338, 1393-1405 (challenging Witness TK's evidence of Alphonse's abduction and Witness RE's evidence of the abduction of the young man). 758 Case No. ICTR-98-42-A 14 December 2015

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19606/H Witnesses QBP, RE, SS, SU, and TK on its own that demonstrates that he was not prejudiced. Rather, the foundation of the Appeals Chamber's determination in this instance is the cumulative effect of the nature of the evidence provided by these witnesses, the notice of the charges and underpinning material facts he was provided, his failure to object in a timely manner to their evidence when it was adduced at trial, and the pertinent and relevant cross-examinations of these witnesses he conducted, in combination with his failure to provide any arguments reflecting that he had inadequate time to prepare his defence or was prejudiced.

2178. Considering that Nsabimana fails to demonstrate that he was prejudiced by the Trial Chamber's admission of, and reliance on, the inculpatory evidence of Witnesses QBP, RE, SS, SU, and TK, on the basis that he did not have time to adequately prepare for cross-examination, the Appeals Chamber rejects Nsabimana's assertion that the Trial Chamber could not have admitted their evidence because it was not "probative" within the meaning of Rule 89(C) of the Rules. The Appeals Chamber recalls that admissibility of evidence should not be confused with the assessment of the weight to be accorded to that evidence, an issue to be decided by the trial chamber after hearing the totality of the evidence. 5070 Witnesses QBP's, RE's, SS's, SU's, and TK's evidence was temporally, geographically, and thematically related to the pleaded allegation that Nsabimana had knowledge of the attacks against the Tutsis who had sought refuge at the prefectoral office and failed to take measures. The Appeals Chamber therefore sees no error in the admission of this evidence.

2179. Likewise, the Appeals Chamber rejects Nsabimana's assertion that his fair trial rights were violated because, had he been tried individually, this evidence would not have been relied upon by the Trial Chamber. The Appeals Chamber recalls that Rule 82(A) of the Rules states that "[i]n joint trials, each accused shall be accorded the same rights as if he were being tried separately." Nsabimana was tried pursuant to the charges brought against him individually and his assertion that, had he been tried individually, the Prosecution would not have brought the evidence of Witnesses QBP, RE, SS, SU, and TK against him, is speculative.

2180. Based on the foregoing, the Appeals Chamber concludes that Nsabimana has failed to demonstrate that the Trial Chamber erred in admitting and relying on the evidence of Witnesses FAP, QBP, QBQ, RE, SD, SS, SU, TA, TK, and TQ to establish his guilt because he received no notice that they would testify against him. 5070 Admissibility Appeal Decision of 2 July 2004, para.

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19605/H 2. Witness TK's Evidence of an Unpleaded Allegation 2181. In summarising the evidence concerning the attacks at the Butare Prefecture Office, the Trial Chamber noted Witness TK's evidence that she saw a young refugee named Alphonse enter Nsabimana's office at the Butare Prefecture Office to seek help before being forced out and taken away by Interahamwe.5071 The Trial Chamber did not convict Nsabimana for this specific incident because it found that he received inadequate notice that it would be used as part of the Prosecution case against him.507 However, relying on the Admissibility Appeal Decision of 2 July 2004 and the Kupreskié et al. Appeal Judgement, it stated that it would consider the evidence of Alphonse's abduction for other permissible purposes.5073 The Trial Chamber subsequently relied on this evidence to ascertain Nsabimana's awareness of the attacks against Tutsis at the prefectoral office after determining it relevant to this issue and stating that it would consider it only for this limited purpose. 5074 2182. Nsabimana contends that the Trial Chamber erred in admitting and relying on Witness TK's evidence. 5075 He submits that the Trial Chamber misapplied the Kupreskié et al. Appeal Judgement and, consequently, Rule 93 of the Rules on the grounds that the evidence concerning Alphonse's abduction: (i) was an unpleaded allegation which could not be used

in support of a second unpleaded allegation as Nsabimana's knowledge of the night-time attacks was similarly unpleaded;5076 and (ji) could not be considered as evidence of a consistent pattern of conduct as the Prosecution had never provided him notice of its intent to establish a pattern of conduct in accordance with Rule 93 of the Rules.5077 Nsabimana further contends that the Trial Chamber also misapplied the Admissibility Appeal Decision of 2 July 2004 because it does not support the admission of evidence of an unpleaded allegation pursuant to Rule 89(C) of the Rules in support of another unpleaded allegation. 5078 2183. The Prosecution responds that Nsabimana fails to demonstrate that it was unreasonable for the Trial Chamber to rely on Witness TK's evidence to infer Nsabimana's knowledge of the 5071 Trial Judgement, para.

2209. See also ibid., paras. 2797, 2804. 5072 Trial Judgement, para. 2797. $073 Trial Judgement, para. 2797 referring to Admissibility Appeal Decision of 2 July 2004, paras, 14, 15, Kupreskié et L, Appeal Judgement, paras. 321-323, 336. * Trial Judgement, para. 2804, referring to Admissibility Appeal Decision of 2 July 2004, paras. 14, 15, Kupreskic e al. Appeal Judgement, paras. 321-323, 336. The Appeals Chamber observes that the Trial Chamber appears to have confused Witness RE and Witness TK in paragraph 2797 of the Trial Judgement in stating that Witness RE testified to Alphonse's abduction. The record and the Trial Chamber's summary of the evidence reflect that the evidence regarding the abduction of Alphonse was not provided by Witness RE but by Witness TK. See ibid., paras. 2209, 2804. The Appeals Chamber considers the Trial Chamber's reference to Witness RE in paragraph 2797 to be a typographical 907 sabimana Appeal Brief, paras, 217-229. See also ibid., paras. 233-236. 5076 Nsabimana Appeal Brief, paras. 218-226. 5077 Nsabimana Appeal Brief, paras. 223-225. 760 Case No. ICTR-98-42-A 14 December 2015

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19604/H attacks. 079 It asserts that, contrary to Nsabimana's contention, its case was never that there was a consistent pattern of conduct that should have been disclosed under Rule 93 of the Rules. 5080 2184. The Appeals Chamber recalls that it has found that Nsabimana's knowledge that attacks took place at any time of the day regardless of whether he was present or not was properly pleaded in the Indictment 5081 It therefore dismisses as moot Nsabimana's contention that the Trial Chamber erred in relying on the Kupreskic et al. Appeal Judgement and the Admissibility Decision of 2 July 2004 to admit Witness TK's evidence because it is premised on his incorrect assumption that his knowledge of the attacks was improperly pleaded.

2185. The Appeals Chamber also rejects Nsabimana's argument that the Trial Chamber, through its reference to the Kupreskié et al. Appeal Judgement, improperly admitted evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute without the notice required by Rule 93 of the Rules. 5082 Nothing in the Trial Chamber's analysis supports the contention that the evidence was admitted for the purposes set out under Rule 93 of the Rules, nor do the excerpts of the Kupreskié et al. Appeal Judgement that the Trial Chamber relied upon suggest that this is the only purpose in which evidence of unpleaded allegations can be admitted and considered. 5083 In the same vein, Nsabimana does not show that Witness TK's disputed evidence was used for the purpose of demonstrating a general propensity or disposition of Nsabimana to commit crimes.

2186. Accordingly, the Appeals Chamber finds that Nsabimana has failed to identify any error in the Trial Chamber's admission of Witness TK's evidence regarding the incident involving Alphonse at the prefectoral office in the context of determining his knowledge of the night-time attacks at the prefectoral office.

3. Conclusion 2187. Based on the foregoing, the Appeals Chamber dismisses Ground 5 as well as the relevant parts of Grounds 6 and 13 of Nsabimana's appeal. 5078 Nsabimana Appeal Brief, paras. 227, 228. 5079 Prosecution Response Brief, paras. 1317, 1318. 5080 Prosecution Response Brief, para. 1318. 5081 See supra, Section VI.A. 3082 Rule 93(A) of the Rules provides that evidence of a consistent pattern of conduct relevant to serious violations ol international humanitarian law under the Statute may be admissible in the interests of justice and Rule 93(B) of the Rules requires the Prosecution to disclose acts tending to show such a pattern of conduct pursuant to Rule 66 of the 5083 See Kupreskié et al. Appeal Judgement, paras. 321-323, 336, referred to in Trial Judgement, para. 2804, fn.

7835. See also supra, Sections IV.F.2(a), V.I.2(a)(ii). 761 Case No. ICTR-98-42-A 14 December 2015

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19603/H D. Butare Prefecture Office (Grounds 6 in part, 7-10, 12, 13 in part, 14) 2188. Nsabimana challenges the Trial Chamber's finding that the actus reus and mens rea necessary to establish his responsibility for aiding and abetting by omission the killings of the Tutsi refugees abducted from the Butare Prefecture Office during attacks committed by Nyiramasuhuko, Ntahobali, and Interahamwe were proven beyond reasonable doubt. Nsabimana requests that "the impugned Judgement" be quashed5084 The Appeals Chamber will address Nsabimana's submissions relating to the actus reus before turning to his submissions concerning the mens rea.

1. Actus Reus (Grounds 8 to 10, and 12 in part) 2189. In finding Nsabimana responsible under Article 6(1) of the Statute for aiding and abetting by omission, the Trial Chamber found that, in his capacity as prefect, Nsabimana had the legal duty to provide assistance to people in danger, to ensure the tranquillity, public order, and security of people, and to protect civilians, including the wounded and sick, against acts or threats of violence. 085 It further held that, by refusing to take action in the midst of the continuing attacks at the prefectoral office, Nsabimana assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks, that his failure to act had a substantial effect on the realisation of their crimes,5086 and that he had the means available to him to "forestall these harms, but he did nothing". 5087 2190. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he had a legal duty to act, 5088 that his omission substantially assisted the perpetration of the crimes, 089 and that he had the ability to act. 5090 The Appeals Chamber will address these arguments in turn. (a) Legal Duty to Act 2191. The Trial Chamber found that Nsabimana's legal duty to act as a prefect was based on: (i) Article 256 of the Rwandan Penal Code which imposed on every Rwandan citizen a duty to provide assistance to people in danger,50%1 (i) Rwandan domestic law which imposed on the prefect an obligation to ensure the tranquillity, public order, and security of people within the 5084 Nsabimana Appeal Brief, paras. 308-502. 5085 See Trial Judgement, paras. 5893-5899. 5086 Trial Judgement, para.

5900. See also ibid., paras. 5903, 5906, 5972. 5087 See Trial Judgement, para.

5903. See also ibid., para.

5972. Nsabimana Notice of Appeal, paras. 80-89; Nsabimana Appeal Brief, paras. 308, 309, 312, 322-327, 331, 335, 341-344, 391, 392. 5089 Nsabimana Appeal Brief, paras. 483, 496. 5090 Nsabimana Notice of Appeal, paras. 94-104; Nsabimana Appeal Brief, paras. 310-321, 331-340, 342-348, 366-398. See also Nsabimana Reply Brief, paras. 135-152; AT. 16 April 2015 pp. 46-49 Trial Judgement, para. 5893. 762 Case No. ICTR-98-42-A 14 December 2015

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19602/H prefecture;5092 and (iji) Articles 7 and 13 of Additional Protocol II to the Geneva Conventions which imposed a legal duty on Nsabimana to protect civilians, including the wounded and sick, against acts or threats of violence. 5093 2192. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act. He contends that individual responsibility by omission under Article 6(1) of the Statute can only be incurred where the alleged omission is punishable under a rule of criminal law5095 and that the Trial Chamber failed to indicate the legal sanction provided under such texts.5096 2193. The Prosecution responds that the Trial Chamber did not err in finding that Nsabimana had a legal duty to act.50% In particular, it contends that Nsabimana misconstrues the law and that the jurisprudence is not settled as to whether the legal duty to act must stem from a rule of criminal law. 098 In the alternative, the Prosecution argues that the Trial Chamber found that one of the sources of Nsabimana's duty to act was criminal law. 5099 2194. The Appeals Chamber notes that Nsabimana seeks to substantiate his claim that the Trial Chamber erred in finding that Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol Il imposed

a legal duty upon him to act by arguing that criminal liability for failure to discharge a legal duty must derive from a duty imposed by criminal law and that the Trial Chamber failed to indicate the legal sanction provided under such texts.5100 The question of whether criminal liability for failure to discharge a legal duty to act must derive from a rule entailing individual criminal responsibility has never been examined in the jurisprudence of the Tribunal and 5092 Trial Judgement, para. 5894, referring to Exhibit D468 (Law of 11 March 1975, Structure and Functioning of the Préfecture) ("11 March 1975 Law"), Article 8(2). The Trial Chamber found that it did not need to resolve the issue as to whether the legal duty had to be mandated by a rule of criminal law given that "Nsabimana enjoyed a legal duty from additional, and distinct, sources of law". See ibid., fn. 14751. 503 sal Indra Notice or Appa, papa 85-l: Abil, paras Spl Bit, Paras, 308, 309, 312, 322 326, 335, 341, 342, 5095 Nsabimana Notice of Appeal, paras. 81, 82; Nsabimana Appeal Brief, paras. 309, 322, referring to Ntagerura et al. Trial Judgement, para. 659. 5096 Nsabimana Notice of Appeal, paras. 83, 84; Nsabimana Appeal Brief, para. 323. 5097 Prosecution Response Brief, paras. 1342-1353, 1360, 1362, 1363, 1366-1370. See also AT. 16 April 2015 p. 56. is rather that, irrespective of the source of the duty, the

legal duty to act must be one whose breach gives rise to 5099 Prosecution Response Brief, para. 1353. 5100 The Appeals Chamber observes that Nsabimana almost exclusively develops his contentions by arguing that he lacked the material ability to act. See, e.g., Nsabimana Appeal Brief, paras. 311-321, 331-348. These arguments are discussed in detail below. See infra, Section VI.D.1(c). 763 Case No. ICTR-98-42-A 14 December 2015

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19601/H the ICTY,5101 Nonetheless, the Appeals Chamber finds it unnecessary to make a determination on this issue in the present case as the Trial Chamber found that Nsabimana's duty to act stemmed notably from Rwandan criminal law.5102 Nsabimana fails to demonstrate that the Trial Chamber erred in relying on Article 256 of the Rwandan Penal Code or that it was under the obligation to specify the criminal sanction incurred from the violation of this provision.

2195. Accordingly, the Appeals Chamber dismisses Nsabimana's contention that the Trial Chamber erred in finding that a legal duty existed that could sustain his criminal responsibility under Article 6(1) of the Statute for aiding and abetting by omission. (b) Substantial Assistance 2196. As noted above, the Trial Chamber found that by refusing to take action in the midst of the continuing attacks at the Butare Prefecture Office, Nsabimana assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks and that his "failure to act had a substantial effect on the realisation of these crimes."$103 The Trial Chamber relied, in part, on the evidence of Witnesses QCB, SJ, SU, SS, and RE to conclude that, "[a]lthough many people took refuge at the [Butare Prefecture Office] precisely because they thought the préfet would protect them, Nsabimana refused to help."$104 It further stated that Nsabimana's "attitude in this respect was evidenced by Witness TQ who approached Nsabimana at the [Butare Prefecture Office] asking for help in burying the bodies of orphans that had been killed at the school complex" and recalled that "Nsabimana told Witness TQ that he was a madman.' »5105 The Trial Chamber also noted evidence from Witness SS that soldiers prevented attacks at the prefectoral office and determined that, "[hjad Nsabimana posted gendarmes or soldiers sometime

prior to 5-15 June 1994, he could have prevented the mass killing and rape, at least in part, at the [Butare Prefecture Office]."5106 5101 See Mrksic and Sjivancanin Appeal Judgement, para. 151 ("The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility. The Appeals Chamber further recalls that Sijivancanin's duty to protect the prisoners of war was imposed by the laws and customs of war. Thus, the Appeals Chamber considers that SIjivananin's breach of such duty gives rise to his individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law."); Ntagerura et al. Appeal Judgement, paras. 334, 335. 5102 The Trial Chamber also relied on provisions of the laws and customs of war which it considered give rise to individual criminal responsibility in case of violation of such provisions. See Trial Judgement, para. 5899 ("In the Chamber's view, the criminalisation of individual conduct encompasses the Geneva Conventions in their entirety, including Articles 7 and 13 of Additional Protocol II."). The Appeals Chamber declines to consider proprio motu the correctness of this legal statement in light of the Trial Chamber's reliance on the Rwandan Penal Code 103 Trial Judgement, para.

5900. See also supra, para. 2189 5104 Trial Judgement, para. 5900 (internal reference omitted). 5105 Trial Judgement, para. 5900 (internal reference omitted). 5106 Trial Judgement, para. 5900. 764 Case No. ICTR-98-42-A 14 December 2015

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19600/H 2197. Nsabimana contends that Witness TQ's evidence concerned the abduction of orphans at the Groupe scolaire rather than the abduction and killing of refugees from the prefectoral office, and argues that Witness TQ's evidence on an alleged conversation with him about burying the orphans is not believable.5107 He submits that the Trial Chamber therefore erred in relying on this evidence in finding that he assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks.5108 2198. The Prosecution argues that the Trial Chamber reasonably assessed Witness Q's evidence and accepted it as credible and consistent. 5109 2199. The Appeals Chamber finds that Nsabimana's contentions concerning the analysis of Witness TQ's evidence fail to identify an error that could invalidate the verdict or could have occasioned a miscarriage of justice. They do not demonstrate that the Trial Chamber's reliance on Witness TQ's evidence was material to its determination that Nsabimana's omission substantially assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the commission of crimes against Tutsis who had sought refuge at the prefectoral office. 110 The Trial Judgement reveals that Witness TQ's evidence was considered as illustrative of Nsabimana's indifference toward victims of attacks generally, offering circumstantial corroboration of evidence from multiple

witnesses that Nsabimana refused to assist refugees at the prefectoral office notwithstanding the fact that he received pleas for assistance from them. S1ll 2200. In light of Nsabimana's failure to identify any error that could invalidate the verdict or could have occasioned a miscarriage of justice, the Appeals Chamber declines to consider his contentions further. (c) Ability to Act 2201. The Trial Chamber, relying on various sources of Rwandan law, observed that Nsabimana, in his capacity as prefect, had the power to request the intervention of the Rwandan army to restore public order and the ability to verbally request the intervention of the gendarmerie.5112 It further found that "Nsabimana in fact requisitioned forces around 5-15 June 1994", that the placement of five to six soldiers at the prefectoral office "forestalled attacks against those taking refuge" there, and that these conclusions demonstrated that Nsabimana, as prefect, "had the ability to requisition 5107 Nsabimana Appeal Brief, paras. 209, 212-215. $108 Nsabimana Appeal Brief, paras. 209, 213-215. 5109 Prosecution Response Brief, paras. 1319, 1321. 5110 See Trial Judgement, para. 5900. 5111 See Trial Judgement, para. 5900. 765 Case No. ICTR-98-42-A 14 December 2015

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19599/H forces that could forestall the attacks."113 The Trial Chamber considered that Nsabimana failed to prevent ongoing attacks at the prefectoral office "for a significant period between the end of April and mid-June 1994" even though "means were available to Nsabimana to fulfil his duty to forestall these harms", 5114 2202. Nsabimana submits that the Trial Chamber, in finding that he had the ability to act, failed to examine whether he had "the ability and the capacity to act in the specific circumstances of the casc."Sll5 He argues that no evidence was adduced to demonstrate that he had the means or capacity to discharge his obligations to protect civilians prior to June 19945116 In his view, the Trial Chamber did not consider that soldiers or gendarmes from Butare Prefecture participated in the perpetration of crimes and how this impacted his ability to act and that the security personnel he eventually posted at the prefectoral office in June 1994 were not from the prefecture. S11? In light of all these considerations, Nsabimana suggests that the existence of a prefect's "theoretically vested" powers prescribed by Rwandan law is insufficient to establish that he had the practical ability to exercise such powers from April to mid-June 19945118 and that no reasonable trier of fact could have found that he had the ability to act. 5119 2203. Furthermore, Nsabimana contends

that his ability to post soldiers at the prefectoral office around 5 June 1994 does not necessarily mean that he had the ability to do so prior to that date.5120 He submits that the Trial Chamber incorrectly characterised the positioning of members of the Rwandan army at the prefectoral office around 5 to 15 June 1994 as a "requisition" within the meaning of Rwandan law.* 512' Finally, Nsabimana submits that he "did his best", despite the lack or 5112 See Trial Judgement, para. 5901, referring to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (Law of 23 January 1974, Création de la Gendarmerie) ("23 January 1974 Law"), Section 2, Art. 32. 5113 Trial Judgement, para.

5902. See also ibid., para. 5906. 5114 Trial Judgement, para.

5903. See also ibid., para.

5906. Nsabimana Appeal Brief, paras. 310-321, 331-338, 342-347, 366-397. See also Nsabimana Reply Brief, paras. 135-152; AT. 16 April 2015 pp. 46-49 $116 Nsabimana Appeal Brief, paras. 316-320, 334, 343, 368, 369. See also Nsabimana Reply Brief, paras. 136, 137 Nsabimana stresses that apart from gendarmes, and to a certain extent soldiers, the prefect cannot requisition any other force to maintain peace and security. See Nsabimana Appeal Brief, para.

318. Nsabimana similarly contends that he did not have the ability to discharge his duties pursuant to Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol Il of the Geneva Conventions. See ibid., paras. 331, 332, 335, 336, 342, 344, 347. See also AT. 16 April 2015 p.

48. Nsabimana Appeal Brief, paras. 314, 319; Nsabimana Reply Brief, paras. 140-143, 145, 148-151. Nsabimana recalls that the Nsabimana and Nteziryayo Indictment and some Prosecution witnesses alleged that the Rwandan Armed Forces were involved in crimes, and that several officers have been convicted in that regard. See Nsabimana Appeal Brief, paras. 375-383. See also AT. 16 April 2015 pp. 47, 48. 5118 Nsabimana Appeal Brief, paras. 312, 313, 337, 363, 367, referring, inter alia, to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (23 January 1974 Law), Art.

32. While Nsabimana acknowledges that Rwandan law empowered the prefect to requisition the Rwandan Armed Forces, he contends that this text was not sufficient for the Trial Chamber to conclude that he had the ability to requisition the Rwandan Armed Forces or post soldiers prior to June 1994. See ibid., paras. 316, 317, 320, 367-369, 392. 5119 Nsabimana Appeal Brief, paras. 319, 340, 383. 5120 Nsabimana Appeal Brief, para. 316; Nsabimana Reply Brief, para. 144. 5121 Nsabimana Appeal Brief, paras. 364, 366, 384-397. See also Nsabimana Reply Brief, para. 147. 766 Case No. ICTR-98-42-A 14 December 2015

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19598/H inadequacy of resources, to discharge his duty to protect civilians.5122 He asserts that, in addition to getting protection for the prefectoral office, he took many other actions to save the lives of civilians, and did not hesitate to protect people when he was able to do so.5123 2204. The Prosecution responds that the Trial Chamber correctly found that Nsabimana had the material ability to act, as demonstrated by his requisition of forces to protect refugees at the prefectoral office around 5 to 15 June 1994.5124 It submits that, contrary to Nsabimana's arguments, the Trial Chamber did enquire into the means available to Nsabimana to act.5125 According to the Prosecution, the fact that some gendarmes and soldiers participated in the killings, or whether soldiers originated from Butare Prefecture, did not detract from his ability to act. 5126 It argues that, given that the Trial Chamber's task was to assess Nsabimana's legal power to act, the exercise of his power, and the authorities' compliance with his requests, the Trial Chamber was not required to assess whether soldiers were involved in crimes and that the issue is not whether Nsabimana's request for soldiers amounted to a "requisition" under Rwandan law. 5127 2205. The Appeals Chamber recalls that aiding and abetting by omission necessarily requires that the accused had the ability to act, such that there were

means available to the accused to fulfil his duty. 5128 2206. In the present case, the Trial Chamber observed that, as the prefect of Butare, Nsabimana "ha[d] the power to request the intervention of the Armed Forces to restore public order" and that he could "verbally request the intervention of the National Gendarmerie pursuant to the Rwandan Law on the creation of the Gendarmerie.5129 Nsabimana does not dispute the validity of this finding and the Appeals Chamber dismisses his argument that no evidence was adduced to demonstrate his capacity or means to discharge his obligations to protect Tutsi refugees at the prefectoral office. 5122 Nsabimana Appeal Brief, paras. 339, 345, 346. 5123 Nsabimana Appeal Brief, paras. 339, 345, 346. Nsabimana notes that: (i) some Prosecution and Defence witnesses testified that refugees at the Butare Prefecture Office received food, blankets, and other items on various occasions; (ii) he helped the Rumiya family and other individuals, including women called Josée, Immaculée Mukantaganira, and Madeleine Mukakagaba; and (iii) he participated in the evacuation of orphans, including 600 children from the Groupe colaire. See ibid., para. 346 124 Prosecution Response Brief, paras. 1354-1356, 1376. See also AT. 16 April 2015 pp. 59, 60 5125 Prosecution Response Brief, para. 1377. 5126 Prosecution Response Brief, para. 1378. 5127 Prosecution Response

Brief, paras. 1356, 1379. The Prosecution notes that the colonels responded to Nsabimana's oral request because he was a prefect, thus demonstrating his material ability to act. See ibid., paras. 1356, 1380. It further points out that when Nsabimana orally requested military personal, his request was complied with and soldiers were posted at the prefectoral office for the purpose of offering protection. See idem. 5128 Mrksic and Stjivancanin Appeal Judgement, para. 154, referring to Ntagerura et al. Appeal Judgement, para.

335. See also ibid., paras. 49, 82. Trial Judgement, para. 5901, referring to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (23 January 1974 Law), Section 2, Art. 32. 767 Case No. ICTR-98-42-A 14 December 2015

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19597/H 2207. The Appeals Chamber is also not persuaded that the Trial Chamber erred in simply assessing Nsabimana's "theoretically vested" powers without considering whether he had the ability and the capacity to act in the specific circumstances of the case. The Trial Chamber properly assessed whether a possibility was open to Nsabimana to call on the Rwandan army or the gendarmes to protect refugees and found that: Nsabimana in fact requisitioned forces around 5-15 June 1994. At that time, 5-6 soldiers were seconded to the [Butare Prefecture Office] under the command of a female heutenant The evidence establishes that these soldiers forestalled attacks against those taking refuge at the Butare préfecture office. This shows that Nsabimana, pursuant to his powers as préfet, had the bility to requisition forces that could forestall the attacks. $130 Having made this assessment, the Trial Chamber then determined that "Nsabimana failed to take any steps to prevent the ongoing attacks at the [Butare Prefecture Office] for a significant period between the end of April and mid-June 1994.*5131 2208. In the view of the Appeals Chamber, it was open to a reasonable trier of fact to rely on the actual positioning of soldiers or gendarmes at the prefectoral office, at Nsabimana's request, in June 1994 to find that he had the ability to take steps to prevent the attacks between the end of

April and mid-June 1994. The Appeals Chamber is not persuaded by Nsabimana's contention that the Trial Chamber failed to sufficiently consider that soldiers were participating in attacks in Butare Prefecture, which, according to him, should have raised doubts about his ability to requisition them earlier than June 1994. Nsabimana ignores evidence referred to throughout the Trial Judgement indicating the Trial Chamber's awareness that soldiers and/or gendarmes participated in attacks in Butare Prefecture and at the prefectoral office specifically.5132 Likewise, Nsabimana fails to demonstrate why the Trial Chamber was required to consider whether the security forces ultimately placed at the prefectoral office were not from Butare Prefecture.

2209. Furthermore, the Appeals Chamber does not find merit in Nsabimana's contention that the Trial Chamber erred in finding that he "requisition[ed]" soldiers according to Rwandan law. Nsabimana appears to argue that his ability to obtain security forces in June 1994 resulted from the coincidental confluence of circumstances, rather than his ability to do so based on Rwandan law.5133 However, the Trial Chamber clearly considered the evidence of Nsabimana and others as to how 5130 Trial Judgement, para. 5902 (internal reference omitted). 5131 Trial Judgement, para. 5903. 5132 See, e.g., Trial Judgement, paras. 2190, 2191, 2206, 2211, 2214, 2218, 2250, 2276, 2279, 2287, 2307, 2309, 2339, 31331, 2771, 2773, 2781, 2805, 2807. but must confirm this in writing. See Nsabimana Appeal Brief, para.

393. Nsabimana submits, however, that his actions did not amount to a requisition because: (i) he used his own relationships, namely through Colonels Munyengango and Mugemanyi, to have soldiers from outside Butare posted at the prefectoral office; (ii) the Trial Chamber did not 768 Case No. ICTR-98-42-A 14 December 2015

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19596/H security forces were obtained for the purpose of protecting refugees at the prefectoral office between 5 and 15 June 1994.5134 Nsabimana does not demonstrate on appeal that, in light of the record, no reasonable trier of fact could have found that he had the de jure authority as prefect and the actual capacity to obtain security for the refugees at the prefectoral office between the end of April and mid-June 1994.

2210. Finally, as regards Nsabimana's arguments that he "did his best" to protect refugees, the Appeals Chamber notes that he simply points to his efforts to assist Tutsis without demonstrating how the Trial Chamber erred. The Trial Chamber considered his efforts when it assessed mitigating factors in relation to his sentence.5135 Nsabimana does not demonstrate that the Trial Chamber ignored this evidence or that it prevented a reasonable trier of fact from concluding that he had the ability to act in an attempt to forestall crimes at the prefectoral office between the end of April and mid-June 1994.

2211. Based on the foregoing, the Appeals Chamber dismisses Nsabimana's arguments regarding his ability to act as it pertains to his responsibility for aiding and abetting by omission. (d) Conclusion 2212. The Appeals Chamber finds that Nsabimana has failed to demonstrate that the Trial Chamber erred in finding that he had a legal duty to act, that his failure to act had a substantial effect on the realisation of the crimes committed during attacks at the prefectoral office, and that he had the ability to act.

2. Mens Rea (Grounds 6 in part, 7, 12 and 13 in part, 14) 2213. In determining that Nsabimana possessed the requisite mens rea for aiding and abetting by omission the killings of Tutsis who had sought refuge at the Butare Prefecture Office, the Trial Chamber found that Nsabimana knew of the night-time attacks at the prefectoral office before the end of May 1994 and that the Tutsis seeking refuge there were being abducted, raped, and killed, 5136 It further found that Nsabimana was aware of the perpetrators' genocidal intent and that he also knew that his failure to act assisted in the commission of the crimes. 5137 certain whether gendarmes or soldiers were posted; and (iii) no evidence was adduced to establish that the Rwand my hierarchy had received a written requisition from Nsabimana. See ibid., paras. 387-3, 5134 Trial Judgement, paras. 2807-2812. 5136 Trial Judgement, paras. 2807, 5904. 5137 Trial Judgement, paras. 5904, 5905. See also ibid., para. 5972 769 Case No. ICTR-98-42-A 14 December 2015

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19595/H 2214. Nsabimana submits that the Trial Chamber erred in finding that he had knowledge: (i) of the night-time attacks perpetrated against the Tutsis seeking refuge at the prefectoral office; (ii) of the perpetrators' genocidal intent; and (iii) that his failure to act assisted the commission of the crimes at the prefectoral office. 138 The Appeals Chamber will address these contentions in turn. (a) Knowledge of Crimes 2215. In finding that Nsabimana knew of the night-time attacks perpetrated against the Tutsis seeking refuge at the prefectoral office, the Trial Chamber relied on: (i) Exhibit P113, a letter written by Nsabimana entitled "The Truth about the Massacres in Butare", which he sent to Prosecution Expert Witness Alison Des Forges after telephone conversations in 1996, and Exhibit P114, the transcript of a journalist's interview of Nsabimana taken in October 1994; (ii) Nsabimana's testimony; and (iii) the evidence of Prosecution Witnesses TK, RE, SS, SU, and QBP. 5139 As to the timing of Nsabimana's knowledge, the Trial Chamber concluded that he "was aware of the night-time attacks at the [prefectoral office] and he was presented with multiple requests for assistance from Tutsi refugees starting, at least, around the end of May 1994.*5140 It further concluded that, "[blased upon Nsabimana's own admissions and the open and notorious nature of the attacks, [...]

Nsabimana was actually aware of the attacks even earlier."$141 2216. Nsabimana submits that the Trial Chamber erred in finding he had knowledge of the night-time attacks against the Tutsis at the prefectoral office based on its reliance on: (i) Exhibits P113 and P114:5142 (ii) his testimony;5143 and (ili) the evidence of Witnesses TK, RE, SS, SU, and QBP as well as the "open and notorious nature of the attacks", 5144 (i) Exhibits P113 and P114 2217. In making its finding that Nsabimana was aware of the night-time attacks at the prefectoral office earlier than at the end of May 1994, the Trial Chamber relied on an excerpt of Exhibit P113 in which Nsabimana stated that "there were isolated cases of disappearances at night" which he attributed to unknown soldiers and hooligans, and a portion of Exhibit P114 reflecting that 5138 Nsabimana Notice of Appeal, paras. 53-69, 74, 105-110; Nsabimana Appeal Brief, paras. 130-158, 180, 181, 190-202, 262-267, 399-427, 429, 431-438, 441, 445-492, 495-502; Nsabimana Reply Brief, paras. 70-78, 94-98, 108, 153-187. See also AT. 16 April 2015 pp. 44-46. 5139 Trial Judgement, paras. 2803-2807, 2810. 5140 Trial Judgement, para. 2807. 5141 Trial Judgement, para. 2807. 5142 Nsabimana Notice of Appeal, paras. 63-66; Nsabimana Appeal Brief, paras. 180-202, 441; Nsabimana Reply Brief, paras. 77, 78, 177. See also AT. 16 April 2015 p. 46. 'Nsabimana Notice of Appeal, paras. 53-62; Nsabimana Appeal Brief, paras. 130-158, 441; Nsabimana Reply Brief paras. 70-76, 95-98, 177. See also AT. 16 April 2015 pp. 44, 45. 770 Case No. ICTR-98-42-A 14 December 2015

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19594/H Nsabimana made a list of people living at the prefectoral office so that he could check if there had been problems the night before. 145 In the view of the Trial Chamber, Exhibits P113 and P114 contained the writings of Nsabimana and were of "significant probative weight" 5146 2218. Nsabimana argues that the Trial Chamber's reliance on Exhibits P113 and P114 was unreasonable because: (i) the Trial Chamber decontextualised his statement in Exhibit P113 that there were "isolated cases of disappearances at night" and misrepresented it as referring to the refugees at the prefectoral office when instead it was a generic reference to the situation in Butare Prefecture as a whole:5147 and (ii) Exhibit P114 only indicates that Nsabimana prepared a list of the refugees at the prefectoral office in case there were "problems" at night and not that abductions in fact occurred, and reflects that the refugees were not attacked or killed, and that their number increased, which reinforces that the prefectoral office was safe. 5148 2219. The Prosecution responds that Nsabimana fails to demonstrate that the Trial Chamber's assessment of Exhibits P113 and P114 was unreasonable or that it erred in finding that he knew of the night-time attacks against the Tutsis at the prefectoral office. 5149 2220. The Appeals Chamber observes that when Nsabimana's statement in Exhibit P113 that

there were "isolated cases of disappearances at night" is read alongside the rest of his letter, it is not clear that Nsabimana was referring specifically to the refugees at the prefectoral office. Rather, the statement appears in the context of discussing the security situation in Butare Prefecture in general and prior to describing the mobilisation of military police to apprehend looters $150 Notably, Exhibit P113 contains a subsequent section focused in particular on the events at the prefectoral • office in which Nsabimana states that he protected the refugees and makes no mention of any abductions, disappearances, killings, or rapes. 5151 Consequently, the Appeals Chamber finds that no 5144 Nsabimana Notice of Appeal, paras. 67-69, 74; Nsabimana Appeal Brief, paras. 203, 235, 251, 262-268, 441; Nsabimana Reply Brief, paras. 94, 107, 108, 177. See also AT. 16 April 2015 pp. 45, 46. 5145 Trial Judgement, para. 2807, referring to Exhibit P113, p. K0016627 (Registry pagination), Exhibit P114, K0120070 (Registry pagination). Bi4o Trial Judgement, para. 2802. 5147 Nsabimana Appeal Brief, paras. 195-200, referring to Exhibit P113, p. K0016627 (Registry pagination). Nsabimana also argues that the Trial Chamber failed to consider his statements in Exhibit P113 that: (i) he attempted to move the refugees from the prefectoral office to Nyaruhengeri Commune, and that thereafter some refugees returned to the prefectoral office following threats from the local population, which indicated that there was insecurity everywhere; (ii) he was determined to protect the refugees; and (iii) the refugees considered the prefectoral office safe. See Nsabimana Appeal Brief, paras. 190-192, referring to Exhibit P113, p.

9. In this regard, Nsabimana emphasises that the prefectoral office was an open place and that the refugees were free to move around as they wished, so the decrease in the number of refugees did not necessarily mean that they were killed. See ibid., paras. 193 (referring to Witness SU, T. 22 October 2002 pp. 60-63), 194. 5148 Nsabimana Notice of Appeal, paras. 64-66; Nsabimana Appeal Brief, paras. 182-189; Nsabimana Reply Brief, para, cuion Response Brief, paras, 1290, 1291, 1294, 1297-1299, 1302, 1313. 5150 Exhibit P113, p. K0016627 (Registry pagination). 5151 Exhibit P113, pp. K0016630, K0016631 (Registry pagination). 771 Case No. ICTR-98-42-A 14 December 2015

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19593/H reasonable trier of fact could have considered the quoted excerpt of Exhibit P113 as a basis for the finding that Nsabimana knew of the night-time attacks against the refugees at the prefectoral office.5152 2221. Turning to Exhibit P114, the Appeals Chamber recalls its finding that the Trial Chamber erred in considering that this purported transcript of an interview with Nsabimana reflected his own views and contained a faithful reflection of what he said during the interview, and that he had acknowledged the document as authentic $153 Given that there is no indication that Nsabimana acknowledged or authenticated the statement in Exhibit P114 reflecting that he had made a list of people living at the prefectoral office so that he could check if there had been problems the night before$154 and that no evidence was led through Nsabimana's testimony to this effect, 15s the Appeals Chamber considers that the Trial Chamber erred in relying on this aspect of Exhibit P114 as evincing Nsabimana's knowledge of the night-time attacks at the prefectoral office prior to the end of May 1994.

2222. The Appeals Chamber will assess the impact, if any, of the Trial Chamber's erroneous reliance on Exhibits P113 and P114 after having reviewed all of Nsabimana's challenges concerning his knowledge of the night-time attacks at the prefectoral office. (iï) Nsabimana's Testimony 2223. The Trial Chamber relied on Nsabimana's "own admissions", in addition to the "open and notorious nature of the attacks" at the prefectoral office, to conclude that Nsabimana knew of the attacks before the end of May 19945156 Specifically, the Trial Chamber noted that "Nsabimana testified that he responded to the refugees' requests for assistance by posting soldiers at the [Butare Prefecture Office] around 5 June 1994" but "admitted in his testimony that a woman came to his office seeking assistance around 15 June 1994" 5157 According to the Trial Chamber, this called into question "Nsabimana's credibility as to when he knew about the night-time attacks at the [Butare Prefecture Office] because he could not have responded to their requests before he received them" 5158 In addition, the Trial Chamber assigned importance to Nsabimana's admission "during 5152 In light of this conclusion, the Appeals Chamber dismisses the rest of Nsabimana's challenges to the Trial Chamber's reliance on Exhibit P113 as moot. 5153 See supra, para. 252. 5154 Trial Judgement, para. 2807, referring to Exhibit P114, p. K0120070 (Registry pagination). be ime po ole Chat was tose vis preparation for he anting inge Sue at the ree ote pears to T. 10 October 2006 p. 4 5156 Trial Judgement, para. 2807. 5157 Trial Judgement, para. 2807, referring to Nsabimana, T. 10 October 2006 pp. 13, 15, 16. $158 Trial Judgement, para. 2807. 772 Case No. ICTR-98-42-A 14 December 2015

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19592/H his testimony that he was not at peace with himself when he went home from the [Butare Prefecture Office] during this period because he feared that he may not find the refugees when he returned in the morning", 5159 2224. Nsabimana contends that the Trial Chamber unreasonably misinterpreted his evidence as reflecting that he posted soldiers at the prefectoral office around 5 June 1994 in response to the refugees' requests for assistance.516º He points out that, to the contrary, he testified that he placed the soldiers there on his own initiative after he became concerned about reprisals following the killing of the bishops at Kabgayi, observed an "ill soldier" wandering among the refugees at the prefectoral office, and met with Colonels Munyengango and Mugemanyi, who suggested he obtain security and provided him with several convalescing soldiers from the Groupe scolaire.5161 Consequently, Nsabimana asserts that there is no contradiction in his testimony and that the Trial Chamber erred in discrediting his testimony on this basis.5162 In addition, Nsabimana stresses that he testified that he had already posted soldiers at the prefectoral office by the time the woman he referred to spoke to him, that she did not ask for assistance, and that he was independently aware of the soldier she warned him about when she spoke to him. 163 He emphasises that his testimony reflects

that, between April and June 1994, nobody at the prefectoral office, including the refugees, told him about the night-time attacks.5164 2225. Nsabimana further contends that the Trial Chamber misstated his testimony that he was not at peace with himself when he went home from the prefectoral office during this period because he feared he may not find the refugees when he returned in the morning. $165 He argues that his original French testimony was inaccurately translated into English and that the verb tense of the original version indicates that he knew of the attacks only after their completion, rather than at the time of their perpetration.5166 Nsabimana adds that the allusions in his testimony to acts of violence and 5159 Trial Judgement, para. 2807, referring to Nsabimana, T. 9 October 2006 pp. 80, 81. The Appeals Chamber notes that in the testimony referred to by the Trial Chamber, Nsabimana does not refer to the "refugees" but to "them". However, the Appeals Chamber understands that the Trial Chamber substituted "them" with the term "refugees" as that was its interpretation of his statement and to provide clarity. Nsabimana Notice of Appeal, para. 59; Nsabimana Appeal Brief, para. 130. 5161 Nsabimana Notice of Appeal, para. 59; Nsabimana Appeal Brief, paras. 130-135, 156, 157 (emphasis omitted). 5162 Nsabimana Appeal Brief, paras. 130, 131. 5163 Nsabimana Appeal Brief,

paras. 136, 137, 139-143; Nsabimana Reply Brief, paras. 74-76. Nsabimana also notes that the woman was not a witness and there was no evidence that she was a refugee at the prefectoral office, or that she made a specific request for assistance from Nsabimana as opposed to simply mentioning the general insecurity at the Butare Prefecture Office. See Nsabimana Appeal Brief, paras. 138, 139. 5164 Nsabimana Appeal Brief, para. 144; Nsabimana Reply Brief, paras. 95, 96, 98. 5165 Nsabimana Notice of Appeal, paras. 54-56; Nsabimana Appeal Brief, paras. 146, 147; Nsabimana Reply Brief, paras. 69, 70. See also AT. 16 April 2015 pp. 44, 45. Nsabimana Notice of Appeal, paras. 57, 58; Nsabimana Appeal Brief, paras. 148-154; Nsabimana Reply Brief, paras. 69-73. See also AT. 16 April 2015 pp. 44, 45. 773 Case No. ICTR-98-42-A 14 December 2015

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19591/H massacres relied on by the Trial Chamber were to those that had occurred throughout the prefecture and not just at the prefectoral office. 167 2226. The Prosecution responds that, contrary to Nsabimana's understanding, the Trial Chamber did not conclude that Nsabimana placed soldiers at the prefectoral office based on his testimony that a woman spoke with him on 15 June 1994 because it found that this incident was not the catalyst for him doing so. '168 It argues that Nsabimana's assertion that the Trial Chamber should have accepted his evidence that no refugees informed him of the attacks fails to identify any error in the Trial Chamber's assessment of the evidence. $169 The Prosecution further responds that the Trial Chamber reasonably concluded from his acknowledgement that he was not at peace with himself that he was aware that the refugees were being attacked during the night.$170 It also asserts that Nsabimana's contention that his references to violence were to the entire prefecture rather than the prefectoral office specifically is speculative.5171 2227. The Appeals Chamber observes that, in assessing Nsabimana's testimony as to the events at the prefectoral office, the Trial Chamber stated that Nsabimana testified that he posted soldiers there around 5 June 1994 in response to refugees' requests for assistance 5172 However, the excerpts of Nsabimana's testimony

referred to by the Trial Chamber do not support this conclusion. Rather, Nsabimana testified that he placed the soldiers at the prefectoral office after becoming concerned about reprisals following the killing of the bishops at Kabgayi, seeing an "ill soldier" among the refugees at the prefectoral office, and meeting with Colonels Mugemany and Munyengango.5173 Nsabimana also testified that, around 15 June 1994, a woman mentioned to him that there was a soldier amongst the refugees, but that by this point he had already posted the soldiers, and that he was already aware of the presence of the soldier. 114 Consequently, the Appeals Chamber finds that no reasonable trier of fact could have found that the evidence called "into question Nsabimana's credibility as to when he knew about the night-time attacks at the [Butare Prefecture Office] because he could not have responded to [the refugees'] requests before he received them"5175 as his 5167 Nsabimana Notice of Appeal, paras. 54-58; Nsabimana Appeal Brief, paras. 146-157, referring to Trial Judgement, saras. 2807, 2399, Nsabimana, T. 9 October 2006 pp. 80, 81 (French), T. 9 October 2006 pp. 80-82 Prosecution Response Brief, paras. 1292-1294, 1296, 1299. See also AT. 16 April 2015 p. 57. 5169 Prosecution Response Brief, para. 1295. 5170 Prosecution Response Brief, paras. 1300, 1301. 5171 Prosecution Response Brief, para. 1301. 5172 Trial Judgement, para. 2807, referring to Nsabimana, T. 10 October 2006 p. 13. 5173 Nsabimana, T. 10 October 2006 p. 13. 5174 Nsabimana, T. 10 October 2006 pp. 15, 16. 5175 Trial Judgement, para. 2807. 774 Case No. ICTR-98-42-A 14 December 2015

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19590/H evidence reflects that he did not post soldiers on the basis of requests from the refugees but for other reasons. 5176 2228. However, the Appeals Chamber does not find that this error has occasioned a miscarriage of justice in light of the remaining evidence relied upon by the Trial Chamber in finding that Nsabimana knew of the attacks. In the view of the Appeals Chamber, the insignificance of this error is clear in light of the fact that the Trial Chamber evaluated Nsabimana's testimony that nobody, including the refugees, informed him of the attacks at the prefectoral office, but rejected it in light of Prosecution evidence to the contrary, which is discussed below.5177 2229. The Appeals Chamber also finds that Nsabimana fails to demonstrate any error in the Trial Chamber's reliance on his acknowledgement that "he was not at peace with himself when he went home from the [prefectoral office] during this period because he feared that he may not find the refugees when he returned in the morning."178 Nsabimana principally alleges that the Trial Chamber erred because it relied upon an erroneous translation into English of his testimony. However, he does not demonstrate that the English and French versions present materially different information as to when he became aware of the attacks at the prefectoral office. 5179 Nsabimana fails to appreciate that the significance of this comment arises from his statement that he worried about what he would find when he returned in the morning, reflecting contemporaneous knowledge of, and concerns about, the attacks at the prefectoral office.

2230. The Appeals Chamber is similarly not persuaded by Nsabimana's assertion that the Trial Chamber unreasonably read his comment as referring to the refugees at the prefectoral office when 5176 The Appeals Chamber notes that the Trial Chamber stated in the "Factual Findings" section of the Trial Judgement entitled "Posting of Gendarmes or Soldiers" that Nsabimana admitted in Exhibit P113 that he provided gendarmes to protect the refugees, and that Witness Fergal Keane stated that Nsabimana said to him on approximately 15 June 1994 that he had posted soldiers at the prefectoral office to protect the refugees. See Trial Judgement, para. 2808, referring to Exhibit P113, p. K0016631, Fergal Keane, T. 25 September 2006 p. 47, T. 28 September 2006 p.

21. The Appeals Chamber notes that Nsabimana does not explain his motivation for originally placing the soldiers at the prefectoral office beyond protecting the refugees. 5177 See Trial Judgement, para. 2803, referring to Nsabimana, T. 10 October 2006 pp. 16, 24. 5178 Trial Judgement, para. 2807. 5179 Specifically, Nsabimana argues that his testimony was mistranslated from French into English and that the sentence "you are aware that massacres took place" in the English transcript results from an incorrect translation of his testimony, which the Trial Chamber misinterpreted as reflecting that "Nsabimana testified that after he found out that massacres were still carried out during the day and night", whereas he stated in French that "même une personne qui vous amène une information comme ça, et vous savez que les massacres ont eu lieu", which should have been translated into English as: "you know massacres have taken place". He alleges that the correct transcription of his original French testimony indicates that he knew about the attacks only after they were carried out as opposed to when they were ongoing. Nsabimana also points out that this comment formed a small part of his testimony and argues that the Trial Chamber "could not conclude, solely on the basis of [his] testimony, that [he] was aware of the attacks and that he posted soldiers because he knew about the

night-time attacks at the [prefectoral] office." See Nsabimana Notice of Appeal, paras. 54-58 (emphasis in original); Nsabimana Appeal Brief, paras. 147-153 (emphasis in original); Nsabimana Reply Brief, paras. 69-73. However, this contention is meritless as the Trial Chamber relied not only on Nsabimana's testimony but also on other evidence demonstrating his knowledge of the attacks. 775 Case No. ICTR-98-42-A 14 December 2015

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19589/H he was in fact speaking about Butare Prefecture as a whole. The relevant transcripts show that he made the statement in response to a question specifically asking about refugees at the prefectoral office. 5180 2231. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its interpretation of Nsabimana's testimony as to why he placed the soldiers at the prefectoral office and that, as a result, it erred in concluding that his credibility was "call[ed] into question [...] as to when he knew about the night-time attacks" at the Butare Prefecture Office. However, in light of the Trial Chamber's reliance on other aspects of Nsabimana's testimony to find that he was actually aware of night-time attacks at the prefectoral office earlier than at the end of May 1994, the Appeals Chamber finds that this error has not occasioned a miscarriage of justice. (iii) Prosecution Evidence and Open and Notorious Nature of the Attacks 2232. In finding that Nsabimana knew of the night-time attacks at the Butare Prefecture Office from "even earlier" than "the end of May 1994"5181 the Trial Chamber relied upon: (i) Witness TK's "credible" evidence that a man named Alphonse ran to Nsabimana's office to ask for help while Nsabimana was in his office around the end of May or beginning of June 1994,5182 and ii) Witness RE's "credible" testimony that a young man and woman went to

Nsabimana's office looking for help in early June 19945183 The Trial Chamber also noted Witnesses SS's and SU's testimonies that "in a separate incident after attacks occurred at the [Butare Prefecture Office], three women went to see Nsabimana on behalf of the other refugees" and that, although neither witness was present at the meeting, "they were told that Nsabimana denied knowledge of the attacks and said he would post gendarmes to protect them", 5184 In subsequently assessing evidence relating to Nsabimana posting gendarmes or soldiers at the prefectoral office, the Trial Chamber also noted Witness QBP's evidence that a woman who was attacked by Interahamwe and wounded on her ear complained to Nsabimana but that he did nothing for her.5185 The Trial Chamber further determined that Nsabimana's knowledge of attacks at the prefectoral office was based, in part, on "the open and notorious nature of the attacks", 5186 5180 Nsabimana, T. 9 October 2006 pp. 77, 78, 80, 81. 5181 Trial Judgement, para. 2807. 5182 Trial Judgement, para. 2804. 5183 Trial Judgement, para. 2805. 5184 Trial Judgement, para.

2806. See also ibid., para. 2810. 185 Trial Judgement, para. 281 186 Trial Judgement, para. 2807 776 Case No. ICTR-98-42-A 14 December 2015

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19588/H 2233: Nsabimana contends that the Trial Chamber erred in relying upon the testimonies of Witnesses TK, RE, SS, SU, and QBP in finding that he had knowledge of the night-time attacks.5187 He points out that their evidence constitutes hearsay, which, in his view, should have cast doubt on its reliability 5188 In addition, he highlights that Witnesses SD and QBQ testified that they did not inform Nsabimana about the abuses at the prefectoral office, and that Witnesses SS and SU only stated that a delegation of women went to see him and that their evidence could not demonstrate that this delegation in fact saw him. 5189 2234. Nsabimana further contends that no reasonable trier of fact could have concluded that the attacks were so notorious that they could not have escaped his knowledge.519 He argues that the evidence reflects that the prefectoral office was a safe place for the refugees, particularly because they opted to return there each time 5191 Nsabimana points out that there was no evidence of mass graves or blood stains at the prefectoral office, and he emphasises that the refugees cooked food and that the staff went about their duties 5192 2235. The Prosecution responds that Nsabimana fails to demonstrate any error in the Trial Chamber's assessment and reliance on the evidence of Witnesses TK, RE, SS, QBP, and SU to find that Nsabimana knew of the atrocities being

committed at the prefectoral office.5193 2236. The Appeals Chamber notes that Witness TK provided direct evidence concerning the abduction of a man named Alphonse. Specifically, the Trial Chamber recalled that the witness saw Alphonse run into Nsabimana's office before being forced out as he shouted for help, observed him being approached by a man with a club outside of Nsabimana's office, and saw him being taken away by Interahamwe.194 The Appeals Chamber further observes that the Trial Chamber's summaries of the evidence of Witnesses RE, SS, SU, and QBP indicate that they were informed of $187 Nsabimana Notice of Appeal, paras. 67-69, 74; Nsabimana Appeal Brief, paras. 203-207, 237-243. See also Nsabimana Reply Brief, paras. 103, 105-108. See also AT. 16 April 2015 p. 63. 5188 Nsabimana Notice of Appeal, para. 69; Nsabimana Appeal Brief, paras. 238, 239, 243-250, referring to Witness SS, T. 10 March 2003 p. 15 (closed session), Witness SU, T. 14 October 2002 p.

83. See also Nsabimana Reply Brief, par Sabimana Appeal Brief, paras, 239-241, referring to Witness SD, I. 18 March 2003 p. 20, Winess QBO. T. 4 February 2004 p. 14, Witness SS, T. 10 March 2003 p. 15 (closed session), Witness SU, T. 14 October 2002 p. 83. 5190 Nsabimana Appeal Brief, paras. 262-266; Nsabimana Reply Brief, para. 94. 5191 Nsabimana Appeal Brief, paras. 263, 264, referring to Witness SJ, T. 29 May 2002 p. 46, Witness SU, T. 17 October 2002 p. 60, Witness QBP, T. 28 October 2002 pp. 58, 59, Witness RE, T. 24 February 2003 p. 21, Witness SD, T. 17 March 2003 p. 40, Witness QY, T. 19 March 2003 p. 61, Witness FAP, T. 11 March 2003 p.

56. See also AT. 16 April 2015 pp. 45, 46 Nsabimana Appeal Brief, paras. 264, 265; Nsabimana Reply Brief, para. 94. $193 Prosecution Response Brief, paras. 1314-1316, 1322. See also AT. 16 April 2015 p. 58. 5194 Trial Judgement, para. 2804. 777 Case No. ICTR-98-42-A 14 December 2015

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19587/H the fact that refugees approached Nsabimana for help and were only indirectly aware of the nature and content of these discussions with Nsabimana.5195 2237. The Trial Judgement reveals that the Trial Chamber was aware of the indirect nature of the evidence as it concerned Nsabimana's oral communications with these refugees. The Appeals Chamber is not persuaded that simply because aspects of the accounts of Witnesses RE, SS, SU, and QBP were hearsay, a reasonable trier of fact could not have found that this evidence supported the conclusion that Nsabimana was presented with multiple requests for assistance from Tutsi refugees starting, at least, from the end of May 1994. Moreover, in determining that "Nsabimana was actually aware of the attacks even earlier", the Trial Chamber relied upon "the open and notorious nature of the attacks" 5196 Considering that the Trial Chamber has the discretion to consider cautiously and rely on hearsay evidence,5197 Nsabimana's general contention that the hearsay nature of Witnesses RE's, SS's, SU's, and QBP's testimonies should have cast doubt on them fails to demonstrate any error on the part of the Trial Chamber.

2238. Nsabimana also fails to demonstrate that no reasonable trier of fact could have concluded that he knew of the attacks in light of Witnesses SD's and QBQ's testimonies, which in his view contradict other evidence that the attacks were reported to him. Given the "large number of refugees" at the prefectoral office between May and June 19945198 and the general nature of the evidence of Witnesses SD and QBQ that violence was not reported to Nsabimana,5199 Nsabimana does not demonstrate that their testimonies undermine the Trial Chamber's reliance on the testimonies of Witnesses TK, RE, SS, QBP, and SU.

2239. The Appeals Chamber further rejects Nsabimana's contention that the Trial Chamber unreasonably relied on "the open and notorious nature of the attacks" at the prefectoral office to determine his knowledge of the attacks because the evidence reflects that the prefectoral office was considered safe by the refugees who remained there and because normal activities took place there. Nsabimana's unsubstantiated and undeveloped contention merely disagrees with the Trial Chamber's findings, which reflect that, although the Tutsis hoped to find refuge at the prefectoral office "they instead found themselves subject to abductions, rapes and murder", the evidence of 5195 Trial Judgement, paras. 2805, 2806, 2810. 5196 Trial Judgement, para. 2807. 5197 Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39 198 Trial Judgement, para. 2627 5199 Witness QBQ, T. 4 February 2004 p. 14 ("Q. The alleged abductions you referred to yesterday, did you report them to [thel préfet or anyone from the préfectural offices on the morrow of each time it occurred? A. The events were appening in front of his offices, his préfecture. We had nothing to report to him, he knew what was going on." itness SD, T. 18 March 2003 p. 18 ("Q. Madam Witness, when work started in the morning, one way or another, we. 778 Case No. ICTR-98-42-A 14 December 2015

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19586/H which "paint[ed] a clear picture of unfathomable depravity and sadism" $200 While the Trial Chamber's conclusions reflect that Tutsi refugees were systematically abducted from the prefectoral office and killed,5201 the Trial Chamber also credited evidence that Tutsis were physically assaulted, raped, and killed in and around the prefectoral office's premises,202 and that Tutsi refugees were killed and thrown into pits during attacks there. 203 Nsabimana's unreferenced contentions as to the absence of blood stains or mass graves at the prefectoral office simply ignore the evidence the Trial Chamber accepted without demonstrating that its conclusions about the open and notorious nature of the attacks were unreasonable. 204 Indeed, while Nsabimana emphasises that Witness QBQ testified that refugees did not inform him of the violence, the Appeals Chamber observes that the witness testified that there was nothing to report to Nsabimana because "he knew what was going on" 5205 2240. Accordingly, the Appeals Chamber finds that Nsabimana has failed to demonstrate any error in the Trial Chamber's reliance on the evidence of Witnesses TK, RE, SS, QBP, and SU and "the open and notorious nature of the attacks" to infer Nsabimana's knowledge of the night-time attacks at the Butare Prefecture Office "even earlier" than "the end of May 1994". (iv) Conclusion 2241. In light of the

evidence of Witnesses TK, RE, SS, SU, and QBP and "the open and notorious nature of the attacks" at the prefectoral office relied upon by the Trial Chamber in determining Nsabimana's knowledge of the attacks at the prefectoral office prior to the end of May 1994, the Appeals Chamber finds that the Trial Chamber's errors in the assessment of, and reliance on, Exhibits P113 and P114 as well as parts of Nsabimana's testimony have not occasioned a miscarriage of justice. The Appeals Chamber concludes that Nsabimana has failed to demonstrate that no reasonable trier of fact could have concluded that he had knowledge of the attacks at the prefectoral office prior to the end of May 1994. (b) Knowledge of Genocidal Intent of the Perpetrators 2242. In the "Legal Findings" section of the Trial Judgement, the Trial Chamber concluded that Nsabimana was aware of the genocidal intent of the perpetrators who killed the Tutsis abducted events of the night reported to the préfet? A. Since nobody was in charge of us he could not have been informed. Who would have informed him?"). 5200 Trial Judgement, para. 5866. 5201 See generally supra, Sections IV.F.2(d)-(f), V.I.2(c)-(D). 5202 See, e.g., Trial Judgement, paras. 2184, 2632, 2644, 2653, 2740, 2766, 2769-2771, 2773. 5203 Trial Judgement, paras. 2740-2742. $204 See also supra, Section V.I.2(a)(vi). 5205 Witness QBQ, T. 4 February 2004 p. 14. 779 Case No. ICTR-98-42-A 14 December 2015

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19585/H from the Butare Prefecture Office during attacks carried out by Ntahobali, Nyiramasuhuko, and Interahamwe.5206 In this regard, the Trial Chamber considered Nsabimana's: (i) knowledge that those taking refuge at the prefectoral office "were Tutsis and on multiple occasions, they asked him directly for protection from the ongoing attacks"; (ii) knowledge that Tutsi refugees "were being abducted, raped and killed"; and (iji) admission that "he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose. $207 2243. Nsabimana submits that the Trial Chamber erred in finding that he was aware of the perpetrators' genocidal intent in relation to the attacks at the prefectoral office. 208 In particular, he argues that no reasonable trier of fact could have found that Exhibits P113 and P114 reflect that he was aware of a plan to kill Tutsis, that Tutsis were being killed, that the militia had been trained for this purpose, and therefore that he was aware of the perpetrators' genocidal intent.5209 2244. With respect to Exhibit P113 specifically, Nsabimana submits that none of his statements in this exhibit demonstrates his knowledge of a plan to kill Tutsis during the period from April to June 1994 because the document was drafted in "hindsight" and, therefore, did not reflect his mental state at the time.5210 He

further argues that the Trial Chamber incorrectly relied on the statement in the document that "the final whistle was blown by the architects of the plan" to demonstrate that Nsabimana was speaking about the plan to kill Tutsis when this interpretation is neither clear nor reasonable.5211 Additionally, Nsabimana contends that the extract from Exhibit P113 that "among those victimized for being Tutsis and well respected persons were the businessmen Semanzi, Rangira, Kayiranga and Deogratias" does not support a finding beyond reasonable doubt that he was aware of events he described "at the time they were happening" 5212 5206 Trial Judgement, para. 5904. 5207 Trial Judgement, para. 5904, referring, inter alia, to Exhibit P113, pp. K0016623, K0016626 (Registry pagination), Exhibit P114, pp. K0120067, K0120073 (Registry pagination). 5208 Nsabimana Notice of Appeal, paras. 105-107; Nsabimana Appeal Brief, paras. 428-430; Nsabimana Reply Brief, paras. 153-178. In his reply brief, Nsabimana submits that, had he been aware of the perpetrators' genocidal intent or of a plan to kill Tutsis, he would never have let the refugees stay at the prefectoral office, allowed the refugees to return to the prefectoral office from the EER and Nyange, posted soldiers at the prefectoral office, or directly engaged in evacuating Tutsis orphans given the risks that these actions would have entailed. See Nsabimana Reply Brief, paras. 169-172. The Appeals Chamber finds that these arguments are speculative and demonstrate no error on the part of the Trial Chamber. 5209 Nsabimana Appeal Brief, paras. 401, 429, 445, 446, 450-482; Nsabimana Reply Brief, paras. 153-155, 176, 177. See also AT. 16 April 2015 p.

64. Nsabimana further contends that the Trial Chamber unreasonably relied on his participation in his swearing-in ceremony as prefect of Butare to find that he was aware of a plan to kill Tutsis and, as a consequence, of the genocidal intent of the perpetrators of the attacks at the Butare Prefecture Office. See Nsabimana Appeal Brief, paras. 401-427; Nsabimana Reply Brief, paras. 156-168, 173-175. As the Trial Judgement shows that the Trial Chamber relied on Exhibits P113 and P114 to find that Nsabimana admitted that he was aware of a plan to kill Tutsis, and not on his participation in his swearing-in ceremony, the Appeals Chamber summarily dismisses his sagurabimana Appeal Brief, paras. 448, 453-455; Nsabimana Reply Brief, para. 158. $211 Nsabimana Appeal Brief, paras. 456-459, referring to Exhibit P113, p. K0016623 (Registry pagination). 5212 Nsabimana Appeal Brief, paras. 460, 461, referring to Exhibit P113, p. K0016626 (Registry pagination). 780 Case No. ICTR-98-42-A 14 December 2015

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19584/H 2245. As regards Exhibit P114, Nsabimana contends that the Trial Chamber's reliance on excerpts of this document was erroneous given its questionable authenticity. 213 Alternatively, he argues that the document, created after the genocide, reflects hindsight rather than contemporaneous views, and that none of the statements reflects an admission of his awareness of a plan to exterminate Tutsis. 5214 2246. The Prosecution responds that the Trial Chamber's findings were reasonable and that Nsabimana simply invites the Appeals Chamber to substitute his views for that of the Trial Chamber without demonstrating any errors.215 It argues that the Trial Chamber correctly determined that Nsabimana was aware of a plan to kill Tutsis and of the perpetrators' genocidal intent during the attacks at the prefectoral office. 5216 2247. The Appeals Chamber is not convinced by Nsabimana's submissions that the Trial Chamber erred in its interpretation of Exhibit P113. The Trial Chamber cited the following excerpt from Exhibit P113 in support of its finding that "Nsabimana admitted that he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose": In everybody's opinion the final whistle was blown by the architects of the plan... [A]mong those victimized for being Tutsi and well respected persons were the businessmen Semanzi,

Rangira, Kayiranga, and Deogratias. 5217 The Appeals Chamber observes that the Trial Chamber extracted the first part of the excerpt from a section entitled "Butare was not spared", where Nsabimana discussed the assassinations of moderate politicians in Butare Prefecture, concluding that "[ilt was necessary to find a political reason to start the massacre hence the death of President ([HJabyalimana."5218 The second part of the excerpt was taken from a section entitled "What happened in reality" and from a paragraph stating that "[since the MRND party was not entrenched in Butare, its leaders wanted to weaken other parties by way of intimidation and advocating regionalism, in order to perpetuate the massacres."$219 The Appeals Chamber observes that this paragraph and the remainder of the section describe the killings of Tutsis, moderate Hutus, and those who supported the RPF. 5220 On this basis, the Appeals Chamber considers that a reasonable trier of fact could have relied on Exhibit P113 to find that Nsabimana "admitted" to being aware of a plan to kill Tutsis. Beyond providing different interpretations of Exhibit P113, including the unsubstantiated position that these remarks were 5213 Nsabimana Appeal Brief, paras. 462, 468. 5214 Nsabimana Appeal Brief, paras. 466-467, 469-476. 5215 Prosecution Response Brief, paras. 1382-1400. 5216 Prosecution Response Brief, paras. 1396, 1398, 1399. 5217 Trial Judgement, para. 5904, fn. 14768, referring to Exhibit P113, pp. K0016623, K0016626 (Registry pagination). 5218 Exhibit P113, pp. K0016623, K0016624 (Registry pagination). 5219 Exhibit P113, p. K0016626 (Registry pagination). 781 Case No. ICTR-98-42-A 14 December 2015

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19583/H made in hindsight and do not reflect what he knew during the genocide, Nsabimana fails to demonstrate how the Trial Chamber erred in its analysis of Exhibit P113.

2248. With respect to Exhibit P114, the Appeals Chamber reiterates its finding that the Trial Chamber erred in relying on this exhibit as proof of Nsabimana's own views.221 The Appeals Chamber recalls that, when confronted with Exhibit P114 and the suggestion that it reflected his awareness of a plan to exterminate Tutsis, Nsabimana denied that he was aware of such a plan. 5222 In this context, the Appeals Chamber finds that no reasonable trier of fact could have relied on Exhibit P114 to conclude that "Nsabimana admitted that he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose."5223 2249. However, the Appeals Chamber concludes that this error has not occasioned a miscarriage of justice as Nsabimana does not demonstrate any error in the Trial Chamber's reliance on Exhibit P113 as supporting the conclusion that he was aware of the principal perpetrators' genocidal intent. Likewise, as discussed above, Nsabimana has failed to demonstrate any error in the Trial Chamber's conclusion that he was actually aware of night-time attacks which were specifically targeted against Tutsis at the prefectoral office earlier than the end of May 1994 and which involved, inter alia, the abduction, rape, and killings of Tutsis.5224 2250. In light of these conclusions, the Appeals Chamber finds that Nsabimana has failed

to demonstrate that no reasonable trier of fact could have found that he was aware of the perpetrators' genocidal intent. (c) Knowledge that His Failure to Act Assisted in the Commission of the Crimes 2251. In finding that Nsabimana knew that his failure to act assisted in the commission of the crimes, the Trial Chamber noted that "Nsabimana knew the attacks were occurring at night when he was not at the [prefectoral office] and when there were likely to be fewer witnesses."5225 It further noted that he testified that after learning of the massacres, he would go home at night fearing that the refugees would not be at the prefectoral office when he returned in the morning 5226 The Trial 5220 Exhibit P113, pp. K0016626-K0016629 (Registry pagination). 5221 See supra, para. 252. 5222 See Nsabimana, T. 22 November 2006 p. 45 ("Q. [...] these words do you agree with the contents of the document, so, therefore, you agree that you were aware of a plan to exterminate the Tutsis, as stated in this document? A. My answer to you is no, Counsel. As the things are here and as you put them, it is not the same thing. We can agree on certain terms and certain words and certain things, but not as you put it, which is why I'm refusing. That is why I'm telling you I was not aware of that plan. If I had been aware of it, I wouldn't have all that defend of the following."). See supra, para. 251. 5223 Trial Judgement, para. 5904, referring to Exhibit P114, pp. K0120067, K0120073 (Registry pagination). 5224 See supra, Section VI.D.2(a). $225 Trial Judgement, para. 5905. 5226 Trial Judgement, para. 5905. 782 Case No. ICTR-98-42-A 14 December 2015

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19582/H Chamber stated that "the perpetrators of these attacks were given free reign to repeatedly attack the [Butare Prefecture Office] for a significant period between the end of April and mid-June 1994.'*5227 2252. Nsabimana submits that the Trial Chamber erred in finding that he knew that his failure to act would assist and have a substantial impact on the perpetrators of the atrocities at the prefectoral office $228 To demonstrate this error, Nsabimana argues that he was not aware that the crimes were being committed at the prefectoral office. 22 In addition, Nsabimana argues that the Trial Chamber failed to establish that he had specific genocidal intent 5230 2253. The Prosecution responds that the Trial Chamber correctly found that Nsabimana knew that his failure to act assisted in the commission of the crimes against the refugees at the prefectoral office. 5231 2254. The Appeals Chamber recalls that Nsabimana's challenges to the Trial Chamber's findings related to his knowledge of the crimes committed at the prefectoral office have been addressed and dismissed in a prior section of this Judgement. 5232 2255. As regards Nsabimana's challenge to the Trial Chamber's findings pertaining to the mental element of the crime of genocide, Nsabimana fails to appreciate that the mens rea requirements differ depending on the mode of liability. The Appeals Chamber recalls that "the

required mens rea for aiding and abetting by omission is that: (1) the aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator; and (2) he must be aware of the essential elements of the crime which was ultimately committed by the principal."$233 2256. In the present case, the Trial Chamber found that Nsabimana was responsible for aiding and abetting genocide by failing to discharge his duty to protect civilians at the prefectoral office prior to around 5 to 15 June 19945234 In making this finding, the Trial Chamber concluded that Nsabimana knew that the Tutsi refugees at the prefectoral office were being abducted, raped, and killed and that he was aware of the perpetrators' genocidal intent. $235 'It similarly concluded that Nsabimana knew that his failure to act assisted in the commission of the crimes at the prefectoral 5227 Trial Judgement, para. 5905. $228 Nsabimana Notice of Appeal, paras. 108, 109; Nsabimana Appeal Brief, paras. 483, 485. 5229 Nsabimana Notice of Appeal, para. 110; Nsabimana Appeal Brief, paras. 488, 492. 5230 Nsabimana Appeal Brief, paras. 484, 486, 487, 495-501. 5231 Prosecution Response Brief, paras. 1401, 1410, 1411. The Appeals Chamber notes that Nsabimana's submissions in reply either pertain to the arguments raised under Ground 12 of his appeal or are ambiguous and vague. See Nsabimana Reply Brief, paras. 179-187. See supra, Section VI.D.2(a). 5233 See Mrksid and Sijivancanin Appeal Judgement, para.

159. See also Orié Appeal Judgement, para. 43; Ntagerura et al. Appeal Judgement, para. 370. 5234 See Trial Judgement, para. 5906. 5235 See Trial Judgement, para. 5904. 783 Case No. ICTR-98-42-A 14 December 2015

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19581/H office 236 Nsabimana's responsibility for aiding and abetting genocide did not require proof that he possessed genocidal intent. Consequently, his contention in this regard is dismissed. (d) Conclusion 2257. The Appeals Chamber finds that Nsabimana has failed to demonstrate that the Trial Chamber erred in finding that he possessed the requisite mens rea for the mode of liability of aiding and abetting by omission.

3. Conclusion 2258. In light of the foregoing, the Appeals Chamber dismisses the relevant parts of Grounds 6 and 13 as well as Grounds 7 through 10, 12, and 14 of Nsabimana's appeal in their entirety. 5236 See Trial Judgement, para. 5905. 784 Case No. ICTR-98-42-A 14 December 2015

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19580/H VII. APPEAL OF ALPHONSE NTEZIRYAYO 2259. The Trial Chamber found Nteziryayo guilty of committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute based on his speeches at Ndayambaje's swearing-in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994 ("Ndayambaje's Swearing-In Ceremony") and at public meetings held in Muyaga and Kibayi Communes in mid to late June 1994.5237 2260. Nteziryayo raises challenges related to his indictment and submits that the Trial Chamber erred in its assessment of the evidence and his responsibility for the speeches he made during Ndayambaje's Swearing-In Ceremony and at the meetings held in Muyaga and Kibayi Communes. He also contends that the Trial Chamber conducted a prejudicial assessment of the evidence, invalidating his convictions. The Appeals Chamber will address these contentions in turn. 5237 Trial Judgement, paras. 6022-6029, 6036, 6186. Case No. ICTR-98-42-A 785 14 December 2015

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19579/H A. Indictment (Grounds 1, 2, and 3) 2261. Nteziryayo submits that he was not charged with the criminal conduct on the basis of which he was convicted or lacked notice thereof. 238 He further contends that the cumulative effect of the defects in the Indictment "not only rendered the totality of the trial process unfair and caused [him] substantial prejudice, but also invalidate the substantive findings of the Trial Judgment. 5239 2262. The Appeals Chamber will examine Nteziryayo's submissions related to notice of the allegation concerning Ndayambaje's Swearing-In Ceremony before turning to his submissions related to notice of the allegations concerning the meetings held in Muyaga and Kibayi Communes.

1. Ndayambaje's Swearing-In Ceremony (Ground 1) 2263. The Trial Chamber found that, during Ndayambaje's public swearing-in ceremony as the new bourgmestre of Muganza Commune held in the woods near the Muganza commune office on 22 June 1994, Nteziryayo and Ndayambaje told the population to continue with their "work", urged them to "sweep the dirt outside", and instructed that those hiding Tutsis who refused to hand them over should be killed.5240 The Trial Chamber convicted Nteziryayo pursuant to Article 6(1) of the Statute for committing direct and public incitement to commit genocide (Count 4) on the basis of his statements made during this ceremony. $241 2264. In summarising the Prosecution case against Nteziryayo with respect to this allegation of incitement, the Trial Chamber specifically referred to paragraphs 5.8, 6.31, and 6.34 of the Indictment. 242 The Indictment indicates that the allegations in paragraphs 5.8 and 6.31 were being pursued against Nteziryayo under all counts, including Count 4, pursuant to Article 6(1) of the 5238 Nteziryayo Notice of Appeal, paras. 7-36; Nteziryayo Appeal Brief, paras. 8-95. To facilitate readability, the Appeals Chamber will use the term "Indictment" in the body text of the present section when referring to the Nsabimana and Nteziryayo Indictment. 5239 Nteziryayo Notice of Appeal, para. 7; AT. 17 April 2015 p. 6. 5240 See Trial

Judgement, paras. 4616, 4642, 4645, 5948, 6026, 6027. 5241 Trial Judgement, paras. 6029, 6036, 6186. 5242 Trial Judgement, paras. 4260, 4266-4270, fns. 11640, 11641. Paragraphs 5.8, 6.31, and 6.34 of the Nsabimana and Nteziryayo Indictment read as follows: 5.8 From April to July 1994, incitement to hatred and violence was propagated by various prominent persons, including members of the Government and local authorities. The President, Théodore Sindikubwabo, the Prime Minister, Jean Kambanda, Ministers Pauline Ny[i]ramasuhuko and André Rwamakuba, local authorities such as the Préfets, Sylvain Nsabimana and Alphonse Nteziryayo, the Bourgmestres Joseph Kanyabashi, Ladislas Ntaganzwa and Elie Ndayambaje publicly incited the people to exterminate the Tutsi population and its "accomplices" Between April and June 1994, Colonel Alphonse Nteziryayo, the official in charge of civil defence for Butare préfecture, incited the population to slaughter the Tutsi in Butare préfecture. 6.34 On 17 June 1994, Alphonse Nteziryayo was appointed Préfet of Butare by the Interim Government, replacing Sylvain Nsabimana. After the handing over of office on 21 June 1994, Préfet Alphonse Nteziryayo continued to incite the population to "finish off" the enemy and its "accomplices". He did this notably during the swearing-in ceremony of the Bourgmestre of Muganza, Elie Ndayambaje. 786 Case No. ICTR-98-42-A 14 December 2015 que

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19578/H Statute.5243 However, paragraph 6.34 was not being pursued under Count 4 or any other count in the Indictment. 5244 2265. The Trial Chamber noted that paragraph 6.34 of the Indictment, which was the only paragraph referring to the allegation that Nteziryayo incited the population to "finish off the enemy and its "accomplices" during Ndayambaje's Swearing-In Ceremony, was not specifically pleaded in support of any counts against Nteziryayo. 245 It stated that it "recognise[d] that the Prosecution's failure to expressly state that a paragraph in the Indictment supports a particular count is indicative that the allegation is not charged as a crime, but consider[ed that] this [did] not definitively dispose of the current allegation in the present circumstances."246 The Trial Chamber found that Nteziryayo's alleged inciting speech at Ndayambaje's Swearing-In Ceremony was not a separate charge which was not pleaded, but rather a material fact that supported the charge of incitement pleaded in paragraphs 5.8 and 6.31 of the Indictment. 247 It determined that paragraphs 5.8 and 6.31, which were pleaded in support of all counts against Nteziryayo, encompassed the allegation that he incited the population at the ceremony. 5248 Because it considered that paragraphs 5.8 and 6.31 failed to provide any details of specific incidents of incitement, the Trial Chamber found that they

were defective.5249 The Trial Chamber, however, found that the defects were cured through subsequent disclosures and that Nteziryayo was provided with clear and consistent notice that the allegation that he incited the population to kill Tutsis at Ndayambaje's Swearing-In Ceremony in June 1994 was part of the Prosecution case and that he did not suffer any prejudice. 250 2266. Nteziryayo submits that the Trial Chamber erred in convicting him on the basis of his utterances at Ndayambaje's Swearing-In Ceremony since this allegation was not charged as a crime in the Indictment.5251 He contends that the Trial Chamber's statement that it could not make findings against him with respect to paragraph 6.34 of the Indictment because it was not pleaded in support of any count precluded it from basing any conviction on the contents of this paragraph 5252 According to Nteziryayo, once it declined to rely on paragraph 6.34, the Trial Chamber could not "rely heavily on it in 'curing' paragraphs which otherwise were hopelessly defective" without 5243 Nsabimana and Nteziryayo Indictment, p. 44. 5244 Nsabimana and Nteziryayo Indictment, pp. 41-49. 5245 Trial Judgement, paras. 4266, 4267. 5246 Trial Judgement, para. 4267 (internal reference omitted). 5247 Trial Judgement, para. 4268. 5248 Trial Judgement, para. 4268. 5249 Trial Judgement, para. 4269. $250 Trial Judgement, paras. 4270-4283. 5251 Nteziryayo Notice of Appeal, paras. 9-14, 17; Nteziryayo Appeal Brief, paras. 17-19, 29. See also AT. 17 April 2015 pp. 5-10, 40, 41. 787 Case No. ICTR-98-42-A 14 December 2015

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19577/H running against its own conclusion in relation to paragraph 6.34 and being "in conflict with principle and fairness."$253 He argues that the Trial Chamber's attempt to reintroduce in Count 4 through post-indictment disclosures the allegation in paragraph 6.34 - which was expressly excluded from that count - "amounted to the introduction of a separate charge."254 Comparing the situation addressed in the Muvunyi Appeal Judgement of 29 August 2008 with the situation at hand, Nteziryayo submits that the defect in the Indictment was not curable through any other means than an amendment of the Indictment and that the Trial Chamber erred in finding otherwise. 5255 2267. The Prosecution responds that, contrary to Nteziryayo's claim, the Trial Chamber did not rely on paragraph 6.34 of the Indictment to convict him but relied on paragraphs 5.8 and 6.31 of the Indictment. 256 It argues that an amendment of the Indictment was unnecessary since Nteziryayo's incitement at Ndayambaje's Swearing-In Ceremony was not a separate charge but a material fact that underpinned the charge of incitement under Count 4.2 In the Prosecution's view, the situation addressed in the Muvunyi case is distinguishable.258 The Prosecution also responds that the Trial Chamber was correct in finding that timely, clear, and consistent information put Nteziryayo on notice of the material facts regarding his

incitement at the ceremony and that he mounted a full defence to this allegation because he knew it was central to the Prosecution case. 5259 2268. Nteziryayo replies that the Prosecution's arguments that the Trial Chamber correctly held that the Indietment was cured and that he did not suffer prejudice are "based on a misperception of 5253 Nteziryayo Appeal Brief, paras. 14, 17, 23, 24. See also Nteziryayo Reply Brief, paras. 10, 11, 14, 15. 5254 Nteziryayo Appeal Brief, paras. 30, 31. In Nteziryayo's view, the Trial Chamber therefore erred in finding that his speech at Ndayambaje's Swearing-In Ceremony qualified as a material fact. See ibid., para.

32. He further highlights that the Trial Chamber adopted differentiated approaches in the Trial Judgement since, elsewhere, it correctly declined to consider an allegation against Nsabimana because paragraph 6.39 of the Nsabimana and Nteziryayo Indictment was not pleaded in support of any count. See ibid., para. 28, referring to Trial Judgement, para. 3840. 5255 Nteziryayo Notice of Appeal, paras. 14, 17; Nteziryayo Appeal Brief, heading bi) at p. 12, paras. 21, 25-27, referring to Muvunyi Appeal Judgement of 29 August 2008, paras. 152, 153, 155, 156. See also Nteziryayo Reply Brief, paras. 12, 13. In his notice of appeal, Nteziryayo also argued that, assuming arguendo that the Nsabimana and Nteziryayo Indictment was curable, the Trial Chamber erred in finding that it was cured regarding the allegation of incitement at Ndayambaje's Swearing-In Ceremony and in failing to assess his prejudice. See Nteziryayo Notice of Appeal, paras. 8, 15, 16. However, Nteziryayo did not develop these claims in his appeal brief and it is clear from his submissions in reply that he has abandoned them. See infra, para. 2268. 5256 Prosecution Response Brief, paras. 1432-1434. 5257 Prosecution Response Brief, para. 1446. $258 The Prosecution highlights that, in this case and contrary to the situation in the Muvunyi Appeal Judgement of 29 August 2008, the Trial Chamber did not rely on a paragraph of the Nsabimana and Nteziryayo Indictment that had not been pleaded in support of the respective count and that the Nsabimana and Nteziryayo Indictment contained a vague and curable count. See Prosecution Response Brief, paras. 1434-1436; AT. 17 April 2015 p.

24. It also responds that Nteziryayo misrepresents the Trial Judgement when arguing that the Trial Chamber adopted inconsistent approaches to the issue of notice. See Prosecution Response Brief, para.

1433. Prosecution Response Brief, paras. 1437-1445; AT. 17 April 2015 pp. 23, 24. 788 Case No. ICTR-98-42-A 14 December 2015

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19576/H the case on appeal, which is that the defect identified by the Chamber was not curable" and are, therefore, "irrelevant [...] because they do not respond to [his] appeal."$260 2269. The Appeals Chamber observes that, as noted by the Trial Chamber, the allegation that Nteziryayo incited the population to "finish off" the enemy and its "accomplices" at Ndayambaje's Swearing-In Ceremony pleaded in paragraph 6.34 of the Indictment was not relied upon in support of any counts against Nteziryayo.5261 A plain reading of the Trial Judgement shows that the Trial Chamber concluded that Nteziryayo was put on notice of this alleged inciting speech by relying solely on paragraphs 5.8 and 6.31 of the Indictment - which pleaded in broad terms that Nteziryayo incited the population to kill Tutsis between April and June 1994 and which were relied upon in support of Count 4 - as well as on post-indictment communications. 262 The situation at hand therefore differs from the situation examined in the Muvunyi case where the trial chamber relied on a single paragraph of the indictment that was not pleaded under any count to enter a conviction. 263 2270. The Appeals Chamber nonetheless concurs with Nteziryayo that, although the Trial Chamber did not rely on paragraph 6.34 of the Indictment, it is indisputable that it convicted him on the basis of the allegation set forth in this specific

paragraph. 264 The Appeals Chamber repeatedly held that the Prosecution's failure to state expressly that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime. 265 There is therefore merit in Nteziryayo's contention that, by not indicating that the 5260 Nteziryayo Reply Brief, paras. 5, 6. See also ibid., para. 16; AT. 17 April 2015 pp. 8, 40. At the appeals hearing, Nteziryayo further submitted that it was erroneous on the part of the Trial Chamber to rely on paragraph 6.31 of the Nsabimana and Nteziryayo Indictment to plead crimes committed while he was prefect because that paragraph pleaded crimes committed while he was an official of the civil defence. See AT. 17 April 2015 pp. 3-5, 10, 41. 5261 See Trial Judgement, paras. 4266, 4267; Nsabimana and Nteziryayo Indictment, pp. 41-49. 5262 Trial Judgement, paras. 4268-4270, 4283. In light of its conclusion below regarding Nteziryayo's understanding of the charge against him, the Appeals Chamber deems it unnecessary to address Nteziryayo's new argument raised during the appeals hearing related to paragraph 6.31 of the Nsabimana and Nteziryayo Indictment in the context of the allegation of incitement at Ndayambaje's Swearing-In Ceremony. See supra, fn. 5260; infra, paras. 2273, 2274. See Muvunyi Trial Judgement of 12 September 2006, paras. 410, 427; Muvunyi Appeal Judgement of 29 August 2008, paras. 153, 156. Nteziryayo also fails to appreciate that, unlike in this case, the relevant count in the Muvunyi proceeding was not found to be vague but, instead, "narrowly tailored" to one specific incident. See Muvunyi Appeal Judgement of 29 August 2008, para.

155. The Appeals Chamber also accepts Nteziryayo's submissions that the Trial Chamber adopted different approaches in relation to paragraphs 6.34 and 6.39 of the Nsabimana and Nteziryayo Indictment. In another part of the Trial Judgement, the Trial Chamber found that, because paragraph 6.39 was not pleaded in support of any count against Nsabimana, it "shall not consider the evidence concerning the allegation in Paragraph 6.39 of the Indictment." See Trial Judgement, para.

3840. Unlike its approach to the allegation set forth in paragraph 6.34, the Trial Chamber did not treat the allegation in paragraph 6.39 as a material fact that could underpin broader allegations of Nsabimana's responsibility in the killing of Tutsis pleaded elsewhere in the Nsabimana and Nteziryayo Indictment and determined that the evidence related to this allegation shall not be considered. Compare ibid., para. 3840 with ibid., paras. 4267, 4268. However, for the reasons discussed below in paragraphs 2273 and 2274, the Appeals Chamber does not find that the Trial Chamber's inconsistent approach had any impact on its decision regarding Nteziryayo's notice of the charge against him concerning Ndayambaje's Swearing-In-Ceremony. See Ntabakuze Appeal Judgement, para. 106; Karera Appeal Judgement, para. 365; Muvunyi Appeal Judgement of 29 August 2008, para. 156. 789 Case No. ICTR-98-42-A 14 December 2015

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19575/H allegation in paragraph 6.34 supported any particular count, the Prosecution may have misled him in believing that the allegation was not charged as a crime.

2271. The Appeals Chamber, however, stresses that the fundamental question when examining allegations of lack of notice is whether or not the accused was adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence $266 The Appeals Chamber's case law on notice of the charges was developed in this spirit and was not intended to permit mere technicalities of pleading to intrude where it is clear that the accused was informed of the charges against him precisely and in a timely manner.

2272. In the present case, the phrasing of paragraph 6.34 of the Indictment made it clear that the Prosecution alleged that Nteziryayo engaged in criminal conduct at Ndayambaje's Swearing-In Ceremony which could support the charge of direct and public incitement to commit genocide. Despite the fact that paragraph 6.34 was not relied upon in the charging section of the Indictment, the Prosecution, before and after the filing of the Indictment, repeatedly indicated that Nteziryayo's utterances at this ceremony were part of its case.' 5267 2273. Nteziryayo's conduct at trial also unambiguously shows that he understood that he was charged with this allegation. In his opening statement, in particular, Nteziryayo expressly referred to paragraph 6.34 of the Indictment as one of the basis of the charges against him. 268 A review of the record also reflects that Nteziryayo was able to undertake detailed cross-examination of the Prosecution witnesses who testified about his utterances at the ceremony, $269 that he called 5266 Cf. Ntakirutimana Appeal Judgement, paras. 27, 28, 58; Kvocka et al. Appeal Judgement, paras. 28, 32-34; Kupreskit et al. Appeal Judgement, paras. 88, 122. justificatifs, filed on 14 October 1997 and disclosed to Nteziryayo in redacted form on 19 October 1998, p. 25 (relying paragraph 3.17 of the initial indictment, which was charged under the count of direct and

public incitement to commit genocide. See The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29A-I, Indictment, 16 October 1997, para. 3.17, p. 5; Prosecution Opening Statement, T. 12 June 2001 pp. 78, 79 ("The Prosecutor will prove that Nteziryayo on several occasions, in several places, engaged in the incitement of the population during public rallies, during swearing-in ceremonies; I do recall the swearing-in of Elie Ndayambaje as Bourgmestre of Muganza. And he was engaged in the incitement of the population."); Witness Summaries Grid, item 6, Witness TO ("Witness TO's Summary"), item 19, Witness FAG ("Witness FAG's Summary") 3268 Nteziryayo Opening Statement, T. 4 December 2006 p. 12 ("Following several points in the indictment, point 116. 129, 58, 634, Alphonse Nteziryayo carried out criminal and reprehensible acts by taking part in a number of public mectings in different localities in the préfecture with the aim of using incendiary speeches to incite people to ethnic hatred."). See Witness FAG, T. 3 March 2004 pp. 43-51 (partly in closed session); Witness FAL, T. 9 February 2004 pp. 42-68 (partly in closed session); Witness QAF, T. 5 February 2004 pp. 75-84 (partly in closed session), T. 6 February 2004 pp. 4-24 (partly in closed session); Witness RV, T. 18 February 2004 pp. 57-73 (closed session), T. 19 February 2004 pp. 4-38 (partly in closed

session); Witness TO, T. 4 March 2002 pp. 52-117 (partly in closed session), T. 5 March 2002 pp. 9-58 (partly in closed session); Witness TP, T. 12 February 2004 pp. 26-45 (partly in closed session): Witness FAU, T. 8 March 2004 pp. 72-94 (partly in closed session); T. 9 March 2004 pp. 13-27 (closed session); Witness QAQ, T. 11 November 2002 pp. 52-72 (partly in closed session); Witness QAL, T. 25 February 2004 pp. 14-25 (partly in closed session). The Appeals Chamber also observes that Nteziryayo does not argue that he 790 Case No. ICTR-98-42-A 14 December 2015

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19574/H witnesses to refute the allegation that his words at Ndayambaje's Swearing-in Ceremony were inflammatory,5270 and that he testified on this point.27' It is also significant that, in his closing brief, Nteziryayo did not refer to the allegation of incitement at the ceremony in the list of incidents which he claimed to have no notice of, 272 and that it was only during his closing arguments that he pointed out that paragraph 6.34 was not pleaded in support of any counts. 273 2274. Against this background, Nteziryayo cannot reasonably claim that he did not understand at trial that the Prosecution intended to prove that he was guilty of direct and public incitement to commit genocide through his conduct at Ndayambaje's Swearing-In Ceremony and that he was misled by the absence of reference to paragraph 6.34 in the charging section of the Indictment. Nteziryayo is correct in his submission that, given the significance of the Indictment, it shall be "presumed to be a full, accurate and true reflection of the drafter's intention and free from oversight and error."5274 However, in the situation at hand, it is obvious that the Prosecution mistakenly omitted to refer to paragraph 6.34 in the charging section of the Indictment and that it was the Prosecution's consistent intention throughout the case to prosecute Nteziryayo for his utterances at Ndayambaje's Swearing-In Ceremony.

2275. For the foregoing reasons, the Appeals Chamber concludes that Nteziryayo has not demonstrated that the Trial Chamber ultimately erred in finding that he was put on notice that he was charged with direct and public incitement to commit genocide based on his utterances at Ndayambaje's Swearing-In Ceremony and that he did not suffer prejudice. 5275 2. Muyaga and Kibayi Meetings (Grounds 2 and 3) 2276. The Trial Chamber found that, around mid-June, Nteziryayo, in his capacity as Butare Prefect, attended a public meeting in Muyaga Commune at which he made a speech inciting the population to kill Tutsis5276 The Trial Chamber further found that, around mid to late June 1994, $270 The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29-T, Alphonse Nteziryayo's Pre-Defence Brief for Presentation of Defence Case, 31 December 2004 (originally filed in French, English translation filed on 4 February 2005) ("Nteziryayo Pre-Defence Brief"), pp. 11, 16. See also Trial Judgement, paras. 4536-4551 (Witness AND-11), 4552-4563 (Witness AND-73). See Trial Judgement, paras. 4564-4585. $272 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Alphonse Nteziryayo's Closing Brief, 17 February 2009 (confidential) ("Nteziryayo Closing Brief"), para.

765. While Nteziryayo argued in his closing brief that the testimonies of Witnesses FAG, FAL, QAF, and QAL should be excluded, his request was limited to meetings and inciting speeches in Muganza between April and early June 1994. See ibid., para. 765(9). 5273 See Nteziryayo Closing Arguments, T. 28 April 2009 pp. 19-21. 5274 See Nteziryayo Appeal Brief, para. 20. 5275 As noted above, Nteziryayo made it clear in his reply brief that he no longer argued that the vagueness of the Nsabimana and Nteziryayo Indictment regarding his criminal responsibility in relation to Ndayambaje's Swearing-In Ceremony was not cured and did not develop any argument to demonstrate that he was not put on notice of all necessary material facts underpinning the charge under Count 4. See supra, para. 2268. 5276 Trial Judgement, paras. 3674, 5945, 6022. 791 Case No. ICTR-98-42-A 14 December 2015

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19573/H Nteziryayo, again in his capacity as Butare Prefect, attended a public meeting on a football pitch next to the Kibayi commune office in Nyabisigara Cellule, Mukindo Sector, at which he incited the population to kill the remaining Tutsi survivors in the commune. $277 The Trial Chamber found that Nteziryayo's speeches at these meetings made to large, fully public assemblies constituted a direct appeal to kill Tutsis and, on this basis, convicted him of direct and public incitement to commit genocide (Count 4). $278 2277. In summarising the Prosecution case against Nteziryayo with respect to these allegations of incitement, the Trial Chamber specifically referred to paragraphs 5.8 and 6.31 of the Indictment. 5279 As noted above, the allegations in paragraphs 5.8 and 6.31 were being pursued against Nteziryayo under Count 4 pursuant to Article 6(1) of the Statute. 280 2278. The Trial Chamber noted that paragraphs 5.8 and 6.31 of the Indictment failed to specify the locations and dates at which Nteziryayo was alleged to have incited the population to kill Tutsis and found that they were therefore defective.5281 The Trial Chamber nevertheless determined that paragraphs 5.8 and 6.31 were cured of their defects regarding the meetings at Muyaga and Kibayi Communes through subsequent Prosecution's disclosures and concluded that Nteziryayo did not suffer any prejudice. 5282 2279.

Nteziryayo submits that his responsibility in relation to the Muyaga and Kibayi Communes meetings was not pleaded in the Indictment and that such defect was neither curable nor cured. $283 He argues that the material facts omitted from the Indictment could on their own support separate charges and that their addition amounted to an impermissible expansion of the charges and a radical transformation of the case.' 5284 At the appeals hearing, Nteziryayo further submitted that it was 5278 Trial Judgement, paras. 6022-6025, 6036, 6186. The Trial Chamber concluded that there was insufficient evidence to establish that Nteziryayo's words at these meetings substantially contributed to any subsequent crime and accordingly found that he was not criminally responsible for genocide with respect to these allegations. See ibid., para. 5946. $279 Trial Judgement, para. 3450, fns. 9307, 9309 5280 Nsabimana and Nteziryayo Indictment, p. 44. 5281 Trial Judgement, paras. 3462, 3473. 5282 Trial Judgement, paras. 3485, 3495. The Appeals Chamber understands that, despite its reference to these paragraphs in several instances, the Trial Chamber did not rely on paragraphs 6.32, 6.53, and 6.59 of the Nsabimana and Nteziryayo Indictment in support of Nteziryayo's convictions for committing direct and public incitement through his speeches at the Muyaga and Kibayi meetings. See ibid., paras. 3450, 3495 ("the Chamber considers that Paragraphs 5.8 and 6.31 of the Nsabimana and Nteziryayo Indictment relating to incitement, as well as Paragraphs 6.53 and 6.59 relating to aiding and abetting were cured".) (emphasis added); Nteziryayo Appeal Brief, paras. 39-41, 77. 5283 Nteziryayo Notice of Appeal, paras. 18-36; Nteziryayo Appeal Brief, paras. 33-95, p.

19. See also AT. 17 April 2015 pp. 10-13. 5284 Nteziryayo Notice of Appeal, paras. 19, 23, 26, 28; Nteziryayo Appeal Brief, paras. 43-48, 78; Nteziryayo Reply Brief, para.

18. Nteziryayo argues that the situation is analogous to that of the allegation related to specific attacks at the Groupe scolaire which was excluded by the Trial Chamber based on the Prosecution's failure to plead those attacks in the Nsabimana and Nteziryayo Indictment. See Nteziryayo Appeal Brief, para. 46, referring to Trial Judgement, para.

1815. Nteziryayo, however, fails to appreciate that, in contrast with the allegations of direct and public incitement 792 Case No. ICTR-98-42-A 14 December 2015

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19572/H erroneous on the part of the Trial Chamber to rely on paragraph 6.31 of the Indictment as giving notice of crimes committed while he was prefect because that paragraph pleaded crimes committed while he was an official of the civil defence. 5285 2280. The Prosecution responds that paragraphs 5.8 and 6.31 of the Indictment pleaded Nteziryayo's incitement in Butare between April and June 1994 and that the time and place of Nteziryayo's incitements were material facts, not separate charges. 286 It also responds that post-indictment information cured the vagueness of the Indictment and that Nteziryayo was not prejudiced. 5287 2281. The Appeals Chamber finds that the Indictment is manifestly defective in relation to the allegations concerning Nteziryayo's speeches at the Muyaga and Kibayi meetings. The Prosecution failed to specify the means by which Nteziryayo was alleged to have incited the population as well as the occurrence of public meetings and their locations. Furthermore, the date range of "[between April to June 1994" is too expansive in light of the absence of other material facts relating to the allegations. The Appeals Chamber also accepts Nteziryayo's submission that, because paragraph 6.31 of the Indictment expressly referred to his responsibility for inciting the population to slaughter the Tutsis in Butare Prefecture between April and June 1994 in his capacity as "Colonel" and while he was "the official in charge of civil defence" for the prefecture, this paragraph could not be reasonably relied upon as giving him notice of a charge related to his responsibility for crimes committed in his capacity as prefect of Butare.

2282. The Appeals Chamber, however, finds that the allegations concerning Nteziryayo's speeches at the Muyaga and Kibayi meetings did not constitute new charges but fell within the broader allegation relating to Nteziryayo's public incitement to exterminate the Tutsi population in Butare Prefecture between April and July 1994 expressly pleaded in paragraph 5.8 of the Indictment. The Appeals Chamber does not consider that the material facts which the Trial Chamber took into account in convicting Nteziryayo represented a radical transformation of the Prosecution case, nor that these facts could have, on their own, supported separate charges. As vague as the charge set out in paragraph 5.8 was, the Indictment nonetheless pleaded the charge for which Nteziryayo was ultimately convicted, namely his responsibility for publicly inciting the extermination of Tutsis in Butare Prefecture from April to July 1994. to commit genocide, the Trial Chamber concluded that his participation in attacks was not pleaded under any counts in the Nsabimana and Nteziryayo Indictment. The Appeals Chamber therefore dismisses Nteziryayo's argument in this respect. 5285 AT. 17 April 2015 pp. 3-5, 11, 41. 5286 Prosecution Response Brief, paras. 1447-1449, 1460. 5287 Prosecution Response Brief, paras. 1447-1469. See also AT. 17 April 2015 pp. 24-27. 793 Case No. ICTR-98-42-A 14 December 2015

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19571/H 2283. Accordingly, the Appeals Chamber considers that the defects in the Indictment regarding Nteziryayo's responsibility for direct and public incitement to commit genocide at meetings held in Muyaga and Kibayi Communes were curable. The Appeals Chamber will now turn to consider whether, for each meeting, the Trial Chamber erred in finding that the defects were cured by the provision of clear, consistent, and timely information detailing the factual basis underpinning the charge. (a) Muyaga Commune Meeting 2284. The Trial Chamber found that the defect in the Indictment concerning Nteziryayo's responsibility for direct and public incitement to commit genocide at a meeting held in Muyaga Commune was cured through the disclosure of the summaries of Prosecution Witnesses QBY's and FAB's anticipated evidence appended to the Prosecution Pre-Trial Brief,5288 as well as Witnesses QBY's and FAB's prior statements to Tribunal investigators.5289 2285. In reaching its conclusion, the Trial Chamber noted that Witnesses QBY's and FAB's summaries both stated that, around 5 June 1994, Nteziryayo attended a meeting in Muyaga Commune at which he made a speech asking the population to kill the Tutsis.5290 It observed that Witness QBY's Statement indicated that, between 4 and 5 June 1994, Nteziryayo spoke at a meeting at the Muyaga commune office, while Witness FAB's Statement indicated

that Nteziryayo came to Muyaga Commune between 3 and 5 June 1994 to hold a meeting and that, in his speech, he stated that "the Hutus should kill all the Tutsis and not spare anyone."29l Considering that Witnesses QBY and FAB first testified over three years after these disclosures, the Trial Chamber concluded that paragraph 5.8 of the Indictment was cured of its defects.5292 5288 Trial Judgement, paras. 3483, 3485, referring to Witness Summaries Grid, item 14, Witness FAB ("Witness FAB's Summary"), Witness QBY's Summary. 5289 Trial Judgement, para. 3483, referring to Statement of Witness QBY of 3 November 1999, disclosed on 10 December 1999 (confidential) ("Witness QBY's Statement"), Statement of Witness FAB of 11 April 1999, disclosed on 15 November 2000 (confidential). A copy of Witness QBY's Statement including highlighting of alleged contradictions was admitted into evidence on 29 April 2004 as Exhibit D216 (confidential). A copy of Witness FAB's statement including highlighting of alleged contradictions was admitted into evidence on 29 April 2004 as Exhibit D217 (confidential). The un-highlighted copy of Witness FAB's Statement was also admitted into evidence on 29 April 2004 as Exhibit D218 (confidential) ("Witness FAB"s Statement"). $290 Trial Judgement, para. 3483. 5291 Trial Judgement, para. 3483. 5292 Trial Judgement, paras. 3483-3485. The Trial Chamber also referred to paragraphs 6.53 and 6.59 of the Nsabimana and Nteziryayo Indictment as being cured of their defects but, as noted above, the Appeals Chamber understands that the Trial Chamber intended to rely only on paragraphs 5.8 and 6.31 as regards Nteziryayo's responsibility for committing direct and public incitement to commit genocide. See supra, fn.

5282. As mentioned above, the Appeals Chamber has nonetheless found that paragraph 6.31 could not be reasonably relied upon as giving him notice of a charge related to his responsibility for crimes committed in his capacity as prefect of Butare. See supra, para. 2281. 794 Case No. ICTR-98-42-A 14 December 2015

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19570/H 2286. Nteziryayo submits that the Trial Chamber erred in law in finding that timely, clear, and consistent information relating to Muyaga Commune cured the defects in the Indictment.5293 In particular, he argues that because Witnesses QBY's and FAB's summaries and statements all make, "with relative precision", an allegation of a meeting in Muyaga Commune sometime between 3 and 5 June 1994, these documents could not put him on notice of a meeting in Muyaga Commune that occurred on or after 21 June 1994 as found by the Trial Chamber.294 Nteziryayo argues that, since the fact that he was sworn-in as prefect on 21 June 1994 was pleaded in the Indictment, if it was the Prosecution case that this meeting occurred after his appointment, the Prosecution should have reflected it in the Indictment. 295 Pointing out that the Prosecution failed to provide the requisite notice in its opening statement or any other filing and that the Prosecution case remained unclear throughout trial, 2% Nteziryayo submits that a "much more reasonable interpretation" is that the Prosecution did not know "at any time during the process" that its case was that the meeting took place on or after 21 June 1994.529 According to Nteziryayo, it was only in the Trial Judgement that it was made clear that the case he had to answer related to a meeting in Muyaga Commune on or after 21 June 1994.5298 2287.

Nteziryayo further submits that, since the Trial Chamber recognised that he objected to the lack of notice relating to the Muyaga meeting and did not find his objection to be untimely, it erred in failing to require the Prosecution to discharge its burden of proving an absence of prejudice. 299 He contends that the lack of clarity of the Prosecution case regarding this meeting deprived him of the opportunity to present a defence and caused him considerable prejudice.30° In this respect, Nteziryayo submits that he was deprived of the opportunity of presenting an alibi defence since he was "misled as to the date on which the alibi was to attach" and that he devoted resources to investigating and calling witnesses in respect of a meeting which was not part of the case. 5301 2288. The Prosecution responds that the Trial Chamber correctly found that Nteziryayo had notice that he incited the killing of Tutsis at a meeting in Muyaga Commune held around mid-June 1994, $293 Nteziryayo Notice of Appeal, paras. 18, 24; Nteziryayo Appeal Brief, paras. 49-63. See also AT. 17 April 2015 Be Ne ziryay Appeal Brief, paras, 51, 52, referring to Trial Judgement, para.

3672. See also ibid, para. 56. 5295 Nteziryayo Appeal Brief, para. 60, referring to Nsabimana and Nteziryayo Indictment, para. 6.34. 5296 Nteziryayo Appeal Brief, paras. 55-58. Nteziryayo highlights that Witness QBY testified that the meeting occurred either on 5 May or 5 June 1994, whereas Witness FAB recanted his previous statement and placed the meeting in mid-June 1994, and that the Prosecution referred to "Speeches during May/early June 1994" in its closing brief. See ibid., paras. 57, 58. Nteziryayo argues that the Trial Chamber therefore erred in stating that the Prosecution specified that the Muyaga meeting took place in mid to late June 1994. See ibid., para.

59. Nteziryayo Appeal Brief, para. 61. $298 Nteziryayo Appeal Brief, para.

62. Nteziryayo Notice of Appeal, para. 25; Nteziryayo Appeal Brief, paras. 64-68, heading (iv) at p. 25, referring to Trial Judgement, para. 3472. 5300 Nteziryayo Appeal Brief, paras. 38, 69, 74, 75. See also Nteziryayo Reply Brief, para. 24. 795 Case No. ICTR-98-42-A 14 December 2015 ree

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19569/H relying in part on the reference to Nteziryayo being prefect at the time of the meeting in Witness FAB's Summary 5302 The Prosecution also submits that, because Nteziryayo's objection based on lack of notice was untimely, he bears the burden to demonstrate that his ability to defend himself was materially impaired.303 According to the Prosecution, the conduct of Nteziryayo's defence - in particular his pre-defence brief, his cross-examination of Witnesses QBY and FAB, his examination of Nteziryayo Defence Witness AND-60, and his closing submissions - demonstrates that he fully understood that the meeting was alleged to have occurred in June 1994 when he was prefect and that he was not prejudiced as he claims. 304 2289. There appears to be no dispute that Witnesses QBY's and FAB's summaries, together with their prior written statements disclosed in 1999 and 2000, provided timely, clear, and consistent information regarding Nteziryayo's responsibility for direct and public incitement to kill Tutsis through his words at a public meeting held in Muyaga Commune 5305 Nteziryayo, however, takes issue with the Trial Chamber's finding that he was provided adequate notice of the date of the meeting.

2290. As noted by the Trial Chamber, Witnesses QBY's and FAB's summaries and statements all indicate that the meeting took place between 3 and 5 June 1994.5306 The Trial Chamber, nonetheless, did not discuss how this information accorded with its conclusion that the meeting occurred "around mid-June 1994", 5307 more specifically "on or after 21 June 1994" since both witnesses were adamant that Nteziryayo attended the meeting in his capacity as Butare Prefect.$308 5301 Nteziryayo Appeal Brief, paras. 69, 72-75; Nteziryayo Reply Brief, paras. 17, 24, 25. See also AT. 17 April 2015 pp. 12, 13, 41, 42 " Prosecution Response Brief, paras. 1447, 1450-1453. 5303 Prosecution Response Brief, paras. 1449, 1455, referring to Mugenzi and Mugiraneza Appeal Judgement, para. 122. 5304 Prosecution Response Brief, paras. 1457-1459. See also AT. 17 April 2015 pp. 25, 26. 5305 The Appeals Chamber notes that Witnesses QBY's and FAB's summaries were marked relevant to Nteziryayo and were linked to Counts 1 through 4 of the Nsabimana and Nteziryayo Indictment. The Appeals Chamber notes that, in his notice of appeal, Nteziryayo argued that the summaries appended to the Prosecution Pre-Trial Brief could not inform him of the allegations against him as the Prosecution had failed to indicate in the summaries the paragraphs of the Nsabimana and Nteziryayo Indictment on which the witnesses would testify

in violation of Rule 73(B)(iv)(c) of the Rules. See Nteziryayo Notice of Appeal, paras. 24, 29. Nteziryayo, however, failed to reiterate this allegation in his appeal brief and instead developed different arguments. In these circumstances, the Appeals Chamber understands that Nteziryayo has abandoned this allegation of error. In any event, the Appeals Chamber reiterates that neither the Rules nor the jurisprudence require that the summaries appended to a Prosecution's pre-trial brief be linked to the relevant paragraphs of an indictment in order to provide timely, clear, and consistent information detailing the factual basis underpinning the charge. See supra, fn.

2546. It also observes that, in the circumstances of this case, it was abundantly clear that Witnesses OBY's and FAB's summaries were intended to support the allegations of incitement to commit renocide made against Nteziryayo in his indictment 306 Trial Judgement, para. 3483. 5307 Trial Judgement, para.

3674. See also ibid., para. 5945. 5308 Trial Judgement, para. 3672 ("The Chamber notes that Witnesses QBY and FAB are adamant that on the day of the meeting, Nteziryayo already held his position as préfet of Butare. Witness FAB even testified that the purpose of the meeting was to introduce Nteziryayo as the new préfet. Flowing from that, it appears that the meeting may have occurred on or after 21 June 1994, as Nteziryayo was appointed préfet of Butare on or around 17 June 1994, and his swearing-in ceremony took place on 21 June 1994.") (internal references omitted). In light of the Trial Chamber's statement in this paragraph, the Appeals Chamber finds no merit in the Prosecution's argument that the Trial Chamber 796 Case No. ICTR-98-42-A 14 December 2015

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19568/H Although it expressly relied on this particular detail in reaching its findings regarding notice of the date of the Kibayi Commune meeting, 5309 the Trial Chamber failed to address expressly the fact that Witness FAB's summary and statement both referred to Nteziryayo as being "prefect" at the time of the Muyaga Commune meeting,5310 which provided conflicting information as to whether the meeting occurred in early June 1994 as indicated in the relevant summaries or statements, or after Nteziryayo took office as the prefect on 21 June 1994.5311 2291. Against this background, the Appeals Chamber finds that the Trial Chamber erred in finding that Witnesses QBY's and FAB's summaries and statements provided clear and consistent information curing the defect of the Indictment as far as it relates to the date of the meeting held in Muyaga Commune at which Nteziryayo would have incited the commission of genocide.

2292. However, the Appeals Chamber considers that the reference to Nteziryayo being the prefect at the time of the Muyaga meeting in Witness FAB's Summary shows that the Prosecution case at trial was that the meeting was held after Nteziryayo was appointed prefect. The record reflects that, despite the absence of express clarification at trial and some ambiguous references in its closing brief, 312 the Prosecution's intention was to demonstrate that the Muyaga meeting had taken place after Nteziryayo became prefect. 313 The record before the Appeals Chamber demonstrates that the Prosecution ignored the inconsistencies in the information it provided to Nteziryayo through its pre-trial brief and failed to fulfil its obligation to clarify for Nteziryayo what its case was at the first opportunity.

2293. That being said, the Appeals Chamber recalls that a vague or ambiguous indictment which is not cured of its defect by the provision of timely, clear, and consistent information causes prejudice to the accused. 314 The defect may only be deemed harmless through demonstrating that the did not conclude that the meeting occurred on or after 21 April 1994 but merely "around mid-June". See Prosecution Response Brief, para.

1454. See Trial Judgement, paras. 3492, 3493. See also infra, para. 2305. 5310 See Witness FAB's Summary ("About 3 to 5 June 1994, FAB attended a meeting in Muyaga commune, Mamba secteur. Prefect Nteziryayo said that the Hutus should kill all the Tutsis and not spare anyone. Prefect Nteziryayo said: 'In order to get rid of the lice, you must also destroy their eggs'".); Witness FAB's Statement, p. K0112989 (Registry pagination) ("Some of them did not come out of hiding until June 1994 when Préfet NTEZIRYAYO [...) came to Muyaga to hold a meeting sometime between 3 and 5 June in Mamba secteur."). See Nsabimana and Nteziryayo Indictment, para. 6.34 ("On 17 June 1994, Alphonse Nteziryayo was appointed Préfet of Butare by the Interim Government, replacing Sylvain Nsabimana. After the handing over of office on 21 June 1994, Préfet Alphonse Nteziryayo continued to incite the population to 'finish off' the enemy and its 'accomplices'."). 5312 See Prosecution Closing Brief, pp. 355, 356, where the Prosecution refers to the evidence of Witness FAB under the sub-heading "Speeches during May/early June 1994". 5313 See Witness QBY, T. 19 April 2004 p. 54; Witness FAB, T. 5 April 2004 p. 24. 5314 See, e.g., Sainovié et al. Appeal Judgement, para. 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para. 58. 797 Case No. ICTR-98-42-A 14 December 2015

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19567/H accused's ability to prepare his defence was not materially impaired. 315 When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his ability to prepare his defence was materially impaired.316 When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his defence was not materially impaired. $317 2294. The Appeals Chamber observes that the Trial Chamber examined Nteziryayo's claim of lack of notice relating to the Muyaga meeting raised at trial without considering his claim untimely.5318 In these circumstances, the Appeals Chamber considers that the burden rests on the Prosecution to prove that Nteziryayo's ability to prepare his defence was not materially impaired.

2295. The Appeals Chamber finds that the Prosecution has met this burden as it effectively demonstrates that the conduct of Nteziryayo's defence reflects that the ambiguity in the notice provided by the Prosecution regarding the date of the Muyaga Commune meeting was harmless. Specifically, as pointed out by the Prosecution and acknowledged by Nteziryayo,5319 Nteziryayo premised his defence on the occurrence of only one meeting in Muyaga Commune that occurred on 23 May 1994, called witnesses in support of this case, 5320 and was prepared to refute any allegation that the meeting had taken place after that date. In particular, the record shows that Nteziryayo was able to undertake a detailed cross-examination of Witnesses OBY and FAB who testified that he attended the meeting held in Muyaga Commune in his capacity as prefect, challenging specifically discrepancies between their testimonies and prior statements as to the date of the meeting in Muyaga and his position at the time of the meeting. 5321 2296. The Appeals Chamber is not persuaded by Nteziryayo's submission that the lack of clarity in the Prosecution case prevented him from calling alibi witnesses or devoting resources to prepare his defence as the conduct of his defence shows that he was prepared to respond to the allegation that the meeting had taken place when he was prefect and that he deliberately oriented his defence to demonstrate that the meeting in Muyaga Commune could only have occurred on 23 May 1994. 5315 See, e.g., Sainovié et al. Appeal Judgement, para. 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para. 58; Kupreskié et al. Appeal Judgement, para.

122. See, e.g., Nzabonimana Appeal Judgement, para. 30; Sainovié et al. Appeal Judgement, para. 224; Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para.

200. See, e.g., Nzabonimana Appeal Judgement, para. 30; Ntabakuze Appeal Judgement, fn. 189; Niyitegeka Appeal Judgement, para. 200; Kupreskié et al. Appeal Judgement, paras. 122, 123. 5318 Trial Judgement, paras. 3472-3474, 3483-3485, referring to Nteziryayo Closing Brief, para. 765, referring in turn to, The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29-T, Alphonse Nteziryayo's Motion for Exclusion of Evidence, 23 January 2009 (confidential) ("Nteziryayo 23 January 2009 Motion"). $319 Prosecution Response Brief, paras. 1458, 1459; Nteziryayo Appeal Brief, para. 173. 5320 See 'Trial Judgement, paras. 3570-3577. 798 Case No. ICTR-98-42-A 14 December 2015

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19566/H 2297. Based on the foregoing, the Appeals Chamber finds that, despite the vagueness of the Indictment and the confusion in the Prosecution's post-indictment communications, Nteziryayo had understood that he had to defend against the allegation that he incited the killing of Tutsis during a meeting held in Muyaga Commune while he was prefect, that is on or after he took on his functions on 21 June 1994. Accordingly, the Appeals Chamber concludes that, although the Trial Chamber erred in relying on paragraph 6.31 of the Indictment and in finding that the defect in the Indictment concerning the date of the Muyaga Commune meeting was cured, these errors do not invalidate its decision to convict Nteziryayo on the basis of this meeting as the Prosecution has proven on appeal that Nteziryayo's ability to prepare his defence was not materially impaired. (b) Kibayi Commune Meeting 2298. The Trial Chamber found that the defect in the Indictment concerning Nteziryayo's responsibility for direct and public incitement to commit genocide at a meeting held in Kibayi Commune around mid to late June 1994 was cured through the disclosure of the summaries of Prosecution Witnesses FAK's and QBU's anticipated evidence 322 as well as Witnesses FAK's and QBU's prior statements to Tribunal investigators.5323 2299. In reaching its conclusion, the Trial Chamber noted that, whereas the location

of the meeting was not specified in the summary of Witnesses FAK's and QBU's anticipated evidence, the omission of this detail was remedied by information contained in their prior written statements, which identified the meeting as taking place at or next to the Kibayi commune office. 5324 The Trial Chamber further observed that Witnesses FAK's and QBU's summaries and statements all placed the meeting in May 1994.5325 The Trial Chamber nonetheless determined that, having regard to the content of Witnesses FAK's and QBU's statements which refer to Nteziryayo being present at the meeting either as prefect or "the new Préfet Nteziryayo", Nteziryayo was put on notice that the meeting about which these witnesses would testify must have taken place after 21 June 1994, the 5321 See Witness QBY, T. 20 April 2004 pp. 4, 8, 11, 21-23; Witness FAB, T. 5 April 2004 pp. 42, 43, 46, 49 and 52 Sch Trial Sudgement, paras. 3486, 3491, referring to Witness Summaries Grid, item 23, Witness FAK ("Witness FAK's Summary"), item 47, Witness QBU ("Witness QBU"s Summary"). Trial Judgement, paras. 3487-3489, 3495, fns. 9352-9354, referring to Statement of Witness FAK of 24 February 2000, disclosed in French on 15 November 2000 and in English on 4 December 2000 (confidential) ("Witness FAK's February 2000 Statement"), Statement of Witness FAK of 3 May 2000, disclosed in French on 4 December 2000 and in

English on 23 May 2001 (confidential) ("Witness FAK's May 2000 Statement"), Statement of Witness QBU of 10 October 1999, disclosed on 1 December 1999 (confidential) ("Witness QBU's Statement"). The unredacted versions of Witness FAK's February 2000 and May 2000 statements were admitted into evidence on 29 April 2004 as Exhibit D219 (confidential) ("Witness FAK's Statements"). A copy of Witness FAK's Statements including highlighting of alleged contradictions was admitted the same day as Exhibit D220 (confidential). 5324 Trial Judgement, paras. 3486-3491. 5325 Trial Judgement, para. 3492. 799 Case No. ICTR-98-42-A 14 December 2015

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19565/H date on which he took office as prefect.326 It considered the discrepancy as to the date of the meeting as minor and found that Nteziryayo was put on notice that he would need to defend against the allegation that he incited the population by speeches he gave at a meeting at or near the Kibayi commune office sometime after he assumed office as prefect.327 The Trial Chamber concluded that paragraph 6.31 of the Indictment was "cured by the disclosure of clear, consistent and timely information" and that Nteziryayo "did not suffer any prejudice". 5328 2300. Nteziryayo submits that the Trial Chamber erred in law in finding that the defective Indictment was cured by timely, clear, and consistent information.329 Nteziryayo acknowledges that the location was specified in Witnesses FAK's and QBU's statements, but argues that the Trial Chamber erred in law in relying solely on these statements as providing notice since the disclosure of previous statements cannot by itself put an accused on notice of material facts which the Prosecution intends to prove at trial.5330 He also submits that, even if the Trial Chamber was entitled to rely on these statements, they are consistent with Witness FAK's and QBU's summaries that the meeting took place in May 1994, not mid to late June 1994 as found by the Trial Chamber.533l In his view, the reference to him being the prefect at the time of

the meeting in Witnesses FAK's and QBU's statements cannot be said to constitute clear and consistent information of a meeting in late June 1994.5332 Nteziryayo adds that it was only in the Trial Judgement "that the case to answer was put."333 2301. Nteziryayo contends that, since the Trial Chamber recognised that he objected to the lack of notice related to the Kibayi Commune meeting, it erred in failing to require the Prosecution to discharge its burden of proving an absence of prejudice, 334 He submits that the lack of clarity of the Prosecution case regarding the Kibayi Commune meeting deprived him of the opportunity to present a defence and caused him considerable prejudice. 5335 In particular, he argues that he was deprived of the opportunity of presenting an alibi as he was misled as to the date on which the alibi 5326 Trial Judgement, paras. 3492, 3493. 5327 Trial Judgement, para. 3493. $328 Trial Judgement, para. 3495. 5329 Nteziryayo Notice of Appeal, paras. 27-36; Nteziryayo Appeal Brief, paras. 49, 79-89. See also AT. 17 April 2015 B8o eiryay Appeal Brief, para.

81. See also ibid, para. 54; Nieziryayo Reply Brief, para. 19. 5331 Nteziryayo Appeal Brief, paras. 82, 83. See also Nteziryayo Reply Brief, para. 17. 5332 Nteziryayo Notice of Appeal, para. 31; Nteziryayo Appeal Brief, paras. 84, 85. 5333 Nteziryayo Appeal Brief, para.

88. See also ibid., para.

36. Nteziryayo refers to Witnesses FAK's and QBU's evidence at trial and submits that there was no clarity in the Prosecution case even at the close of the presentation of its evidence. See ibid., paras. 86-88, fn. 24, referring to Prosecution Closing Brief, pp. 355-358. 5334 Nteziryayo Notice of Appeal, para. 35; Nteziryayo Appeal Brief, paras. 64-68, 90, heading (ii) at p. 32, referring to Trial Judgement, para. 3472. 5335 Nteziryayo Notice of Appeal, paras. 34, 36; Nteziryayo Appeal Brief, paras. 38, 69, 74, 94. See also Nteziryayo Reply Brief, para. 24. 800 Case No. ICTR-98-42-A 14 December 2015

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19564/H had to attach and that he devoted resources investigating and calling witnesses to a meeting which was not part of the case. 5336 2302. The Prosecution responds that Witnesses FAK's and QBU's summaries and statements provided notice to Nteziryayo that he was alleged to have incited the killing of Tutsis at a public meeting as well as with respect to the date and location of the meeting, and that the Trial Chamber did not err in determining that the discrepancy concerning the dates was minor. 337 The Prosecution also submits that, because Nteziryayo's objection based on lack of notice was untimely, he bears the burden to demonstrate that his ability to defend himself was materially impaired, if at all, 5338 According to the Prosecution, the conduct of Nteziryayo's defence - in particular his pre-defence brief, his cross-examination of Witnesses QBU and FAK, and his examination of Nteziryayo Defence Witnesses AND-11, AND-53, and AND-64 - demonstrates that he fully understood that the meeting was alleged to have occurred when he was prefect and did not suffer prejudice as he mounted a full defence against the allegation. 3339 2303. There appears to be no dispute that Witnesses FAK's and QBU's summaries, together with these witnesses' prior written statements disclosed in 1999 and 2000, provided timely, clear, and consistent information regarding Nteziryayo's responsibility

for direct and public incitement to kill Tutsis through the words he proffered at a public meeting. 5340 Nteziryayo, however, takes issue with the Trial Chamber's findings that he was provided adequate notice of the location and date of the meeting 2304. As noted above, the Trial Chamber acknowledged that the location of the meeting was not specified in Witnesses FAK's and QBU's summaries but considered that this omission was remedied by the information contained in these witnesses' prior statements, which identified the meeting as taking place at, or next to, the Kibayi commune office.341 Nteziryayo is correct in submitting that mere service of witness statements is insufficient to inform the Defence of material facts that the Prosecution intends to prove at trial 5342 His argument, however, fails to appreciate that the Prosecution did not merely serve Witnesses FAK's and QBU's statements on Nteziryayo. In its Witness Summaries Grid attached to its pre-trial brief, the Prosecution also summarised the S336 Nteziryayo Appeal Brief, paras. 69, 73-75, 94; Nteziryayo Reply Brief, paras. 17, 24, 25. See also AT. 17 April 2015 pp. 12, 13, 41, 42 5337 Prosecution Response Brief, paras. 1461-1465. The Prosecution argues that, contrary to Nteziryayo's submission. a pre-trial brief and witness statements, read together, may provide sufficient notice. See ibid., para. 1463 Prosecution Response Brief, paras. 1455, 1456, 1460, 1466. 533% Prosecution Response Brief, paras. 1467, 1468; AT. 17 April 2015 pp. 26, 27. s40 in Ap als Chively too that Wid t, an Around of his indicaties were marked relevant to Nieziryayo and 5341 Trial Judgement, paras. 3486-3491. 801 Case No. ICTR-98-42-A 14 December 2015

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19563/H information contained in the statements of Witnesses FAK and QBU that Nteziryayo incited the killing of Tutsis in a public meeting held in Kibayi Commune343 and expressly indicated that this evidence was relevant to its case against Nteziryayo34 Upon reading Witnesses FAK's and QBU's summaries, Nteziryayo should have been prompted to read the witnesses' prior statements disclosed to him in 1999 and 2000, which provided timely, clear, and consistent information regarding the location of the alleged meeting 2305. With regard to the date, Witnesses FAK's and QBU's summaries and statements all indicate that the meeting took place in May 19945345 However, the Trial Chamber correctly noted that, despite this indication, both witnesses referred to Nteziryayo as being the prefect or the "new Préfet" at this meeting in their prior statements.346 The Appeals Chamber finds no error in the Trial Chamber's consideration that this reference to Nteziryayo's status as prefect at the time of the meeting in the witnesses' statements, repeated in Witness QBU's Summary, suggested that these witnesses would testify about a meeting that must have occurred after he took office as prefect on 21 June 1994.5347 Nevertheless, the Appeals Chamber considers that the express references in the Prosecution's post-indictment disclosures to the meeting taking place in "May 1994" and to Nteziryayo's

attendance as the prefect cannot be said to constitute clear and consistent notice of the date of the meeting held in Kibayi Commune. It is only when Witnesses FAK and QBU took the stand that it became clearer that the Prosecution intended to prove that Nteziryayo was alleged to be responsible for inciting the population at a meeting held in Kibayi when he was prefect. 5348 The Appeals Chamber finds that this does not constitute "timely" notice. 5349 5342 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 162; Ntagerura et al. Appeal Judgement, para. 139; Ntakirutimana Appeal Judgement, para. 27. 5343 See Witness FAK's February 2000 Statement, pp. 3, 4; Witness FAK's May 2000 Statement, p. 3; Witness QBU's 5311 See Witness FAR's Summary; Witness QBU's Summary. Cf. Ntakirutimana Appeal Judgement, paras. 41, 48 5345 See Witness FAK's Summary ("FAK attended one meeting in May 1994 at which Nteziryayo told the people to kill Tutsi".); Witness FAK's February 2000 Statement, p. K0153200 (Registry pagination) ("Several meetings were held during that period but I only attended one, the meeting held in May 1994 in the Kibayi commune office compound."); Witness FAK's May 2000 Statement, p. K0180538 (Registry pagination) ("I recall attending a meeting at the Kibayi communal office in May 1994."); Witness QBU's Summary ("In May [1994], Nteziryayo held a meeting as the Prefect.");

Witness QBU's Statement, p. K0112414 (Registry pagination) ("Au mois de mai 1994, s'est tenue au terrain de football de Kibayi situé près du bureau communal, une réunion présidée par le Colonel Alphonse NTEZIRYAYO, nouveau préfet".). 5346 See Trial Judgement, paras. 3492, 3493. See also Witness FAK's February 2000 Statement, p. K0153200 (Registry pagination); Witness FAK's May 2000 Statement, p. K0180538 (Registry pagination); Witness QBU's Statement, P. K01 12414 (Registry pagination). See Trial Judgement, paras. 3492, 3493. 5348 Witness FAK, T. 15 April 2004 pp. 19, 24, 27 (closed session); Witness QBU, T. 13 April 2004 pp. 8 (closed session), 37, 54-55, 58 (closed session), T. 14 April 2004 p.

3. The Appeals Chamber notes that the Prosecution never explicitly clarified its case and made ambiguous references to "Speeches during May/early June 1994" in its closing brief when discussing its evidence on the Kibayi meeting. See Prosecution Closing Brief, pp. 355, 356. 5349 The Appeals Chamber observes that, as pointed out by Nteziryayo, the Prosecution Closing Brief refers to the Kibayi Commune meeting under the heading "Speeches during May/early June 1994". See Prosecution Closing Brief, 802 Case No. ICTR-98-42-A 14 December 2015

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19562/H 2306. Consequently, the Appeals Chamber finds that the Trial Chamber erred in finding that the defect in the Indictment was cured by timely, clear, and consistent information as it relates to the date of the meeting held in Kibayi Commune at which Nteziryayo was alleged to have incited the commission of genocide.

2307. Turning to the question of whether the defect in the Indictment regarding the date of the meeting materially impaired Nteziryayo's ability to prepare his defence, the Appeals Chamber observes that the Trial Chamber examined Nteziryayo's claim of lack of notice relating to the Kibayi Commune meeting raised at trial without considering his claim untimely. 5350 In these circumstances, the burden rests on the Prosecution to prove that the ability of Nteziryayo to prepare his defence was not materially impaired.

2308. The Appeals Chamber finds that the Prosecution has met its burden as it demonstrates that the conduct of Nteziryayo's defence reflects that the ambiguity regarding the date of the Kibayi Commune meeting was harmless. Specifically, a review of the record shows that Nteziryayo was able to mount a robust cross-examination of Witnesses FAK and QBU who testified that Nteziryayo attended the meeting held in Kibayi in his capacity as prefect. In particular, Nteziryayo challenged the discrepancy between the estimated date of the meeting in Witness FAK's Statements and his testimony 35l and put to both Witnesses FAK and QBU evidence on the date of his appointment as prefect in support of his claim that both witnesses were incorrect in their estimate of the dates for the meeting 5352 The Nteziryayo Pre-Defence Brief also reflects that Nteziryayo initially intended to call a witness who was expected to testify, inter alia, that she knew Nteziryayo after he was appointed prefect and that she attended a meeting in Kibayi at which Nteziryayo called for peace. 353 2309. Furthermore, as pointed out by the Prosecution and Nteziryayo himself, Nteziryayo was able to call three witnesses who testified to attending a meeting that took place on 24 May 1994.5354 Contrary to Nteziryayo's submissions, not only were these Defence witnesses able to put forward p.

355. However, the Appeals Chamber is not convinced that this ambiguity demonstrates Nteziryayo's lack of notice of the case against him. 5350 Trial Judgement, paras. 3472-3474, 3486-3495, referring to Nteziryayo Closing Brief, para. 765, referring in turn to Nteziryayo 23 January 2009 Motion. 351 See Witness FAK, T. 15 April 2004 pp. 19, 27, 28 (closed session). 5352 See Witness FAK, T. 15 April 2004 pp. 29, 30 (closed session); Witness QBU, T. 13 April 2004 pp. 56-58 (closed session). 5353 See Nteziryayo Pre-Defence Brief, p. 5. $354 Nteziryayo Appeal Brief, paras. 91, 92, referring to Witnesses AND-11, AND-53, and AND-64. The Appeals Chamber observes that Nteziryayo also cross-examined Ntahobali Defence Witness H1B6 on whether Nteziryayo wa refect when he attended a public meeting in May 1994. See Witness H1B6, T. 5 December 2005 pp. 11 (close session), 18, 19. 803 Case No. ICTR-98-42-A 14 December 2015 54

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19561/H Nteziryayo's defence case that the meeting occurred in May 1994, but they also testified in rebuttal of the Prosecution case that there was a meeting in June 1994 when he was prefect. 335 2310. The Appeals Chamber is not persuaded by Nteziryayo's contention that the lack of clarity in the Prosecution case prevented him from calling alibi witnesses or devoting resources to investigating the matter, as the conduct of his defence shows that he was prepared to respond to the allegation that the meeting had taken place when he was prefect and that he deliberately oriented his defence to demonstrate that the meeting in Kibayi could only have occurred on 24 May 1994.

2311. Based on the foregoing, the Appeals Chamber is persuaded that, despite the vagueness of the Indictment and the confusion in the Prosecution's communications, Nteziryayo had understood that he had to defend against the allegation that he incited the killing of Tutsis during a meeting held in Kibayi Commune while he was prefect, that is on or after he took his functions on 21 June 1994. Accordingly, the Appeals Chamber concludes that, although the Trial Chamber erred in relying on paragraph 6.31 of the Indictment and in finding that the defect in the Indictment concerning the date of the Kibayi Commune meeting was cured, these errors do not invalidate its decision to convict Nteziryayo on the basis of this meeting as the Prosecution has proven on appeal that Nteziryayo's ability to prepare his defence was not materially impaired.

3. Conclusion 2312. The Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in considering that he was put on sufficient notice that he was charged with direct and public incitement to commit genocide at Ndayambaje's Swearing-In Ceremony and that he did not suffer prejudice.

2313. The Appeals Chamber further finds that, although the Trial Chamber erred in concluding that the defects in the Indictment concerning the dates of the meetings held in Muyaga and Kibayi Communes at which Nteziryayo was alleged to have incited the commission of genocide were cured, these errors do not invalidate the Trial Chamber's decision to convict Nteziryayo for direct and public incitement to commit genocide in relation to the speeches he made at these meetings as the Prosecution has successfully demonstrated that Nteziryayo's ability to prepare his defence was not materially impaired by the lack of clear notice.

2314. Finally, the Appeals Chamber dismisses Nteziryayo's claim of prejudice resulting from the accumulation of defects in the Indictment 5356 The Appeals Chamber does not minimise the extent 5355 See, e.g., Witness AND-11, T. 1 February 2007 pp. 39, 50, T. 5 February 2007 pp. 59 and 61-63 (closed session); Witness AND-53, T. 15 February 2007 pp. 43, 59; Witness AND-64, T. 8 March 2007 p. 47. 804 Case No. ICTR-98-42-A 14 December 2015

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19560/H of the Prosecution's failure to provide adequate notice in the Indictment: none of the three incidents for which Nteziryayo was found guilty was adequately pleaded in the Indictment. However, Nteziryayo has not demonstrated that the defects in the Indictment in this respect and their cumulative effect materially hampered the preparation of his defence.

2315. For these reasons, the Appeals Chamber dismisses Grounds 1 through 3 of Nteziryayo's appeal. 5356 See Nteziryayo Notice of Appeal, para. 7. 805 Case No. ICTR-98-42-A 14 December 2015

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19559/H B. Ndayambaje's Swearing-In Ceremony (Ground 4) 2316. The Trial Chamber found that, during Ndayambaje's public swearing-in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994 held in the woods near the Muganza commune office, Nteziryayo and Ndayambaje told the population to continue with their "work", urged them to "sweep the dirt outside", and instructed that those hiding Tutsis who refused to hand them over should be killed 5357 The Trial Chamber convicted Nteziryayo pursuant to Article 6(1) of the Statute for committing direct and public incitement to commit genocide on the basis of his statements made during the swearing-in ceremony. 5358 2317. Nteziryayo argues that the Trial Chamber erred in its assessment of the Prosecution and Defence evidence related to his conduct at the ceremony. The Appeals Chamber will first address Nteziryayo's challenges to the assessment of the Prosecution evidence before examining his contentions related to the assessment of the Defence evidence.

1. Assessment of Prosecution Evidence 2318. In reaching its findings regarding Ndayambaje's Swearing-In Ceremony, the Trial Chamber considered, inter alia, the evidence of Prosecution Witnesses FAG, FAL, FAU, QAF, AL, QAQ, QAR, RV, TO, and TP. 5359 2319. Nteziryayo argues that the Trial Chamber erred in its assessment of the Prosecution evidence by: (i) erroneously using the evidence of Witnesses QAQ and QAR to corroborate other Prosecution evidence; (ii) failing to apply sufficient caution to accomplice evidence; (iii) insufficiently considering discrepancies concerning the content of the speeches, particularly his utterances, and the order in which he and Ndayambaje gave speeches; (iv) failing to sufficiently examine discrepancies as to the date of the event, the attendees, and the time it occurred; and (v) failing to consider other elements in the record and within the Prosecution evidence suggesting that the witnesses were testifying about meetings other than Ndayambaje's Swearing-In Ceremony 5360 The Appeals Chamber will address these contentions in turn. $357 See Trial Judgement, paras. 4616, 4642, 4645. See also ibid., paras. 5948, 6026, 6027. 5358 Trial Judgement, paras. 6029, 6038, 6186. 339 Ne Try Judgemen PaTa 45 9 153, 3153, 62163: Neiryayo Appeal Briet, paras, 96-157, 161-166, 247, 248. 806 Case No. ICTR-98-42-A 14 December 2015

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19558/H (a) Witnesses QAQ and QAR 2320. Nteziryayo argues that, after having found that Witnesses QAQ and QAR lacked credibility, the Trial Chamber erred in using their evidence for corroboration of other Prosecution evidence. 5361 The Prosecution responds that the Trial Chamber did not rely on the evidence of these witnesses. 362 2321. The Appeals Chamber observes that the Trial Chamber declined to rely on the accounts of Witnesses QAQ and QAR about Ndayambaje's Swearing-In Ceremony because it found that Witness QAR did not attend the ceremony and that any probative weight to be accorded to the testimony of Witness QAQ was minimal.5363 In the paragraphs of the Trial Judgement pointed out by Nteziryayo, the Trial Chamber merely noted that certain aspects of their testimonies were consistent with the evidence of other Prosecution and Defence witnesses but did not rely on it to corroborate other evidence relating to the ceremony. 5364 2322. The Appeals Chamber therefore dismisses Nteziryayo's submission concerning the evidence of Witnesses QAQ and QAR. (b) Insufficient Caution 2323. Nteziryayo argues that the Trial Chamber gave no indication that it would treat Witness FAU's evidence with caution and that its "bare assertion" that it would apply caution to the evidence of Witnesses FAG, FAL, QAF, RV, and TO does not demonstrate that it did 5365 He stresses that Witnesses FAG,

FAL, FAU, QAF, and RV testified while awaiting trials or sentencing in Rwanda and that Witnesses FAG, FAL, FAU, and RV were detained in prison together. 5366 As further reason for the need to apply caution to these witnesses, Nteziryayo highlights that: (i) Witness RV admitted to having previously lied to improve his situation and to $361 Nteziryayo Appeal Brief, paras. 112, 113, referring to Trial Judgement, paras. 4601-4608, 4621, 4595, 4596. See also ibid., paras. 102, 114; Nteziryayo Reply Brief, paras. 65, 66. 5362 Prosecution Response Brief, para. 1481. 5363 See Trial Judgement, paras. 4602-4608. 5364 See Trial Judgement, paras. 4595, 4596. After reviewing all the Prosecution evidence, the Trial Chamber concluded that it would "only consider the evidence of the remaining Prosecution witnesses, namely Witnesses FAG, FAL, FAU, QAF, QAL, RV, TO, and TP, as well as the Defence witnesses with respect to this allegation." See ibid., para. 4621. 5365 Nteziryayo Appeal Brief, paras. 154, 155; Nteziryayo Reply Brief, paras. 67, 68. The Appeals Chamber recalls its decision that paragraphs 249-252 of Nteziryayo's appeal brief, which concern allegations of collusion among Prosecution witnesses, fell outside the scope of Nteziryayo's notice of appeal and would not be considered. See Decision on Nteziryayo's Motion for Reconsideration and on Prosecution's Motion for Clarification of

the 8 May 2013 Decision, 12 July 2013 ("12 July 2013 Appeal Decision"), paras. 23-25. See also 8 May 2013 Appeal Decision, paras. 51, 58 (striking paragraphs raising allegations of collusion from a previous appeal brief filed by Nteziryayo that exceeded the scope of the Nteziryayo Notice of Appeal). Although not expressly addressed in these decisions, the same reasoning applies to Nteziryayo's allegation of collusion included in paragraph 103(d) of his appeal brief and the Appeals Chamber will therefore not consider this otherwise unsubstantiated allegation. 5366 Nteziryayo Appeal Brief, paras. 103(d), 152, 247, 248, 253; Nteziryayo Reply Brief, para.

109. Nteziryayo argues that "special caution" should have been applied to these witnesses, particularly as witnesses who had been convicted 807 Case No. ICTR-98-42-A 14 December 2015

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19557/H having to denounce co-perpetrators as part of his confession procedure; (ii) Witness QAF's bail depended upon the substance of his evidence; (iii) Witness FAG lied under oath in his initial testimony to the Trial Chamber; and (iv) Witness TO had been previously imprisoned by Ndayambaje and may have had a motive to "seek revenge against [him]."367 In this context, Nteziryayo argues that no reasonable trier of fact could have relied upon the evidence of these witnesses in light of the largely consistent Defence evidence. 368 2324. The Prosecution responds that the Trial Chamber applied the requisite level of caution and that Nteziryayo fails to demonstrate any error. 369 It further contends that Nteziryayo misrepresents the circumstances under which Witnesses FAG, FAU, QAF, RV, and TO testified, 5370 2325. The Appeals Chamber observes that the Trial Chamber noted Witness FAU's status as a detained witness when summarising his evidence related to Ndayambaje's Swearing-In Ceremony 5371 The Trial Chamber also repeatedly stated in other parts of the Trial Judgement that it would treat his testimony with appropriate caution since he was a detained witness awaiting trial in Rwanda for crimes related to the 1994 genocide.5372 Nteziryayo's contention that the Trial Chamber gave no indication of the need to treat Witness FAU's evidence with caution is therefore without merit.

2326. The Trial Judgement also reflects express consideration of the admitted involvement of Witnesses FAG, FAL, QAF, and RV in the genocide as well as the fact that Witness RV was detained and that Witnesses FAG and FAL were awaiting sentencing decisions when they testified. $373 The Trial Chamber further recognised that the witnesses "may have had incentives to implicate either Ndayambaje or Nteziryayo in order to secure favourable or lenient treatment or to apportion blame to the authorities" and that, because Witness TO was imprisoned during Ndayambaje's tenure as bourgmestre, he may have "a motive to seek revenge against Ndayambaje" $374 Moreover, the Trial Chamber's analysis of the evidence from these witnesses about the ceremony reflects that it undertook a cautious assessment of their credibility, including the consideration of discrepancies and inconsistencies as regards the date of the ceremony, the had been forced to wait inordinately long periods without receiving a sentence. See Nteziryayo Appeal Brief, para. 253; Nteziryayo Reply Brief, para. 109(b). 5367 Nteziryayo Appeal Brief, paras. 254, 255, fn. 328; Nteziryayo Reply Brief, paras. 112, 113. 5368 Nteziryayo Appeal Brief, paras. 155, 156. 5369 Prosecution Response Brief, paras. 1513, 1514, 1559, 1561. See also ibid…., para. 1515; AT. 17 April 2015 p. 30. 5370 Prosecution Response Brief, paras. 1561-1564. See also AT. 17 April 2015 pp. 30, 31. 5371 See Trial Judgement, para.

4397. See also ibid., paras. 1057, 4667. $372 Trial Judgement, paras. 1226, 1440, 4713, 5226. 5373 See Trial Judgement, para.

4630. See also ibid., paras. 4322, 4340, 4368, 4663. 5374 Trial Judgement, para.

4630. See also ibid., para. 4385. 808 Case No. ICTR-98-42-A 14 December 2015

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19556/H officials present, the order of the speakers, and the content of the speeches. 375 Significantly, the Trial Chamber found that their testimonies as to the content and meaning of the utterances made during the ceremony were corroborated by several other witnesses.376 The Appeals Chamber is therefore satisfied that the Trial Chamber exercised sufficient caution when considering the possible motivations of the witnesses to implicate Nteziryayo as well as the content of their evidence concerning Ndayambaje's Swearing-In Ceremony.

2327. Turning to Nteziryayo's contention that additional caution was warranted with respect to Witness RV as he had lied in previous statements to improve his position, the Appeals Chamber observes that Witness RV acknowledged that he had not been entirely truthful during an interview with a judicial police inspector in order to avoid charges. 37 The witness explained that, at that time in 1997, he "had not yet decided to tell the whole truth about the events that had occurred.»5378 However, the witness explained that his subsequent recorded statements, including his 2001 confession, contained the truth. 379 The Appeals Chamber is not persuaded that these circumstances precluded a reasonable trier of fact from relying on Witness RV's evidence. Likewise, the Appeals Chamber does not consider Witness RV's acknowledgement that he had to denounce co-perpetrators as part of his confession as indicative of the fact that the information he provided was untruthful, particularly when testifying before the Tribunal about Nteziryayo. 5380 2328. Concerning Nteziryayo's contention that Witness QAF's bail depended upon the substance of his evidence, the Appeals Chamber observes that nothing in Witness QAF's testimony suggests that the substance of his evidence before the Tribunal may have had an impact on his bail in Rwanda 5381 Similarly, Nteziryayo's references do not support his argument

that Witness FAG had lied in his prior testimony before the Trial Chamber.5382 In addition, the Trial Chamber assessed variances in Witness FAG's initial and subsequent testimony as it related to crimes in which he participated in 1994.5383 With respect to Witness TO, as mentioned above, the Trial Chamber acknowledged that the witness was imprisoned during Ndayambaje's first tenure as bourgmestre and his possible motive to seek revenge against Ndayambaje on this basis.5384 5375 See Trial Judgement, paras. 4589-4593, 4596, 4610-4617. 5376 See Trial Judgement, paras. 4622-4628. See Witness RV, T. 18 February 2004 pp. 12-16 (closed session), T. 19 February 2004 p. 28 (closed session). $378 Witness RV, T. 18 February 2004 p. 15 (closed session). See also Witness RV, T. 19 February 2004 p. 28 (closed Se Witness RV, T. 18 February 2004 p. 15, T. 19 February 2004 p. 43 (closed session. 5380 Witness RV, T. 19 February 2004 p. 43 (closed session). 5381 See Witness QAF, T. 6 February 2004 p. 28 (closed session). 5382 Compare Witness FAG, T. 1 March 2004 p. 10 (closed session) with Witness FAG, T. 6 September 2004 p. 10 (closed session). See also Nteziryayo Appeal Brief, para. 255, fn. 332. 5383 Trial Judgement, para. 4334. 5384 Trial Judgement, para.

4630. See also ibid., para.

4385. Ndayambaje served as bourgmestre of Muganza Commune from 10 January 1983 to October 1992 and from 18 June 1994 to 7 July 1994. See supra, para. 7. 809 Case No. ICTR-98-42-A 14 December 2015

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19555/H The Appeals Chamber considers that these factors did not require the Trial Chamber to treat this witness's evidence with additional caution as it related to Nteziryayo.

2329. Finally, the Appeals Chamber is not persuaded that, as a rule, no reasonable trier of fact could have accepted evidence from Prosecution witnesses notwithstanding "largely consistent" Defence evidence to the contrary. The Appeals Chamber will address Nteziryayo's specific contentions in this regard below.

2330. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber failed to exercise sufficient caution with respect to Prosecution witnesses. (c) Nteziryayo's Words and Order of Speeches 2331. Nteziryayo submits that the Trial Chamber erred in concluding that he incited the population to commit genocide at Ndayambaje's Swearing-In Ceremony. 385 He argues that the Trial Chamber made contradictory findings concerning which statements were made by him.538 He contends that the Trial Chamber's uncertainty as to what he said and whether he spoke before or after Ndayambaje undermines its conclusion that he possessed the requisite mens rea and committed the actus reus of direct and public incitement to commit genocide. 5387 2332. Nteziryayo further argues that the Prosecution evidence about the speeches is so inconsistent that no reasonable trier of fact could have convicted him based on it.388 He submits that the evidence varied as to whether he, Ndayambaje, or both gave speeches and that "[nJone of the eight Prosecution witnesses relied upon testified that both Ndayambaje and Nteziryayo uttered all three elements of the speech (sweep the dirt, continue with work, [and] kill those hiding Tutsis). 3389 He also points out that the witnesses' testimonies varied as to whether he used plain language, metaphors, or both, and argues that the

Trial Chamber could not discount these differences based on passage of time because the witnesses did not say that they could not remember.5390 Specifically, Nteziryayo notes that Witness RV recounted that Ndayambaje spoke about sweeping dirt and did not recall Nteziryayo inciting violence.5391 He also highlights that the testimonies include references to "separating the wheat from the chaff", "snakes and eggs", "orders to destroy houses; rats; and 5385 Nteziryayo Notice of Appeal, para.

37. See also Nteziryayo Appeal Brief, para. 105. 5386 Nteziryayo Appeal Brief, paras. 105-108, referring, in particular, to Trial Judgement, paras. 4632, 4642, 4645. See also ibid., para. 99; Nteziryayo Reply Brief, para. 38; AT. 17 April 2015 p. 15. 5387 Nteziryayo Appeal Brief, para. 107(b). See also Nteziryayo Reply Brief, paras. 39-41. 5388 Nteziryayo Appeal Brief, paras. 99, 109-111. See also ibid., paras. 162-164. 5389 Nteziryayo Appeal Brief, paras. 98, 99, 108, 109. See also Nteziryayo Reply Brief, para. 42. 5390 Nteziryayo Appeal Brief, para.

111. Nteziryayo notes that Witness FAI testified that his memory was refreshed during the Gacaca proceedings, further undermining the Trial Chamber's reasoning. See idem. 5391 Ntezirvavo Appeal Brief, para.

110. See also Nteziryayo Reply Brief, para. 43. 810 Case No. ICTR-98-42-A 14 December 2015

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19554/H lice", which vary from the Trial Chamber's conclusion. 5392 In his view, inconsistencies as to whether he or Ndayambaje spoke first reflect that the witnesses did not attend the same meeting. 393 2333. The Prosecution responds that Nteziryayo mistakes the Trial Chamber's summary of evidence and its findings and that the elements of direct and public incitement to commit genocide were established as the Trial Chamber found that both he and Ndayambaje participated in the material elements of the crime.394 It argues that Nteziryayo does not demonstrate that the Trial Chamber erred in its assessment of the variances in the witnesses' accounts of the ceremony. 395 2334. The Appeals Chamber does not find that the Trial Chamber reached contradictory findings in paragraphs 4632, 4642, and 4645 of the Trial Judgement as alleged by Nteziryayo. Paragraph 4632 presents a summary of "countervailing and consistent" Prosecution evidence as to whether Nteziryayo or Ndayambaje or both incited the population, which the Trial Chamber had set forth in detail in preceding paragraphs.39 On the contrary, paragraphs 4642 and 4645 reflect the Trial Chamber's factual findings "established beyond a reasonable doubt" based on its assessment of the totality of the evidence.

2335. The Appeals Chamber is also not persuaded that the Trial Judgement evinces uncertainty as to whether Nteziryayo's conduct satisfied the actus reus and mens rea for direct and public incitement to commit genocide. The Appeals Chamber observes that, in the "Legal Findings" section of the Trial Judgement, the Trial Chamber repeated its factual findings that "Nteziryayo and Ndayambaje told the population to continue with their 'work' and urged them to "sweep the dirt outside'" $397 It also recalled that the "audience understood the words of both Accused, namely 'to work' and 'sweeping dirt', to mean they needed to kill Tutsis."5398 The Trial Chamber then considered these findings with respect to the mens rea and actus reus for direct and public incitement to commit genocide, determining that Nteziryayo's and Ndayambaje's words at Ndayambaje's Swearing-In Ceremony "were direct incitements to commit genocide", that they 5392 Nteziryayo Appeal Brief, para. 109. 5393 Nteziryayo Appeal Brief, paras. 135, 136. 5394 Prosecution Response Brief, paras. 1474, 1475, 1479, 1480. See also AT. 17 April 2015 pp. 28, 29 $395 Prosecution Response Brief, paras. 1477, 1478. See also ibid., para. 1509; AT. 17 April 2015 p. 28. 5396 See Trial Judgement, paras. 4622-4628. Paragraph 4632 of the Trial Judgement reads as follows: The Chamber considers the differences in the testimony of the eight Prosecution witnesses as to the conter of Ndayambaje and Nteziryayo's speeches can be explained by virtue of these variable factors and for thi the sweeping of dirt, as well as plain speech. [...] 5397 Trial Judgement, para. 6026. 5398 Trial Judgement, para. 6027. 811 Case No. ICTR-98-42-A 14 December 2015

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19553/H were made "publicly", that Nteziryayo and Ndayambaje possessed genocidal intent, and that "they intended to incite the population to commit genocide. "5399 2336. Consequently, the Trial Chamber concluded "that in urging the population "to work' and 'to sweep dirt outside' at Ndayambaje's swearing in ceremony, Nteziryayo and Ndayambaje are criminally responsible, pursuant to Article 6 (1) of the Statute, for inciting the population to cause the death and serious bodily and mental harm of Tutsi refugees in Butare."$400 In this regard, any ambiguity within the Trial Chamber's conclusions as to the order in which Nteziryayo and Ndayambaje made their inciting remarks is immaterial to the determination of Nteziryayo's criminal responsibility. The evidence relied upon by the Trial Chamber reflects that Nteziryayo and Ndayambaje presented a uniform message of direct incitement to the population to commit genocide.5401 2337. Turning to Nteziryayo's contention that the Prosecution evidence varies as to whether he, Ndayambaje, or both gave speeches and that none testified that both he and Ndayambaje uttered "sweep the dirt, continue with work, [and] kill those hiding Tutsis", the Appeals Chamber observes that the Trial Chamber recalled that Witnesses FAG and FAL testified that "Nteziryayo and Ndayambaje used parables concerning the need to clean the house of dirt and place it

outside", 5402 and that Witness FAU gave corroborative evidence to this effect. 403 The Trial Chamber also noted contrasting evidence from Witnesses TO and TP that only Nteziryayo used the metaphor concerning sweeping dirt,5404 while Witnesses QAF and RV testified that only Ndayambaje used this metaphor and that Witness QAL provided hearsay corroboration of the evidence of Witnesses QAF and RV. $405 2338. In addition, the Trial Chamber recounted that, according to Witnesses FAG, FAL, and TO, Ndayambaje explained the metaphor to mean that surviving Tutsis needed to be killed, that Witness TP had a similar understanding of the metaphor, as uttered by Nteziryayo, and that Witnesses QAF and RV understood the speech of Ndayambaje in the same way 406 The Trial Chamber also considered evidence from Witnesses QAF and TP concerning Nteziryayo and Ndayambaje thanking the population for their "work", which meant "to kill", and urging them 5399 Trial Judgement, paras. 6027, 6028. 5400 Trial Judgement, para. 6029. 5401 The Appeals Chamber finds Nteziryayo's reference to the Mugenzi and Mugiraneza Appeal Judgement unpersuasive in this respect. See Nteziryayo Appeal Brief, para. 107(b), referring to Mugenzi and Mugiraneza Appeal See Trial Judgement, para.

4622. See also ibid., paras. 4327, 4328, 4345. See Trial Judgement, para.

4622. See also ibid., paras. 4400, 4401. 5404 See Trial Judgement, para.

4623. See also ibid., paras. 4378, 4391. 340 See Trial Sudgement, paras 462, 46 1s bisp bid. 363 4727,4328, 4345, 4363, 4372, 4378, 4382, 4391. 812 Case No. ICTR-98-42-A 14 December 2015

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19552/H to continue *7 as well as Nteziryayo threatening to kill those who were protecting and refusing to give up Tutsis. $408 2339. Accordingly, the Appeals Chamber is satisfied that the Trial Chamber fully considered contrasting Prosecution evidence regarding who spoke and the content of the speeches given by Ndayambaje and Nteziryayo. The Appeals Chamber recalls that trial chambers enjoy broad discretion in choosing which witness testimony to prefer409 and that two prima facie credible testimonies need not be identical in all respects in order to be corroborative. $410 In light of all the evidence reflecting that the purpose of the speeches was to incite the population to commit genocide, Nteziryayo does not demonstrate that a reasonable trier of fact could not have relied on the elements within the Prosecution evidence demonstrating that both he and Ndayambaje urged the population to "sweep the dirt" and to "work". 5411 2340. The Appeals Chamber is also not persuaded that the Trial Chamber was precluded from finding that Nteziryayo also made an inciting speech given Witness RV's evidence that he could not recall what Nteziryayo said or if he was present for the entirety of Nteziryayo's speech $412 Nteziryayo does not demonstrate that Witness RV's evidence was incompatible with other evidence reflecting that Nteziryayo made inciting remarks.

2341. With respect to Nteziryayo's submissions that the Prosecution evidence was materially inconsistent as to the content of the speeches and did not support the Trial Chamber's conclusions as to what was said, the Appeals Chamber observes that the Trial Chamber considered Witness TP's evidence that Nteziryayo spoke about the need to destroy snake's eggs, which no other witness testified about 5413 The Trial Chamber also set forth Witness QAL's testimony regarding Ndayambaje mentioning separating the wheat from the chaff, as well as Witness TO's evidence that Nteziryayo spoke about lice growing from the dirt, and Witness FAL's testimony concerning Ndayambaje speaking about destroying the houses where Tutsis were hiding $414 5407 See Trial Judgement, para.

4626. See also ibid., para. 4624. $408 See Trial Judgement, para.

4624. See also ibid., paras. 4360, 4391. 5409 Nizeyimana Appeal Judgement, para. 254; Muvunyi Appeal Judgement of 1 April 2011, para.

44. See also Muhimana Appeal Judgement, para. 58. 5410 See Nzabonimana Appeal Judgement, para. 184; Ndahimana Appeal Judgement, para. 93; Ntabakuze Appeal Judgement, para.

150. See also Karemera and Ngirumpatse Appeal Judgement, para. 467; Nahimana et al. Appeal Judgement, para. 428. $411 The Appeals Chamber observes that Nteziryayo also challenges the sufficiency of the evidence supporting the Trial Chamber's conclusion that he and Ndayambaje "instructed that those hiding Tutsis who refused to hand them over should be killed." See Nteziryayo Appeal Brief, paras. 98, 99, 108. As this finding was not a basis for Nteziryayo's conviction, the Appeals Chamber does not find it necessary to assess this challenge in detail. See Trial Judgement, paras. 6026-6029. In any event, Nteziryayo has not shown that the inconsistencies as they relate to the evidence supporting this conclusion demonstrate that the Trial Chamber abused its discretion. See Trial Judgement, para.

4371. See also Witness RV, T. 17 February 2004 p. 7 (closed session). $413 See Trial Judgement, para.

4623. See also ibid., para. 4391. $414 See Trial Judgement, paras. 4345, 4378, 4425. 813 Case No. ICTR-98-42-A 14 December 2015

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19551/H Accordingly, the Appeals Chamber finds that the Trial Chamber did not ignore the differences in the Prosecution evidence as to the content of the speeches. The Appeals Chamber also finds that a reasonable trier of fact could have determined that these differences did not preclude it from finding that these witnesses were nonetheless talking about Ndayambaje's Swearing-In Ceremony where both Nteziryayo and Ndayambaje made inciting speeches by employing the metaphors concerning "sweeping the dirt" and "work". 5415 2342. Moreover, while the Trial Chamber did not expressly recount Witness FAU's evidence related to Ndayambaje speaking about killing rats, Nteziryayo does not demonstrate that this aspect of the witness's evidence was materially inconsistent with other evidence on the record so as to preclude a reasonable trier of fact from relying on corroborated elements of Witness FAU's evidence concerning the content of the speeches. 5416 2343. The Appeals Chamber further considers that Nteziryayo merely disagrees with the Trial Chamber's conclusion that the variances as to the content of the speeches in the witnesses' accounts could be attributable, inter alia, to the passage of time and the deterioration of human memory without demonstrating that it was unreasonable for the Trial Chamber to reach this conclusion $417 The Trial Judgement reveals that the Trial Chamber

relied on other considerations to reach its conclusion, such as the level of education of the witnesses, the late arrival of certain witnesses, their position at the venue of the meeting, and the quality of the megaphone or clarity of the speakers. 5418 2344. Finally, as regards Nteziryayo's contention that variances in the Prosecution evidence as to the order of the speeches given by him and Ndayambaje show that they did not attend the ceremony, the Appeals Chamber observes that the Trial Chamber noted that Witnesses TP and QAL testified that Nteziryayo took the floor after Ndayambaje, in contrast with evidence of the other witnesses.419 The Trial Chamber, however, did not regard the discrepancy as to the order of speakers as significant 5420 Nteziryayo simply disagrees with this conclusion, without demonstrating how discrepancies in this respect undermined the Trial Chamber's determination that all witnesses were testifying about Ndayambaje's Swearing-In Ceremony.

2345. In light of the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred its assessment of the content or the order of the speeches at Ndayambaje's Swearing-In Ceremony. 5415 See Trial Judgement, paras. 4645, 6026, 6027, 6029. 5416 See Trial Judgement, paras. 4622, 4624. $417 See Trial Judgement, para. 4631. 5418 See Trial Judgement, para. 4631. $419 See Trial Judgement, para. 4610. 5420 Trial Judgement, para. 4611. 814 Case No. ICTR-98-42-A 14 December 2015

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19550/H (d) Date 2346. Nteziryayo argues that it was illogical for the Trial Chamber to conclude that discrepancies as to the date of Ndayambaje's Swearing-In Ceremony were "minor and understandable", yet subsequently conclude that the date was a "significant feature" 5421 He further contends that the Trial Chamber erred in finding that Witnesses FAL and TP "testified to attending the meeting on or around 22 June 1994."$422 2347. Nteziryayo also argues that the Trial Chamber failed to sufficiently consider evidence from Witnesses FAG, FAL, FAU, QAL, TO, and TP that suggests that they testified about different meetings which occurred before Ndayambaje's Swearing-In Ceremony on 22 June 1994.5423 Specifically, Nteziryayo points out that: (i) Witness FAU testified that the meeting he attended occurred "in late May, early June", on the day before the killing of a Tutsi girl named Nambaje, which the witness estimated occurred around 24 May 1994 and who Defence Witness K WEPO testified was killed in May 1994; (ii) Witness FAL testified about a meeting in "May or June 1994", yet linked it to destroying houses and committing murders that, according to his testimony and prior written confession, occurred in late April and early May 1994; (iii) Witness QAL gave evidence that the meeting occurred the day prior to the morning in May 1994 in which her husband was killed; (iv) Witness FAG

testified that a girl named Josepha was killed as a result of the meeting and testified that this murder occurred in May 1994; (v) Witness TP testified that the only meeting attended by Ndayambaje and Nteziryayo occurred at the end of April or early May 1994 and long before a subsequent meeting she attended around 28 June 1994; and (vi) Witness TO's prior statement to Tribunal investigators reflects that the meeting attended by Nteziryayo occurred by the beginning of May 1994.5424 2348. The Prosecution responds that Nteziryayo misinterprets the evidence as to the date of the meeting, which contained mere approximations. 5425 2349. Turning first to Nteziryayo's contention that the Trial Chamber's findings about the date of the swearing-in ceremony are illogical, the Appeals Chamber observes that the Trial Chamber found it "minor" and "understandable" that discrepancies within Prosecution evidence as to the 5421 Nteziryayo Appeal Brief, para. 115 (emphasis omitted), referring to Trial Judgement, paras. 4592, 4616. See also AT. 17 April 2015 pp. 13, 14. 3422 Nteziryayo Appeal Brief, para. 116 (emphasis omitted), referring to Trial Judgement, para.

4591. See also ibid., 423 Nteziryayo Appeal Brief, paras. 117-133 5424 Nteziryayo Appeal Brief, paras. 118, 119, 123, 124, 127-132(a). See also Nteziryayo Reply Brief, paras. 45-66; AT. 17 April 2015 pp. 14, 15. In his reply brief, Nteziryayo argues that "[w]hen viewed holistically the cumulative effect of the vastly disparate body of Prosecution evidence is incompatible". See Nteziryayo Reply Brief, para. 61 815 Case No. ICTR-98-42-A 14 December 2015

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19549/H precise date of the ceremony existed "in light of the time which had passed between the events in question and the time the witnesses testified" 5426 The Trial Chamber later considered, when examining differences between Prosecution and Defence evidence as to what time of the day the meeting occurred,5427 that this difference was not important in light of other consistencies on "significant features" of the mecting, which included the date of 22 June 1994.5428 2350. The Appeals Chamber finds that, when reading the Trial Chamber's deliberations as a whole, it is apparent that the Trial Chamber accepted the consistent Defence evidence that Ndayambaje's Swearing-In Ceremony occurred on 22 June 19945429 The Trial Chamber noted that the Prosecution evidence varied as to the date, but ultimately determined that other fundamental features shared among the Prosecution and Defence evidence - including that the event was the swearing-in ceremony of Ndayambaje, that the meeting was held in the woods near the Muganza commune office, and that Ndayambaje and Nteziryayo spoke - indicated that all were discussing the same event. 430 Nteziryayo disagrees with the Trial Chamber's determination, yet as discussed below, fails to demonstrate that the Prosecution evidence regarding the date of the swearing-in ceremony was incompatible with the finding that it occurred on 22 June 1994.

2351. As regards Nteziryayo's argument that the Trial Chamber erred in finding that Witnesses FAL and TP testified to attending the meeting on or around 22 June 1994, the Appeals Chamber agrees that the testimonies of Witnesses FAL and TP cannot reasonably be interpreted, alongside Witness QAF's evidence, to support the conclusion that Ndayambaje's Swearing-In Ceremony occurred specifically "on or around 22 June 1994" 5431 The Trial Chamber appears to have overlooked material aspects of each witness's evidence that reveal their uncertainty as to when the meetings they described had occurred.5432 The Appeals Chamber finds that no reasonable trier of fact could have relied on the evidence of Witnesses FAL and TP alone to find that Ndayambaje's 5425 Prosecution Response Brief, paras. 1485, 1488, 1490, 1491, 1495, 1499, 1501, 1505, 1506. See also AT. 17 April 2015 p. 29. 5426 Trial Judgement, para. 4592. 5427 Trial Judgement, paras. 4614-4616. 5428 Trial Judgement, para.

4616. See Trial Judgement, paras. 4614, 4617, 4642, 4645. 5430 Trial Judgement, para.

4616. See also ibid., paras. 4592, 4593, 4594, 4609. 5431 Indeed, the transcripts of Witness FAL's testimony referred to by the Trial Chamber only contain counsel's suggestion that the incident occurred within a two month timeframe and Witness FAL did not expressly accept this suggestion or provide any clarification. The evidence of Witness TP provides no indication as to when the meeting occurred. See Trial Judgement, paras. 4340, 4386, 4591, referring to Witness FAL, T. 9 February 2004 p. 37, Witness TP, T. 12 February 2004 p.

38. See also Witness TP, T. 12 February 2004 p. 33. 5432 See Trial Judgement, paras. 4340 (*Witness FAL [...] testified that in May or June 1994 the population was summoned to a security meeting held in a little bush near the Muganza commune office".), 4386 ("Witness TP [...] testified that while she was hiding at her uncle's house, she attended a meeting at the Muganza commune office around 26 or 28 June 1994. On cross-examination, she stated she was not sure of the date because she was hiding in the bush; the meeting involving the préfet and Ndayambaje may have occurred in early May, and another meeting she referred to in her witness statement called solely by Ndayambaje may have occurred on 28 June 1994."). See also Witness FAL, T. 9 February 2004 p. 37; Witness TP, T. 11 February 2004 p. 25, T. 12 February 2004 pp. 33 and 36 (closed session). 816 Case No. ICTR-98-42-A 14 December 2015

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19548/H Swearing-In Ceremony occurred specifically "on or around 22 June 1994" considering the ambiguity in their evidence as to its precise date. 5433 However, the Appeals Chamber does not find that this error has occasioned a miscarriage of justice given other features that the Trial Chamber relied upon to find that Witnesses FAL and TP were discussing this event. S434 2352. Concerning Nteziryayo's argument that the Trial Chamber failed to sufficiently consider evidence from Witnesses FAG, FAL, FAU, QAL, TO, and TP that suggest that they testified about a different meeting, the Appeals Chamber observes that the Trial Chamber expressly noted aspects of these witnesses' testimonies reflecting their inability to provide a precise date of the ceremony 5435 Even accepting that the witnesses provided evidence to suggest that the ceremony they attended could have happened as early as late April, May, or early June 1994, the Appeals Chamber is not convinced that the discrepancies concerning the date of the meeting rendered their evidence unreliable given other significant features within their accounts reflecting that they were discussing the same event. Specifically, as noted by the Trial Chamber, the witnesses identified this meeting as involving the installation of Ndayambaje as the bourgmestre of Muganza Commune 436 or testified that this was the only meeting in Muganza Commune

which Nteziryayo and Ndayambaje attended together. 437 2353. Furthermore, the Appeals Chamber is not persuaded by Nteziryayo's argument that Witnesses FAG, FAL, FAU, QAL, TO, and TP were testifying about a different meeting because they associated it with particular events that, according to their evidence, occurred well before 22 June 1994. With respect to Witness FAU, who testified that Nambaje was abducted after the swearing-in ceremony, Nteziryayo's submissions ignore that the witness's testimony as to when Nambaje was taken away was only an estimate.438 Moreover, the Trial Chamber accepted Witness FAU's evidence that Nambaje was killed after the swearing-in ceremony and rejected Witness KWEPO's contradictory evidence.439 Nteziryayo does not demonstrate that the Trial Chamber erred in this regard 5433 Trial Judgement, para. 4591. 5434 In particular, both Witnesses FAL and TP observed the appointment of Ndayambaje as bourgmestre at the meeting, were consistent about the meeting taking place in the morning in the small woods near the Muganza commune office, and recounted that Prefect Nteziryayo and Bourgmestre Ndayambaje were present. See Trial Judgement, paras. 4592, 4593. See also ibid., paras. 4340, 4342, 4343, 4386-4388. 5435 See Trial Judgement, paras. 4322, 4323, 4333, 4338, 4340, 4374, 4375, 4386, 4422, 4590, 4594, 4595, 4620. 5436 See Trial Judgement, paras. 4322, 4323, 4342, 4343, 4374, 4387, 4388, 4590. 5437 See Trial Judgement, paras. 4323, 4342, 4374, 4386, 4387, 4398, 4399, 4422. $438 See Trial Judgement, para. 4397. 5439 Trial Judgement, para.

4620. The Appeals Chamber finds that, beyond highlighting that Witness FAU's evidence was hearsay as well as asserting that the Trial Chamber did not accord sufficient weight to inconsistencies between his prior statement and testimony, Nteziryayo fails to demonstrate any error in the Trial Chamber's assessment of the witness's evidence. Consequently, the Appeals Chamber dismisses his submissions in this respect without further consideration. 817 Case No. ICTR-98-42-A 14 December 2015

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19547/H 2354. In addition, Nteziryayo's contention based on Witness FAL's prior statement and confession that the witness participated in looting and murders in late April and early May 1994 fails to appreciate that the witness testified that he did not participate in murders after Ndayambaje's Swearing-In Ceremony. 440 The witness also confirmed at trial that he participated in the destruction of houses resulting from orders that were given during that ceremony. 5441 Nteziryayo does not demonstrate that this is materially inconsistent with Witness FAL's prior statement or confession.

2355. With respect to Witnesses FAG and QAL, their evidence is unequivocal that the murder of Witness QAL's husband and a person named Josepha, respectively, occurred after the swearing-in ceremony. 5442 In light of the inability of Witnesses FAG and QAL to provide precise dates, 5443 Nteziryayo does not show that no reasonable trier of fact could have accepted this evidence, even though the witnesses gave evidence that the ceremony and these events occurred in May 1994.

2356. As for Witness TP, Nteziryayo only suggests a possible interpretation of the witness's evidence that the meeting she attended did not occur around 22 June 1994. As noted above, given that Witness TP could only provide estimates for the date of the meeting, the Appeals Chamber finds that a reasonable trier of fact could have determined that she attended Ndayambaje's Swearing-In Ceremony in light of her testimony that she observed Ndayambaje's reappointment as the bourgmestre of Muganza Commune and that Ndayambaje and Nteziryayo gave speeches during the event. 444 2357. Regarding Witness TO, while Nteziryayo points to his prior statement - which reflects that the meeting attended by Nteziryayo occurred at the beginning of May 1994 - the Trial Chamber expressly noted this aspect of the statement and that the witness testified that Ndayambaje was reappointed bourgmestre of Muganza Commune by Prefect Nteziryayo in June 1994.5445 It also noted that the witness explained that he was not in a position to provide exact dates, since this was of little concern to him. 446 Nteziryayo does not demonstrate that a reasonable trier of fact could not $110 See Witness FAL, T. 9 February 2004 pp. 48 (closed session), 60-64. 5441 See Witness FAL, T. 9 February 2004 pp. 61-64. 5442 See Trial Judgement, paras. 4333, 4431. See also Witness QAL, T. 25 February 2004 p. 12; Witness FAG, Sis See Witness PAC, T. 6 September 2004 p. 8, 9 (closed session); Witness QAL, T. 25 February 2004 p. 25 (closed 3444 See Trial Judgement, paras. 4390-4392, 4592, 4623-4625. 5115 See Trial Judgement, paras. 4374, 4375. 5446 See Trial Judgement, para.

4375. In light of the witness's explanation concerning his inability to provide exact dates, the Appeals Chamber finds that Nteziryayo's contentions concerning the error in time as it concerns the second meeting the witness attended also do not demonstrate that a reasonable trier of fact could not have relied on Witness TO's evidence concerning Ndayambaje's Swearing-In Ceremony. See Nteziryayo Appeal Brief, para. 132 (b). 818 Case No. ICTR-98-42-A 14 December 2015 au

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19546/H have concluded that the witness recounted Ndayambaje's Swearing-In Ceremony in light of this explanation.

2358. The Appeals Chamber therefore finds that Nteziryayo has not shown that the Trial Chamber erred in assessing Prosecution evidence in light of variations as to the date of the ceremony. (e) Attendees 2359. Nteziryayo submits that the Trial Chamber erred in finding that the variances in the Prosecution evidence about the attendees at the ceremony were not significant 5447 As an example, he points to evidence of Witnesses QAF and QAL that indicate that Defence Witness Constant Julius Goetschalckx a.k.a. Brother Stan ("Stan"), a "Caucasian Belgian Priest", was among the dignitaries at the ceremony and was introduced to the crowd, and notes that other Prosecution witnesses were unsure or denied that Witness Stan was present. 5448 He contends that these variances demonstrate that the witnesses lied or that their testimonies relate to a different meeting. $449 Nteziryayo also highlights inconsistencies in the Prosecution evidence concerning the presence of Callixte Kalimanzira ("Kalimanzira"), Nyiramasuhuko, Chrysologue Bimenyimana ("Bimenyimana"), and Augustin Sebukeye ("Sebukeye") as demonstrating "further incoherency" $450 2360. The Prosecution responds that the Trial Chamber considered inconsistencies as to the dignitaries present at the meeting and correctly held that they did not undermine the Prosecution evidence. 451 It suggests that, given the size of the event, it is

understandable that witnesses did not recognise or recall other individuals who may have been present. 5452 2361. The Appeals Chamber observes that, when assessing Defence evidence, the Trial Chamber observed that "several Defence witnesses testified to the presence of Brother Stan" and noted that this "was corroborated by Prosecution Witnesses QAF, QAL and TO.'5453 The Trial Chamber not only considered the evidence of Witnesses AF and QAL, which Nteziryayo highlights, but also that of Witness TO.$454 Furthermore, the Trial Chamber noted the evidence of Witness FAL that 5447 Nteziryayo Notice of Appeal, para. 38(c). 5448 Nteziryayo Appeal Brief, paras. 137, 138. See also ibid., paras. 145(d), 148(d). 240 Neziyayo Appeal Brit, paras 137-13 is to yao Pera Bie, para. 64; AT. 17 April 2015 p. 13. $451 Prosecution Response Brief, paras. 1509, 1510. $452 Prosecution Response Brief, para. 1510. 5453 Trial Judgement, para. 4609. 5454 Trial Judgement, para. 4609, referring, inter alia, to Witness QAF, T. 5 February 2004 pp. 66, 68 T. 6 February 2004 pp. 5, 8, T. 9 February 2004 p. 23, Witness QAL, T. 25 February 2004 p. 11, Witness TO T. 6 March 2002 pp. 10, 11. 819 Case No. ICTR-98-42-A 14 December 2015 1

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19545/H "Ihje did not know whether a white religious person was present»545S and of Witness TP that she did not hear a reference to "any religious person" 5456 While the Trial Chamber did not expressly summarise Witness FAG's testimony that it was possible that a white person was present but that he did not try to ascertain this fact, 45? the Trial Chamber noted the relevant portion of Witness FAG's evidence. 5458 Having reviewed the relevant evidence, 5459 the Appeals Chamber is not persuaded that ambiguous Prosecution evidence as to whether Witness Stan was present at the ceremony, even in light of the evidence of Witnesses QAF and QAL that Witness Stan was referred to in speeches, 5460 prevented a reasonable trier of fact from finding that all the Prosecution witnesses recounted Ndayambaje's Swearing-In Ceremony. 5461 2362. Turning to Nteziryayo's argument that there was "further incoherency" about the attendance of Kalimanzira, Nyiramasuhuko, Bimenyimana, and Sebukeye, the Appeals Chamber observes that the Trial Chamber expressly considered that Defence evidence diverged from some Prosecution evidence as to the presence of, among others, Kalimanzira and Nyiramasuhuko during the swearing-in ceremony.5462 The Trial Chamber determined that it need not make findings as to Kalimanzira's presence and found that any discrepancy in this regard was not significant.$463 Nteziryayo fails to demonstrate that the Trial Chamber's assessment of the evidence on this issue was unreasonable.

2363. The Trial Chamber noted that Witness RV was the sole witness to testify to the presence of Nyiramasuhuko and that Ndayambaje, Nteziryayo, and other Defence witnesses contradicted this 5455 See Trial Judgement, para. 4349, referring to Witness FAL, T. 9 February 2004 p. 60. 5456 Trial Judgement, para. 4393, referring to Witness TP, T. 12 February 2004 pp. 44, 45. 5457 See Witness FAG, T. 3 March 2004 p. 24. 5458 See Trial Judgement, para. 4326, referring to Witness FAG, T. 3 March 2004 p.

24. See Witness FAL, T. 9 February 2004 p. 60 ("Q. Was there among the dignitaries, or at the table of the dignitaries, a white person? A. I don't remember. There were a lot of people. I couldn't tell you whether there was a white person among them. Q. No, I am speaking of the table where the dignitaries were, I am not speaking of the multitude, the crowd. I am sure the whites were not in the majority in Muganza commune at the time. Did you see any whites? A. I don't remember."); Witness TP, T. 12 February 2004 p. 45 ("Q. At the meeting, was there, either among the officials or in the crowd, a white man, a white person? A. No, I didn't see anything. Q. Did either of the two speakers mention anything about a curate, a religious person? A. No, I didn't hear any mention of that. Maybe that was a question asked after my departure."); Witness FAG, T. 3 March 2004 p. 24 ("Q. Witness FAG, were there any white persons there? A. I did not pay particular attention to ascertain whether among the participants there were white people. Q. The person I'm referring to would have been with the speakers. Would that person have been with the speakers? A. Are you referring to the person, the white person? I did not pay attention to that detail. It is possible that that person was there, but I didn't pay any attention. I did not notice it. Maybe I saw him but it is a long time ago, but I do

not contradict the fact that the person might have been there."). See Trial Judgement, paras. 4362, 4425. 5461 In this regard, the Appeals Chamber observes that Nteziryayo also refers to the testimony of Witness QAR, arguing that he was among the witnesses who was "confident [that Witness Stan] was not at the meeting." See Nteziryayo Appeal Brief, para. 138, fn. 164, referring to Witness QAR, T. 21 November 2001 p.

90. However, the Trial Chamber considered "that Witness QAR did not attend" Ndayambaje's Swearing-In Ceremony. See Trial Judgement, para.

4603. Consequently, Witness QAR's evidence as to whether Witness Stan was at the meeting was irrelevant to the Trial Chamber's assessment. 5462 See Trial Judgement, paras. 4610-4612. 5463 Trial Judgement, para. 4611. 820 Case No. ICTR-98-42-A 14 December 2015

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19544/H aspect of his evidence.5464 However, it observed that Witness RV's evidence was consistent with Defence evidence as to the presence of certain other dignitaries and that all Defence witnesses testified to the presence of another female minister, whom the witness did not identify.5465 In this context, the Trial Chamber rejected Witness RV's evidence as to Nyiramasuhuko's presence but found that this did "not weaken the credibility of [his] testimony with respect to more significant aspects of the swearing-in ceremony."$466 Once again, Nteziryayo simply expresses his disagreement with this decision, ignoring that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony.5467 Indeed, the Defence did not dispute that Witness RV was present at Ndayambaje's Swearing-In Ceremony.

2364. While the Trial Chamber did not expressly assess variances in the Prosecution evidence as to the presence of Bimenyimana, the bourgmestre of Muganza Commune being replaced by Ndayambaje, the Appeals Chamber observes that the Defence did not dispute that he was present at the meeting 5468 Furthermore, three of the witnesses, whom Nteziryayo highlights, confirmed that Bimenyimana was present, 5469 while the remaining witnesses either simply recounted not knowing whether Bimenyimana was present,470 did not see him,$47) or did not remember seeing him there.5472 Likewise, while Witness FAL testified that Sebukeye was at the ceremony, Nteziryayo does not point to evidence on the record demonstrating that any variance in this regard rendered Witness FAL's testimony incompatible with the other Prosecution evidence.5473 Nteziryayo does not demonstrate that these variances precluded a reasonable trier of fact from finding that these Prosecution witnesses were testifying about Ndayambaje's Swearing-In Ceremony.

2365. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in its assessment of the evidence about the attendees of Ndayambaje's Swearing-In Ceremony. 5464 Trial Judgement, para. 4612. 5465 Trial Judgement, para. 4612. 5466 Trial Judgement, para. 4612. 5467 See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para.

103. See Trial Judgement, paras. 4454, 4468, 4493, 4501, 4518, 4538, 4555, 4568. $469 See Nteziryayo Appeal Brief, fn. 166 (noting that Witnesses FAG, QAF, and RV confirmed that Bimenyimana was "present"). In his appeal brief, Nteziryayo mentions a fourth witness - Witness FAL - who allegedly confirmed that Bimenyimana was present. See idem. However, the Appeals Chamber notes that Witness FAL testified that he did not emember having seen Bimenyimana there. See Witness FAL, T. 9 February 2004 p. 60 470 Witness TP. T. 12 February 2004 p.

41. The Appeals Chamber observes that the Trial Chamber referred to Witness TP's evidence in this regard. See Trial Judgement, para. 4389. 5471 See Witness QAL, T. 25 February 2004 pp. 17, 18. 5472 Witness FAL, T. 9 February 2004 p. 60. 5473 See Witness FAL, T. 9 February 2004 pp. 62-64. See also Trial Judgement, para. 4350. 821 Case No. ICTR-98-42-A 14 December 2015

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19543/H (f) Time 2366. Nteziryayo argues that the Trial Chamber erred in finding that the discrepancy between the Prosecution evidence of the ceremony occurring in the morning and the evidence of the eight Defence witnesses that it occurred no earlier than 2.30 p.m. was insignificant.5474 He contends that the Prosecution evidence is implausible$475 as consistent Defence evidence reflects that he attended the swearing-in of the new bourgmestre of Ndora Commune at 11.00 a.m. before attending Ndayambaje's Swearing-In Ceremony between 2.30 and 5.00 p.m. 5476 Nieziryayo adds that the Trial Chamber erred in finding that the timing of the meeting was not put to the Prosecution witnesses, pointing to excerpts from the cross-examinations of Witnesses FAL and TO.$477 2367. The Prosecution responds that the Trial Chamber considered the inconsistencies as to when the meeting occurred and emphasises that the Prosecution evidence was consistent that it happened in the morning. 5478 2368. The Appeals Chamber notes that the Trial Chamber acknowledged that, "in contrast to all the Prosecution evidence, the Defence witnesses testified that the swearing-in ceremony took place in the afternoon of 22 June 1994"3479 In particular, the Trial Chamber noted that the Prosecution witnesses testified between 2001 and 2004, while the Defence witnesses testified between 2007 and 2008. 5480 It also observed

that it was never put to the Prosecution witnesses that they may be mistaken as to the timing of the swearing-in ceremony and that they never had the opportunity to refute the testimonies of the Defence witnesses that it occurred in the afternoon. 481 The Trial Chamber ultimately concluded that it did not consider this discrepancy to be important given that the Prosecution and Defence witnesses were consistent on the significant features of the meeting, including that it was the swearing-in ceremony of Ndayambaje, that it took place on or around 5474 Nteziryayo Notice of Appeal, para. 38(e); Nteziryayo Appeal Brief, paras. 140, 142, referring to Trial Judgement, B in particular, ezir yayo juxtaposes the testimony of Witness P that when she arrived to the meting a 9.30 a.m. the prefect was already present with "a compelling body of evidence" that Nteziryayo was in Ndora Commune. See Nteziryayo Appeal Brief, para. 148(a). Nteziryayo also highlights the evidence of Witness FAU that, according to him, reflects that the meeting finished at 5.00 p.m. because a girl named Nambaje was abducted between 5.30 and 6.00 p.m. on the day of the meeting. See ibid., para.

149. See also Nteziryayo Reply Brief, para. 62. 5476 Nteziryayo Appeal Brief, paras. 140, 141. In addition, Nteziryayo highlights that the Prosecution had sought to establish his presence at a meeting in Ndora Commune on the morning of Ndayambaje's Swearing-In Ceremony and that Prosecution Witness QG testified that the swearing-in ceremony in Ndora Commune occurred in the afternoon of 22 June 1994. See ibid., para. 141, referring to Prosecution Closing Brief, p. 335, Witness QG, T. 16 March 2004 P.R. 75-77 (closed session). See also Nteziryayo Reply Brief, para.

62. Nteziryayo Appeal Brief, para. 143, referring to Witness TO, T. 5 March 2002 pp. 113, 114, Witness FAL. T. 9 February 2004 p. 56. 5478 Prosecution Response Brief, paras. 1509, 1511. 5479 Trial Judgement, para.

4614. In this respect, the Trial Chamber cited to and summarised the evidence of the eight Defence witnesses Nteziryayo highlights in his appeal brief. Compare ibid., fn. 12283 with Nteziryayo Appeal Brief, 5480 Trial Judgement, para. 4615. 822 Case No. ICTR-98-42-A 14 December 2015

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19542/H 22 June 1994, that it was held in the woods near the Muganza commune office, and that Ndayambaje and Nteziryayo spoke at the meeting. 482 The Trial Chamber determined that the witnesses testified to the same event, namely Ndayambaje's Swearing-In Ceremony of 22 June 1994.5483 2369. The Appeals Chamber considers that Nteziryayo, who largely repeats the arguments he advanced at trial,5484 fails to demonstrate that the Trial Chamber erred in its analysis. The Trial Chamber considered Nteziryayo's argument that the Prosecution evidence that the ceremony occurred in the morning was implausible because he was at a meeting in Ndora Commune.5485 However, it recalled that Witness RV attended the Ndora Commune meeting with Nteziryayo "yet still testified that Ndayambaje was installed into office at a ceremony held at about 10.00 or 11.00 a.m."5486 The Appeals Chamber is therefore satisfied that the Trial Chamber carefully considered the varying evidence as to the timing of the meeting and finds that Nteziryayo does not demonstrate that the Trial Chamber abused its discretion in evaluating these differences.

2370. As regards Nteziryayo's contention that the Trial Chamber erred in finding that the timing of the meeting was not put to the Prosecution witnesses, the Appeals Chamber observes that, contrary to Nteziryayo's contention, the references he provides reflect that, while Witnesses TO and FAL were asked when Ndayambaje's Swearing-In Ceremony started, it was not suggested to these witnesses that they may have been wrong about its timing. 5487 5481 Trial Judgement, para. 4615. 5482 Trial Judgement, para. 4616. 5483 Trial Judgement, para. 4617. $484 See Nteziryayo Closing Brief, para. 536. 5485 See Trial Judgement, para, 4614. In particular, the Trial Chamber considered that "Nteziryayo was occupied with the swearing-in ceremony for the new bourgmestre of Ndora commune, Fidèle Uwizeye, on the morning of 22 June 1994." See idem. It summarised Nteziryayo's testimony that the Ndora Commune meeting occurred in the morning. See ibid., paras. 4564, 4566. Elsewhere in the Trial Judgement, the Trial Chamber also acknowledged Nteziryayo's reliance on the evidence of Witness AND-31 concerning the meeting in Ndora Commune related to the swearing-in of the new bourgmestre as well as Nsabimana's reliance on his own evidence and that of Witnesses AND-30 and AND-31 in relation to the same meeting but did not make findings on this issue. See ibid., paras. 4217-4220, 4244. The Appeals Chamber does

not consider that the Trial Chamber was also required to discuss expressly these witnesses' testimonies with respect to Ndayambaje's Swearing-In Ceremony. Notably, Nteziryayo did not argue the clear relevance and importance of their evidence to Ndayambaje's Swearing-In Ceremony in his closing submissions, relying on them instead in relation to the meeting in Ndora Commune. See Nteziryayo Closing Brief, paras. 287-293, 531-540; Nteziryayo Closing Arguments, T. 28 April 2009 pp. 5, 6. Moreover, having reviewed the relevant evidence, the Appeals Chamber is of the view that it was cumulative of Nteziryayo's as regards his attendance of the meeting in Ndora Commune in the morning of 22 June 1994. See Witness AND-30, T. 21 February 2007 pp. 16, 17, 52, 53; Witness AND-31, T. 27 February 2007 pp. 55, 56; Nsabimana, T. 16 November 2006 pp. 61, 62, 67. $486 Trial Judgement, para. 4614, referring to Witness RV, T. 18 February 2004 p. 43 (closed session), T. 19 February 2004 p. 34 (closed session). The Appeals Chamber further finds that Nteziryayo misrepresents Witness FAU's testimony, in light of his unequivocal response that he "[did] not know when the meeting ended", merely stating that "[ilt was about 5:30 p.m. or 6:00 p.m. when the assailants arrived to take away the person in question." See Witness FAU, T. 9 March 2004 p. 22 (closed session). See Witness TO, T. 5 March 2002 p. 113; Witness FAL, T. 9 February 2004 pp. 55, 56. 823 Case No. ICTR-98-42-A 14 December 2015

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19541/H 2371. Consequently, the Appeals Chamber finds no error in the Trial Chamber's determination that the variance in timing was insignificant and its reliance instead on the similar features of the meeting to determine that all witnesses were referring to Ndayambaje's Swearing-In Ceremony. The Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber acted unreasonably in assessing evidence as to the timing of the swearing-in ceremony. (g) Different Meeting 2372. Nteziryayo argues that, in addition to his previous challenges, several other elements of the Prosecution evidence allow for the reasonable inference that the Prosecution witnesses were referring to a meeting other than Ndayambaje's Swearing-In Ceremony and that the Trial Chamber failed to consider this.5488 Specifically, he notes that Witness FAL testified that there were 5,000 participants and that megaphones were used, while Witness QAL only mentioned 200 participants and indicated that no megaphones were used.5489 Nteziryayo submits that, even when allowing for variances as to the recollection of numbers, Prosecution evidence of a meeting with several thousand participants and where speakers used megaphones "suggests" that other Prosecution evidence about a meeting attended by several hundred people where speakers were "unamplified" concerns a different mecting $490 2373. Nteziryayo

further highlights Witness FAL's evidence that the audience expressed discontent about the dismissal of the outgoing bourgmestre and that Sebukeye ordered the destruction of houses and suggests that this witness's evidence was distinct from other Prosecution evidence concerning the ceremony.491 Similarly, he notes that neither Witness QAL nor Witness FAG saw Ndayambaje get sworn in and that Witness TP testified that the meeting was for the installation of Nteziryayo as the Butare Prefect.5492 Nteziryayo also stresses that only Witness TO testified about a shooting exercise before the ceremony and that "Habiyambere" was the master of ceremonies $493 As a further reflection of the unreliability of the Prosecution evidence, he stresses that Witnesses TP and FAL were unable to identify him in court. 494 Nteziryayo also points to evidence that several other meetings were held in Muganza Commune "and its S488 See generally Nteziryayo Appeal Brief, paras. 104, 144-151. Nteziryayo concedes that the Trial Chamber concluded that Witness QAR was referring to an event other than Ndayambaje's Swearing-In Ceremony. See ibid., para. 104 (iv), 144. The Appeals Chamber has considered the contentions raised in paragraphs 145(d), 148(a), (b), (d), and 149 of Nteziryayo Appeal Brief above. See supra, Sections VII.B.1 (c)-(f). 5489 Nteziryayo Appeal Brief, paras. 145(e), 146(b), (c). See also

ibid., para. 147; Nteziryayo Reply Brief, para. 63. 5490 Nteziryayo Appeal Brief, para. 147. 5491 Nteziryayo Appeal Brief, para. 145(a), (c). 5492 Nteziryayo Appeal Brief, paras. 146(a), 148(c), fn. 192. 5493 Nteziryayo Appeal Brief, paras. 132(c), 150. The Appeals Chamber notes that, while Nteziryayo also argued in his notice of appeal that the Trial Chamber erred in finding that the discrepancy as to whether the population was armed was not significant, he did not develop this argument in his appeal brief. See Nteziryayo Notice of Appeal, para. 38(c). The Appeals Chamber therefore considers that Nteziryayo has abandoned this contention. 824 Case No. ICTR-98-42-A 14 December 2015

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19540/H surroundings", which, in his view, shared characteristics of Ndayambaje's Swearing-In Ceremony. 495 He argues that the variances in the Prosecution evidence together with the evidence that several other meetings were held demonstrate that these witnesses were not testifying about Ndayambaje's Swearing-In Ceremony 5496 2374. The Prosecution, pointing to the consistent elements of the testimonial evidence, submits that the discrepancies in the witnesses' evidence were minor and that Nteziryayo's unsubstantiated assertions that the witnesses were recounting another meeting should be rejected. 497 2375. The Appeals Chamber observes that the Trial Chamber summarised the respective estimates of Witnesses FAL and QAL that "more than 5,000" or an "estimated 200" persons attended the meeting 5498 In its deliberations, the Trial Chamber noted that "the testimony of the witnesses shows that between 1,000 and 5,000 people were present" and referred, inter alia, to Witness FAL'S evidence in this regard. $499 The Trial Chamber also summarised differing Prosecution and Defence evidence as to whether a megaphone or public address system was used during the swearing-in ceremony. 3500 The Trial Chamber found that, while the Prosecution evidence differed "in varying degrees as to the content of what was said by both Ndayambaje and Nteziryayo", the discrepancies could be attributed, in part, to "the quality of the megaphone or the clarity of the speakers."$S01 The Trial Judgement therefore shows that the Trial Chamber accepted the evidence that the number of attendees ranged from 1,000 to 5,000 persons and that amplification devices were used during the ceremony.

2376. Given the significant number of attendees, a fact uniformly testified to by all witnesses,5502 the Appeals Chamber is not persuaded that, simply because Witness FAL considered that more than 5,000 people were present or that Witness QAL "estimated" that 200 people were present, a reasonable trier of fact could not have considered that they testified about the same event. Furthermore, although Witness FAL testified that speakers at the event used megaphones and Witness QAL testified that she did not see megaphones, Witness FAL was only three metres from the speakers while Witness QAL's evidence reflects that many people were between her and the 5494 Nteziryayo Appeal Brief, paras. 145(b), 148(c). 5495 Nteziryayo Appeal Brief, para. 104(a) (i)-(a) (iii), (a)(v), (a)(vi). See also AT. 17 April 2015 p.

14. See generally Nteziryayo Appeal Brief, paras. 104, 144-151. 5497 Prosecution Response Brief, paras. 1482-1484, 1488, 1489, 1492-1494, 1496-1498, 1500, 1503, 1504, 1507-1510. See also ibid., para. 1473; AT. 17 April 2015 p. 28. 5498 Trial Judgement, paras. 4341, 4421. See Trial Judgement, para. 4611, fn. 12275. See Trial Judgement, paras. 4327, 4359, 4379, 4425, 4490, 4498, 4512, 4538, 4555. 5501 See Trial Judgement, para. 4631. 5s02 See Trial Judgement, paras. 4324, 4341, 4357, 4454, 4468, 4499, 4519, 4537, 4560. See also ibid., para. 4611. 825 Case No. ICTR-98-42-A 14 December 2015

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19539/H speakers. 5503 It bears noting that other Prosecution and Defence evidence differed as to whether devices were used to amplify the voice of the speakers.504 In the view of the Appeals Chamber, it was within the discretion of the Trial Chamber to rely on the fundamental features that were consistent in the evidence of Witnesses FAL and QAL, including the timing and location of the meeting, the fact that Ndayambaje and Nteziryayo were present and spoke during the event, Ndayambaje's attire, and participants bringing traditional weapons to determine that they testified about the same event. 5505 In these circumstances, the Appeals Chamber finds that Nteziryayo fails to demonstrate that the Trial Chamber erred in concluding that Witnesses FAL and QAL were testifying about Ndayambaje's Swearing-In Ceremony. 5506 2377. In addition, and contrary to Nteziryayo's assertion, Witness FAL was not alone in testifying that Nteziryayo criticised the outgoing bourgmestre as Witness TO also testified to this effect.5507 The Trial Chamber also acknowledged that their evidence differed from that of other Prosecution witnesses. 508 Nteziryayo does not show that a reasonable trier of fact could not have found that, notwithstanding this variance, Witness FAL was testifying about Ndayambaje's Swearing-In Ceremony. Likewise, Nteziryayo's reference to Witness FAL's testimony that Sebukeye told

the witness to implement the orders given during the ceremony fails to demonstrate that Witness FAL's evidence is incompatible with other evidence about the swearing-in ceremony. 5509 2378. When summarising the evidence of Witnesses QAL and FAG, the Trial Chamber also noted that these witnesses did not see Ndayambaje get sworn in.510 However, it further observed that Witness FAG nonetheless recounted that Ndayambaje "was the person being sworn in as 5503 Compare Witness FAL, T. 9 February 2004 p. 76 (closed session) ("Q. Can you tell us, Witness FAL, where you were seated at the time of the meeting? How far were you from the speakers? A. I was seated approximately three metres from the speakers.") with Witness QAL, T. 25 February 2004 p. 43 (closed session) ("Q. Witness QAL, this morning you testified that during the said meeting you were sitting on the lawn; is that correct? A. That is correct. Q. Were there many people in front of you? A. Yes, I was sitting more or less behind, there were many people in front 5504 Specifically, in addition to Witness FAL, Witnesses FAG, QAF, TO, KEPIR, Siborurema, AND-11, and AND-73 gave evidence about Ndayambaje's Swearing-In Ceremony and testified that a megaphone, microphone, and/or public address system was used during the ceremony. See Trial Judgement, paras. 4327, 4359, 4379, 4498, 4512, 4538, 4555 In addition to Witness QAL, Witnesses

TP and GABON testified to the contrary. See Trial Judgement, paras. 4338, 5505 See Trial Judgement, paras. 4340, 4342-4347, 4421-4428, 4593, 4594, 4609, 4610. 5506 The Appeals Chamber observes that, in addition to his arguments pertaining to Witnesses QAL and FAL, Nteziryayo argues that the testimonies of Witnesses TO and TP, on one hand, and the testimonies of Witnesses FAU and FAG, on the other hand, also differ as to the number of attendees and as to whether megaphones were used See Nteziryayo Appeal Brief, para.

147. Nteziryayo did not develop this argument with reference to the record, failing to demonstrate incompatibility among this evidence which would prevent a reasonable trier of fact from concluding that all of these witnesses testified about Ndayambaje's Swearing-In Ceremony. The Appeals Chamber therefore dismisses this argument without further consideration. See Trial Judgement, para.

4624. See also ibid., paras. 4342, 4377. 5508 Trial Judgement, para.

4624. See Witness FAL, T. 9 February 2004 pp. 63, 64. See also Trial Judgement, para. 4350. 5510 See Trial Judgement, paras. 4330, 442i. 826 Case No. ICTR-98-42-A 14 December 2015

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19538/H bourgmestre."$5l1 It also determined that various elements of Witness QAL's testimony were corroborated by both Prosecution and Defence evidence, including the location and timing of the meeting, Ndayambaje's attire, and the attendance of Witness Stan, and concluded that Witness QAL testified about Ndayambaje's Swearing-In Ceremony. 512 Nteziryayo does not demonstrate that the Trial Chamber erred in its analysis.

2379. The Appeals Chamber notes that Witness TP, in response to a suggestion by counsel for Nteziryayo that she earlier indicated that "the purpose of the meeting was for the installation", stated that "filt was for the installation of Préfet Alphonse" 5513 However, the description of the purported installation Witness TP provided accorded with her earlier testimony that Nteziryayo was being introduced at the meeting rather than installed as a new prefect and that Ndayambaje was being installed as the new bourgmestre$514 Nteziryayo fails to demonstrate that, on this basis, no reasonable trier of fact could have found that Witness TP testified about Ndayambaje's Swearing-In Ceremony.

2380. As regards Witness TO's evidence, the Trial Chamber recalled the witness's testimony that, prior to the ceremony, the population practiced shooting bows and arrows.5515 The Trial Chamber also noted that Witness FAL recounted a bow-and-arrow shooting exercise near the venue of the meeting, albeit not on the same day, 516 and the evidence of Defence witnesses that they did not see any archery practice or did not take part in it 51? Nieziryayo largely repeats on appeal arguments he made at trial,5518 without showing why this aspect of Witness TO's evidence undermined his credibility or was so distinctive as to render his testimony incompatible with other evidence about the swearing-in ceremony. Although Nteziryayo points to Witness TO's evidence that Célestin Habiyamere was the master of ceremonies to suggest that he was referring to an event other than Ndayambaje's Swearing-In Ceremony, the Appeals Chamber observes that this aspect of Witness TO's evidence is almost entirely consistent with other Prosecution and Defence evidence confirming this individual's presence and role in the event. 5519 5511 See Trial Judgement, para. 4323 (internal reference omitted). See also Witness FAG, T. 1 March 2004 p. 33. 5512 See Trial Judgement, paras. 4595, 4596. 5513 See Witness TP, T. 12 February 2004 p. 40. 5514 See Witness TP, T. 12 February 2004 p. 40 ("Q. Who had to install him, Élie

Ndayambaje? Was it Élie Ndayambaje? A. I don't know. I'm describing to you what we saw when we arrived at the meeting venue. The Accused ok the floor and he said he was going to introduce to us Alphonse, who was the new préfet. Perhaps the new pré d been introduced at the level of the whole préfecture and now it was time for him to be introduced to us in c secteur or commune. "). See also Witness TP, T. 12 February 2004 p. 38 ("A. [...] I, all the same, went to the meeting and I witnessed the swearing in of the bourgmestre, and the préfet was introduced to us"). See Trial Judgement, para. 4383. 5516 See Trial Judgement, para. 4340. 5517 See Trial Judgement, paras. 4554, 4582. 5518 See Nteziryayo Closing Brief, paras. 491, 539, 540. 5519 See Trial Judgement, paras. 4327, 4430, 4455, 4468, 4501, 4519, 4543, 4555. 827 Case No. ICTR-98-42-A 14 December 2015

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19537/H 2381. With respect to the inability of Witnesses TP and FAL to identify Nteziryayo in court, the Trial Chamber noted this aspect of their evidence.5520 The Appeals Chamber observes, however, that Witness TP stated that she "went to the meeting and [she] witnessed the swearing in of the bourgmestre, and the préfet was introduced to us", and referred to "Préfet Alphonse"; thus indicating that Nteziryayo was the prefect. 521 Moreover, the witness testified that Nteziryayo was the son of Ntagara, a fact that Nteziryayo confirmed. 52 In this context, the Appeals Chamber does not consider that Witness TP's admission that "[sJo much time has passed since [she] last saw [Nteziryayol" and that she did not "think [she] could recognise him'»23 prevented the Trial Chamber from concluding that she attended Ndayambaje's Swearing-In Ceremony. The Appeals Chamber also notes that Witness FAL recalled that, during the swearing-in ceremony, "Alphonse Nteziryayo [the prefect] said he had come to install Elie Ndayambaje" 5524 The Appeals Chamber therefore considers that the fact that the witness was not able to identify Nteziryayo in court, whom he did not personally know or often see, unlike Ndayambaje,552s does not show that the witness's evidence lacked credibility or that no reasonable trier of fact could have found that he testified about Ndayambaje's Swearing-In Ceremony.

2382. Finally, the Appeals Chamber finds no merit in Nteziryayo's broad and speculative contention that evidence that several other meetings were held in Muganza Commune "and its surroundings" prevented the Trial Chamber from concluding that the Prosecution witnesses were testifying about Ndayambaje's Swearing-In Ceremony. 5526 2383. Based on the foregoing, the Appeals Chamber dismisses Nteziryayo's contention that no reasonable trier of fact could have found that all the Prosecution witnesses testified about Ndayambaje's Swearing-In Ceremony.

2. Assessment of Defence Evidence 2384. When considering evidence in relation to Ndayambaje's Swearing-In Ceremony, the Trial Chamber contrasted the evidence of the Prosecution witnesses with that of Defence witnesses as it concerned the speeches of Nteziryayo and Ndayambaje and whether resulting violence 5520 Trial Judgement, paras. 4352, 4395. 5521 See Witness TP, T. 12 February 2004 pp. 38, 40. 5522 Witness TP, T. 11 February 2004 p. 26; Nteziryayo, T. 14 May 2007 p.

10. See Witness TP, T. 11 February 2004 p. 35. 5524 See Witness FAL, T. 9 February 2004 p. 38. 5525 See Witness FAL, T. 9 February 2004 pp. 39-41. 3526 The Appeals Chamber observes that Nteziryayo also contends that the killing of Tutsis in Butare was widespread and that "evidence that Tutsi girls were killed after the meeting" does not distinguish Ndayambaje's Swearing-I Ceremony from any other meeting. See Nteziryayo Appeal Brief, para. 104(c). As Nteziryayo fails to develop thi. 828 Case No. ICTR-98-42-A 14 December 2015

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19536/H occurred. 527 In particular, it noted Nteziryayo's potential motive to reduce his "personal responsibility for the alleged incitement in question."528 It also recalled that Defence Witnesses AND-11 and AND-73 knew Nteziryayo from having previously served in the army together and that Witness AND-11 "knew Nteziryayo well" from his work in Kibayi Commune from 1991 and that he referred to Nteziryayo as a friend.5529 Acknowledging "the largely consistent nature" of the Defence evidence, the Trial Chamber considered that the credibility of the Defence witnesses was undermined by their "potential motivations and personal ties of each of the Defence witnesses with Ndayambaje and Nteziryayo."530 The Trial Chamber concluded that Defence evidence on the whole was not sufficiently credible to raise a reasonable doubt about the nature of the utterances made by Nteziryayo and Ndayambaje at the swearing-in ceremony. 5531 2385. Nteziryayo contends that the Trial Chamber's finding that the Defence evidence in relation to the ceremony was "largely consistent" calls into question its later conclusion that it was "on the whole not sufficiently credible" to raise reasonable doubt. 532 He contends that the Trial Chamber erred in concluding that the credibility of three of the witnesses he called was diminished by personal ties, that it did not provide a reasoned opinion in this regard, and

that this alone was insufficient to wholly dismiss their evidence.533 Nteziryayo adds that the Trial Chamber acted unfairly when determining that personal and professional ties had a greater impact on the credibility of Defence evidence than the "significant" issues that undermine the credibility of the Prosecution evidence. *534 2386. The Prosecution responds that the Trial Chamber correctly found that the credibility of Defence witnesses was undermined by their personal ties to Nteziryayo, whose evidence also lacked reliability and credibility.5535 2387. Since the existence of ties between an accused and a witness is a factor which may be considered in assessing witnesses' credibility,536 the Appeals Chamber finds no error in the Trial Chamber's consideration of these circumstances and does not find that the Trial Chamber failed to argument with any citation or demonstrate how the Trial Chamber erred in considering such evidence, the Appeals Chamber dismisses this contention without further consideration. 5527 Trial Judgement, paras. 4633-4635. 5528 Trial Judgement, para. 4636. 5529 Trial Judgement, para. 4638. 5530 See Trial Judgement, para. 4639. 5531 Trial Judgement, para. 4641. $S32 Nteziryayo Appeal Brief, para. 158 (emphasis omitted), referring to Trial Judgement, paras. 4639, 4641. See also ibid., paras. 166, 242; Nteziryayo Reply Brief, para.

69. Nteziryayo Appeal Brief, para.

159. See also ibid., para. 160, referring to Muvunyi Appeal Judgement of 29 August 2008, paras. 142-148. S. rose to Areal Be t lara, 6 3 5-is bid, pala. 41:17 April 2015 p. 31. 829 Case No. ICTR-98-42-A 14 December 2015

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19535/H provide a reasoned opinion for its decision. In this regard, the Appeals Chamber notes that Nteziryayo has pointed to no specific error in the Trial Chamber's reflection of the evidence concerning his relationships with Defence witnesses and merely argues that it was unreasonable for the Trial Chamber to base its rejection of Defence evidence on this factor.

2388. The Appeals Chamber further recalls that, when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible. 537 The Appeals Chamber is not persuaded that no reasonable trier of fact could have both noted the consistent nature of Defence evidence as well as the weaknesses in the credibility of Defence witnesses and ultimately rejected such evidence in light of the virtually unanimous Prosecution evidence that inciting speeches were made during Ndayambaje's Swearing-In Ceremony. 5538 Moreover, apart from alleging that the Trial Chamber treated the Defence and Prosecution evidence differently, Nteziryayo does not demonstrate that the Trial Chamber abused its discretion or substantiate with references an improper differential treatment of Defence evidence.

2389. Consequently, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber acted unreasonably in discrediting Defence evidence.

3. Conclusion 2390. For the foregoing reasons, the Appeals Chamber finds that Nteziryayo has failed to demonstrate any error in relation to his conviction for direct and public incitement to commit genocide at Ndayambaje's Swearing-In Ceremony and, accordingly, dismisses Ground 4 of Nteziryayo's appeal. 5536 See, e.g., Kanyarukiga Appeal Judgement, para. 121; Karera Appeal Judgement, para. 137; Bikindi Appeal Judgement, para. 117. se See Tri ragemen, pars lude 4,686. 465; Cacumbi Appeal Judgemen, para 81. 830 Case No. ICTR-98-42-A 14 December 2015

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19534/H C. Muyaga Commune Meeting (Ground 5) 2391. Based on the evidence of Prosecution Witnesses QBY and FAB, the Trial Chamber found that, around mid-June 1994, Nteziryayo, in his capacity as Butare Prefect, attended a public meeting in Mamba Sector, Muyaga Commune, at which he incited the population to kill Tutsis by urging the audience to "hunt down, flush out and kill Tutsis without any distinction" 5539 2392. In reaching its findings, the Trial Chamber observed that Prosecution and Defence evidence consistently reflected that Nteziryayo spoke at a meeting in Muyaga Commune but determined that the evidence from the Defence did not concern the event discussed by the Prosecution witnesses.5540 Specifically, the Trial Chamber found that the meeting described by Witnesses QBY and FAB took place around mid-June 1994,554) more specifically "on or after 21 June 1994", since both witnesses were "adamant" that Nteziryayo attended the meeting in his capacity as prefect.542 The Trial Chamber noted that the Defence brought evidence regarding a meeting held on 23 May 1994 that contained similarities with the one described by the Prosecution witnesses but concluded that, while it was possible that this other meeting also occurred the Defence evidence had "no bearing upon [its] assessment of the evidence related to the June 1994 meeting testified to by Witnesses QBY and FAB."5543 2393.

The Trial Chamber determined that Nteziryayo's speech at the Muyaga Commune meeting as described by Witnesses QBY and FAB constituted a direct appeal to kill Tutsis and convicted him of committing direct and public incitement to commit genocide on this basis.$544 2394. Nteziryayo submits that the Trial Chamber erred in finding that, in his capacity as prefect, he incited the commission of genocide during a meeting held in Muyaga Commune in mid-June 1994 and in convicting him of direct and public incitement to commit genocide on this basis.545 Nteziryayo argues that the Trial Chamber erred in determining that the Prosecution witnesses testified about a meeting other than the meeting on 23 May 1994 described by the 5539 Trial Judgement, paras. 3674, 5945, 6022. 3510 Trial Judgement, paras. 3672, 3673. 3541 Trial Judgement, paras. 3674, 5945. .... 'Nteziryayo Notice of Appeal, paras. 41-46, 59-63, 65; Nteziryayo Appeal Brief, paras. 167-212, 240, 241, 243-245, 831 Case No. ICTR-98-42-A 14 December 2015

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19533/H Defence witnesses and, consequently, in concluding that the Defence evidence was irrelevant to the assessment of the Prosecution case. $46 2395. The Appeals Chamber will assess these overarching challenges when addressing Nteziryayo's specific contentions that the Trial Chamber erred in: (i) failing to treat the Prosecution evidence with sufficient caution; (ii) evaluating the Prosecution evidence as to the timing of the meeting; (iii) assessing the Prosecution identification evidence; (iv) insufficiently considering similarities between Prosecution and Defence evidence concerning the meeting; and (v) ignoring Nteziryayo's evidence that precluded his presence at a meeting in Muyaga Commune after his appointment as Butare Prefect on 17 June 1994.5547 1. Insufficient Caution 2396. Nteziryayo submits that the Trial Chamber erred in its assessment of the credibility of Witnesses QBY and FAB. 548 Specifically, he contends that, although Witness FAB was released at the time of his testimony, the Trial Chamber failed to consider that he was an accomplice witness and that his evidence should be treated with requisite caution.49 Nteziryayo stresses that Witness FAB pleaded guilty to genocide, attended Gacaca sessions while imprisoned, and admitted that his evidence was altered as a result of his participation in these sessions.5550 With respect to Witness QBY, Nteziryayo

contends that, while the Trial Chamber acknowledged the need to treat the witness's evidence with caution,555l it failed to consider adequately that he was an incarcerated accomplice witness who had attended five Gacaca sessions. 552 2397. The Prosecution responds that Nteziryayo does not establish that Witness FAB possessed any motive to implicate him given that the witness had been released at the time of his 5546 Nteziryayo Notice of Appeal, para. 43(a); Nteziryayo Appeal Brief, paras. 167(iii), 169-178, 183, 184 5547 Nteziryayo also challenged the Trial Chamber's assessment of the credibility of Witnesses QBY and FAB in paragraphs 249 and 251 of his appeal brief. However, the Appeals Chamber recalls that it struck these paragraphs fron he brief, finding that they exceeded the scope of his appeal. See 12 July 2013 Appeal Decision, paras. 24, 25 Consequently, these challenges will not be addressed. 5548 Nteziryayo Appeal Brief, paras. 167(vi), (vii), 201-211. The Appeals Chamber notes that, while Nteziryayo also alleged in his notice of appeal that the Trial Chamber erred in finding that the discrepancies between the testimonies of Witnesses QBY and FAB were minor and had no impact on their credibility, he did not develop and substantiate this allegation in his appeal brief. The Appeals Chamber considers that Nteziryayo has abandoned this allegation. See Nteziryayo Notice of

Appeal, paras. 42, 43(b). See also ibid., para. 62. 5549 Nteziryayo Notice of Appeal, para. 63; Nteziryayo Appeal Brief, paras. 167(vi), 201, 205-207, 247, 248. Nteziryayo emphasises that the fact that Witness FAB was released at the time of his testimony is immaterial as he had already given two statements to the Prosecution while imprisoned and had an interest in ensuring that his testimony was consistent with them in order to avoid being accused of "perverting the course of justice". See Nteziryayo Appeal Brief, 550 Nteziryayo Appeal Brief, paras. 201, 205(a)-(f) sS51 Nteziryayo Appeal Brief, para.

209. Nteziryayo argues that the Prosecution did not seek to rely on Witness QBY's evidence. See ibid., para. 208. 832 Case No. ICTR-98-42-A 14 December 2015

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19532/H testimony 53 It further argues that the Trial Chamber acknowledged that Witness QBY's evidence should be treated with caution and sufficiently considered the context in which his evidence was provided. 5554 2398. The Appeals Chamber observes that Witness FAB was arrested on his return to Rwanda in 1996, confessed that he killed a child, and was sentenced to 15 years in prison for his crime. S55s However, he was released early in 2003 and was not in detention at the time of his testimony before the Tribunal in April 2004.5556 Under the circumstances, Nteziryayo does not demonstrate that the Trial Chamber was required to treat the witness's evidence with caution,5557 as he points to no circumstances indicating that the witness may have had motives or incentives to implicate him when testifying.558 Furthermore, none of the evidence Nteziryayo cites concerning the impact of Gacaca sessions on Witness FAB's evidence reflects that the witness was encouraged to implicate falsely Nteziryayo before the Tribunal. 59 2399. Turning to Witness QBY, the Trial Chamber found that he was incarcerated at the time of his testimony and that he may have had a motive to implicate Nteziryayo or enhance his role in the crimes.* 5560 Consequently, the Trial Chamber decided to assess Witness QBY's testimony with "appropriate caution" 5561 The Trial Chamber considered Witness QBY's evidence in

light of Witness FAB's, 5562 determining that both "witnesses corroborated each other as to Nteziryayo's actions and words during the course of the meeting, and to the fact that killings of Tutsis occurred after the meeting."5563 Nteziryayo simply argues that the Trial Chamber treated Witness QBY's evidence with insufficient caution without demonstrating that this was the case. Moreover, the 5552 Nteziryayo Notice of Appeal, para. 63; Nteziryayo Appeal Brief, paras. 167(vii), 210. Nteziryayo also refers to his arguments related to the credibility of Witness QBY developed under Ground 8 of his appeal. See Nteziryayo Appeal Brief, para. 211. 5553 Prosecution Response Brief, paras. 1537, 1538. The Prosecution rejects Nteziryayo's claim that the witness had an incentive to perjure himself in order to ensure that his testimony was consistent with the prior statements he gave while incarcerated. See ibid., para. 1538. 5554 Prosecution Response Brief, para.

1539. SSSS Witness FAB, T. 5 April 2004 pp. 34, 35, and 50, 51, 55 (closed session). Witness FAB testified that he killed a child on 27 or 28 April 1994 and that this crime occurred well before the meeting held in Muyaga Commune. He also denied participating personally in any killings after the meeting. See ibid., pp. 42 and 50-52 (closed session). 5556 Witness FAB, T. 5 April 2004 pp. 35, 37, and 55 (closed session). 5557 The Appeals Chamber does not consider that Witness.FAB's criminal conduct, which was unrelated to and occurred prior to the Muyaga Commune meeting, would make him an accomplice of Nteziryayo as defined in the jurisprudence of the Tribunal. See Niyitegeka Appeal Judgement, para. 98 ("The ordinary meaning of the term 'accomplice' is 'an associate in guilt, a partner in crime.'"). See also Karemera and Ngirumpatse Appeal Judgement, para. 42; Munyakazi Appeal Judgement, para. 93; Ntagerura et al. Appeal Judgement, para.

203. The Appeals Chamber finds no merit in Nteziryayo's contention that Witness FAB had an incentive to lie while testifying under oath in order to remain consistent with the prior statements he gave while imprisoned and to avoid being accused of "perverting the course of justice" 5559 See Witness FAB, T. 5 April 2004 pp. 36, 37, 42, 43. 5560 Trial Judgement, para. 3670. 5561 Trial Judgement, para. 3670. 5562 Trial Judgement, paras. 3671, 3672. 5563 Trial Judgement, para. 3674. 833 Case No. ICTR-98-42-A 14 December 2015

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19531/H Appeals Chamber considers that Witness QBY's evidence concerning his participation in Gacaca sessions in no way demonstrates that he was encouraged to implicate falsely Nteziryayo 5564 2400. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in failing to apply appropriate caution when assessing the evidence of Witnesses FAB and QBY.

2. Timing of the Meeting 2401. When assessing the Prosecution evidence as to the timing of the meeting, the Trial Chamber stated as follows: Witness QBY placed the meeting around either 5 May 1994 or 5 June 1994 whereas Witness FAB referred to mid-June 1994. The Chamber considers that these are both estimates which do not automatically cast doubt on the witnesses' credibility, given the length of time that had elapsed since the event. The Chamber notes that Witnesses QBY and FAB are adamant that on the day of the meeting, Nteziryayo already held his position as préfet of Butare. Witness FAB even testified that the purpose of the meeting was to introduce Nteziryayo as the new préfet. Flowing from that, it appears that the meeting may have occurred on or after 21 June 1994, as Nteziryayo was appointed préfet of Butare on or around 17 June 1994, and his swearing-in ceremony took place on 21 June 1994.5565 2402. Nteziryayo argues that the Trial Chamber erred in finding that the Muyaga Commune meeting occurred on or after 21 June 1994 as this finding is in contradiction with the evidence provided by Witnesses QBY and FAB.566 Nteziryayo stresses that Witness QBY repeatedly testified that the meeting he attended during which Nteziryayo spoke in his capacity as prefect occurred sometime between 5 May and 5 June 1994.5567 He submits that it was therefore unreasonable for the Trial

Chamber to rely on Witness QBY and to find that the witness was "adamant" that Nteziryayo was prefect of Butare at the time.568 Nteziryayo points out that the witness was so certain as to the timing of the meeting that he rejected an official document indicating that Nteziryayo was not appointed prefect until 17 June 1994.5569 5564 See Witness QBY, T. 19 April 2004 pp. 72, 73, 75-77. 5565 Trial Judgement, para. 3672 (internal references omitted). 5566 Nteziryayo Appeal Brief, para.

175. See also AT. 17 April 2015 p. 16. 5567 Nteziryayo Appeal Brief, paras. 167(ii), 172, 182, 212(b), (c). See also Nteziryayo Reply Brief, paras. 73(b), 74. Nteziryayo adds that Witness QBY's evidence that the meeting occurred between 5 May and 5 June 1994 corresponds to his prior statement. See Nteziryayo Appeal Brief, paras. 175, 182; Nteziryayo Reply Brief, para. 73(b). 5568 Nteziryayo Appeal Brief, paras. 180-182 (emphasis omitted). See also Nteziryayo Reply Brief, para. 75. 5569 Nteziryayo Appeal Brief, para. 181, referring to Witness QBY, T. 20 April 2004 p.

20. See also Nteziryayo Reply Brief, para. 75. 834 Case No. ICTR-98-42-A 14 December 2015

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19530/H 2403. The Appeals Chamber further understands that Nteziryayo submits that the Trial Chamber erred in relying on Witness FAB's testimony that the meeting occurred in mid-June 1994 as this contradicts the witness's prior statement that it occurred around the beginning of that month. 570 2404. The Prosecution responds that the Trial Chamber reasonably assessed the evidence of Witnesses QBY and FAB and correctly concluded that Nteziryayo attended a meeting in Muyaga Commune in mid-June 1994.5571 2405. The Appeals Chamber notes that the Trial Chamber found that the meeting described by Witnesses QBY and FAB took place around mid-June 1994,5572 more specifically "on or after 21 June 1994" since both witnesses were "adamant" that Nteziryayo attended the meeting in his capacity as Butare Prefect. 573 The Appeals Chamber recalls that it is open for a trial chamber to make factual findings on the date of the events by examining the evidence as a whole and that, indeed, this may be particularly necessary when determining dates, as often witnesses may not recall an exact date but describe the timing of the event in relation to other variables.5574 The Appeals Chamber finds that Nteziryayo places undue importance on the fact that Witness QBY repeatedly referred to the meeting occurring around 5 May or 5 June 1994, as this position ignores the clear indication throughout the

witness's testimony that he could not recall the date of the meeting 5575 On the other hand, the witness was unequivocal that Nteziryayo was introduced at the meeting as the prefect of Butare.5576 Moreover, there is no merit in Nteziryayo's position that Witness QB Y refused to recognise the accuracy of an exhibit which suggested that Nteziryayo was appointed prefect after the date of the meeting that the witness provided, as the witness merely stated that he did not recognise this document and that he could "only say that it was Alphonse Nteziryayo", 5577 2406. With respect to Witness FAB, the Trial Chamber acknowledged that the witness testified that the meeting occurred "sometime in mid-June 1994, and not between 3 or 5 June 1994 as indicated in his previous statement", 5578 It noted the witness's explanation that he may have been mistaken about the date when he gave his prior statement but realised the mistake during Gacaca 5570 Nteziryayo Appeal Brief, para.

172. See also ibid., paras. 201, 205(b), (c); Nteziryayo Reply Brief, para. 73(a); AT. 17 April 2015 p. 16. 5571 Prosecution Response Brief, paras. 1521-1524, 1533, 1537. See also AT. 17 April 2015 pp. 31, 32. 3572 Trial Judgement, paras. 3674, 5945. $573 Trial Judgement, para.

3672. See also supra, para. 2290. 5S74 Ndindabahizi Appeal Judgement, para.

29. S57S Witness QBY, T. 20 April 2004 pp. 8, 11, and 33, 37 (closed session). 5576 See Trial Judgement, para.

3672. See also Witness QBY, T. 19 April 2004 p.

54. SS77 Witness QBY, T. 20 April 1994 p. 23. 5578 Trial Judgement, para. 3568. 835 Case No. ICTR-98-42-A 14 December 2015

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19529/H sessions.$579 Moreover, when questioned about the influence of the Gacaca sessions on his memory, the witness replied that, while they made him realise he had made a mistake about "dates", these sessions "had not been held to remind" the participants of the events, nor did they "detract" from his evidence, as he was "speaking from what [he knew] personally,*$80 The Appeals Chamber finds that a reasonable trier of fact could have relied upon Witness FAB's evidence as to the timing of the event, notwithstanding any inconsistency with his prior statement, particularly in light of his explanation and his evidence that Nteziryayo had been installed as the prefect and was being introduced as such at the meeting 5581 2407. In light of Witness QBY's uncertainty about the date of the meeting, Witness FAB's credible testimony that the meeting occurred around mid-June 1994, and both witnesses' evidence that Nteziryayo was introduced as the prefect of Butare at the meeting, the Appeals Chamber is not persuaded that Nteziryayo has demonstrated that no reasonable trier of fact could have concluded that the meeting took place after Nteziryayo's appointment as prefect "around mid-June 1994" and more specifically "on or after 21 June 1994" 5582 3. Identification Evidence 2408. Nteziryayo submits that Witnesses QBY's and FAB's identification evidence was unreliable, noting that neither

could identify him in court and that both testified that the meeting was the first time that they had observed him. 5583 He further emphasises that Witness FAB gave no physical description of him 584 and that Witness QBY's description did not match his but Nsabimana's physical characteristics.5585 He contends that these circumstances render the identifications unsound and that the Trial Chamber failed to apply sufficient caution when considering them. 5586 5579 Trial Judgement, para. 3568. 5580 Witness FAB, T. 5 April 2004 p.

43. The Appeals Chamber also notes that Witness FAB clarified that, although he was not sure about the exact date of the meeting, it was in the month of June 1994 since he fled between the end of June and beginning of July and that he left Rwanda ten days after the meeting in Muyaga Commune. See ibid., pp. 30, 33, 358, 42, 43 and 52 (closed session). See Trial Judgement, para.

3672. See also Witness FAB, T. 5 April 2004 pp. 23-25. 5582 Trial Judgement, paras. 3672, 3674. 5583 Nteziryayo Appeal Brief, paras. 181, 188, 194, 212(d). See also Nteziryayo Reply Brief, paras. 79, 81, 82; AT. 17 April 2015 p. 18. 5584 Nteziryayo Appeal Brief, para. 194, referring to Witness FAB, T. 5 April 2004 p. 24; AT. 17 April 2015 p. 17. 5585 Nteziryayo Appeal Brief, paras. 189-191, 193, 212(d), referring to Witness QBY, T. 19 April 2004 p. 55, T. 20 April 2004 p. 23, Witness AND-60, T. 13 March 2007 p. 7, Nteziryayo, T. S June 2007 p. 59, Exhibit D460A (CD-Rom Containing Nsabimana's Interview with BBC Journalists). Nteziyayo further submits that the Trial Chamber failed to consider Exhibit D460A (CD-Rom Containing Nsabimana's Interview with BBC Journalists). See ibid., ara.

191. See also Nteziryayo Reply Brief, para. 80; AT. 17 April 2015 p. 17 586 Nteziryayo Appeal Brief, paras. 192-194, 212(f) (i1). 836 Case No. ICTR-98-42-A 14 December 2015

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19528/H 2409. The Prosecution responds that, since Nteziryayo was found to be one of the speakers at the meeting based on self-identification as the newly appointed prefect, Nteziryayo's submissions on his physical description and absence of in-court identifications are irrelevant. $587 2410. The Appeals Chamber finds no merit in Nteziryayo's arguments that it is significant that neither witness identified him in court, that neither knew him before the events, and that Witness FAB did not provide a physical description of him. All of Nteziryayo's arguments fail to acknowledge that the witnesses testified that they were able to identify him because he was introduced by name at the Muyaga Commune meeting and was identified as the prefect. 588 In this context, the Appeals Chamber finds that a reasonable trier of fact could have relied on Witnesses QBY's and FAB's identification evidence despite the absence of their in-court identifications,589 their lack of prior knowledge of Nteziryayo,5590 and the absence of a physical description from Witness FAB.

2411. Likewise, Nteziryayo's contention that Witness QBY's description of him as "black" and having "sideburns" suggests that the witness was describing Nsabimana is unpersuasive. Having carefully reviewed the relevant evidence, the Appeals Chamber finds no merit in Nteziryayo's argument that Witness AND-60's description of Nsabimana, even considered with Nteziryayo's evidence that he did not have facial hair at the time, 59 prevented the Trial Chamber from accepting Witness QBY's identification evidence of Nteziryayo.5593 2412. In light of the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in finding that the person Witnesses QBY and FAB identified as the prefect of Butare at the time of the meeting in Muyaga Commune was Nteziryayo. 5587 Prosecution Response Brief, para. 1529; AT. 17 April 2015 pp. 32, 33. 5588 See, e.g., Witness FAB, T. 5 April 2004 pp. 23, 24; Witness QBY, T. 19 April 2004 p. 54. 5589 See Trial Judgement, paras. 3564, 3569. The Trial Chamber noted that Witness QBY was not asked to identify Nteziryayo in court and that Witness FAB explained that he would not be able to do so as he only saw him once in 1994. See idem. 5590 The Appeals Chamber recalls that a witness's prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence. However, contrary to what Nteziryayo suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence. See Lukié and Lukié Appeal Judgement, para. 118; Renzaho Appeal Judgement, para.

530. Cf also Rayishema and Ruzindana Appeal Judgement, paras. 327, 328 See Trial Judgement, para. 3559; Witness QBY, T. 19 April 2004 p. 55, T. 20 April 2004 p. 16 5592 Nteziryayo, T. 5 June 2007 p. 59. 5593 The Trial Chamber recalled that Witness QBY testified that Nteziryayo was a tall, black man with sideburns and no spectacles. See Trial Judgement, para.

3559. While Witness AND-60's evidence reflects that, at the relevant time, Nsabimana had sideburns and a complexion "between dark and light", he also described Nsabimana as wearing spectacles and being short in stature. See Witness AND-60, T. 13 March 2007 p.

7. Witness AND-60 also confirmed Witness QBY's evidence that Nteziryayo was "tall". See idem. Of additional significance, Witness QBY further testified that Nteziryayo said he was a soldier, a position that was not held by Nsabimana. See Witness QBY, T. 20 April 2004 pp. 3, 4. Moreover, Nteziryayo did not demonstrate that the Trial Chamber erred by not considering Exhibit D460A (CD-Rom Containing Nsabimana's Interview with BBC Journalists). 837 Case No. ICTR-98-42-A 14 December 2015

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19527/H 4. Similarities Between Prosecution and Defence Evidence 2413. When assessing the Defence evidence in its deliberations, the Trial Chamber stated that: The Defence brought evidence regarding a meeting on 23 May 1994 in Mamba secteur, Muyaga commune, which contained similarities to the meeting testified to by Witnesses QBY and FAB. The Chamber does not exclude the possibility that this other meeting, as asserted by the Defence. actually occurred, however this evidence has no bearing upon the Chamber's assessment of the evidence related to the June 1994 meeting testified to by Witnesses OBY and FAB. 5594 2414. Nteziryayo submits that the Trial Chamber erred in determining that the Prosecution witnesses testified about a meeting other than the 23 May 1994 meeting described by the Defence witnesses 595 and, consequently, in concluding that the Defence evidence was irrelevant to the assessment of the Prosecution case 559 Nteziryayo argues that the Trial Chamber failed to consider sufficiently the following "striking similarities" which suggest that they all were testifying about the same event: (i) Witnesses QBY, FAB, and AND-60 testified that the meeting was held in Muyaga Commune and that the latter two specified that it occurred in the midst of eucalyptus bushes; (ii) Witnesses QBY, FAB, and AND-60 recalled that it occurred in the morning and that a microphone or

megaphone was used; (iii) Witnesses FAB, AND-60, and Nteziryayo specified that the meeting concerned security matters; (iv) Witnesses FAB and AND-60 described the bourgmestre as introducing the new prefect; and (v) Witness QBY, FAB, and AND-60 testified to hearing gunshots, which caused panic among the audience.597 Nteziryayo contends that, had the Trial Chamber properly assessed these similarities, it would have found that the Defence evidence raised doubt in the Prosecution case that he incited killings during a meeting held in Muyaga Commune around mid-June 1994. 5598 2415. The Prosecution responds that the Trial Chamber considered similarities between the Prosecution and Defence evidence but, because it found that the Muyaga Commune meeting occurred in mid-June 1994, it correctly held that the Defence evidence regarding a meeting in Muyaga Commune on 23 May 1994 had no bearing upon the assessment of the Prosecution case and was not required to assess the credibility of the Defence evidence. 5599 The Prosecution further 5594 Trial Judgement, para. 3673 (internal reference omitted). 5595 Nteziryayo Appeal Brief, paras. 167(jii), 169, 171, 173, 174, 183, 184. See also Nteziryayo Reply Brief, paras. 77, 78; AT. 17 April 2015 pp. 16, 17. 5596 Nteziryayo Appeal Brief, paras. 178, 183, 212(f)(ii). Nteziryayo contends that his defence was based on the premise that he attended only

one meeting in Muyaga Commune and that this meeting took place on 23 May 1994 and that the Trial Chamber erred by not addressing the clear conflict between his evidence and the Prosecution case. See ibid., paras. 169, 173, 176, 178, 212(e). Nteziryayo Appeal Brief, paras. 167(jii), 172, 183-185 5598 See Nteziryayo Appeal Brief, paras. 167(iv), 172, 175-178, 195. 5599 Prosecution Response Brief, paras. 1525, 1530. 838 Case No. ICTR-98-42-A 14 December 2015

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19526/H submits that Nteziryayo overstates the alleged similarities and minimises the differences between the two meetings.5600 2416. The Appeals Chamber notes that the Trial Chamber's statement of the parallels between the Prosecution and the Defence evidence is limited to an observation that the latter brought evidence "which contained similarities to the meeting testified to by Witnesses QBY and FAB" as well as a reference to discrete aspects of Witness AND-60's evidence.5601 The Trial Chamber provided no explanation as to why the similarities did not reasonably suggest that the Prosecution and the Defence evidence concerned the same meeting, although its summary of the evidence reflects that it did not disregard them. 602 The Appeals Chamber finds that the Trial Chamber's analysis falls below the requirement to provide a reasoned opinion pursuant to Article 22(2) of the Statute and Rule 88(C) of the Rules given the number of similarities in the evidence as well as the Defence's clear position at the close of trial that all the witnesses were talking about the same meeting and that its evidence rebutted allegations that Nteziryayo made inciting statements during it. 5603 2417. However, the Appeals Chamber finds that this error of law does not invalidate the Trial Chamber's conclusion that Prosecution and Defence witnesses were talking about two different meetings. Having

reviewed the evidence cited by the Trial Chamber and the parties, the Appeals Chamber finds that a reasonable trier of fact could have concluded that Witnesses QBY and FAB were referring to an event other than the 23 May 1994 meeting described by Witness AND-60 and Nteziryayo. The Appeals Chamber finds the parallels that the event started in the morning5604 and that it occurred near the Mamba sector office 605 to be insignificant in light of Witness AND-60's evidence that public meetings regularly occurred there. 5606 Likewisc, overlapping evidence that voice amplification systems were used 607 and that gunshots were fired 608 does not necessarily establish as unreasonable, in the context of the totality of the evidence, that Witnesses QBY and FAB, on one hand, and Witness AND-60 and Nteziryayo, on the other hand, were referring to $600 Prosecution Response Brief, paras. 1526-1528, referring to Trial Judgement, paras. 3628, 3635, 3642, 3647, 3680. 5601 See Trial Judgement, para. 3673, referring to Witness AND-60, T. 13 March 2007 pp. 4, 8, 9. $602 The similarities are the following: (i) the meeting occurred in Muyaga Commune in the morning next to the Mamba sector office (see Trial Judgement, paras. 3557, 3565, 3570, 3578); (ii) a loudspeaker or a microphone was used (see ibid., paras. 3557, 3565, 3572); (ili) firing of gunshots occurred during the meeting (see ibid., paras. 3558, 3574); and (iv) the new prefect was introduced at the meeting (see ibid., paras. 3559, 3565, 3566, 3572). See Nteziryayo Closing Brief, paras. 215-221; Nteziryayo Closing Arguments, T. 27 April 2009 pp. 71-73. See Witness FAB, T. 5 April 2004 p. 23; Witness QBY, T. 19 April 2004 p. 52; Witness AND-60, T. 13 March 2007 pp. 4, 10; Nteziryayo, T. 5 June 2007 p.

25. See Witness FAB, T. 5 April 2004 p. 22; Witness QBY, T. 19 April 2004 p. 52; Witness AND-60, T. 13 March 2007 pp. 3, 4, 14; Nteziryayo, T. 5 June 2007 p.

25. See Witness AND-60, T. 13 March 2007 p.

14. See Witness FAB, T. 5 April 2004 pp. 26, 27; Witness QBY, T. 20 April 2004 p. 14; Witness AND-60, 36. 13 March 2007 p. 8 See Witness FAB, T. 5 April 2004 p. 27; Witness QBY, T. 19 April 2004 p. 53; Witness AND-60, T. 13 March 2007 pp. 54, 55. In particular, the Appeals Chamber observes that other Prosecution and Defence 839 Case No. ICTR-98-42-A 14 December 2015

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19525/H different events. 69 Contrary to Neziryayo's assertion, the Prosecution and Defence evidence does not consistently indicate that the bourgmestre introduced Nteziryayo,5610 or that the meeting concerned security matters." 5611 2418. The Appeals Chamber emphasises that Witnesses QBY and FAB were categorical that Nteziryayo was introduced as the new prefect during this mecting 612 and recalls that it has affirmed the Trial Chamber's reliance on their ability to identify him on this basis.613 This evidence contrasts with Witness AND-60's testimony that Nsabimana was introduced as the new prefect$614 and Nteziryayo's testimony that he was not prefect at the time of the only meeting he attended in Muyaga.5615 Based on the record before it, the Appeals Chamber concludes that, notwithstanding the Trial Chamber's failure to provide a reasoned opinion, a reasonable trier of fact could have determined that the Defence evidence did not relate to the Prosecution case and concluded that Witnesses QBY and FAB testified about a later meeting that occurred "around mid-June 1994" or, more specifically, "on or after 21 June 1994) $616 2419. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to provide a reasoned opinion but concludes that this error does not invalidate the Trial Chamber's conclusion that the Defence evidence regarding a meeting on 23 May 1994 had no bearing upon its assessment of the evidence related to the June 1994 meeting given by Witnesses FAB and QBY.

5. Nteziryayo's Presence Elsewhere From 17 June 1994 Onwards 2420. Nteziryayo submits that the Trial Chamber failed to consider his testimony about his movements from 17 June 1994 onwards which, he argues, conflicts with the Trial Chamber's finding that he participated in a meeting in Muyaga Commune on or after 21 June 1994.$617 In this respect, Nteziryayo emphasises that he gave evidence that "from at least 22 June he was fully witnesses testified to gunshots fired at other meetings where Colonel Tharcisse Muvunyi ("Muvunyi") was present. See Trial Judgement, paras. 3534, 3545, 3588, 3635, 3647, 3655. 5609 See Witness FAB, T. 5 April 2004 p. 22; Witness QBY, T. 19 April 2004 pp. 52-54. 5610 Compare Witness FAB, T. 5 April 2004 pp. 24, 25 (while the bourgmestre said the new prefect would be introduced, Nteziryayo introduced himself) and Witness QBY, T. 19 April 2004 pp. 53, 54 (Muvunyi introduced the new prefect) with Witness AND-60, T. 13 March 2007 p. 10 (the bourgmestre introduced the officials). $611 The Appeals Chamber does not consider that it amounts to a similarity between the testimonies of Witnesses FAB and AND-60 since Witness FAB only stated that Nteziryayo "mentioned security measures" because they were about to win the war and did not say that the purpose of the meeting was to address them. See Witness FAB, T. 5 April 2004 pp. 28, 48, 49 and compare with Witness AND-60, T. 13 March 2007 p.

10. The Appeals Chamber also notes that Witness QBY denied that Nteziryayo talked about security. See Witness QBY, T. 20 April 2004 p. 23. 5612 Witness QBY, T. 19 April 2004 p. 54; Witness FAB, T. 5 April 2004 pp. 23-25. 5613 See supra, Section VII.C.3. 5614 Witness AND-60, T. 13 March 2007 p. 10. 5615 Nteziryayo, T. 5 June 2007 p. 26. 5616 Trial Judgement, paras. 3672, 3674. $617 Nteziryayo Appeal Brief, paras. 167(v), 196-200, 212(e), 244. See also ibid., paras. 218(vi), 232 (relating to the meeting held in Kibayi); Nteziryayo Reply Brief, para. 103. 840 Case No. ICTR-98-42-A 14 December 2015

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19524/H occupied in the exercise of his function as préfet" 5618 He contends that, in addition to his busy schedule, his testimony demonstrates that he was dedicated to assisting Tutsis and Hutus alike, rendering it unlikely that he incited the population to kill Tutsis at a meeting in Muyaga Commune during this period.$619 Nteziryayo adds that the only time he would have been able to attend a meeting in Muyaga Commune was from 28 June 1994 to 3 July 1994, but that the evidence demonstrates that there was intense fighting then and chaos as the RPF entered Butare, which undermines the position that a meeting as described by the Prosecution witnesses occurred then. $620 2421. The Prosecution, relying on the Ndindabahizi Appeal Judgement, responds that Nteziryayo improperly introduces a new alibi on appeal and contends that his arguments should be summarily dismissed.621 It submits that, even if the Appeals Chamber were to permit this alibi evidence, Nteziryayo fails to raise reasonable doubt that he was at the meeting held in Muyaga Commune around mid-June 1994.5622 2422. Nteziryayo replies that he is not barred from relying on alibi evidence that forms part of the trial record and that only through reading the Trial Judgement it became clear that he needed to emphasise the relevance of this evidence. 5623 2423. The Appeals Chamber finds that the Prosecution's reliance on the Ndindabahizi Appeal Judgement is inapposite, since Nteziryayo is not presenting alibi evidence for the first time on 5618 Nteziryayo Appeal Brief, para.

196. Specifically, Nteziryayo points to the following: (i) on 17 June 1994, he was appointed prefect; (ii) on 18 June 1994, his appointment was broadcasted and he assisted in the evacuation of approximately 400 orphans to the border of Burundi; iii) on 19 June 1994, he met the Deputy Prefect of Political and Administrative Affairs and the Deputy Prefect of Social Affairs; (iv) on 20 June 1994, his appointment as prefect was officially announced; (v) on 21 June 1994, he participated in his inauguration as prefect between approximately 11.30 a.m. and 12.00 p.m., contacted officials in the prefecture and apprised himself of the security situation; (vi) on 22 June 1994, he attended the swearing-in ceremony of Fidèle Uwizeye in Ndora Commune at 11.00 a.m. followed by the swearing-in ceremony of Ndayambaje in Muganza Commune between 2.00 and 3.00 p.m. and met with the bishop of Butare in relation to Cardinal Etchégray's visit; (vii) on 23 June 1994, his day was entirely devoted to preparation for the visit of Cardinal Etchégray; (viti) on 24 June 1994, he spent the full day with Cardinal Etchégray; (ix) on 25 June 1994 he spent the morning escorting Cardinal Etchégray to Gikongoro and the afternoon with the bishop of Butare; (x) on 26 June 1994, he met first with the bishop of Butare and also with the director of the School of Agriculture Kabutare to discuss the evacuation of 600

students displaced from Byumba; (xi) on 27 to 28 June 1994, alerted by the violence of the fighting, he ceased all other activities to implement the evacuation plan for displaced populations and populations of the city; and (xii) on 28 June 1994, he assisted the evacuation of the Kiruhura sisters to Zaire. See idem. $619 Nteziryayo Appeal Brief, para. 198. 5620 Nteziryayo Appeal Brief, para. 199 5621 Prosecution Response Brief, paras. 1531, 1532, referring to Ndindabahizi Appeal Judgement, paras. 64, 67, 69. See also ibid., para. 1533. 5622 Prosecution Response Brief, para.

1534. The Prosecution underlines that: (i) Nteziryayo's testimony about his alibi lacks credibility; (ii) the Trial Chamber found that the meeting occurred around mid-June 1994 but Nteziryayo only raises an alibi for 18, 19, and 21 to 28 June 1994; and (iii) Nteziryayo's attempt to establish an alibi for the entire period of 17 to 28 June 1994 is unsupported by the record and fails to account for his whereabouts at all relevant times. See idem. See also ibid., para. 1536; AT. 17 April 2015 p. 33. 5623 Nteziryayo Reply Brief, paras. 83, 88; Case No. ICTR-98-42-A 14 December 2015

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19523/H appeal.5624 Nteziryayo's testimony as to his whereabouts after he was appointed as prefect of Butare formed part of the record at trial. 5625 2424. The Appeals Chamber notes that the Trial Chamber summarised Nteziryayo's testimony that he did not take part in meetings in Muyaga Commune other than the one on 23 May 1994 and that he did not go to that commune at any other time between April and July 1994.5626 While the Trial Judgement does not reflect express consideration of all aspects of Nteziryayo's testimony about his whereabouts after 17 June 1994 as referred to on appeal, it does expressly refer to some of it 5627 In this context, the Appeals Chamber is not persuaded that the Trial Chamber ignored all of this evidence. It is also not persuaded that this evidence, which does not provide a comprehensive accounting of Nteziryayo's whereabouts after 17 June 1994 and is based solely on Nteziryayo's uncorroborated testimony,5628 demonstrates that no reasonable trier of fact could have determined that Nteziryayo participated in the meeting described by Witnesses QBY and FAB. 5629 2425. Furthermore, Nteziryayo's contention that it is "unlikely" that he incited the killing of Tutsis at a meeting in Muyaga Commune after he was appointed as prefect of Butare in light of his "dedication to assisting Tutsis and Hutus alike" as Butare Prefect is unpersuasive. 630 The Appeals Chamber is not convinced that this testimony renders the Trial Chamber's reliance on Witnesses QBY and FAB unreasonable in light of their direct and corroborative evidence concerning the nature of his speech at the meeting they described.

2426. Based on the above, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in failing to consider his testimony about his whereabouts from 17 June 1994 onwards. 5624 See Ndindabahizi Appeal Judgement, para.

66. See Nteziryayo, T. 7 June 2007 pp. 30-32, 46-48, 50-55, T. 11 June 2007 pp. 7, 11, 12, 15, 16, 59-62, T. 12 June 2007 pp. 15-17, 26, 27. $626 See Trial Judgement, para. 3581, referring to Nteziryayo, T. 5 June 2007 p. 33. 5627 See, e.g., Trial Judgement, paras. 4564, 4566 (22 June 1994), 4826, 4845 (18 June 1994). 5628 See Nteziryayo, T. 7 June 2007 pp. 30-32, 46-48, 50-55, T. 11 June 2007 pp. 7, 11, 12, 15, 16, 59-62, T. 12 June 2007 pp. 15-17, 26, 27. $629 The Appeals Chamber observes that Nteziryayo did not call any witnesses at trial to confirm that he could not have been present at a meeting in Muyaga Commune on or after 21 June 1994 and that he did not specifically point to the evidence now referred to on appeal as being relevant to this allegation in his closing brief or during closing arguments. See Nteziryayo Closing Brief, paras. 181-221; Nteziryayo Closing Arguments, T. 27 April 2009, T. 28 April 2009. While Nteziryayo stresses that he did not rely on evidence of his specific activities after he was appointed prefect at trial when attempting to refute his participation in the meeting at Muyaga Commune because he only became aware of the date from the Trial Judgement, the Appeals Chamber finds no merit in this position. Nteziryayo's defence at trial demonstrates that he was prepared to respond to the allegation that the meeting had taken place when he was prefect and deliberately oriented it to prove that the meeting in Muyaga Commune actually took place on 23 May 1994 when he was not prefect. In this context, he could have equally emphasised what would have prevented him from attending a meeting there after his appointment. See supra, paras. 2295-2297. $630 See Nteziryayo Appeal Brief, para. 198. 842 Case No. ICTR-98-42-A 14 December 2015

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19522/H 6. Conclusion 2427. For the foregoing reasons, the Appeals Chamber finds that Nteziryayo has failed to demonstrate that the Trial Chamber erred in finding that he incited the commission of genocide during a meeting held in Muyaga Commune around mid-June 1994 and, on this basis, in convicting him of direct and public incitement to commit genocide. Accordingly, the Appeals Chamber dismisses Ground 5 of Nteziryayo's appeal. 843 Case No. ICTR-98-42-A 14 December 2015

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19521/H D. Kibayi Commune Meeting (Ground 6) 2428. Based on the evidence of Prosecution Witnesses FAK and QBU, the Trial Chamber found that, around mid to late June 1994, Nteziryayo, in his capacity as Butare Prefect, attended a public meeting on a football pitch next to the Kibayi commune office in Nyabisigara Cellule, Mukindo Sector, at which he incited the population to "flush out and kill the remaining Tutsis survivors in the commune". 5631 2429. The Trial Chamber observed that, while Prosecution and Defence witnesses all testified to attending public meetings on a football pitch next to the Kibayi commune office,5632 Nteziryayo and the Defence witnesses were referring to a meeting which occurred on 24 May 1994, while Witnesses FAK and QBU were referring to a later meeting which must have taken place after Nteziryayo assumed office as prefect, that is after 17 June 1994 5633 The Trial Chamber determined that the similarities between the Defence and the Prosecution evidence were "fortuitous" 5634 and noted that there were "patent differences between the opposing parties' evidence", notably concerning whether Nteziryayo was prefect of Butare at the time of the meeting. 635 It concluded that the evidence led by the parties concerned two different meetings,$636 and that the evidence led by the Defence regarding a meeting that took place on 24 May 1994 was therefore

"not relevant 5637 and did not rebut the Prosecution evidence with respect to the subsequent meeting at the Kibayi commune office when Nteziryayo was prefect. 638 2430. The Trial Chamber found that Nteziryayo's speech at the Kibayi Commune meeting held around mid to late June 1994 constituted a direct appeal to kill Tutsis and convicted Nteziryayo of direct and public incitement to commit genocide on this basis. 5639 2431. Nteziryayo submits that the Trial Chamber erred in finding that, in his capacity as prefect, he incited the commission of genocide during a meeting held in Kibayi in mid to late June 1994 and, on this basis, erred in convicting him of direct and public incitement to commit genocide 5640 5631 Trial Judgement, paras. 3691, 5945, 6022. 5634 Trial Judgement, para. 3680. 5635 Trial Judgement, para. 3681. $636 Trial Judgement, para. 3682. 5637 Trial Judgement, para. 3684. 5638 Trial Judgement, para. 3685. 5639 Trial Judgement, paras. 3691, 6022-6025, 6036, 6186. The Trial Chamber concluded that there was insufficient vidence to establish that Nteziryayo's words at the meeting substantially contributed to any subsequent crime ar cordingly found that he was not criminally responsible for genocide with respect to this allegation. See ibi. Bar eziryayo Notice of Appeal, paras, 47-65; Niciryayo Appeal Brief, paras. 7, 213-239, 240, 241, 243-245, 246- 249, 253, 255-257. 844 Case No. ICTR-98-42-A 14 December 2015

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19520/H He argues that the Trial Chamber erred in determining that the Prosecution witnesses testified about a meeting other than that described by the Defence witnesses and in dismissing the Defence evidence as irrelevant. 5641 2432. The Appeals Chamber will assess these overarching challenges when addressing Nteziryayo's specific contentions that the Trial Chamber erred in: (i) failing to treat the Prosecution evidence with sufficient caution; (ii) assessing the Prosecution identification evidence; and (iii) insufficiently considering similarities and in assessing the differences between Prosecution and Defence evidence concerning the meeting. $642 1. Insufficient Caution 2433. The Trial Chamber noted that Witnesses FAK and QBU pleaded guilty to genocide in Rwanda and were detained and awaiting trial at the time of their testimonies. $643 It considered that "these witnesses may have an interest in attributing responsibility for acts they committed during the genocide as being authorised by the authorities and therefore officially sanctioned in order to potentially reduce their respective sentences" and determined that it should view their evidence "with appropriate caution."S64 In addition, it accepted that the witnesses did not attend the same Gacaca proceedings, noted that while "[they met briefly in prison" they did not "share a cell", and concluded that it was satisfied

that they "did not discuss their experiences while detained together. "5645 2434. Nteziryayo argues that, while the Trial Chamber recognised the need for caution, it failed to apply it since his conviction relies entirely on the accomplice evidence from Witnesses FAK and QBU.$646 Notably, he submits that the Trial Chamber erred in assessing whether the witnesses discussed their experiences, as it relied solely on Witness QBU's evidence to find that he and Witness FAK did not attend Gacaca sessions together when Witness FAK's evidence was to the contrary. $647 He further submits that, whether or not Witnesses FAK and QBU participated in the same Gacaca sessions, the Trial Chamber failed to consider the "substantial risk of contamination" from them participating in "open discussions" at which the objective was to discuss, inter alia, 5641 Nteziryayo Notice of Appeal, paras. 55, 59-61; Nteziryayo Appeal Brief, paras. 216, 218(v), 228-231. 5642 Nteziryayo also refers to prior arguments raised under Ground 5 of his appeal concerning the Trial Chamber's failure to consider his evidence showing that he could not have attended a meeting such as the one held in Kibayi Commune after he assumed the position as Butare Prefect on 21 June 1994. See Nteziryayo Appeal Brief, paras. 218(vi), 232; Nteziryayo Reply Brief, para.

103. For the reasons previously articulated under Section VII.C.5, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in failing to consider his testimony about his whereabouts from 21 June 1994 onwards in the Trial Judgement. $643 Trial Judgement, para. 3686. 5644 Trial Judgement, para. 3686. 5645 Trial Judgement, para. 3687. 5646 Nteziryayo Appeal Brief, paras. 213, 238, 246, 247. See also Nteziryayo Reply Brief, para. 109(a). 845 Case No. ICTR-98-42-A 14 December 2015

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19519/H events in Kibayi Commune 5648 Finally, he points to Witness FAK's concession that his prior statements did not entirely contain "true reflections" 5649 2435. The Prosecution responds that Nteziryayo does not demonstrate that the Trial Chamber exercised insufficient caution with respect to the evidence of Witnesses FAR and QBU.5650 2436. The Appeals Chamber finds no merit in Nteziryayo's general contention that the Trial Chamber failed to exercise sufficient caution simply because the finding of his criminal responsibility stemming from the Kibayi Commune meeting relies on two accomplice witnesses. $651 As to Nteziryayo's argument that the Trial Chamber erred in finding that Witnesses FAK and QBU did not discuss their experiences, the Appeals Chamber notes that Witness QBU testified that he never took part in Gacaca sessions with Witness FAK. 652 While the testimony of Witness FAK indicates that he and Witness QBU were from the same commune and that it was possible that they participated in meetings, Witness FAK does not state that he attended the same Gacaca sessions as Witness QBU or that they discussed their experiences with each other. 53 Likewise, Nteziryayo does not substantiate his contention that the Trial Chamber failed to consider the "substantial risk of contamination" from these witnesses participating in "open discussions" about the events in Kibayi Commune. Nteziryayo's arguments in this regard are therefore dismissed.

2437. The Appeals Chamber notes that, as mentioned by Nteziryayo, Witness FAK appears to have suggested that not all of his prior statements were "true reflections" 5654 However, the Appeals Chamber is not persuaded that this aspect of Witness FAK's testimony precluded a reasonable trier of fact from relying on his evidence as it concerned the Kibayi Commune meeting, as this aspect of the witness's testimony fails to demonstrate that the witness possessed any incentive to perjure himself before the Tribunal in this respect. Indeed, and of particular significance, the Trial Chamber 5647 Nteziryayo Appeal Brief, para. 236. 5648 Nteziryayo Appeal Brief, paras. 218(viii), 237, referring to Witness QBU, T. 13 April 2004 p. 34 (closed session). The Appeals Chamber observes that, while allegations of collusion as it relates to several Prosecution witnesses fell outside the scope of Nteziryayo's notice of appeal, it concluded that these particular arguments related to Witnesses FAK and OBU did not. See 8 May 2013 Appeal Decision, para.

63. However, it determined that paragraphs 249 through 252 of the Nteziryayo Appeal Brief, which, in part, raised arguments relating to Witness FAR, exceeded the scope of the appeal and would not be considered. See 12 July 2013 Appeal Decision, paras. 23-25. 5649 Nteziryayo Appeal Brief, para. 255 (emphasis omitted), referring to Witness FAK, T. 15 April 2004 p. 34. 5650 Prosecution Response Brief, paras. 1554, 1555. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 251 ("The Appeals Chamber recalls that nothing in the Statute or the Rules prevents a Trial Chamber from relying on uncorroborated evidence; it has the discretion to decide in the circumstances of each case whether corroboration is necessary and whether to rely on uncorroborated, but otherwise credible, witness testimony. This discretion applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence.") (internal references omitted). 5652 Witness QBU, T. 13 April 2004 p. 33 (closed session). 5653 Witness FAK, T. 15 April 2004 p. 45 (closed session). 5654 Witness FAK, T. 15 April 2004 p. 34 (closed session) ("Q. [...] Do you acknowledge that in none of these previous statements you had made mention of such a statement? A. I told you that I did note that there were some documents that 846 Case No. ICTR-98-42-A 14 December 2015

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19518/H expressly noted the differences between Witness FAK's prior statement and his testimony concerning the date of the meeting, but considered the difference to be minor. $655 2438. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber failed to exercise sufficient caution with respect to the evidence of Witnesses FAK and QBU.

2. Identification Evidence 2439. The Trial Chamber relied on the identification evidence of Witnesses FAK and QBU and determined that their testimonies that Nteziryayo was the prefect of Butare at the time of the Kibayi Commune meeting reflected "[Jhe most salient difference between the Prosecution and Defence evidence" 5656 The Trial Chamber noted that both Witnesses FAK and QBU knew Nteziryayo during 1994 and positively identified him in court. $657 2440. Nteziryayo contends that the Trial Chamber erred in its assessment of Witnesses FAK's and OBU's identifications of him as prefect at the time of the meeting about which they testified. $658 In this regard, he submits that the Trial Chamber: (i) erred in relying on the witnesses' in-court identification;5659 (ii) failed to consider that the description of the prefect given by Witnesses FAK and QBU most closely matched that of Nsabimana;5660 and (iii) ignored the reasonable possibility that Witnesses FAK's and QBU's error regarding the date of Nteziryayo's appointment as prefect suggested that they were not wrong about the dates but about the identity of the prefect they saw at the meeting $661 Nteziryayo argues that the Trial Chamber's error is significant given its conclusion that the identification of Nteziryayo as the prefect was the "most salient difference" between Prosecution and Defence evidence. $662 were false in

that if I did not recognise, I do recall some of them, but a few are not true reflections, but since there is nothing else I can do, I will agree with whatever conclusions are drawn from there."). 5655 Trial Judgement, para. 3690. 5656 Trial Judgement, para. 3681. 5657 Trial Judgement, para. 3681. $658 Nteziryayo Appeal Brief, paras. 218 (ii), 220, 222. See also AT. 17 April 2015 p. 17. 5659 Nteziryayo Appeal Brief, paras. 218(i), 219, 221(d), referring to Trial Judgement, para.

3681. See also Nteziryayo Reply Brief, paras. 91, 92. Nteziryayo Appeal Brief, para. 221(b). Nteziryayo argues that Witnesses FAK and QBU both described the prefect at the meeting as having sideburns, which Nsabimana had but not Nteziryayo, and that Witness FAK described the refect as beginning to bald, whereas Witness AND-11 testified that Nteziryayo had lots of hair. See idem. 661 Nteziryayo Appeal Brief, para. 221(a). See also Nteziryayo Reply Brief, para.

96. Nteziryayo emphasises thai Witness QBU testified that he had replaced Jean-Baptiste Habyalimana as prefect when Nsabimana had, and that Witnesses FAK and QBU both firmly believed that Nteziryayo was appointed prefect much earlier than he in fact was. See Nteziryayo Appeal Brief, para. 221(c); Nteziryayo Reply Brief, paras. 93, 94. 5062 Nteziryayo Appeal Brief, paras. 223, 229 (emphasis omitted). 847 Case No. ICTR-98-42-A 14 December 2015

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19517/H 2441. The Prosecution responds that the Trial Chamber held that no positive probative weight would be given to in-court identification 663 and argues that it was reasonable to determine that the meeting described by Witnesses FAK and QBU took place after Nteziryayo's 17 June 1994 appointment based on: (i) the fact that Nteziryayo identified himself as the new prefect; (ii) Witness FAK's suggestion that, although he was not sure of the date, the meeting occurred on 18 or 19 June 1994; and (iii) Witness QBU's belief that the meeting was in June. 5664 The Prosecution adds that both Prosecution witnesses had seen Nteziryayo before. 5665 2442. The Appeals Chamber observes that Witnesses FAK's and QBU's identification of Nteziryayo as the prefect at the time of the meeting was the principal basis upon which the Trial Chamber concluded that they testified about a meeting occurring after Nteziryayo's appointment as Butare Prefect on 17 June 1994.5666 In this respect, the Trial Chamber held that the Prosecution witnesses' identification of Nteziryayo as prefect could not be a case of misidentification as Witnesses FAK and QBU both "knew Nteziryayo during 1994" and positively identified him in court. 5667 2443. The Appeals Chamber finds no merit in Nteziryayo's submissions regarding the Trial Chamber's reliance on in-court identification 668 and the Prosecution witnesses'

description of the prefect they saw.669 The Appeals Chamber observes that the Trial Chamber noted in its summary of their evidence that both Witnesses FAK and QBU stated that the individual they identified as Nteziryayo introduced himself at the meeting as the prefect. 670 When discussing their identification of Nteziryayo as the prefect, the Trial Chamber also referred to their conflicting evidence as regards the date of the meeting, noting that: (i) in a prior statement, Witness FAK said the meeting occurred in May 1994; (ii) Witness FAK testified in court that "it actually took place in early June and 5663 Prosecution Response Brief, para. 1541, referring to Trial Judgement, para. 173. $664 Prosecution Response Brief, para. 1542; AT. 17 April 2015 p. 34. $665 Prosecution Response Brief, para. 1543; AT. 17 April 2015 p.

34. The Prosecution argues that Nteziryayo's attempt to impeach their evidence on the basis of their description of him neither discredits their testimonies nor establishes that the Trial Chamber's finding was unreasonable. It submits that Nteziryayo merely repeats his unsuccessful "sideburn defence" from trial and that, as the identification was not made under difficult circumstances, there was no need for the Trial Chamber to consider the issues of sideburns and receding hair. See Prosecution Response Brief, para. 1543. 5666 See Trial Judgement, para. 3681. 5667 Trial Judgement, para. 3681. $668 The Appeals Chamber recalls that any in-court identification should be assigned "little or no credence" given the signals that can identify an accused aside from prior acquaintance. See Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para.

96. See also Kunarac et al. Appeal Judgement, para.

320. In the present case, in addition to noting Witnesses FAK's and QBU's positive in-court identification, the Trial Chamber relied on the fact that they knew Nteziryayo in 1994, a conclusion that Nteziryayo did not challenge. In these circumstances, the Appeals Chamber finds no error in the Trial Chamber's reliance on the witnesses' identification of Nteziryayo in-court. 5669 Having carefully reviewed the relevant parts of their evidence, the Appeals Chamber is also not persuaded by Nteziryayo's arguments that the description of the prefect given by Witnesses FAK and QBU most closely matched that of Nsabimana and, consequently, that this part of the evidence required express consideration by the Trial Chamber. $670 Trial Judgement, paras. 3587, 3594; Witness FAK, T. 14 April 2004 p. 19, T. 15 April 2004 pp. 24, 29, 30 (closed session); Witness QBU, T. 13 April 2004 p. 9. 848 Case No. ICTR-98-42-A 14 December 2015

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19516/H estimated around 18 or 19 June 1994"; and (iri) Witness QBU testified that the meeting "occurred around the end of May or early June 1994."5671 2444. A careful review of the witnesses' testimonies indicates, as pointed out by Nteziryayo, that both Prosecution witnesses estimated that the meeting occurred "between May and June 1994" or in "late May, early June" $672 As observed by the Trial Chamber, when it was put to each Prosecution witness that the meeting to which they testified must have been in June 1994 since Nteziryayo took up duties as Butare Prefect after 21 June 1994, Witness FAK maintained that Nteziryayo was a prefect when he came in May 1994, while Witness QBU contested the validity of Nteziryayo's letter of appointment, stating that it misstated the date of appointment "as much later than the actual appointment.*$673 The Appeals Chamber also notes that Witness QBU testified that Nteziryayo replaced Jean-Baptiste Habyalimana as the prefect of Butare, 574 although there is no dispute that Habyalimana was replaced as prefect of Butare by Nsabimana around 19 April 1994, who was later replaced by Nteziryayo on 17 June 1994.5675 2445. However, the Trial Judgement reflects that the Trial Chamber fully considered these particular aspects of Witnesses FAK's and QBU's evidence.$676 Based on the unrefuted evidence that Nteziryayo was appointed prefect on 17 June 1994

and the fact that Witnesses FAK and QBU consistently asserted that Nteziryayo introduced himself as prefect at the meeting, the Trial Chamber concluded that "the meeting about which Witnesses FAK and QBU testified must have taken place after Nteziryayo assumed office as préfet" 5677 In this context, the Appeals Chamber is of the view that the Trial Chamber carefully considered the identification evidence of Witnesses FAK and QBU, including elements within their testimonies that suggest that it occurred prior-to the period when Nteziryayo was appointed as Butare Prefect, and did not ignore the possibility that Witnesses FAK and QBU may have been wrong about the identity of the prefect they saw at the meeting. The Appeals Chamber finds that Nteziryayo has not demonstrated that no reasonable trier of fact could have relied on Witnesses FAK's and QBU's identification of him as $671 Trial Judgement, para. 3675. $672 Witness FAK, T. 15 April 2004 pp. 19, 24, 27 and 28 (closed session); Witness QBU, T. 13 April 2004 pp. 8 and 56 (closed session), T. 14 April 2004 p.

3. The Appeals Chamber also notes that Witness FAK did not estimate the date to be "around 18 or 19 June 1994" as suggested by the Trial Chamber but merely stated that he could be wrong and that the date could "either bé either the 18th or 19* of June 1994" since Nteziryayo told them he was the new prefect at the time when specifically questioned about whether Nteziryayo was then the prefect. Witness FAK, T. 15 April 2004 p. 24 (closed session) ("At that time he told us that he was the new préfet. So it was not in May exactly, but between May and June. I may be mistaken, but the exact date could be either the 18th or 19th of June. That is my recollection."). 5673 Trial Judgement, para. 3676. 5674 Witness QBU, T. 13 April 2004 pp. 36, 37 (closed session). 5675 See Trial Judgement, paras. 2, 31, 45, 46. $676 See Trial Judgement, paras. 3675, 3676. $677 Trial Judgement, para. 3677. 849 Case No. ICTR-98-42-A 14 December 2015

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19515/H prefect to find that they were talking about a meeting other than the one described by the Defence witnesses.

2446. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has not demonstrated that the Trial Chamber erred in its assessment of Witnesses FAK's and QBU's identification evidence.

3. Similarities and Differences Between Prosecution and Defence Evidence 2447. In assessing the evidence relevant to a meeting in Kibayi Commune, the Trial Chamber acknowledged that Prosecution and Defence evidence shared similarities regarding: (i) the venue of the mecting; (i) the fact that the meeting took place in the morning; (ii) the presence of the Kibayi Bourgmestre; (iv) the fact that Muvunyi made a speech; and (v) the firing of gunshots as a test for the population. 678 The Trial Chamber considered, however, that the similarities were "fortuitous" 5679 2448. Nteziryayo submits that a "proper reflection of the evidence" reveals "a strong suggestion that all the Defence and Prosecution witnesses were referring to the same meeting*$680 and contends that the Trial Chamber erred in dismissing the similarities between the Prosecution and Defence evidence as fortuitous 681 In particular, he argues that "the firing of shots into the air, on the orders of Muvunyi, [...] cannot be taken to be a common feature of meetings in the area without evidence supporting that conclusion."682 Nteziryayo adds that the Trial Chamber failed to consider that Witness FAK and four Defence witnesses testified that a metaphor about dogs drinking blood was told at the meeting 5683 as well as the broadly consistent evidence on the order of the speakers. 5684 2449. Nteziryayo further contends that the Trial Chamber erroneously used Witness FAK's testimony that a series of meetings occurred to rebut Witnesses AND-11's and AND-53's testimonies that only one meeting was held in Kibayi Commune.5685 $678 Trial Judgement, para. 3680. 5679 Trial Judgement, para. 3680. 5680 Nteziryayo Appeal Brief, para.

231. See also ibid., paras. 213, 224; Nteziryayo Reply Brief, paras. 99, 100. 5681 Nteziryayo Appeal Brief, paras. 218(iv), 226(c), 227; AT. 17 April 2015 pp. 16, 17. 5682 Nteziryayo Appeal Brief, para. 226(c). 5683 Nteziryayo Appeal Brief, para. 226(a), referring to Witness FAK, Nteziryayo, Witnesses HB16, AND-53 and AND-64, Trial Judgement, paras. 3588, 3615, 3637, 3649, 3656. In his reply brief, Nteziryayo points out that the Trial Chamber merely referred to the witnesses' evidence on the metaphor of dogs drinking blood in summarising their estimonies, without any indication that this was considered in its deliberations. See Nteziryayo Reply Brief, para. 101 5684 Nteziryayo Appeal Brief, para. 226(b). Nteziryayo argues that all the witnesses were broadly consistent on the following order of speakers: (i) the Kibayi Bourgmestre; (ii) the prefect; and (iii) Muvunyi. See idem. See also Nteziryayo Reply Brief, para, 102, fn. 122, referring to Trial Judgement, paras. 3586-3588, 3594, 3597, 3679. Nteziryayo Appeal Brief, paras. 218(iii), 224, 225, referring to Trial Judgement, para. 3684; Nteziryayo Reply Brief, para. 106. 850 Case No. ICTR-98-42-A 14 December 2015

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19514/H 2450. The Prosecution responds that the Trial Chamber reasonably found that the meeting described by Witnesses FAK and QBU was different from the 24 May 1994 meeting described by the Defence witnesses, and that the Defence evidence was therefore irrelevant. $686 It submits that Nteziryayo fails to demonstrate that the Trial Chamber's assessment of the similarities between the two meetings was unreasonable.5687 In this regard, it argues that: (i) Muvunyi made a similar firearm demonstration during a meeting in Muyaga Commune on 23 May 1994;5688 (ii) the Trial Chamber did refer to the metaphor of dogs drinking blood; and (iii) the purported similarity regarding the order of speakers is irrelevant if the speakers, particularly the "préfet", are different people. 5689 2451. Finally, the Prosecution responds that the Trial Chamber properly assessed Witness FAK's testimony that other meetings occurred in Kibayi notwithstanding Defence evidence that only one meeting occurred, highlighting Nsabimana's testimony that he visited Kibayi with Nteziryayo after mid-May 1994.5690 2452. Recalling the broad discretion that trial chambers have in assessing evidence,569l the Appeals Chamber finds that Nteziryayo does not demonstrate any error in the Trial Chamber's conclusion relating to the assessment of the similarities within the evidence warranting its intervention. The Appeals

Chamber observes that the Trial Chamber considered in detail similarities about the venue and timing of the meeting and the presence of the Kibayi Bourgmestre and finds that Nteziryayo fails to show that no reasonable trier of fact could have regarded these similarities as "fortuitous" 5692 The Trial Chamber also expressly discussed that the majority of witnesses testified about Muvunyi's speech and the firing of gunshots 5693 Contrary to Nteziryayo's submissions, the record, as reflected in the Trial Judgement, reveals that the firing of gunshots while Muvunyi addressed public gatherings was not unique to a single meeting in Kibayi Commune,™ nor were Muvunyi's comments $695 In light of these factors, the Appeals Chamber 5686 Prosecution Response Brief, paras. 1542, 1547, 1550, 1551; AT. 17 April 2015 pp. 33, 34. 5687 Prosecution Response Brief, para. 1548; AT. 17 April 2015 p.

34. Prosecution Response Brief, para. 1549, referring to Trial Judgement, para. 3680, Witness AND-10, Г. 13 March 2007 pp. 8, 9, 55. 689 Prosecution Response Brief, para. 1548 $690 Prosecution Response Brief, para. 1546, referring to Trial Judgement, para. 3603, Witness FAK, T. 15 April 2004 I: 19, 24, 27, 28 (closed session), Nsabimana, T. 20 September 2006 p.

64. See, e.g., Nzabonimana Appeal Judgement, para. 45; Ndindiliyimana et al. Appeal Judgement, para. 331; Ndahimana Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 194. $692 Trial Judgement, para. 3680. $693 Trial Judgement, para. 3680. 5694 See Trial Judgement, paras. 3558, 3559, 3574 (summarising the testimonies of Witnesses QBY and Nteziryayo efence Witness AND-60 that gunshots were fired as Muvunyi spoke during public meetings in Muyaga Commune se also Witness FAB. T. 5 April 2004 p. 27 (testifving that shots were fired during a public meeting in Muvas Commune while Muvunyi spoke). 5695 Compare Trial Judgement, paras. 3558, 3567, 3574 with ibid., paras. 3588, 3597, 3680. See also Witness FAB, T. 5 April 2004 pp. 26, 27; Nteziryayo, T. 5 June 2007 pp. 18, 28. 851 Case No. ICTR-98-42-A 14 December 2015

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19513/H considers that a reasonable trier of fact could have determined that these similarities were "fortuitous".

2453. The Appeals Chamber notes that Nteziryayo correctly contends that Witness FAK, Nteziryayo, and three Defence witnesses all testified to one of the speakers at the meeting using the metaphor of dogs drinking blood 696 and that the Trial Chamber did not expressly assess this similarity. However, the Appeals Chamber finds that Nteziryayo does not demonstrate that no reasonable trier of fact could have concluded that the Prosecution and the Defence witnesses were referring to different meetings despite this evidence. Indeed, the Appeals Chamber observes that, in its summary of the witnesses' testimonies, the Trial Chamber noted that Witness FAK stated that the metaphor was used by Muvunyi, whereas Nteziryayo and Defence witnesses all testified that the metaphor was used by Ruzindaza, the President of the court of first instance. $697 In the view of the Appeals Chamber, this reveals that the Trial Chamber took note that the evidence differed as to who used the metaphor. Moreover, Nteziryayo and two Defence witnesses who testified on his behalf gave evidence that speakers employed strikingly similar metaphors during other meetings in Muyaga and Muganza communes. 698 Nteziryayo therefore does not demonstrate that this metaphor was unique to the Kibayi Commune meeting such that a reasonable trier of fact would have been compelled to find that the Defence and the Prosecution witnesses were necessarily referring to this meeting, as opposed to other meetings.

2454. Likewise, the Appeals Chamber finds that Nteziryayo does not demonstrate that no reasonable trier of fact could have concluded that the Prosecution and the Defence witnesses were referring to different mectings notwithstanding the broadly consistent evidence as to the order of speakers. 6% In this respect, the Appeals Chamber notes that the Defence evidence differed from the 5696 Witness FAK, T. 14 April 2004 p. 26; T. 15 April 1994 p. 23 (closed session); Nteziryayo, T. 5 June 2007 pp. 18, 47; Witness AND-53, T. 14 February 2007 p. 73; T. 19 February 2007 pp. 67, 68; Witness AND-64, T. 8 March 2007 35; T. 12 March 2007 p. 50; Witness H1B6, T. 5 December 2005 p.

20. See Trial Judgement, paras. 3588 (Witness FAK), 3615 (Nteziryayo), 3637 (Witness AND-53), 3649 (Witness AND-64), 3656 (Witness H1B6). $698 See Trial Judgement, paras. 3548, 3575, 3579, referring to Witness AND-29, T. 19 February 2007 pp. 67, 68, Witness AND-60. T. 13 March 2007 p. 9, Nteziryayo, T. 5 June 2007 p.

27. See also Nteziryayo, T. 5 June 2007 pp. 17, 18, 27, 28 (describing Muvunyi as stating during a meeting at Ntyazo Commune that "when you are afraid to spill your blood for your nation then note that the dogs are going to drink of this blood for nothing" and further testifying that the speakers at the Muyaga Commune meeting "talked on the same subject on which they talked at Ntyazo"). With the exception of Nsabimana and Witness AND-64, all the witnesses testified that the Kibayi Bourgmestre spoke first. followed by the prefect, whose identity is disputed. Five of the eight witnesses testified that Muvunyi was next to speak. See Witness FAK, T. 14 April 2004 pp. 14 (closed session), 19-22, 24-26, 33-35, T. 15 April 2004 P. 23 April 20, 4. (Cl S0d sayon T. May May PP3 P: 39 10 74 sune sune p. 2873 closed seon): T. 14 April 2004 p. 7; Nteziryayo, T. 1 February 2007 pp. 17, 19, 23, 28-30, 35, 41, 42 (closed session), T. 5 February 2007 pp. 53-55, T. 7 February 2007 pp. 11, 29, 39, 40, 44 (closed session); Witness AND-53, T. 14 February 2007 pp. 62, 69-72, T. 15 February 2007 pp. 8, 52-54, 59, 72, T. 19 February 2007 pp. 7, 8; Witness AND-64, T. 8 March 2007 pp. 28-35, T. 12 March 2007 pp. 12, 15-17, 19, 49; Witness H1B6, T. 5 December 2005 pp. 15 (closed session) and 18-21, T. 6 December 2005 p.

15. See also Trial Judgement, paras. 3587, 3588 (Witness FAK), 3594, 3597 (Witness QBU), 3608 (Nteziryayo), 3622- Case No. ICTR-98-42-A 14 December 2015

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19512/H Prosecution evidence as only Defence witnesses indicated that Nsabimana chaired the meeting in his capacity as Prefect and that Nteziryayo attended in his capacity as a colonel. 5700 2455. However, the Appeals Chamber finds that the Trial Chamber erred in finding that Witness FAK's evidence that several meetings occurred in Kibayi Commune was inconsistent with Defence evidence that only one public meeting was held 5701 The Trial Chamber failed to recognise that Witness FAK's evidence of "a series of meetings" held at the Kibayi commune office between April and July 1994, "only one of which Witness FAK attended since the others were only for authorities, and not the general population"5702 was consistent with the Defence evidence that the 24 May 1994 meeting was the only public meeting that took place in Kibayi Commune at the time. 5703 The Appeals Chamber is nonetheless not convinced that this error occasioned a miscarriage of justice in light of the Trial Chamber's proper assessment of the limited significance of the similarities between the Prosecution and the Defence evidence and Nsabimana's testimony, as noted by the Trial Chamber, that he attended a meeting in Kibayi Commune another time together with Nteziryayo.5704 2456. Based on the foregoing, the Appeals Chamber finds that Nteziryayo has failed to demonstrate that no reasonable trier of fact could have concluded that Prosecution and Defence witnesses were testifying about two different meetings and that, consequently, the Defence evidence was not relevant to and did not rebut the Prosecution case.

4. Conclusion 2457. For the foregoing reasons, the Appeals Chamber finds that Nteziryayo has failed to demonstrate that the Trial Chamber erred in finding that he incited the commission of genocide 3624 (Witness AND-11), 3632-3635 (Witness AND-53), 3645-3649 (Witness AND-64), 3653, 3657 (Witness H1B6). The Trial Chamber noted that Witness AND-64 testified that the bourgmestre spoke second and the prefect spoke third, while Nsabimana testified that the prefect spoke first and did not refer to the bourgmestre speaking at all. It also noted that Witnesses AND-64 and H1B6 testified that Muvunyi spoke fourth, while Nsabimana did not testify that Muvunyi spoke. See Trial Judgement, paras. 3604, 3645-3647, 3655. 5700 See Trial Judgement, para. 3679. 5701 See Trial Judgement, para. 3684. 5702 Trial Judgement, para. 3684 (emphasis added). See also ibid., para. 3583; Witness FAK, T. 14 April 2004 p. 66 "These were meetings that brought together authorities. Members of the population were not allowed to attend.") $703 See Trial Judgement, para.

3684. The Appeals Chamber notes that, contrary to the Prosecution's submission. Witness FAK's testimony was not speculative, but affirmative. See Witness FAK, T. 14 April 2004 p.

66. The Prosecution's argument that "[a]lternatively, if a 24 May meeting occurred, FAK may not have known about it or he may have believed that it was one of those not open to the public" is purely speculative and not substantiated by the witness's testimony. See Prosecution Response Brief, para. 1546. 5704 Trial Judgement, para. 3684, referring to Nsabimana, T. 20 September 2006 p.

64. The Appeals Chamber notes that the reference to "Kabgaye" and not "Kibayi" in the English transcripts of Nsabimana's testimony referred to by the Trial Chamber is erroneous. A review of the original audio-recording of Nsabimana's testimony reveals that he referred to "Kibayi" as noted by the Trial Chamber in paragraph 3684 of the Trial Judgement and not "Kabgaye". See audio-recording of Nsabimana's testimony of 20 September 2006, at 01:59:07-02:01:00. See also Nsabimana, T. 20 September 2006 pp. 68, 69 (French). 853 Case No. ICTR-98-42-A 14 December 2015

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19511/H during a meeting held in Kibayi Commune around mid to late June 1994 and, on this basis, in convicting him of direct and public incitement to commit genocide. Accordingly, the Appeals Chamber dismisses Ground 6 of Nteziryayo's appeal. Case No. ICTR-98-42-A 854 14 December 2015

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19510/H E. Prejudicial Assessment of Evidence (Grounds 7 and 8) 2458. Nteziryayo submits that the Trial Chamber erred in applying different standards in assessing Prosecution and Defence evidence, which, in his view, invalidates all of his convictions. In support of this claim, he reiterates his contentions that the Trial Chamber erred in discrediting the Defence evidence regarding Ndayambaje's Swearing-In Ceremony. 10 He further contends that the Trial Chamber did not discredit the Defence evidence concerning the meetings held in Muyaga and Kibayi Communes but erreoneously determined that it was not relevant and further erred by failing to consider Defence evidence regarding his movements from 21 June 1994 onwards.5707 Nteziryayo also argues that the Trial Chamber failed to properly assess the credibility of ten Prosecution witnesses who were accomplices or had been arrested for their participation in the genocide, and many of whom remained detained together and were awaiting sentencing at the time of their testimony.5708 He contends that the Prosecution exploited the circumstances surrounding these witnesses, which facilitated "a deliberate, calculated and Machiavellian scheme" to obtain evidence to inculpate him, and that the Trial Chamber erred in failing to acknowledge this "plain reality" 5709 2459. The Prosecution responds that Nteziryayo does not substantiate his claim

that the Trial Chamber erred in applying different standards when assessing Prosecution and Defence evidence. 5710 It contends that the argument that there was a scheme to obtain inculpatory evidence is unsupported. 5711 2460. The Appeals Chamber has previously dismissed Nteziryayo's contentions that the Trial Chamber employed differing and prejudicial standards when assessing Defence evidence in relation to Ndayambaje's Swearing-In Ceremony.5712 It has further concluded that the Trial Chamber did not err in its assessment of the evidence about the meetings in Muyaga and Kibayi Communes, 5705 Nteziryayo Notice of Appeal, paras. 59-61; Nteziryayo Appeal Brief, paras. 241, 245. See also Nteziryayo Reply Brief, paras. 106, 107. 5706 Nteziryayo Appeal Brief, paras. 242, 245. 5707 Nteziryayo Appeal Brief, paras. 243-245. 5708 Nteziryayo Notice of Appeal, paras. 63, 65; Nteziryayo Appeal Brief, paras. 246-248, 253. In this regard, Nteziryayo posits that "[njo legitimate explanation" was advanced for the inordinate delay between the arrest in Rwanda and sentencing of several of the witnesses who testified against him before the Tribunal. See Nteziryayo Appeal Brief, para.

253. See also Nteziryayo Reply Brief, para.

109. The Appeals Chamber recalls that, on 12 July 2013, it clarified that the arguments developed in paragraphs 249 through 252 of the Nteziryayo Appeal Brief Nteziryayo Appeal Brief, para.

257. See also ibid., paras. 253-256. 5710 Prosecution Response Brief, para. 1557. 5711 Prosecution Response Brief, paras. 1558-1564. See also AT. 17 April 2015 pp. 27, 30, 31. 5712 See supra, Section VII.B.2. 855 Case No. ICTR-98-42-A 14 December 2015

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19509/H including evidence concerning Nteziryayo's movements from 21 June 1994 onwards.5713 Nteziryayo's general contention that the Trial Chamber applied differing and prejudicial standards in assessing the Defence evidence is unsubstantiated and, as a result, is rejected without further consideration.

2461. Turning to the Trial Chamber's alleged failure to exercise sufficient caution with respect to the Prosecution evidence, the Appeals Chamber recalls that it has considered and rejected Nteziryayo's arguments that the Trial Chamber failed to exercise sufficient caution in light of the specific circumstances relating to the testimonies of the ten witnesses with which Nteziryayo takes issue.5714 The Appeals Chamber is not persuaded that the fact that ten out of the 12 Prosecution witnesses relied upon by the Trial Chamber had been charged in Rwanda for genocide-related crimes demonstrates the existence of a "scheme" to obtain evidence to inculpate Nteziryayo or any resulting error on the part of the Trial Chamber in failing to recognise this.

2462. Based on the foregoing, the Appeals Chamber dismisses Grounds 7 and 8 of Nteziryayo's appeal. 5713 See supra, Sections VII.C, VII.D. 5714 See supra, Sections VII.B.1(b) (addressing the circumstances of the testimonies of Witnesses RV, QAF, FAG FAU, FAL, and TO), VII.C.1 (addressing the circumstances of the testimonies of Witnesses QBY and FAB), VII.D.1 (addressing the circumstances of the testimonies of Witnesses FAK and QBU). 856 Case No. ICTR-98-42-A 14 December 2015

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19508/H VIII. APPEAL OF JOSEPH KANYABASHI 2463. The Trial Chamber found Kanyabashi guilty of genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a superior pursuant to Article 6(3) of the Statute for failing to prevent and punish the killings of Tutsis committed by members of the Ngoma commune police at Kabakobwa Hill on 22 April 1994 and those perpetrated by soldiers at Matyazo Clinic in late April 19945715 The Trial Chamber also found Kanyabashi guilty of committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute based on two megaphone announcements he made in Butare Town in May and June 1994.5716 2464. Kanyabashi raises challenges related to the Trial Chamber's denial of his applications to vary his witness list and reopen his case and related to his indictment. He also contends that the Trial Chamber erred in its assessment of the evidence and his responsibility in relation to the killings committed at Kabakobwa Hill and Matyazo Clinic as well as with respect to his incitement by megaphone in May and June 1994. 15 Trial Judgement, paras. 5809, 5826, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174, 6186. Judge Ramarosc issented with respect to the Trial Chamber's conclusions regarding Matyazo Clini Trial Judgement, paras. 6009-6013, 6037, 6186. 857 Case No. ICTR-98-42-A 14 December 2015 841

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19507/H A. Variation of Witness List and Reopening of Case (Grounds 1.7, 3.9, and 3.10) 2465. During the course of the trial, Kanyabashi submitted a number of motions requesting leave to vary his witness list and the reopening of his Defence case. In particular, during the presentation of his defence in December 2007, Kanyabashi requested leave to vary his witness list to remove or replace 12 witnesses and call 12 new witnesses to testify on a number of allegations, including regarding the killings committed at Kabakobwa Hill and the acts of incitement to commit genocide by megaphone.5717 The Trial Chamber partly dismissed his request on 15 February 2008.5718 In June 2008, Kanyabashi requested the reopening of his case to call Witness D-2-23-C, which was denied by the Trial Chamber on 2 July 2008.5719 Likewise, on 19 January 2009, the Trial Chamber denied Kanyabashi's request for reconsideration of the decision denying his request to reopen his case to call Witness D-2-23-C and his additional request to reopen his case to allow Witness D-11-AB to testify.5720 2466. Kanyabashi submits that the Trial Chamber erred in its decisions of 15 February 2008, 2 July 2008, and 19 January 2009 by not allowing him to vary his witness list as requested or to reopen his case to hear the proposed witnesses concerning the Kabakobwa Hill killings and the megaphone announcements.

2467. Before turning to Kanyabashi's specific challenges against the above-mentioned decisions, the Appeals Chamber reiterates that, like all decisions relating to the conduct of proceedings, decisions on requests for leave to vary a party's witness list or to reopen a case to allow for the admission of new evidence are among the discretionary decisions of a trial chamber to which the 5717 The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-97-15-T, Motion to Vary the List of Joseph Kanyabashi Defence Witnesses Pursuant to Rule 73ter, 11 December 2007 (originally filed in French, English translation filed on 21 January 2008) (confidential) ("Kanyabashi 11 December 2007 Motion"). 5718 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motion to Vary His List of Witnesses Pursuant to Rule 73ter, 15 February 2008 ("15 February 2008 Decision"). In particular, the Trial Chamber granted Kanyabashi's requests to remove 10 witnesses from his witness list, to substitute one witness, and to call six witnesses to testify about specific elements of his case. The Trial Chamber dismissed the remainder of Kanyabashi's motion, denying his requests for the substitution of Witness D-8-N with Witness D-9-GG and of Witness D-2-13-K with Witness D-2-19-F. It further denied his requests to call Witnesses D-2-10-Y and D-2-16-L to testify about certain

additional elements and to add Witnesses D-2-15-V, D-2-17-K, and D-2-17-M to his witness list. See ibid., paras. 39, 44, 51, 54, 56, 58, pp. 17, 18. See The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-97-15-T, Requête de Joseph Kanyabashi en réouverture de sa défense aux fins d'inclure D-2-23-C à sa liste de témoins et produire le dossier Gacaca du témoin à charge QA, 2 June 2008 (confidential) ("Kanyabashi 2 June 2008 Motion"); 2 July 2008 Decision. 5720 The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-97-15-T, Requête de Joseph Kanyabashi en reconsidération de la Décision du 2 juillet 2008 et demandant que D-2-23-C et D-11-AB soient entendus, 18 November 2008 (confidential) ("Kanyabashi 18 November 2008 Motion"); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motions for Reconsideration of the 2 July 2008 Decision, Requesting that Witnesses D-2-23-C and D-11-AB Be Called to Testify, and for Special Protective Measures for Witnesses D-2-23-C and D-11-AB, 19 January 2009 ("19 January 2009 Decision"). Case No. ICTR-98-42-A 14 December 2015

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19506/H Appeals Chamber must accord deference 721 In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party, 5722 1. 15 February 2008 Decision 2468. On 11 December 2007, Kanyabashi moved the Trial Chamber for leave to replace or remove 12 witnesses on his witness list and call 12 new witnesses pursuant to Rule 73ter(E) of the Rules.5723 The Trial Chamber considered that Kanyabashi's motion sought a "massive" variation of his witness list at a very advanced stage of the proceedings and that there was no adequate explanation for this belated request. 72* It held that, at this stage of the proceedings, a variation may only be justified if good cause was shown and if there was no material prejudice to the other parties. 25 It also recalled its prior finding that calling numerous witnesses to testify on the same allegations was unnecessary. 5726 The Trial Chamber partly dismissed Kanyabashi's motion.5727 2469. Kanyabashi submits that the Trial Chamber erred in its 15 February 2008 Decision by denying his requests to: (i) substitute Witness D-2-13-K with Witness D-2-19-F and to add Witness D-2-15-V to testify on incidents at Kabakobwa Hill; and (ii) add Witnesses D-9-GG, . D-2-17-K, and D-2-17-M to testify in relation to the allegations of incitement by megaphone and

by limiting the scope of Witnesses D-2-17-A's and D-2-17-I's testimonies in this respect. 728 The Appeals Chamber will consider these contentions in turn. (a) Variation of the Witness List in Relation to Kabakobwa Hill 2470. The Trial Chamber denied Kanyabashi's requests to substitute Witness D-2-13-K with Witness D-2-19-F to testify about the Kabakobwa Hill events and to add Witness D-2-15-V to his witness list to testify about the alleged role played by the Interahamwe in Butare Town and the 5721 See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.6, Decision on Ivan Cermak and Mladen Markac Interlocutory Appeals Against Trial Chamber's Decision to Reopen the Prosecution Case, 1 July 2010 ("Gotovina et al. 1 July 2010 Appeal Decision"), para. 5; 21 August 2007 Appeal Decision, para. 10; Milutinovié et al. Appeal Decision, Bar See, c.g., Nizeyimana Appeal Judgement, para, 286; Sninevié et al, Appeal Judgement, para. 29; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19. 5723 Kanyabashi 11 December 2007 Motion, para. 5, p. 12. 5724 15 February 2008 Decision, paras. 33, 34. The Trial Chamber noted that the first Defence case started on 31 January 2005 and that the motion was filed four months after Kanyabashi's defence started. See idem. 5725 15 February 2008 Decision, para. 34. 5726 15 February 2008 Decision, para. 35, referring to The

Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Joseph Kanyabashi's Motions for Modification of His Witness List, the Defence Responses to the Scheduling Order of 13 December 2006 and Ndayambaje's Request for Extension of Time Within Which to Respond to the Scheduling Order of 13 December 2006, 21 March 2007 ("21 March 2007 Decision"), para. 35, fn. 28. 5727 15 February 2008 Decision, pp. 17, 18. See supra, fn. 5718. 5728 Kanyabashi Notice of Appeal, sub-paras. 1.7.1, 1.7.1.1-1.7.1.4, 3.10.1, 3.10.1.1-3.10.1.3; Kanyabashi Appeal Brief, paras. 137-139, 340-357. See also Kanyabashi Reply Brief, paras. 134-142. 859 Case No. ICTR-98-42-A 14 December 2015

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19505/H alleged threats against him. 729 With regard to Witness D-2-19-F, the Trial Chamber noted that Witness D-2-13-K appeared to be willing to testify and that Kanyabashi had not explained why he requested the substitution at such a late stage of the proceedings and that it had "already heard evidence on the elements listed in D-2-19-F's will-say."5730 It concluded that Kanyabashi had not shown good cause for the substitution of Witness D-2-13-K with Witness D-2-19-F at this stage of the proceedings 5731 Similarly, the Trial Chamber denied the addition of Witness D-2-15-V on the ground that it had already heard evidence on the elements listed in the witness's will-say statement. 5732 2471. Kanyabashi submits that the Trial Chamber erred in denying his requests to substitute Witness D-2-13-K with Witness D-2-19-F and to add Witness D-2-15-V to his witness list. 733 He contends that Witnesses D-2-19-F and D-2-15-V would have provided evidence relevant to the accounts of Prosecution Witnesses QCB and FAM regarding his presence at Rango Market and the presence of policemen at Kabakobwa Hill, and that the Trial Chamber's refusal to grant leave to hear their evidence was an abuse of its discretionary powers and limited his right to a full answer in defence.5734 According to Kanyabashi, the prejudice to the parties that would have resulted from granting leave to call these

witnesses "was difficult to see" as he had already tried to add these two witnesses prior to the start of his case, the parties were informed of their will-say statements, and the Prosecution did not object.5735 Kanyabashi adds that the requested substitution complied with the limit of 30 witnesses imposed by the Trial Chamber, and would not have prolonged the proceedings or prejudiced the other parties 736 Kanyabashi argues that Witnesses D-2-19-F and D-2-15-V were material witnesses who were in a position to testify to a wide range of events and whose testimonies could have had a decisive effect on the Trial Chamber's guilty verdict.5737 2472. The Prosecution responds that Kanyabashi does not demonstrate how Witnesses D-2-19-F and D-2-15-V were an essential component of his defence or provide supporting arguments as to how they could have provided any more relevant evidence on Rango Market and the presence of policemen at Kabakobwa Hill than the witnesses who were called. 5738 The Prosecution adds that nothing indicates that the testimony of these two witnesses could have had any impact on the 5729 15 February 2008 Decision, paras. 43, 44, 56, pp. 17, 18. 5730 15 February 2008 Decision, para. 43, fn. 35. 5731 15 February 2008 Decision, para. 44. 5732 15 February 2008 Decision, paras. 55, 56, fn. 38. 5733 Kanyabashi Notice of Appeal, sub-paras. 1.7.1-1.7.1.4; Kanyabashi Appeal Brief, paras. 137-139. 5734 Kanyabashi Notice of Appeal, sub-paras. 1.7.1.2, 1.7.1.4; Kanyabashi Appeal Brief, paras. 137-139. 5735 Kanyabashi Notice of Appeal, sub-para. 1.7.1; Kanyabashi Appeal Brief, para.

138. Kanyabashi submits that only Ntahobali and Nyiramasuhuko objected, pointing out that they were not charged in relation to crimes committed at Kabakobwa Hill. See Kanyabashi Appeal Brief, para. 138. 5736 Kanyabashi Appeal Brief, para. 138. 5737 Kanyabashi Notice of Appeal, sub-paras. 1.7.1.1-1.7.1.4. 5738 Prosecution Response Brief, paras. 1731-1733. 860 Case No. ICTR-98-42-A 14 December 2015

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19504/H verdict as Witness D-2-19-F could only testify to what he heard other people say at Gacaca sessions and Witness D-2-15-V could only give cumulative evidence. 5739 2473. The Appeals Chamber observes that the Trial Chamber did not deny Kanyabashi's request to call Witnesses D-2-19-F and D-2-15-V because their expected evidence was not relevant or because of the prejudice their addition to the witness list would have caused to the other parties. Rather, it primarily relied on the fact that it had already heard evidence on the issues about which the two witnesses were expected to testify.740 Kanyabashi's arguments fail to address the primary reason for which his request was denied. The Appeals Chamber stresses that a trial chamber's decision that the accused's case does not necessitate calling numerous witnesses to testify to the same factual allegations is well within the trial chamber's exercise of its discretion in the management of the trial proceedings 574} Because Kanyabashi has not demonstrated that the Trial Chamber erred in finding that the evidence would have been repetitive of evidence already heard, the Appeals Chamber dismisses Kanyabashi's submissions regarding the variation of his witness list in relation to Kabakobwa Hill. (b) Variation of the Witness List in Relation to the Incitement by Megaphone 2474. The Trial Chamber denied Kanyabashi's requests to

substitute Witness D-8-N with Witness D-9-GG and to add Witnesses D-2-17-K and D-2-17-M.542 The Trial Chamber granted the request to drop Witness D-8-N, who refused to testify, but denied the request to substitute Witness D-9-GG in his place, 5743 noting that it had already heard evidence and was expected to hear further evidence on some of the elements listed in Witness D-9-GG's will-say statement, including on the megaphone incidents.744 The Trial Chamber found that it would not be in the interests of justice to hear another witness on these elements.45 Similarly, it denied the addition of Witnesses D-2-17-K and D-2-17-M on the grounds that it had already heard several witnesses on the elements listed in their will-say statements $746 5739 Prosecution Response Brief, paras. 1732, 1734. $740 See supra, para. 2470. 5741 See 21 August 2007 Appeal Decision, para.

16. See also Prosecutor v. Jadranko Prlic et al., Case No. IT-04-74- AR73.7, Decision on Defendant's Appeal Against "Décision portant attribution du temps à la Défense pour la presentation des moyens à décharge", 1 July 2008, para. 25. 15 February 2008 Decision, paras. 39, 58, pp. 17, 18. 5743 15 February 2008 Decision, paras. 37, 39, 69, pp. 17, 18. 5744 15 February 2008 Decision, para. 38, fn. 34. 5745 15 February 2008 Decision, para, 38. The Trial Chamber was also not convinced that Kanyabashi had demonstrated that the new elements in Witness D-9-GG's expected testimony "may be essential to Kanyabashi's case" and considered that the introduction of these elements at that stage of the trial was belated and may be prejudicial to the other parties. See ibid., para. 39. 5746 15 February 2008 Decision, paras. 57, 58. 861 Case No. ICTR-98-42-A 14 December 2015

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19503/H 2475. Furthermore, the Trial Chamber granted Kanyabashi's request to call Witnesses D-2-17-A and D-2-17-I but limited the scope of their testimonies to specific issues of fact, denying Kanyabashi's request to call them to testify on the megaphone incidents, for instance.147 The Trial Chamber reasoned that it had already heard several witnesses on the elements on which Kanyabashi would not be authorised to question these witnesses, and that it was not in the interests of justice to hear other witnesses on these elements. 748 2476. Kanyabashi submits that the Trial Chamber erred in dismissing his requests to call Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-1 to testify on the megaphone incidents on the grounds of prejudice and the interests of justice.149 He points out that the Prosecution did not oppose the requests and contends that there was no prejudice to the other parties resulting from the belated nature of the motion as they had already received all necessary information regarding four of these witnesses. Kanyabashi further contends that it was not demonstrated that the requested variation in his witness list would have generated delays that would have caused prejudice.5751 2477. In addition, Kanyabashi submits that the principle of equality of arms was undermined as the Trial Chamber applied different standards to the Prosecution 5752 He emphasises

that the Trial Chamber allowed the Prosecution to vary its witness list until three weeks before the close of its case and argues that, had the Trial Chamber applied "the best evidence" standard that it applied in authorising the addition of Prosecution witnesses, it would have agreed to hear Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-1 on the megaphone incidents.5753 Emphasising that the Prosecution presented several witnesses for the same incidents, he adds that the repetitive nature of the evidence does not seem to have always been a decisive factor for the Trial Chamber.5754 2478. Kanyabashi further submits that, by relying on the fact that a number of witnesses had "already testified on the megaphone incident", the Trial Chamber erred in failing to consider that his right to a full defence implied that he could defend himself specifically against each of the incidents of incitement by megaphone recounted by Witnesses QJ, TK, and QI by calling witnesses 5747 15 February 2008 Decision, paras. 59-64, 69, pp. 17, 18. 5748 15 February 2008 Decision, paras. 60, 63. 5749 Kanyabashi Notice of Appeal, sub-paras. 3.10.1, 3.10.1.1, 3.10.1.2; Kanyabashi Appeal Brief, paras. 340-349. 5750 Kanyabashi Appeal Brief, paras. 343, 344. See also ibid., fns. 1093, 1094; Kanyabashi Reply Brief, para.

135. Kanyabashi asserts that, had it not been for the joint trials, there would have been no opposition to hearing the evidence regarding the allegations of incitement over the megaphone. See Kanyabashi Appeal Brief, para.

343. Kanyabashi Notice of Appeal, sub-para. 3.10.1; Kanyabashi Appeal Brief, para.

345. Kanyabashi emphasises that he requested substitution, not addition of witnesses, and argues that it would have been necessary to take into account delays attributable to the other parties or to the Trial Chamber. See Kanyabashi Appeal Brief, para. 345; Kanyabashi Reply Brief, para, 134. Kanyabashi Appeal Brief, para. 346. 5753 Kanyabashi Appeal Brief, paras. 346-348. 862 Case No. ICTR-98-42-A 14 December 2015

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19502/H who were at the same locations and dates and, as a result, were in a position to provide unique evidence.5755 In Kanyabashi's view, the Trial Chamber's refusal to hear the material evidence of Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-1 on the factual allegations regarding the megaphone incidents constituted an error which caused him serious prejudice.5756 2479. The Prosecution responds that Kanyabashi fails to demonstrate that the Trial Chamber abused its discretion in denying his request to call Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-I or that this ruling had any impact on the final verdict. 757 In particular, it submits that the will-say statements of Witnesses D-9-GG, D-2-17-K, and D-2-17-M do not demonstrate that their testimonies were material to Kanyabashi's defence. 5758 It also highlights that Witness D-2-17-I ultimately testified on all elements relevant to impeaching Prosecution Witness TK about the megaphone announcement she heard,5759 and that Kanyabashi ultimately chose not to call Witness D-2-17-A to testify 5760 2480. The Appeals Chamber observes that, contrary to Kanyabashi's contention, the Trial Chamber did not rely on prejudice to dismiss his request to call Witnesses D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-I to testify on the megaphone incidents. It instead relied on the fact that it had already heard evidence on the elements on which these witnesses were expected to testify.5761 Kanyabashi's argument regarding prejudice therefore lacks merit.

2481. The Appeals Chamber considers that Kanyabashi's argument concerning a violation of the principle of equality of arms is similarly ill-founded. Notably, Kanyabashi did not argue in his motion at trial that the evidence of Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-I was the "best available evidence" on the issue of the megaphone incidents 5162 More importantly, a review of the decisions on the variation of the Prosecution's witness list pointed out by Kanyabashi reflects that the Trial Chamber applied a similar standard to that applied in the 15 February 2008 Decision. Although the Trial Chamber did not use the terminology "best available evidence" in the impugned decision, a careful reading of the decision reveals that, as done in relation to the Prosecution's requests to vary its witness list, the Trial Chamber examined 5754 Kanyabashi Appeal Brief, para.

348. Kanyabashi Notice of Appeal, sub-para. 3.10.1.2; Kanyabashi Appeal Brief, paras. 353, 355, 357. See also Kanyabashi Reply Brief, paras. 136-140. Kanyabashi Notice of Appeal, sub-paras. 3.10-3.10.1.3; Kanyabashi Appeal Brief, paras. 354-357. See also Kanyabashi Reply Brief, paras. 138, 140. 5757 Prosecution Response Brief, para. 1960. 5758 Prosecution Response Brief, paras. 1965, 1967. 5759 Prosecution Response Brief, para. 1962, referring to Witness D-2-17-I, T. 27 March 2008 p. 14 (closed session). 5760 Prosecution Response Brief, para.

1964. See also AT. 20 April 2015 pp. 43, 44. $761 15 February 2008 Decision, paras. 38, 57, 60, 63. 5762 See Kanyabashi 11 December 2007 Motion. 863 Case No. ICTR-98-42-A 14 December 2015

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19501/H whether the addition of witnesses was in the interests of justice in light of the evidence already heard and the evidence it was scheduled to hear. 5763 2482. In this respect, the Appeals Chamber notes that Kanyabashi points to specific aspects of the anticipated evidence of Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-I that allegedly distinguish their evidence from the evidence already heard or expected to be heard on the megaphone incidents. Having reviewed Kanyabashi's submissions at trial, the relevant witnesses' written and will-say statements 764 as well as the testimonial evidence already heard and referred to by the Trial Chamber,76S and recalling the discretion accorded to trial chambers in relation to the variation of a party's witness list, the Appeals Chamber finds that Kanyabashi does not demonstrate that the Trial Chamber abused its discretion in concluding that the proposed evidence of Witnesses D-9-GG, D-2-17-K, D-2-17-M, and D-2-17-1 on the megaphone announcements would have been repetitive. The written and will-say statements of these witnesses do not indicate that the witnesses were in the position to provide unique evidence in this regard. 5766 2483. By contrast, the written and will-say statements of Witness D-2-17-A reflect that the witness was hiding at the same place as Prosecution Witness QI,5761 a witness the Trial Chamber relied

on to find that Kanyabashi made megaphone announcements in June 1994.5768 As such, Witness D-2-17-A appears to have been in a position to provide evidence relevant to the credibility of Witness QI's account, which had not been provided yet. This, however, was acknowledged by the Trial Chamber, which granted leave to Kanyabashi to call Witness D-2-17-A to contradict Witness QI about where he was hiding during the relevant events.5769 Kanyabashi does not demonstrate that the scope of Witness D-2-17-A's recall testimony as authorised by the Trial Chamber deprived him of a reasonable opportunity to refute the allegations made by Witness QI regarding the megaphone announcements, an opportunity that Kanyabashi could not avail himself of due to his inability "to get this witness to testify" $770 $763 Compare 15 February 2008 Decision, paras. 38, 57, 60, 63 with 30 March 2004 Decision, paras. 28, 29, 32, 33, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Prosecutor's Motion to Add and Transfer Detained Witness QBX, 12 November 2001, paras. 11, 13, 14, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecutor's Motions for Leave to Call Additional Witnesses and for the Transfer of Detained Witnesses, 24 July 2001, paras. 11, 13. See Kanyabashi 11 December 2007 Motion, Annex I; The Prosecutor v. Joseph

Kanyabashi, Case No. ICTR-96-15-T, Pre-Defence Brief, 11 January 2005 (originally filed in French, English translation filed on 4 February 2005), Witnesses D-2-14-V and D-13-D, pp. 39, 50. 5765 See 15 February 2008 Decision, fns. 34, 40, 43, 44. 5766 See Kanyabashi 11 December 2007 Motion, Annex I, pp. 33-56, 66-68. 5767 See Kanyabashi 11 December 2007 Motion, Annex I, pp. 25-32. 5768 Trial Judgement, paras. 3815-3826, 6009-6013, 6037. $769 15 February 2008 Decision, paras. 62, 64, pp. 17, 18. $770 See T. 19 June 2008 p. 40 (closed session). Contrary to Kanyabashi's claim that he did not ultimately call Witness D-2-17-A to testify because it was useless to call him on subsidiary matters, the record shows that Kanyabashi 864 Case No. ICTR-98-42-A 14 December 2015

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19500/H 2484. Based on the foregoing, the Appeals Chamber finds that Kanyabashi has failed to demonstrate that the Trial Chamber committed a discernible error in the exercise of its discretion in dismissing Kanyabashi's requests to call Witnesses D-9-GG, D-2-17-K, D-2-17-M, D-2-17-A, and D-2-17-I to testify on the megaphone incidents in its 15 February 2008 Decision. 5771 2. 2 July 2008 Decision 2485. On 20 May 2008, the Trial Chamber declared Kanyabashi's defence case closed but for the testimony of Witnesses D-2-17-A and D-2-21-T.5772 On 2 June 2008, Kanyabashi requested the Trial Chamber to reopen his case to add Witness D-2-23-C to his witness list to testify on, inter alia, the allegations of his presence at Rango Market and the fabrication of evidence against him. $773 The Trial Chamber denied Kanyabashi's request on 2 July 2008 on the ground that Kanyabashi "failed to exercise due diligence in obtaining the evidence in a timely manner and that the probative value of the evidence [did] not outweigh the prejudice caused by delaying the fair and expeditious conduct of the proceedings. "774 2486. In particular, the Trial Chamber found that: (i) Kanyabashi had failed to provide reasons for having identified Witness D-2-23-C at such a late stage of the trial; (ii) the reluctance of the witness to testify during the presentation of Kanyabashi's case did not in itself justify

the reopening of the case; and (iii) Kanyabashi had "sufficient opportunities to review [his] case in [his] many requests to vary [his] witness list since the filing of [his] Pre-Defence Brief.»5775 The Trial Chamber also considered that it expected to hear one witness and had already heard many witnesses on the matters about which Witness D-2-23-C was expected to testify and found that the reopening of Kanyabashi's case would further delay the trial proceedings thereby causing prejudice to the other parties. 5776 2487. Kanyabashi submits that the Trial Chamber abused its discretion in denying his request to reopen his case to add Witness D-2-23-C, violating his "right to make full answer and defence", $777 He contends that the Trial Chamber erred in finding that he did not exercise due diligence, pointing out that the Trial Chamber acknowledged how difficult it was to obtain the collaboration of did not ultimately call the witness because he was "not able to get this witness to testify". See idem; Kanyabashi Appeal Brief, para. 354; Prosecution Response Brief, para. 1964. 5773 Kanyabashi Notice of Appeal, sub-para. 3.10.1.1; Kanyabashi Appeal Brief, para. 343. 5772 Trial Judgement, para. 6581, referring to T. 20 May 2008 p. 29. 5773 Kanyabashi 2 June 2008 Motion. $774 2 July 2008 Decision, para. 27, p. 10. 5775 2 July 2008 Decision, para. 25. 5716 2 July 2008 Decision, para. 26, fn.

8. See also ibid., para. 27. 5777 Kanyabashi Notice of Appeal, sub-para. 1.7.2.2. See also ibid., sub-paras. 1.7.2, 3.9; Kanyabashi Appeal Brief, paras. 141-143, 339. 865 Case No. ICTR-98-42-A 14 December 2015

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19499/H witnesses fearing for their lives.5778 He argues that the Trial Chamber should have "softened" the diligence requirement in order to avoid a miscarriage of justice.5779 Kanyabashi also submits that the Trial Chamber "disregarded the specificities of [Witness] D-2-23-C's [expected] testimony" concerning Rango Market, which partly corroborated Witness D-2-21-T's evidence and was distinct from the testimonies of Witnesses D-2-18-0 and D-13-D.5780 Kanyabashi adds that granting his request would not have prolonged the trial proceedings and that, had the Trial Chamber properly weighed the factors, it would have allowed the reopening of his case.5781 According to him, the interests that were dispositive in the Trial Chamber's reasoning did not outweigh his right to a fair trial. 5782 2488. The Prosecution responds that Kanyabashi fails to demonstrate any error in the 2 July 2008 Decision 783 It argues that Kanyabashi does not explain why he was not able to identify Witness D-2-23-C before February 2008 and makes general arguments about the difficulty in obtaining the cooperation of individuals like Witness D-2-23-C without describing the steps he took in attempting to call the witness at an carlier stage.784 The Prosecution also submits that Kanyabashi does not identify why Witness D-2-23-C's evidence would have been more convincing or corroborative than any of the other

evidence heard. 5785 2489. The Appeals Chamber recalls that "the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application."5786 If it is shown that the evidence could not have been found through the exercise of reasonable diligence before the close of the case, the trial chamber should exercise its discretion as to whether to allow the evidence to be presented by considering whether its probative value is substantially outweighed by the need to ensure a fair trial.5787 When making this determination, the trial chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial. 5788 5778 Kanyabashi Appeal Brief, para. 141. 5779 Kanyabashi Appeal Brief, para.

141. See also Kanyabashi Notice of Appeal, sub-para. 1.7.2.2. 5780 Kanyabashi Appeal Brief, para.

142. See also Kanyabashi Notice of Appeal, sub-para. 1.7.2. 5781 Kanyabashi Appeal Brief, para. 143. 5782 Kanyabashi Appeal Brief, para. 143. 5783 Prosecution Response Brief, para.

1739. See also ibid., para. 1959. 5784 Prosecution Response Brief, para. 1737. 5785 Prosecution Response Brief, para. 1738. 5786 Celebidi Appeal Judgement, para.

283. See also Gotovina et al. 1 July 2010 Appeal Decision, para. 23; Prosecutor v. Vujadin Popovié et al., Case No. IT-05-88-AR73.5, Decision on Vujadin Popovie's Interlocutory Appeal Against the Decision on the Prosecution's Motion to Reopen Its Case-in-Chief, 24 September 2008, para. 10. 5787 Gotovina et al. 1 July 2010 Appeal Decision, para. 23; Celebici Appeal Judgement, para. 283. 5788 Gotovina et al. 1 July 2010 Appeal Decision, para.

23. See also Celebiti Appeal Judgement, para. 283. 866 Case No. ICTR-98-42-A 14 December 2015

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19498/H 2490. Kanyabashi does not dispute that it was reasonable for the Trial Chamber to consider whether he exercised due diligence in identifying and presenting Witness D-2-23-C but challenges the Trial Chamber's conclusion that he failed to do so. However, like at trial, Kanyabashi fails on appeal to explain the reasons why he only sought leave to call Witness D-2-23-C at such a late stage. His general claim that it was difficult to obtain the cooperation of witnesses fearing for their lives and his undeveloped argument that the Trial Chamber should have "softened" the diligence requirement in order to avoid a miscarriage of justice falls short of demonstrating an error in the Trial Chamber's determination that he failed to exercise due diligence in obtaining the evidence in a timely manner.

2491. Kanyabashi's general and unsubstantiated argument that the Trial Chamber disregarded the specificities of Witness D-2-23-C's proposed testimony also fails to demonstrate that the Trial Chamber erred in concluding that the evidence of this witness would have been repetitive of the evidence of the witness it expected to hear and the many witnesses already heard on the question of Kanyabashi's absence from Rango Market and the issue of fabrication of evidence. 5789 Likewise, Kanyabashi does not adduce any convincing argument to show that the Trial Chamber erred in concluding that the reopening of his case would have further delayed the proceedings and that the probative value of the evidence did not outweigh the prejudice caused by delaying the fair and expeditious conduct of the proceedings.5790 2492. Accordingly, the Appeals Chamber concludes that Kanyabashi has failed to demonstrate that the Trial Chamber committed a discernible error in its 2 July 2008 Decision by denying his request to reopen his case to add Witness D-2-23-C. 3. 19 January 2009 Decision 2493. On 18 November 2008, Kanyabashi requested the Trial Chamber to reconsider its decision to deny the addition of Witness D-2-23-C to his witness list. He submitted that the testimonies of Prosecution Witness QA and Defence Witness D-2-21-T about the fabrication of false accusations against him and the Appeals Chamber's decision of 8 October 2008 in the Munyakazi case constituted new elements justifying reconsideration of the 2 July 2008 Decision.791 Kanyabashi 789 See 2 July 2008 Decision, para.

26. Kanyabashi does not explain how Witness D-2-23-C's evidence was distinc rom that of Witnesses D-2-18-0 and D-13-D and does not discuss the other witnesses mentioned by the Tri 867 Case No. ICTR-98-42-A 14 December 2015

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19497/H further requested the Trial Chamber to reopen his case in order for Witness D-11-AB to provide evidence on the fabrication of evidence against him. 792 2494. The Trial Chamber denied both requests on 19 January 2009.5793 The Trial Chamber found that Kanyabashi had failed to show that the evidence of Witnesses QA and D-2-21-T or the Munyakazi appeal decision constituted new facts or material changes in circumstances warranting reconsideration of the 2 July 2008 Decision and the reopening of the Defence case to hear Witness D-2-23-C.5794 As regards the addition of Witness D-11-AB, the Trial Chamber found that Kanyabashi had failed to demonstrate that with reasonable diligence, the evidence could not have been identified and presented during his case-in-chief.5795 It further stated that it was not convinced that the probative value of Witness D-11-AB's expected testimony would outweigh the prejudice caused by delaying the conduct of the proceedings, noting that it had already heard several witnesses on the alleged fabrication of evidence and that further delay in the proceedings would cause prejudice to the other parties.79 The Trial Chamber concluded that none of the alleged new elements advanced by Kanyabashi constituted exceptional circumstances warranting the reopening of his case and the addition of Witness D-11-AB to his witness list. 5797 2495. Kanyabashi submits

that the Trial Chamber erred in denying his requests for reconsideration of the 2 July 2008 Decision and to reopen his case to allow Witness D-11-AB to testify.5798 In relation to his request for reconsideration, Kanyabashi contends that the Trial Chamber erred in failing to find that the recall of Witness QA, the testimony of Witness D-2-21-T, and the "localisation of [Witness] D-11-AB" constituted new facts sufficiently serious to warrant reconsideration of its decision denying his request to add Witness D-2-23-C' to his witness list 5799 He also reiterates that the Trial Chamber erred in considering that the evidence was repetitive and that hearing it would prejudice the parties as well as in imposing an excessively heavy burden on him in finding that he did not exercise diligence. 800 5792 Kanyabashi 18 November 2008 Motion, paras. 30, 33, 42-45, p. 11. 19 January 2009 Decision, paras. 39, 43, p. 10. 5794 19 January 2009 Decision, paras. 36, 38. 5795 19 January 2009 Decision, para. 41. 5796 19 January 2009 Decision, para. 42. $797 19 January 2009 Decision, para. 43. 5798 Kanyabashi Notice of Appeal, sub-paras. 1.7.3-1.7.3.2, 3.9; Kanyabashi Appeal Brief, paras. 144-146, 339. The Appeals Chamber notes that Kanyabashi did not reiterate or substantiate in his appeal brief the allegation in his notice of appeal that the Trial Chamber erred in its 19 January 2009 Decision in denying his alternative request for separate trials, which the Appeals Chamber therefore dismisses without further consideration. See Kanyabashi Notice of Appeal, sub-para. 1.7.3.3. Kanyabashi Notice of Appeal, sub-para. 1.7.3.1; Kanyabashi Appeal Brief, para.

145. Kanyabashi refers to the evidence of Witnesses QA, D-2-21-T, and D-11-AB on the issue of fabrication of evidence. See idem. 5800 Kanyabashi Notice of Appeal, sub-para. 1.7.3.1; Kanyabashi Appeal Brief, para. 145. 868 Case No. ICTR-98-42-A 14 December 2015

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19496/H 2496. With respect to his request to add Witness D-11-AB to his witness list, Kanyabashi submits that he exercised diligence as the witness was difficult to locate and that the Trial Chamber placed an "excessively heavy burden" on him. He adds that the evidence of Witness D-11-AB was not repetitive and could have corroborated the allegations of fabrication of evidence by Prosecution Witnesses QP and QAM,5802 and that Witnesses "D-13-D and D-2-18-O did not testify about the same meetings. "5803 Kanyabashi further asserts that the probative value of the expected testimony of Witness D-11-AB "far outweighed the prejudice" caused by delaying the trial proceedings. 5804 2497. The Prosecution responds that Kanyabashi fails to demonstrate any error in the Trial Chamber's exercise of its discretion in denying reconsideration of its earlier ruling on Witness D-2-23-C and Kanyabashi's request to reopen his case to call Witness D-11-AB. 5805 2498. The Appeals Chamber observes that Kanyabashi merely repeats the arguments he made at trial in support of his request for the reconsideration of the 2 July 2008 Decision without demonstrating that their rejection by the Trial Chamber constituted an error warranting the intervention of the Appeals Chamber. His arguments in this respect are therefore rejected.

2499. Concerning the addition of Witness D-11-AB to his witness list, the Appeals Chambers notes that Kanyabashi repeats his submission at trial that it was difficult to locate the witness, but does not explain how the Trial Chamber erred in finding that his Defence had "not sufficiently explained why it was unable to identify Witness D-11-AB until seven years after the beginning of the trial.»5806 Apart from referring to his submissions at trial that two of his witnesses had discussed different meetings,807 Kanyabashi does not substantiate his general contention that the evidence of Witness D-11-AB would not have been repetitive of the evidence already heard. His argument that the probative value of the expected testimony of this witness "far outweighed the prejudice" caused by delaying the trial proceedings is similarly not substantiated. The Appeals Chamber therefore finds that Kanyabashi fails to demonstrate that the Trial Chamber erred in the exercise of its discretion in denying his request to reconsider its 2 July 2008 Decision and to reopen his case to call Witness D-11-AB.

2500. Consequently, the Appeals Chamber dismisses Kanyabashi's challenges against the 19 January 2009 Decision. 5801 Kanyabashi Notice of Appeal, sub-para. 1.7.3.2. See also Kanyabashi Appeal Brief, para. 146. 5802 Kanyabashi Notice of Appeal, sub-para. 1.7.3.2. $806 19 January 2009 Decision, para. 41. 5807 Kanyabashi Appeal Brief, para. 146. 869 Case No. ICTR-98-42-A 14 December 2015

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19495/H 4. Conclusion 2501. Based on the foregoing, the Appeals Chamber finds that Kanyabashi has failed to demonstrate any discernible error in the exercise of the Trial Chamber's discretion with respect to its 15 February 2008, 2 July 2008, and 19 January 2009 decisions. Accordingly, the Appeals Chamber dismisses Grounds 1.7, 3.9, and 3.10 of Kanyabashi's appeal. ..- Case No. ICTR-98-42-A 870 14 December 2015

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19494/H B. Indictment (Grounds 1.1, 2.1, 2.2, 2.7 in part, 3.1) 2502. Kanyabashi submits that he was not charged with the criminal conduct on the basis of which he was convicted or lacked notice thereof, and that he was materially prejudiced in the preparation of his defence. 808 He also contends that the Trial Chamber erred in failing to assess the cumulative effect of the numerous defects of the Indictment on his fair trial rights.809 Kanyabashi requests that the Appeals Chamber quash the Trial Judgement and acquit him on all counts.5810 2503. The Appeals Chamber will examine in turn Kanyabashi's contentions related to notice of the allegations concerning Kabakobwa Hill, Matyazo Clinic, and the acts of incitement by megaphone.

1. Kabakobwa Hill (Ground 1.1) 2504. The Trial Chamber found that at least hundreds, if not thousands, of Tutsi refugees were killed at Kabakobwa Hill as a result of an attack conducted by soldiers, civilians, and members of the Ngoma commune police on 22 April 1994.5811 While the Trial Chamber found that the Prosecution did not establish that Kanyabashi either ordered or was present during the attack, it concluded that Kanyabashi, as bourgmestre of Ngoma Commune, exercised effective control over the members of the Ngoma commune police, knew or had reason to know that they participated in the attack, and took no steps to prevent the attack or punish any Ngoma commune policeman for participating in it.812 The Trial Chamber inferred Kanyabashi's knowledge from his awareness of the Tutsi refugees' presence at Kabakobwa, the fact that he should have been able to hear the gunshots from the Ngoma commune office during the attack, the relatively small number of Ngoma policemen, the control he exercised over them, and his regular contact with them as well as from his public condemnation of the killings perpetrated at Kabakobwa Hill during a meeting at Huye Stadium around 25 or 26 April 1994.5813 2505. Based on these findings, the Trial Chamber convicted Kanyabashi of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively) as well

as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 9) as a superior 5808 Kanyabashi Notice of Appeal, sub-paras. 1.1-1.1.3, 2.1-2.2.5, 2.7.3, 3.1, 3.1.1-3.1.9; Kanyabashi Appeal Brief, paras. 8, 149-168, 225-227, 229-253. To facilitate readability, the Appeals Chamber will use the term "Indictment" in the body of the text of the present section when referring to the Kanyabashi Indictment. 5809 Kanyabashi Notice of Appeal, sub-paras. 1.1.3, 3.1.9. See also Kanyabashi Appeal Brief, heading sub-ground 3.1.9 Stip. 97, paras. 167, 168. Kanyabashi Notice of Appeal, para. 36; Kanyabashi Appeal Brief, paras. 8, 227, 395. 5811 Trial Judgement, paras. 1711, 1740, 1741, 1756, 5791, 5800. 5812 Trial Judgement, paras. 1720, 1756, 5791, 5800-5808. The Trial Chamber noted that the Prosecution only charged Kanyabashi with superior responsibility for the attack at Kabakobwa Hill. See ibid., para. 5793. 5813 Trial Judgement, paras. 5805-5807. 871 Case No. ICTR-98-42-A 14 December 2015

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19493/H pursuant to Article 6(3) of the Statute for failing to prevent the crimes committed by members of the Ngoma commune police at Kabakobwa Hill on 22 April 1994 and for failing to punish them.5814 2506. In summarising the Prosecution case against Kanyabashi with respect to the massacre at Kabakobwa Hill, the Trial Chamber referred to paragraphs 4.2, 4.3, 6.29, 6.32, 6.33, 6.45, and 6.65 of the Indictment. 815 The Indictment indicates that the allegations related to Kabakobwa Hill in paragraphs 6.32, 6.33, and 6.65 were being pursued under, inter alia, Counts 2, 6, 7, and 9 pursuant to Article 6(3) of the Statute. 5816 2507. Kanyabashi submits that the Trial Chamber erred in convicting him in relation to the killings committed at Kabakobwa Hill on the basis of conduct with which he was not charged 81 He argues that the Prosecution alleged in the Indictment that he was responsible as a superior based on his presence at the crime scene and the orders he gave, not based on his mere knowledge and failure to act. 818 Kanyabashi contends that he never received notice of the conduct on the basis of which he 5814 Trial Judgement, paras. 5809, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174, 6186. $815 Trial Judgement, paras. 1487, 1488, 1510, 1511, 5638, 5793, 5801, fns. 3578-3580, 14584, 14679, 14680. Paragraphs 4.2, 4.3, 6.29, 6.32, 6.33, 6.45, and 6.65 of the Kanyabashi

Indictment read as follows: During the events referred to in this indictment, Joseph Kanyabashi held the office of Bourgmestre of Ngoma commune in Butare préfecture from April 1974 until leaving Rwanda around 4 July 1994. In his capacity as Bourgmestre of Ngoma commune, Butare préfecture, Joseph Kanyabashi exercised authority over his subordinates. 6.29 Ngoma commune was the largest commune in Butare préfecture at the time of the events. Its Bourg[mestre, Joseph Kanyabashi, had been named in 1974. Ngoma commune was the site of numerous massacres in which Joseph Kanyabashi was either directly involved or in which his subordinates as set out in paragraph 6.32 below, acting under his orders, were implicated. 6.32 On 21 and 22 April 1994, Tutsis who were fleeing the massacres took refuge in a pasture in Kabakobwa cellule, on the orders of Joseph Kanyabashi, who had promised to protect them. Joseph Kanyabashi subsequently ordered his subordinates, notably conseillers de secteur and communal policemen, on the one hand, and asked certain members of the Hutu population, on the other hand, to go to Kabakobwa cellule to eliminate the refugees. On 22 April 1994, at around 4:00pm the communal policemen and conseillers de secteur, assisted by Hutu peasant farmers and by militiamen, attacked the refugees. Subsequently, Joseph Kanyabashi called in reinforcements from the Presidential Guard.

On their arrival, they took part in the attacks. 6.45 Furthermore, on several occasions between 20 April and June 1994, Joseph Kanyabashi encouraged and instructed the soldiers and militiamen, and certain members of the civilian population, to search for the Tutsis who had escaped the massacres, in order to exterminate them. These instructions were given notably on 21 April in Butare, in late April in Save, and in June 1994 near Butare. 6.65 Major-General Augustin Bizimungu. 5816 Kanyabashi Indictment, pp. 41-45. Kanyabashi Notice of Appeal, sub-paras. 1.1-1.1.3; Kanyabashi Appeal Brief, para. 8; Kanyabashi Reply Brief, paras. 5-10. See also AT. 20 April 2015 pp. 4-9, 48 5818 Kanyabashi Notice of Appeal, sub-para. 1.1.2; Kanyabashi Appeal Brief, para.

8. See also AT. 20 April 2015 pp. 4, 5. At the appeals hearing, Kanyabashi argued that the Prosecution "never envisaged that [he] did not take part in the massacre" and that "[t]he case is that he was aware of the crimes because he ordered them." See ibid., p.

6. He also emphasised that the Prosecution did not bring any evidence about the meeting the Trial Chamber found that he attended on 22 April 1994 or about any other relevant meeting. See ibid., p. 7. 872 Case No. ICTR-98-42-A 14 December 2015

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19492/H was ultimately found to have the requisite knowledge and to have failed to take the necessary and reasonable measures to prevent or punish 5819 He argues that the prejudice he suffered in this respect is "irreparable" as his defence focused on showing that he did not give any orders and that the communal police did not take part in the attack.'820 Kanyabashi requests that his convictions in relation to the killings committed at Kabakobwa Hill be vacated and that he be acquitted of all counts in this respect. 5821 2508. The Prosecution responds that the Indictment provided Kanyabashi with notice of his knowledge and failure to prevent and punish the crimes of his subordinates at Kabakobwa Hill. 5822 It argues that the pleading of Kanyabashi's ordering and supervising the massacre in paragraph 6.32 of the Indictment necessarily implied that he had knowledge of the actions of his subordinates and provided notice of the failure to prevent and punish the crimes committed by members of the Ngoma commune police. 5823 The Prosecution also contends that additional notice of Kanyabashi's knowledge and failure to prevent and punish was given in paragraph 6.65 of the Indictment and through the Prosecution Pre-Trial Brief. 5824 2509. The Prosecution also argues that "it is sufficient to plead that an accused ordered subordinates to commit a crime so as to put an accused on notice of

his knowledge and failure to prevent or punish for purposes of Article 6(3)" and that "[i]fevidence is eventually found insufficient to establish ordering under Article 6(1), it is irrelevant in determining whether an indictment properly pleads knowledge and failure to prevent or punish under Article 6(3)."5825 According to the Prosecution, this contention finds support in the Bagosora and Nsengiyumva Appeal Judgement and Ntabakuze Appeal Judgement where the Appeals Chamber vacated convictions for ordering under Article 6(1) of the Statute because it found insufficient evidence that the accused ordered the crimes, but still upheld the convictions under Article 6(3) of the Statute for the same crimes.5826 At the appeals hearing, the Prosecution argued that Kanyabashi did not suffer 5819 Kanyabashi Appeal Brief, para. 8. 5820 Kanyabashi Appeal Brief, para.

8. See also AT. 20 April 2015 pp. 5-8, 54. 5825 Prosecution Response Brief, para. 1621. 5826 Prosecution Response Brief, paras. 1619, 1620, referring to Ntabakuze Appeal Judgement, para. 119, Bagosora and Nsengiyumva Appeal Judgement, paras. 279-284, 300, 302. 873 Case No. ICTR-98-42-A 14 December 2015

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19491/H prejudice from the alleged lack of notice concerning the source of his knowledge of the crimes committed by the communal police at Kabakobwa Hill. 5827 2510. Kanyabashi replies that: (i) the Prosecution case throughout trial was that he ordered the attack; (ii) the Indictment failed to plead the conduct for which he was ultimately convicted; and (iii) paragraph 6.65 of the Indictment is overly vague and did not provide notice regarding his conduct vis-à-vis his subordinates concerning Kabakobwa Hill.5828 Kanyabashi also submits that the Prosecution's reliance on the Bagosora and Nsengiyumva Appeal Judgement and Ntabakuze Appeal Judgement is inapposite since, in those cases, the Appeals Chamber seems to have recommended a case-by-case examination of the indictment as a whole, rather than establishing a general principle. 5829 2511. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead the following material facts: (i) the accused is the superior of sufficiently identified subordinates over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct - and for whose acts he is alleged to be responsible; (ii) the criminal conduct of those others for whom the accused is alleged to be responsible; (iti) the conduct of the accused

by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and (iv) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them. $830 2512. The Appeals Chamber observes that, read in isolation, paragraphs 6.32 and 6.33 of the Indictment do not prima facie appear to allege Kanyabashi's superior responsibility for the killings perpetrated at Kabakobwa Hill but, rather, his responsibility for ordering the killings pursuant to Article 6(1) of the Statute. The Appeals Chamber recalls, however, that in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the 5827 Specifically, the Prosecution argued that Kanyabashi: (i) was given notice by the Kanyabashi Indictment that the Tutsi refugees were at Kabakobwa Hill and defended against this allegation; (il) received notice from the Kanyabash Indictment that, as a superior, he would receive reports from his subordinates and the fact that he claimed at trial that h urged the communal policemen not to commit crimes shows that he defended against "this source of knowledge"; (iti) had notice that he was alleged to know that the attack at Kabakobwa Hill was conducted on a

large-scale; and (iv) was informed by the summary of Witness QAM's anticipated evidence and the witness's prior statement that he was alleged to have received a report on the day of the attack from the Interahamwe, an allegation he defended against. See AT. 20 April 2015 pp. 26, 27. 5828 Kanyabashi Reply Brief, paras. 5-8, 10. See also AT. 20 April 2015 pp. 4, 5, 48. 5829 Kanyabashi Reply Brief, para. 9, referring to Bagosora and Nsengivumva Appeal Judgement, paras. 204, 207, 208. Vtabakuze Appeal Judgement, paras. 119, 123-126 1 See C8, rakakuza Appeal Judgenuent, para, 100; Nahimana el al. Appal Judgement, para, 323; Blaskic Append 874 Case No. ICTR-98-42-A 14 December 2015

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19490/H indictment must be considered as a whole." When reading paragraphs 6.32 and 6.33 together with the charging section of the Indictment, it becomes clear that Kanyabashi was charged under Counts 2, 6, 7, and 9 in relation to the Kabakobwa Hill massacre pursuant to superior responsibility since paragraphs 6.32 and 6.33 were indicated as being pursued under these counts solely under Article 6(3) of the Statute 5832 2513. Considering the Indictment as a whole, the Appeals Chamber is of the view that it was neither vague nor ambiguous regarding Kanyabashi's alleged superior responsibility in relation to the killings perpetrated at Kabakobwa Hill on 22 April 1994. Paragraphs 6.32 and 6.33 of the Indictment, read together with paragraphs 4.2, 4.3 and 6.65, plead with precision all relevant material facts supporting the charge against Kanyabashi regarding the Kabakobwa Hill massacre. Paragraph 6.32 of the Indictment, in particular, expressly identifies the source of Kanyabashi's criminal responsibility in the orders that he gave to the members of the Ngoma commune police to eliminate the Tutsi refugees at Kabakobwa Hill 5833 Paragraph 6.65 of the Indictment sets out that Kanyabashi knew that massacres of the civilian population were being committed and took no measures to stop them.

2514. The Prosecution reiterated its case as set forth in paragraph 6.32 of the Indictment in its pre-trial brief, 5834 presented evidence supporting this particular case throughout the trial,5835 relied on Kanyabashi ordering and supervising the killings perpetrated at Kabakobwa Hill in its closing $831 See, e.g., Ntabakuze Appeal Judgement, para. 65; Bagosora and Nsengiyumva Appeal Judgement, para. 182; Gacumbitsi Appeal Judgement, para. 123. 5832 See Kanyabashi Indictment, pp. 41-45. The Appeals Chamber notes that, while originally charging Kanyabashi under Counts 2, 6, 7, and 9 in relation to the Kabakobwa Hill massacre pursuant to both Articles 6(1) and 6(3) of the Statute, the Prosecution amended the indictment on 2 November 2000 to charge Kanyabashi solely pursuant to Article 6(3) of the Statute in this respect. Compare The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I. Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999, 12 August 1999 ("Kanyabashi Amended Indictment"), pp. 42-48 with The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999 and 31 May 2000, 2 November 2000 ("Kanyabashi Third Amended Indictment"), pp. 41-45. The Prosecution's amendment resulted from the Trial Chamber's order that the Prosecution clearly distinguish the acts for which Kanyabashi incurred criminal responsibility under Article 6(1) of the Statute from those for which he incurred criminal responsibility under Article 6(3) of the Statute since, in the view of the Trial Chamber, "the same facts cannot simultaneously give rise to the two types of responsibility". See 31 May 2000 Decision, paras. 5.9, 5.11, p.

8. The Appeals Chamber emphasises that cumulative charging is permissible. See Simba Appeal Judgement, para. 276; Semanza Appeal Judgement, paras. 308, 309; Musema Appeal Judgement, paras. 369, 370; Celebici Appeal Judgement, para.

400. See also Kanyabashi Indictment, para. 6.29 ("Ngoma commune was the site of numerous massacres, in which Joseph Kanyabashi was either directly involved or in which his subordinates as set out in paragraph 6.32 below, acting under his orders, were implicated.") (emphasis added). 5834 Prosecution Pre-Trial Brief, para. 20 ("During the month of April 1994, thousands of Tutsi refugees gathered in different locations in Ngoma commune. They assembled in places such as Kabakobwa Cellule, Matyazo clinic and Ngoma Church, often on the recommendation of Joseph Kanyabashi (the long serving Bourg[Imestre) who had promised to protect them. Instead of offering protection, Joseph Kanyabashi ordered and supervised their massacre by communal civil servants, soldiers and militiamen.") (emphasis added). See Trial Judgement, paras. 1490-1492, 1517-1529, 1538-1554, 1561-1565; Witness FAM, T. 6 March 2002 pp. 82-87, T. 13 March 2002 p. 58; Witness QCB, T. 20 March 2002 p. 123, T. 2 April 2002 pp. 10, 11, T. 3 April 2002 875 Case No. ICTR-98-42-A 14 December 2015

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19489/H brief, 836 and reiterated in its oral closing arguments that its case was that Kanyabashi was an active participant and organiser in the genocide and ordered the killings at Kabakobwa Hill. 5837 The Prosecution does not point to any other material facts pleaded at trial which would have provided an alternative basis for Kanyabashi's superior responsibility in relation to the Kabakobwa Hill massacre. In fact, the Prosecution specifically disputed Kanyabashi's alibi evidence that, at the time of the killings of Kabakobwa Hill, he was in his office chairing a meeting. 5838 2515. Yet, the Trial Chamber, concluding that it was not proven that Kanyabashi either ordered or was present during the attack at Kabakobwa, found him responsible as a superior on the basis of the following material facts: (i) his awareness of the Tutsi refugees' presence at Kabakobwa; (ii) the fact that, on 22 April 1994, Interahamwe went to report to him upon seeing the number of refugees at Kabakobwa Hill, before returning to commence the attack; (iti) the fact that he should have been able to hear the gunshots from the Ngoma commune office during the attack; (iv) the relatively small number of Ngoma commune policemen, his control over them as well as the fact that he was in regular contact with these policemen and that several of them were stationed at his house on the weekend of the attack at

Kabakobwa Hill; (v) the systematic and large-scale nature of the attack; (vi) his public condemnation of the killings during a meeting at Huye Stadium; and (vii) the fact that he took no steps to prevent the attack or punish any policeman involved in the attack. 5839 2516. Although Kanyabashi's awareness of the Tutsi refugees' presence at Kabakobwa Hill and the allegation that he took no measures to stop the massacres of the civilian population were pleaded in the Indictment,5840 it is apparent that the key source of Kanyabashi's knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber's findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the 5836 Prosecution Closing Brief, heading "(3)" at p. 411 ("Kanyabashi orders Tutsis at Kabakobwa to be killed"), paras. 41-44, 88-90, 95-97, 101 ("The Prosecution evidence in this regard is that by giving orders, providing training. weapons and encouragement to the militia to kill, Joseph Kanyabashi killed Tutsis and therefore is culpable for committing genocide through the acts of others pursuant to Article 6(3)."), 105-107 at pp. 397, 398, 409,

411, 413-415. 5837 Prosecution Closing Arguments, T. 21 April 2009 pp. 13 ("It is the Prosecutor's case, Mr. President, that Joseph Kanyabashi was, in fact, an active participator, an active organiser, a person who planned, instigated, committed, ordered and/or abetted in the genocide that took place in Butare préfecture. At this juncture, Mr. President, I would like perpetrators of the massacres that ensued."), 22-24. Prosecution Closing Brief, paras. 175, 176 at pp. 433, 434 ("The Prosecutor has led credible and reliable evidence that the accused Kanyabashi was part and parcel of the killing machine at Kabakobwa on 22 April 1994. He was not stuck in his office or at home as claimed by D-2-YYYY."); Prosecution Closing Arguments, T. 21 April 2009 pp. 23, 24, $839 Trial Judgement, paras. 5805-5809. 5840 See Kanyabashi Indictment, paras. 6.32, 6.65. 876 Case No. ICTR-98-42-A 14 December 2015 sur

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19488/H Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

2517. The Prosecution's argument that, by pleading that Kanyabashi ordered and supervised the killings, the Indictment necessarily implied his knowledge and provided notice of his failure to prevent and punish the crimes fails to appreciate Kanyabashi's contention. Kanyabashi does not contend that he lacked notice that he was alleged to have known that his subordinates were about to or had committed crimes and to have failed to prevent such acts or punish his culpable subordinates, but that he was convicted on the basis of different material facts than those specifically set forth in the Indictment and against which he defended at trial.

2518. The Prosecution does not show that, at any point in the Indictment, notice was provided to Kanyabashi that he could be held responsible as a superior in relation to the Kabakobwa Hill massacre on the basis of a conduct other than his ordering or encouraging the killings. While paragraph 6.65 of the Indictment referred to by the Prosecution generally alleges that Kanyabashi had knowledge that massacres were carried out and failed to take measures to stop them, it does not identify any source for such knowledge. Reading the Indictment as a whole, and given the phrasing of paragraph 6.65, it would not be reasonable to consider that this general paragraph provided Kanyabashi with notice of the material facts which ultimately underpinned his conviction on the basis of superior responsibility in relation to Kabakobwa Hill. The Appeals Chamber also observes that the Prosecution Pre-Trial Brief mirrors paragraph 6.32 of the Indictment regarding the material facts relied upon for the allegation related to Kabakobwa Hillf$841 and that neither the Prosecution Pre-Trial Brief nor any other information from the Prosecution provided Kanyabashi with timely, clear, and consistent information detailing the factual basis underpinning the charge for which he was ultimately convicted. 5842 2519. Furthermore, the Prosecution overlooks that, in the Bagosora and Nsengiyumva and Ntabakuze cases,

the Appeals Chamber found that, along with the specific allegations that the accused ordered their subordinates to commit the crimes, the respective indictments pleaded additional material facts underpinning their superior responsibility for the same crimes. 843 In those cases, the Appeals Chamber upheld the convictions based on a different mode of liability which was properly pleaded in the indictments. $841 See Prosecution Pre-Trial Brief, para. 20 842 The Appeals Chamber further notes that the summaries of the Prosecution witnesses' anticipated testimonie appended to the Prosecution Pre-Trial Brief did not provide any notice of a possible alternative basis for Kanyabashi's 877 Case No. ICTR-98-42-A 14 December 2015

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19487/H 2520. Based on the foregoing, the Appeals Chamber finds that Kanyabashi lacked notice of the material facts upon which the Trial Chamber convicted him as a superior in relation to the killings of Tutsi refugees committed at Kabakobwa Hill on 22 April 1994 and, accordingly, that the Trial Chamber erred in convicting him based on these killings.

2. Matyazo Clinic (Grounds 2.1, 2.2, and 2.7 in part) 2521. The Trial Chamber, Judge Ramaroson dissenting, found that in late April 1994, following an initial attack by soldiers, Kanyabashi went to Matyazo Clinic, addressed the Tutsi refugees sheltering there, and thereafter ordered soldiers to open fire on the Tutsis, resulting in many deaths. ®4 Noting that the Prosecution only charged him under Article 6(3) of the Statute in relation to this event,845 the Trial Chamber, Judge Ramaroson dissenting, convicted Kanyabashi of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively) as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 9) pursuant to Article 6(3) of the Statute for failing to prevent the soldiers from committing these killings and punish them.5846 2522. In summarising the Prosecution case against Kanyabashi with respect to this allegation, the Trial Chamber referred to paragraphs 4.3, 6.32, 6.34, and 6.65 of the Indictment. 5847 The Indictment indicates that the allegations in paragraphs 6.32 and 6.34 were being pursued under, inter alia, Counts 2, 6, 7, and 9 pursuant to Article 6(3) of the Statute, while the allegations in paragraph 6.65 were being pursued under, inter alia,

Counts 2, 6, 7, and 9 pursuant to both Articles 6(1) and 6(3) of the Statute. 5848 2523. Kanyabashi submits that the Trial Chamber erred in convicting him as a superior in relation to the killings perpetrated at Matyazo Clinic in late April 1994 because: (i) he understood from the superior responsibility in relation to the Kabakobwa Hill killings. See Witness Summaries Grid, items 3, 7, 22, 52, 56, 58-60, 70, 73, 82, Witnesses QAM, FAM, FAJ, QP, QR, QW, RO, and SQ. 5843 See Ntabakuze Appeal Judgement, para. 119; Bagosora and Nsengivumva Appeal Judgement, para. 204 5844 Trial Judgement, paras. 2084, 2103, 5818. The Appeals Chamber recalls that it has decided to refer to the clinic in Matyazo Sector, Ngoma Commune, Butare Prefecture, as the "Matyazo Clinic". See supra, fn.

61. Trial Judgement, para.

5819. The Trial Chamber noted that the Prosecution only charged Kanyabashi with superior responsibility for the attack at Matyazo and considered it "a serious omission on the part of the Prosecution." See idem. Trial Judgement, paras. 5824, 5826, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174, 6186. 5847 Trial Judgement, paras. 2012, 2021, 5639, 5819, fins. 5248, 14585, 14698. Paragraph 6.34 of the Kanyabashi Indictment reads as follows: 6.34 In late April 1994, Tutsi who were ficcing the massacres found refuge at the Matyazo clinic in Ngoma commune. Following an initial attack by soldiers and militiamen, Joseph Kanyabashi went to the clinic and asked the Tutsi refugees to remain there for their own safety. Shortly thereafter, Joseph Kanyabashi ordered soldiers to open fire on the refugees. Several people were killed. For paragraphs 4.3, 6.32, and 6.65 of the Kanyabashi Indictment, see supra, fn.

5815. Kanyabashi Indictment, pp. 41-45. See Trial Judgement, para. 5819. 878 Case No. ICTR-98-42-A 14 December 2015

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19486/H Indictment that he had to defend against allegations relating to a different attack that occurred on 22 April 1994; and (ii) the Indictment did not properly plead his superior responsibility under Article 6(3) of the Statute. 849 The Appeals Chamber will address these contentions in turn. (a) Dates of the Attack 2524. In reaching its findings on Kanyabashi's responsibility for the killings perpetrated at Matyazo Clinic, the Trial Chamber specified that, considering "the details of the attacks described by both the Prosecution and Defence, in particular the dates and times, [...] the Defence's version of events could plausibly exist alongside the version advanced by the Prosecution."5850 The Trial Chamber concluded that it was "possible that Matyazo Clinic was subject to two separate attacks; one on or around 22 April 1994 which took place in the morning and another towards the end of April 1994 which took place at night.»5851 The Trial Chamber observed that such a conclusion was consistent with paragraph 6.34 of the Indictment, which alleged that an initial attack took place at the clinic before the massacre with which Kanyabashi was charged. 852 The Trial Chamber convicted Kanyabashi for the attack described by the Prosecution witnesses that took place in the evening towards the end of April 1994.5853 2525. Kanyabashi submits that he believed that he had to defend

against the allegation of an attack that occurred on 22 April 1994 but that the Trial Chamber convicted him for a different attack that took place at the end of April 1994.585* In support of his contention, Kanyabashi: (i) points out that the Prosecution did not cross-examine Defence witnesses on an attack that would have occurred later than the one on 22 April 1994 about which they testified; (ii) relies on the Prosecution's reference in its closing submissions to 22 April 1994 as the date of the massacre; and iii) asserts that the evidence does not support the conclusion that a second attack occurred in late April 1994.5855 2526. Kanyabashi also contends that the Prosecution case, as understood by him, never included the allegation that there had been two attacks on different days at Matyazo Clinic. 5856 According to him, paragraph 6.34 of the Indictment, "correctly interpreted", pleaded that the "initial attack" and 5849 Kanyabashi Notice of Appeal, sub-paras. 2.1-2.2.5, 2.7.3; Kanyabashi Appeal Brief, paras. 149-168. See also Kanyabashi Reply Brief, paras. 45-54; AT. 20 April 2015 pp. 14-17, 23, 24 (French). 5850 Trial Judgement, para. 2102. 5851 Trial Judgement, para. 2102. 5852 Trial Judgement, para. 2102. 5853 Trial Judgement, paras. 2103, 5818-5826, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174. 5854 Kanyabashi Notice of Appeal, sub-paras. 2.1-2.1.2; Kanyabashi Appeal Brief, paras. 149, 153-158, fn.

521. See also AT. 20 April 2015 pp. 9, 10. 5855 Kanvabashi Appeal Brief, paras. 151-158, referring, inter alia, to Prosecution Closing Arguments, T. 20 April 2009 p.

57. See also Kanyabashi Reply Brief, para. 49. 879 Case No. ICTR-98-42-A 14 December 2015

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19485/H the attack for which he was charged took place on the same day, which supported his understanding that the attack with which he was charged occurred on 22 April 19945857 In this regard, Kanyabashi highlights that the prior statement of Witness QI relied upon by the Prosecution as supporting material for paragraph 6.34 of the Indictment mentions that the attacks occurred on the same day. 5858 In his view, he was "misled" as to the date of the attack and suffered prejudice as a result, noting, in particular, that he presented an alibi only for the period between 21 and 24 April 1994.5859 2527. The Prosecution responds that the date pleaded in paragraph 6.34 of the Indictment was sufficiently specific for Kanyabashi to prepare his defence 860 It submits that, in the event of any ambiguity, further notice that the attack occurred at night and in late April 1994 was provided by the summaries of Witnesses RL's and QI's anticipated evidence appended to the Prosecution Pre-Trial Brief and their respective prior statements to Tribunal investigators disclosed four years before the beginning of the trial.586l It contends that there was no reason for Kanyabashi to assume that the attack took place on 22 April 1994 since that specific date was not mentioned either in the Indictment or in any post-indictment communications.5862 It also argues that Kanyabashi's claim that he

understood that he had to defend against an attack that took place on 22 April 1994 is not supported by the record.863 The Prosecution adds that Kanyabashi was not charged with the "initial attack" evoked in paragraph 6.34 of the Indictment and that, as a result, this initial attack was not a material fact that needed to be pleaded or proven. 5864 2528. Kanyabashi replies that, contrary to the Prosecution's suggestion, the Indictment and the Prosecution Pre-Trial Brief do not specify the date and the time of the attack, and that the disclosure of Witnesses QI's and RL's statements are irrelevant for the purposes of notice 5865 He argues that 5856 Kanyabashi Notice of Appeal, sub-para. 2.1.1; Kanyabashi Appeal Brief, para.

151. See also Kanyabashi Reply Brief, para. 47. 5857 Kanyabashi Notice of Appeal, sub-para. 2.1.2; Kanyabashi Appeal Brief, para. 152 (emphasis omitted). 5858 Kanyabashi Appeal Brief, para. 152, referring to The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Prosecutor's Request for Leave to Amend Indictment, Attachment B "Supporting Material", 18 August 199% (confidential) ("Supporting Material to Kanyabashi Indictment"), pp. 108, 109, Statement of Witness QI of 11 June 1996, first disclosed in redacted version on 9 January 1997. See The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Kanyabashi - Redacted Witness Statement No. 769/K96, 9 January 1997. The unredacted version of Witness QI's 11 June 1996 statement was admitted into evidence on 19 April 2004 as Exhibit D201 (confidential) ("Witness QI's Statement"). 3859 Kanyabashi Notice of Appeal, sub-paras. 2.1.2, 2.7.3 (emphasis omitted); Kanyabashi Appeal Brief, heading 2.1.2 at p. 55, paras. 149, 156, 162, 225-227. See also Kanyabashi Reply Brief, para. 49. 5860 Prosecution Response Brief, paras. 1745, 1746. See also AT. 20 April 2015 pp. 33-35. 5861 Prosecution Response Brief, paras. 1747, 1748, 1753. See also AT. 20 April 2015 p. 33. 5862 Prosecution Response Brief, paras. 1748, 1753. 5863 Prosecution Response Brief, para.

1748. See also AT. 20 April 2015 pp. 33, 34. $864 Prosecution Response Brief, paras. 1752, 1753. 5865 Kanyabashi Reply Brief, para.

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19484/H these witnesses' statements could in any event be interpreted as placing the attack on Matyazo Clinic on 22 April 1994.5866 2529. The Appeals Chamber understands Kanyabashi to claim that he received notice that the events invoked in paragraph 6.34 of the Indictment were alleged to have occurred on 22 April 1994, not that the Indictment was vague in respect of the date of the killings allegedly perpetrated at Matyazo Clinic by soldiers acting under his orders. However, in support of his contention that he was misled into believing that he was charged for an attack that occurred on 22 April 1994, Kanyabashi relies on the evidence adduced at trial and the Prosecution's conduct of its case, without pointing to any part of the Indictment or post-indictment communications which would have provided him notice of this specific date.5867 2530. The Appeals Chamber observes that paragraph 6.34 of the Indictment, which sets out the charge relating to Matyazo Clinic, does not refer to 22 April 1994 but to "late April 1994" and that nothing in the Indictment suggests that the latter reference should have been interpreted as referring to 22 April 1994 in particular. There is also no reference to any particular date or information from which to infer the date of 22 April 1994 in the excerpt of Witness QI's statement provided as supporting material by the Prosecution and relied upon by

Kanyabashi, in the statement from which the excerpt was extracted, or in the summary of Witness QI's anticipated evidence appended to the Prosecution Pre-Trial Brief.868 In fact, the only specific date provided prior to the trial is that of "28 April 1994" referred to in the summary of Witness RL's anticipated testimony, as well as in Witness RL's prior statements of 11 July 1996 and 16 January 1997 disclosed in April 1997.5869 Asto Kanyabashi's argument that the Prosecution referred to 22 April 1994 in its closing submissions as the date of the attack on Matyazo Clinic, the Appeals Chamber observes that it is in fact unclear as to which massacre the Prosecution was referring in its oral submissions and 5866 Kanyabashi Reply Brief, para.

45. See also AT. 20 April 2015 pp. 15, 16 (French). 5867 To the extent that Kanyabashi's arguments challenge the reasonableness of the Trial Chamber's assessment of the evidence, these arguments are addressed below in Section VIII.D. 5868 See Supporting Material to Kanyabashi Indictment, pp. 108, 109; Witness QI's Statement; Witness Summaries Grid, item 56, Witness QI ("Witness QI's Summary"). 5869 Witness Summaries Grid, item 70, Witness RL, referring to 28 April 1994; Statement of Witness RL of 11 July 1996 (placing the attack five days after 23 April 1994), disclosed in redacted version on 10 April 1997; Statement of Witness RL of 16 January 1997 (referring to "28 April 1994"), disclosed in redacted version on 10 April 1997. See The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Statements of Witness "A" - Déclarations du témoin "A", 10 April 1997 (confidential). The unredacted versions of Witness RL's 11 July 1996 and 16 January 1997 statements were admitted into evidence on 19 April 2004 as part of Exhibits D202 and D203 (confidential). Contrary to Kanyabashi's argument in reply that the witnesses' statements could not serve to provide notice, the Appeals Chamber considers that, upon reading the summaries of Witnesses QI's and RL's anticipated evidence in the Witness Summaries Grid, Kanyabashi should have been prompted to examine their previously disclosed 881 Case No. ICTR-98-42-A 14 December 2015

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19483/H considers that, in any event, such indication is immaterial with respect to the question of notice of the charges prior to the start of the trial. $870 2531. In light of the supporting material to the indictment provided by the Prosecution, the Appeals Chamber considers that it was indeed reasonable for Kanyabashi to understand that the two attacks on Matyazo Clinic alleged in paragraph 6.34 of the Indictment occurred on the same day.5871 Contrary to the Trial Chamber's statement, the conclusion on the possible existence of two separate attacks, one on or around 22 April 1994 and another towards the end of April 1994, was therefore not consistent with paragraph 6.34 as interpreted in light of the relevant supporting material.5872 However, because Kanyabashi was neither charged nor convicted in relation to the "initial attack" that allegedly occurred on the day of the attack on Matyazo Clinic for which he was convicted, the Appeals Chamber does not find that this error on the part of the Trial Chamber invalidates its decision to convict Kanyabashi for the attack on Matyazo Clinic.

2532. Accordingly, the Appeals Chamber finds that Kanyabashi has failed to demonstrate that the Trial Chamber convicted him for a different attack against Matyazo Clinic than the one pleaded in the Indictment. (b) Superior Responsibility 2533. In convicting Kanyabashi in relation to the killings at Matyazo Clinic in late April 1994, the Trial Chamber found that Kanyabashi's alleged superior responsibility over the soldiers and their role in the events was correctly pleaded in the Indictment. 873 In particular, while noting that paragraph 6.34 of the Indictment did not specifically describe the soldiers as Kanyabashi's subordinates, the Trial Chamber observed that paragraph 4.3 of the Indictment alleged that Kanyabashi exercised authority over his subordinates in his capacity as bourgmestre of Ngoma Commune and that paragraph 6.32 of the Indictment indicated that these subordinates were not limited to the conseillers de secteur and communal policemen but envisaged the existence of other categories of subordinates.5874 Considering further that paragraph 6.34 referred to Kanyabashi giving orders to soldiers, "which implies that [he] held a position of authority vis-à-vis soldiers", the Trial Chamber found it established from reading the Indictment as a whole that the soldiers referred to in paragraph 6.34 were Kanyabashi's alleged subordinates and that this paragraph was 5870 Kanyabashi Appeal Brief, para. 151, referring to Prosecution Closing Arguments, T. 20 April 2009 p. 57. $871 See Supporting Material to Kanyabashi Indictment, p.

109. See also Witness QI's Statement, p. K0028870 (Registry pagination). See Trial Judgement, para. 2102. 5873 Trial Judgement, paras. 2020, 2021. See also ibid., paras. 5639, 5820, 5821. 5874 Trial Judgement, para. 2021. 882 Case No. ICTR-98-42-A 14 December 2015

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19482/H "sufficiently specific to meet the standards set forth in the case law regarding Article 6(3) liability."S875 2534. Kanyabashi submits that the Trial Chamber erred in concluding that, based on an overall reading of the Indictment, paragraph 6.34 of the Indictment identifies the soldiers as his alleged subordinates and contends that the defect in the Indictment concerning the identification of the soldiers as his subordinates was not curable.876 He argues that, in finding that paragraph 6.32 of the Indictment could be interpreted to also include soldiers, the Trial Chamber went beyond the scope of the Indictment and circumvented its previous decision which ordered the Prosecution to specify the identity of his alleged subordinates in paragraph 6.29 of the indictment.587 Kanyabashi recalls that, following the Trial Chamber's order, the Prosecution amended paragraph 6.29 of the indictment by simply referring to paragraph 6.32, which only explicitly identifies conseillers de secteur and communal policemen as his subordinates. 878 Kanyabashi submits that, in light of this amendment, he legitimately understood that the conseillers de secteur and communal policemen were alleged to be his subordinates with respect to all charges of the Indictment. 5879 2535. According to Kanyabashi, he was "misled" and, as a result, centred his defence on denying that conseillers de secteur and

communal policemen took part in the massacre and endeavoured "to demonstrate that the soldiers were the ones responsible for the attack and that he had no authority over them."5880 He also points out that his counsel declared at the time of Witness QI's testimony "that he had not prepared to deal with 6(3) 5881 and that he "did not cross-examine on effective control over the specific soldiers.'"5882 2536. The Prosecution responds that the Trial Chamber correctly found that Kanyabashi received sufficient notice that he was charged with superior responsibility for the crimes committed by the 5875 Trial Judgement, para.

2021. See also ibid., para. 5639. $876 Kanyabashi Notice of Appeal, sub-paras. 2.2-2.2.6; Kanyabashi Appeal Brief, paras. 159-161, 165, 166; Kanyabashi Reply Brief, paras. 50-55. 5877 Kanyabashi Appeal Brief, paras. 159, 160, referring to 31 May 2000 Decision, para. 5.21. See also ibid., para. 165; Kanyabashi Reply Brief, paras. 51, 53; AT. 20 April 2015 p. 53. 5878 Kanyabashi Notice of Appeal, sub-para. 2.2.1; Kanyabashi Appeal Brief, para.

159. Kanyabashi also points out that paragraph 6.29 of the Kanyabashi Indictment immediately follows the sub-heading "Ngoma Commune" and that all sites specified in the other sub-headings were located in Ngoma Commune, of which he was the bourgmestre. See idem. 5879 Kanyabashi Notice of Appeal, sub-para. 2.2.2; Kanyabashi Appeal Brief, para. 159. 5880 Kanyabashi Appeal Brief, para.

162. See also Kanyabashi Reply Brief, para. 55; AT. 20 April 2015 pp. 53, 54. 5881 Kanyabashi Appeal Brief, para. 163, referring to Witness QI, T. 23 March 2004 pp. 53-57. 5882 Kanyabashi Appeal Brief, para.

164. Kanyabashi also generally submits that "[t]here is no mention, with regard to the soldiers, of the requisite ingredients for responsibility under 6(3)." See ibid., para.

165. See also ibid., heading 2.2.3 at p.

66. The Appeals Chamber notes that Kanyabashi substantiates his claim regarding the "requisite ingredients" of superior responsibility only with respect to the identification of the subordinates. He does not make any arguments regarding the other material facts that have to be pleaded with respect to superior responsibility. Accordingly, to the extent that Kanyabashi intended to argue that relevant material facts other than the identification of his subordinates were not pleaded, his vague and unsubstantiated claim is dismissed. Case No. ICTR-98-42-A 14 December 2015

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19481/H soldiers at Matyazo Clinic. 883 It argues that paragraph 6.34 of the Indictment, read in conjunction with paragraph 6.32 of the Indictment and the fact that paragraph 6.34 was only charged pursuant to Article 6(3) of the Statute, gave notice to Kanyabashi that he was alleged to be the superior of the soldiers who perpetrated the killings at Matyazo Clinic 5884 It also submits that Kanyabashi failed to raise a timely objection to the evidence related to his superior relationship with the soldiers, that the conduct of his defence demonstrates that he understood the case against him, and that he was not prejudiced. 5885 2537. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead, inter alia, that the accused is the superior of sufficiently identified subordinates over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct - and for whose acts he was alleged to be responsible.5886 2538. In the instant case, the Appeals Chamber finds that the Trial Chamber erred in holding that adequate notice was provided to Kanyabashi that he was alleged to be the superior of the "soldiers" involved in the killings at Matyazo Clinic referred to in paragraph 6.34 of the Indictment through the following information: (i) the reference in

paragraph 4.3 of the Indictment that he "exercised authority over his subordinates"; (ii) the indication - through the term "notably" in paragraph 6.32 of the Indictment - that his subordinates were not limited to "conseillers de secteur and communal policemen"; and (iii) the allegation in paragraph 6.34 that he gave orders to soldiers at Matyazo Clinic. 887 The Appeals Chamber stresses that an accused should not have to decipher the alleged basis of his criminal responsibility from scattered factors read together and that it was incumbent on the Prosecution to set forth clearly and unambiguously in the Indictment all material facts underpinning the charges. The Appeals Chamber considers that the factors relied upon by the Trial Chamber in the Indictment did not provide adequate notice to Kanyabashi that the soldiers invoked 5883 Prosecution Response Brief, paras. 1766-1774. See Prosecution Response Brief, para. 1773. $885 Prosecution Response Brief, paras. 1777-1785. See also AT. 20 April 2015 p.

32. In reply, Kanyabashi submits, inter alia, that he complained about the defects of the Indictment regarding the identification of his subordinates already in 1999 and that the Prosecution does not explain why it did not mention that the soldiers were alleged to be his subordinates when ordered to do so. See Kanyabashi Reply Brief, para. 53, referring to Kanyabashi Preliminary Motion, paras. 24, 27, 42. 5886 See, e.g., Ntabakuze Appeal Judgement, para. 100; Nahimana et al. Appeal Judgement, para. 323; Blaskic Appeal Judgement, para.

218. The Appeals Chamber also recalls that a superior need not necessarily know the exact identity of his subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute and that physical perpetrators of the crimes can be identified by category in relation to a particular crime site. See Hategekimana Appeal Judgement, para. 166; Bagosora and Nsengiyumva Appeal Judgement, para. 196; Blagojevic and Jokic Appeal Judgement, para. 287. 884 Case No. ICTR-98-42-A 14 December 2015

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19480/H in paragraph 6.34 were alleged to be his subordinates within the meaning of Article 6(3) of the Statute.

2539. As emphasised in its submissions, the Prosecution indicated in the charging section of the Indictment that the allegation set forth in paragraph 6.34 was being pursued exclusively pursuant to Article 6(3) of the Statute.5888 In the opinion of the Appeals Chamber, this was indicative that the Prosecution intended to prove that Kanyabashi was the superior of the soldiers referred to in this paragraph. However, it was incumbent on the Prosecution to identify Kanyabashi's subordinates unambiguously in the Indictment, especially as it was expressly directed to do so by the Trial Chamber in May 2000.5889 The Appeals Chamber considers that the Prosecution's failure to provide adequate notice to Kanyabashi of the identity of his alleged subordinates in the Indictment is manifest. 5890 2540. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to Kanyabashi's superior responsibility for the killings perpetrated at Matyazo Clinic by soldiers insofar as it failed to provide adequate notice to Kanyabashi that the soldiers involved in these killings were alleged to be his subordinates.

2541. The Appeals Chamber, however, finds that this error does not invalidate the Trial Chamber's decision to convict Kanyabashi on this basis as it considers that the ambiguity of the Indictment was remedied by the additional information provided in the Prosecution Pre-Trial Brief. Specifically, the Appeals Chamber considers that, reading paragraph 6.34 of the Indictment which was only charged pursuant to Article 6(3) of the Statute together with the allegation in the Prosecution Pre-Trial Brief that Kanyabashi exercised a supervisory role vis-à-vis the soldiers involved in the massacres of Tutsi refugees gathered in Matyazo Clinic, 5891 Kanyabashi was put on clear notice that he was alleged to exercise superior authority over the soldiers identified in paragraph 6.34 within the meaning of Article 6(3) of the Statute. The conduct of Kanyabashi's 5887 The Appeals Chamber recalls that "ordering" liability requires no formal superior-subordinate relationship between the person giving the order and the physical perpetrator. See, e.g., Nzabonimana Appeal Judgement, para. 482; Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para, 361; Kordic and Cerkez Appeal Judgement, para.

28. See Kanyabashi Indictment, pp. 41-45. 5889 See 31 May 2000 Decision, para. 5.21(c), p. 8. 5890 Following the Trial Chamber's instruction in the 31 May 2000 Decision, the Prosecution merely amended paragraph 6.29 of the indictment by simply referring to paragraph 6.32 of the same indictment which, as noted above only identifies conseillers de secteur and communal policemen as Kanyabashi's subordinates. Compare Amended Indictment with Kanyabashi Third Amended Indictment, para. 6.29. Prosecution Pre-Trial Brief, para. 20. 885 Case No. ICTR-98-42-A 14 December 2015

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19479/H defence at trial confirms that he understood the charge against him regarding the killings at Matyazo Clinic and was able to prepare a meaningful defence. 5892 2542. Consequently, the Appeals Chamber finds that Kanyabashi was ultimately put on adequate notice that he was charged pursuant to Article 6(3) of the Statute for the criminal conduct of the soldiers at Matyazo Clinic and that the vagueness of the Indictment in this respect did not impair his ability to prepare his defence.

3. Incitement by Megaphone (Ground 3.1) 2543. The Trial Chamber found that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.$893 It further found that, around mid-June 1994, Kanyabashi again used a megaphone to tell the population "to clear bushes along the road in order to remove potential hiding places for the Inkotanyi, to flush out people who were hiding in the bushes, and to kill those found there, including children, old men and women."$894 The Trial Chamber determined that the terms "enemy" and "Inkotanyi" when used by Kanyabashi referred to and were understood as referring to Tutsis in general. 5895 The Trial Chamber concluded that Kanyabashi's May and June 1994 megaphone announcements constituted direct and public incitement to commit genocide and, accordingly, convicted him of committing direct and public incitement to commit genocide (Count 4) pursuant to Article 6(1) of the Statute. 5896 2544. In summarising the Prosecution case against Kanyabashi with respect to this allegation, the Trial Chamber referred to paragraphs 5.8 and 6.45 of the Indictment.5897 The Indictment indicates 5892 In his appeal submissions, Kanyabashi acknowledged that "[a]nother side of the defence was to demonstrate that the soldiers were the ones responsible for the attack and that he had no authority over them." See Kanyabashi Appeal Brief, para.

162. The Appeals Chamber further observes that, in his closing brief, Kanyabashi, referring to several testimonies of Defence witnesses, unequivocally contended that there was no relation of subordination between him and the soldiers. See Kanyabashi Closing Brief, para.

238. Similarly, in his oral closing arguments, Kanyabashi argued that he did not have power over soldiers, that they considered him an RPF accomplice, and that he was threatened by them. See Kanyabashi Closing Arguments, T. 28 April 2009 pp. 37, 42, 46, 69.. 5893 Trial Judgement, paras. 3813, 5928, 6009. 5894 Trial Judgement, paras. 3824, 5928, 6009. $895 Trial Judgement, paras. 3814, 3825, 3826, 5928, 6010. See also ibid., para. 6012. 5896 Trial Judgement, paras. 6010, 6011, 6013, 6037, 6186. $897 Trial Judgement, para. 3693, fns. 9916, 9917. Paragraph 5.8 of the Kanyabashi Indictment reads as follows: From April to July 1994, various prominent persons, including members of the government and local authorities propagated incitement to hatred and violence. On or about April 19, 1994, after the interim president Théodore Sindikubwabo delivered a speech in Butare encouraging people to fight the enemy, Joseph KANYABASHI, gave a speech in support of the interim president, encouraging the population to follow Sindikubwabo's instructions. Shortly thereafter, widespr[ead attacks on Tutsis began in the area. In or around late May, 1994, on at least on one occasion, Joseph KANY ABASHI drove through the town of Butare and spoke to the population through a megaphone. He encouraged the population to systematically search for the "enemy" in the commune and immediately afterwards, more Tutsis were killed in Ngoma commune. Also in or around May, 1994 Joseph KANYABASHI held at least two meetings in Cyarwa sector, Ngoma 886 Case No. ICTR-98-42-A 14 December 2015

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19478/H that the allegations in paragraphs 5.8 and 6.45 of the Indictment were being pursued under, inter alia, Count 4 pursuant to Article 6(1) of the Statute.898 2545. Prior to examining the relevant evidence, the Trial Chamber discussed Kanyabashi's assertion that paragraph 5.8 of the Indictment was impermissibly vague with respect to the date and place of the megaphone announcements as well as regarding the identity of the victims. 89 It found that paragraph 5.8 was sufficiently precise to provide notice to Kanyabashi of the Prosecution's intention to lead evidence on an incident of incitement by megaphone occurring in Butare Town around late May 1994.5900 It also determined that the evidence about a megaphone announcement by Kanyabashi in mid-June 1994 fell under the scope of paragraph 5.8 on the ground that the Prosecution pleaded therein that Kanyabashi incited the population with a megaphone from a vehicle on "at least one occasion" 591 It further found that, "[w]hile the Prosecution could have employed precise legal terms to indicate the alleged criminal conduct", paragraph 6.45 of the Indictment was nonetheless "sufficiently precise to provide notice to Kanyabashi of the Prosecution's intention to lead evidence in relation to an incident of incitement by megaphone occurring in June 1994. 5902 The Trial Chamber added that, "[i]n any event", Kanyabashi "did not object

to the testimony of Witness QI with respect to the megaphone incident of mid-June 1994 at trial.*5903 2546. Kanyabashi submits that the Indictment was impermissibly vague with respect to the alleged dates and number of incidents of announcement by megaphone. 904 In particular, he contends that the words "on at least [on] one occasion" in paragraph 5.8 of the Indictment appeared to refer to the number of rounds that Kanyabashi made in Butare Town during the incident which took place in commune, at which he encouraged local residents to kill Tutsis. In the days following the meetings, Tutsis in the area were attacked. For paragraph 6.45 of the Kanyabashi Indictment, see supra, fn.

5815. The Trial Chamber also referred to paragraph 6.53 of the Kanyabashi Indictment but did not rely on it as it relates to the incitement by megaphone. See Trial Judgement, paras. 3693, 3710-3718, fn. 9918. 5898 Kanyabashi Indictment, p.

42. See Trial Judgement, paras. 3714-3718. 5900 Trial Judgement, para. 3715. 5901 Trial Judgement, para.

3716. See also ibid., para. 3803. 5902 Trial Judgement, para. 3717. 5903 Trial Judgement, para. 3718. 5904 Kanyabashi Notice of Appeal, sub-paras. 3.1-3.1.9; Kanyabashi Appeal Brief, paras. 231, 232. See also AT. 20 April 2015 pp. 16 and 17 (closed session), 18-20. The Appeals Chamber notes that, in his notice of appeal, Kanyabashi also argued under sub-Ground 3.1.5 that the Trial Chamber erred in finding that he had received sufficient notice in relation to the allegation concerning the late May 1994 megaphone announcement testified to by Witness QJ. See Kanyabashi Notice of Appeal, sub-paras. 3.1.5-3.1.5.2. However, the Appeals Chamber notes that, while stating in his appeal that "Grounds [...] and 3.1.5 are not developed autonomously, but concurrently with other grounds", Kanyabashi has failed to develop and substantiate his allegation of error related to Witness QJ in his appeal brief or during the appeals hearing. See Kanyabashi Appeal Brief, para. 233; AT. 20 April 2015 pp. 16, 18, 19. The Appeals Chamber therefore dismisses Kanyabashi's challenge to the Trial Chamber's finding regarding notice of the late May 1994 megaphone incident as unsubstantiated. 887 Case No. ICTR-98-42-A 14 December 2015

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19477/H May, not to several incidents occurring on distinct dates. S In Kanyabashi's view, the wording of paragraph 5.8 "does not allow for the addition of a new incident, especially not in mid-June" 5906 He also argues that Witness TK's testimony at trial - on the basis of which he alleges he was convicted - "does not match the mode of participation mentioned in [paragraph] 5.8" since Witness TK testified that the message was not broadcasted by Kanyabashi as alleged in this paragraph, but by somebody else.907 Kanyabashi adds that Witness TK's evidence should also have been excluded because the Prosecution failed to give him notice that this witness would testify against him on the megaphone allegations.$908 2547. Kanyabashi also contends that he was never provided notice of the mid-June 1994 megaphone announcement incident 909 Specifically, he submits that: (i) the Trial Chamber erred in finding that paragraph 6.45 of the Indictment provided notice of this incident; 5910 (ii) it is not clear from the summaries of Witnesses QJ's and QI's anticipated evidence appended to the Prosecution Pre-Trial Brief that the witnesses would testify about two distinct incidents as they mention neither a date nor a place; and (iii) Witness QI's prior statement to Tribunal investigators did not situate the incident in June.911 He further argues that, in faulting him for not raising an objection

to Witness QI's testimony, the Trial Chamber failed to appreciate that he objected to the vagueness of paragraph 5.8 of the Indictment in several instances, both before and after the trial started,912 and 5905 Kanyabashi Appeal Brief, paras. 232, 243 (emphasis omitted). See also Kanyabashi Reply Brief, para. 86. 5907 Kanyabashi Appeal Brief, paras. 234, 235, 239. Kanyabashi claims that he understood that he was alleged to be the Kanyabashi Notice of Appeal, sub-paras. 3.1.5.2, 3.1.6; Kanyabashi Appeal Brief, paras. 234, 236. Kanyabashi points out that: (i) the Prosecution failed to indicate in its pre-trial brief that Witness TK was expected to testify in relation to the allegations against him, and indicated instead that the witness would exclusively testify in relation to Nyiramasuhuko and Ntahobali; (ii) Witness TK's prior statements were silent or very unclear as regards Kanyabashi's involvement in megaphone announcements; and (ili) Witness TK's will-say statement did not give notice that the witness would testify against him. In addition, Kanyabashi contends that he should have been provided notice of the evidence concerning the modus operandi in accordance with Rules 66(A) and 93 of the Rules. He also asserts that Witness TK's prior statements were insufficient to remedy the absence of notice. See Kanyabashi Appeal Brief, paras. 236-238, 240, fn. 774; Kanyabashi Reply Brief, paras. 81, 83 ** Kanyabashi Notice of Appeal, sub-paras. 3.1.7-3.1.8; Kanyabashi Appeal Brief, paras. 242-248 5910 Kanyabashi Appeal Brief, para.

245. Kanyabashi highlights that, in contrast with paragraph 5.8 of the Kanyabashi Indictment, paragraph 6.45 of the Kanyabashi Indictment does not make any reference to megaphone announcement, refers to instructions given to a selected group of people, and was pursued under both Articles 6(1) and 6(3) of the Statute. He also points out that the French version of paragraph 6.45, read together with paragraph 5.8, created confusion as it specifically refers to instructions provided near "Butare market". See Kanyabashi Notice of Appeal, sub-para. 3.1.7.3; Kanyabashi Appeal Brief, paras. 245, 246; Kanyabashi Reply Brief, paras. 89, 90; AT. 20 April 2015 2p. 16 and 17 (closed session), 18 ' Kanyabashi Notice of Appeal, sub-paras. 3.1.7-3.1.7.4, 3.1.9; Kanyabashi Appeal Brief, para. 247, referring to Witness Summaries Grid, item 4, Witness QJ ("Witness QJ's Summary"), Witness QI's Summary, Exhibit D215 (Witness QI's Statement, dated 11 June 1996 and List of omissions) (confidential). As already mentioned, Witness QI's Statement was first disclosed in redacted version on 9 January 1997 and its unredacted version was also admitted into evidence on 19 April 2004 as Exhibit D201 (confidential). See supra, fn. 5858. 5912 Kanyabashi Appeal Brief, paras. 249, 251, referring to The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Joseph Kanyabashi's Reply to the Response of the Prosecutor, Nyiramasuhuko and Ntahobali to His Motion to Vary His List of Defence Witnesses Pursuant to Rule 73ter, 24 December 2007 (originally filed in French under Case No. ICTR-98-42-T, English translation filed on 13 February 2008) (confidential) ("Kanyabashi 888 Case No. ICTR-98-42-A 14 December 2015

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19476/H that the Trial Chamber had made it clear that issues of this nature were better being raised in closing arguments. 913 Kanyabashi submits that the vagueness of the Indictment regarding the time of the megaphone incident caused him serious prejudice as he understood that he had to defend himself in respect of only one incident of incitement by megaphone.5914 2548. The Prosecution responds that the Trial Chamber correctly concluded that the Indictment, when read as a whole, provided sufficient notice to Kanyabashi regarding the megaphone announcements that occurred in May and June 1994 5915 It argues that Kanyabashi's interpretation of the phrase "on at least [on] one occasion" in paragraph 5.8 of the Indictment does not show that the Trial Chamber erred in its conclusion and submits that the Trial Chamber did not convict Kanyabashi on the basis of Witness TK's testimony.5916 Pointing out that it relied upon paragraph 6.45 of the Indictment in support of Count 4 in the charging section of the Indictment, the Prosecution argues that Kanyabashi was put on notice that he was charged with direct and public incitement to commit genocide on the basis of the conduct described in this paragraph. 917 In its view, the relevant material facts were therefore provided in both paragraphs 5.8 and 6.45. 5918 2549. The Prosecution further contends that post-indictment communications

clearly informed Kanyabashi that Witnesses QJ and QI were testifying about different incidents.919 It also argues that, at trial, Kanyabashi only raised general claims of vagueness of the Indictment without 24 December 2007 Reply"), paras. 29, 30 (paras. 30, 31 in French original), Kanyabashi 11 December 2007 Motion, paras. 39, 42, The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Appel de Joseph Kanyabashi de la Décision de la Chambre de première instance II du 21 mars 2007, 9 May 2007 ("Kanyabashi 9 May 2007 Appeal"), para. 56, Kanyabashi Opening Statement, T. 10 July 2007 p. 8, The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Motion to Vary the List of Joseph Kanyabashi's Defence Witnesses Pursuant to Rule 73ter, 22 December 2006 (originally filed in French, English translation filed on 8 May 2007) (confidential) ("Kanyabashi 22 December 2006 Motion"), paras. 32, 69, 72, 78, 84, 93, 105, 108, Kanyabashi Preliminary Motion, paras. 23, 25, 38, pp. 17, 18, 25. See also Kanyabashi Reply Brief, para. 93 3913 Kanyabashi Notice of Appeal, sub-para. 3.1.8; Kanyabashi Appeal Brief, para. 250. 5914 Kanyabashi Appeal Brief, paras. 252, 253, referring to Kanyabashi Closing Brief, paras. 285, 287, 289-292, 296, 300, 302, 303, 308, 309. See also Kanyabashi Reply Brief, paras. 94-97; AT. 20 April 2015 pp. 18, 19. $915 Prosecution Response Brief, paras.

1859-1878. See also AT. 20 April 2015 pp. 39-42. 5916 Prosecution Response Brief, paras. 1861-1869, 1871, 1872. The Prosecution also submits that the evidence of Witness TK did not constitute a pattern of evidence within the meaning of Rule 93(A) of the Rules and was, as such, not subjected to this rule. It adds that, because Kanyabashi failed to object to the relevant portions of Witness TK's testimony at trial, his belated claim should be dismissed. See ibid., paras. 1869, 1870. $917 Prosecution Response Brief, para. 1878. 5918 Prosecution Response Brief, paras. 1876-1878. Prosecution Response Brief, paras. 1871-1878, referring to Witness QJ's statements of 8 May 1996 and 22 January 1997, disclosed on 10 April 1997 and 17 June 1999, respectively, and admitted as part of Exhibit D8 on 13 November 2001 ("Witness QJ's 1996 Statement" and "Witness QJ's 1997 Statement", respectively). See The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Statement of Witness "S"/Déclaration du témoin "S'", 10 April 1997 (confidential); The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Transmission of Redacted Statements in the Case of The Prosecutor v Joseph Kanyabashi, 17 June 1999 (confidential). See also AT. 20 April 2015 p. 40 (erroneously referring to Witness QJ's statement of 28 October 1997 instead of Witness QJ's 889 Case No. ICTR-98-42-A 14 December 2015

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19475/H specifically objecting to Witness QI's testimony and that he fails to demonstrate that he suffered prejudice as a result of the alleged lack of notice. 5920 2550. Kanyabashi replies that the Trial Judgement clearly reflects that Witness TK's evidence was relied upon in relation to both megaphone incidents.5921 In addition, he submits that the disclosure of Witnesses QJ's and QI's statements did not provide sufficient notice about the mid-June incident.* Kanyabashi further reiterates that his ability to prepare his defence was materially impaired, notably because he was deprived of the opportunity to conduct the necessary investigations. 5923 2551. The Appeals Chamber acknowledges that the French version of the relevant sentence in paragraph 5.8, when read in isolation, may be interpreted as alleging a single incident involving Kanyabashi making multiple rounds around Butare Town the same day.924 However, when the relevant phrase is read in parallel with the English version, Kanyabashi should have understood that the words "on at least on one occasion" in English and "au moins une fois" in French refer to the occurrence of multiple incidents of the same nature occurring "[i]n or around late May, 1994". The Appeals Chamber, however, finds that this paragraph was overly vague as regards the number of times Kanyabashi was alleged to have incited the population through a megaphone while driving through Butare Town.

2552. Conversely, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, is not persuaded by Kanyabashi's argument that paragraph 5.8 of the Indictment was defective regarding the pleading of the dates of the incidents. While not referring to the month of June in particular, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, considers that the timeframe "fi]n or around late May, 1994" was sufficiently specific to allow Kanyabashi to prepare his defence against two allegations of incitement occurring in late May and mid-June 1994.5925 The Appeals Chamber 5920 Prosecution Response Brief, paras. 1879-1890. See also AT. 20 April 2015 pp. 41, 42. 5921 Kanyabashi Reply Brief, paras. 82, 84, 85. 5922 Kanyabashi Reply Brief, para.

92. Kanyabashi emphasises that there is no mention of any incitement by megaphone occurring in mid-June in Witness QI's Statement. See idem. 5923 Kanyabashi Reply Brief, para. 95. 5924 See Kanyabashi Indictment, para. 5.8 (French) ("Vers fin mai 1994, Joseph KANYABASHI a fait, au moins une fois, le tour de la ville de Butare en voiture et s'est adressé à la population avec haut-parleur."). 925 The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntakirutimana Appeal Judgement, para. 25; Kupreskié et al. Appeal Judgement, para.

89. Cf. also Kvocka et al. Appeal Judgement, para. 436 (finding that the appellant had failed to identify any prejudice from the fact that the indictment referred to 4 June 1992 whereas the trial chamber found that the incident took place on or shortly before 29 June 1992), quoting Kunarac et al. Appeal Judgement para. 217 ("[MJinor discrepancies between the dates in the Trial Judgement and those in the Indictment in this case go to prove the difficulty, in the absence of documentary evidence, of reconstructing events several years after they occurred and not, as implied by the Appellant, that the events charged in the Indictment IT-96-23 did not occur."); Rutaganda Appeal Judgement, paras. 296-306 (finding that the variance between an 890 Case No. ICTR-98-42-A 14 December 2015 1.

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19474/H notes that, while it was in possession of information regarding the date of the late May incident through Witness QJ's written statements, the Prosecution did not appear to have more specific information regarding the date of the June incident at the time of the filing of the Indictment. 5926 Accordingly, not only the Appeals Chamber, Judge Pocar, and Judge Agius dissenting, finds no error in the Trial Chamber's finding that the allegation of a megaphone announcement by Kanyabashi in mid-June 1994 fell under the scope of paragraph 5.8, but it is also of the view, Judge Pocar and Judge Agius dissenting, that the timeframe of the allegation of megaphone announcements by Kanyabashi pleaded in this paragraph was sufficient to provide him adequate notice.

2553. As to Kanyabashi's contention that Witness TK's evidence fell outside the scope of paragraph 5.8 of the Indictment, the Appeals Chamber notes that Kanyabashi was neither charged nor convicted in relation to the megaphone announcement testified to by Witness TK.5927 The Trial Judgement reflects that the Trial Chamber used Witness TK's evidence as circumstantial evidence corroborating Witnesses QJ's and QI's testimonies about the other megaphone announcements on the basis of which Kanyabashi was ultimately convicted. 5928 As the evidence by which the material facts underpinning the charges are to be proven need not be pleaded in the indictment,5929 the Appeals Chamber rejects Kanyabashi's arguments regarding lack of notice of Witness TK's allegation of a megaphone announcement made on behalf of the Ngoma bourgmestre at the end of May 1994. To the extent that Kanyabashi claims that he did not receive sufficient notice that Witness TK would provide evidence on a matter relevant to the case against him, the Appeals Chamber notes that, contrary to Kanyabashi's submission, Witness TK's prior statements disclosed to him in 1997 clearly referred to the megaphone announcement the witness testified about at trial, 5930 Kanyabashi did not object to Witness TK's evidence when the witness testified, 5931 and the cross-examination of his counsel reflects that he was prepared to respond

to this particular aspect of the witness's evidence. 932 Kanyabashi's contention regarding the lack of notice of Witness TK's evidence is therefore rejected. allegation of distribution of weapons "on or about 6 April 1994" and resulting in convictions for distributions on 8, 15 and 24 April 1994 was not material). 5926 Witness QI's Statement, p. K0028872 ("I cannot remember the date on which this occurred"). 5927 Trial Judgement, paras. 3802, 3803. 5928 See infra, Section VIII.E. 5929 See, e.g., Nzabonimana Appeal Judgement, para. 29; Ntagerura et al. Appeal Judgement, para. 21; Kupreskié et al. Appeal Judgement, para, 88. 5932 See Witness TK, T. 27 May 2002 pp. 136-154 (closed session); T. 28 May 2002 pp. 8-27. 891 Case No. ICTR-98-42-A 14 December 2015

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19473/H 2554. Regarding Kanyabashi's challenge to the Trial Chamber's reliance on paragraph 6.45 of the Indictment, the Appeals Chamber notes that this paragraph refers to Kanyabashi encouraging and instructing "soldiers", "militiamen", and "certain members of the civilian population" between 20 April and June 1994 to search for the Tutsis who had escaped the massacres, without any mention of megaphone announcements or incitement directed at the population of Butare Town in general. The Appeals Chamber finds that the Trial Chamber therefore erred in concluding that paragraph 6.45 provided notice to Kanyabashi of his alleged responsibility for a megaphone announcement directed at the population of Butare Town made in mid-June 1994. The Appeals Chamber, Judge Pocar and Judge Agius dissenting, is of the view that this error is nonetheless inconsequential given the Appeals Chamber's previous conclusion that the pleading of the date of the megaphone incidents in paragraph 5.8 of the Indictment was not overly vague and that the Indictment was not defective in this respect.

2555. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider that the Indictment did not put Kanyabashi on adequate notice of the number of times he was alleged to have incited to the commission of genocide through a megaphone while driving through Butare Town.

2556. Turning to the question whether the defect in the Indictment regarding the number of alleged incidents was subsequently cured, the Appeals Chamber observes that there is no mention of the allegation of megaphone announcements in the Prosecution's pre-trial brief or opening statement. In the summaries of the Prosecution witnesses' anticipated evidence appended to the pre-trial brief, it appears that Witness QJ would testify about Kanyabashi making a megaphone announcement inciting the population to search for the enemy in late May5933 and that Witness QI would also testify about Kanyabashi saying over a megaphone that all Tutsis should be killed while driving past the witness's house on an unspecified date 5934 Although not obvious from a reading of Witnesses QJ's and QI's summaries, the Appeals Chamber considers, Judge Pocar and Judge Agius dissenting, that a review of the witnesses' prior statements confirms that both witnesses were referring to two distinct incidents implicating Kanyabashi in delivering a message using a 5933 In relevant part, Witness QJ's Summary, which was marked relevant to Kanyabashi and was linked, inter alia, to Count 4 of the Kanyabashi Indictment, reads as follows: QJ saw Kanyabashi around late May on an Ngoma commune truck speaking on a megaphone to the public. Kanyabashi said that the enemy still was among them and that they were to make a

thorough search for the enemy. This message was repeated for two days. Immediately following the speech, the population began searching for and killing the Tutsis. 5934 In relevant part, Witness QI's Summary, which was marked relevant to Kanyabashi and was linked, inter alia, to Count 4 of the Kanyabashi Indictment, reads as follows: I saw Kanyabashi drive pass the house, talking over a megaphone, saying that the Tutsi enemy still wa mong the population and that all Tutsis, even the babies should be killed. Kanvabashi also said that th bushes should be cut down so that the Inkotanvi could not find a hiding place. 892 Case No. ICTR-98-42-A 14 December 2015

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19472/H megaphone.5935 In these circumstances, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, concludes that the vagueness of the Indictment regarding the number of incidents of incitement by megaphone was remedied by Witnesses QI's and QI's summaries read together with their relevant prior written statements.

2557. Incidentally, the Appeals Chamber observes that Kanyabashi appears to have treated the allegations of megaphone announcements recounted by Witnesses QJ and QI as one and the same incident in his closing brief.936 However, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, is of the view that the conduct of his defence at trial effectively reflects that he was provided with sufficient information to conduct meaningful investigations and prepare an effective defence against the allegation of a second megaphone announcement in June 1994. In particular, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, notes that Kanyabashi's counsel - who did not object to the relevant part of Witness QI's testimony5937 - conducted a detailed and 5935 Compare Witness QJ's Summary, Witness QJ's 1996 Statement, p. K0028047 (Registry pagination) ("Towards the end of May, I saw Kanyabashi on board a blue Toyota truck with the inscription Ngoma commune'. The truck was being driven by a driver. He was transmitting a message to the public using a megaphone."), Witness QJ's 1997 Statement, p. K0035673 (Registry pagination) ("Around the end of May 1994, at about 10:00 a.m., I saw Joseph Kanyabashi in a green Toyota pick-up truck, and not a blue one, as I said in my statement of 8 May 1996. [...] He repeated this message two days in a row. [...] He was accompanied on those two

days by two men in civilian clothes.") with Witness QI's Summary, Witness QI's Statement, p. K0028871 (Registry pagination) ("Kanyabashi is a striking example. I saw him driving to Tumba aboard his white Peugeot 305 car, escorted by two armed soldiers. I saw him driving past [...], and heard him talking through a megaphone. He was saying that the Tutsi enemy was still among the population. He requested that Tutsi be killed, including babies."). The Appeals Chamber, Judge Pocar and Judge Agius dissenting, considers that Kanyabashi should have been prompted to re-examine Witnesses QJ's and QI's prior statements upon reading the Witness Summaries Grid. 5936 Kanyabashi Closing Brief, paras. 309, 310. 5937 See Trial Judgement, para.

3718. The Appeals Chamber notes that the objections at trial regarding the imprecision of the timeframe of the allegations set forth in paragraph 5.8 of the Kanyabashi Indictment to which Kanyabashi points to were very general and concerned the prior formulation of the paragraph. See Kanyabashi 24 December 2007 Reply, para. 29; Kanyabashi 11 December 2007 Motion, para. 39; Kanyabashi 9 May 2007 Appeal, para. 56; Kanyabashi 22 December 2006 Motion, paras. 32, 42, 69, 72, 78, 84, 93, 105, 108; Kanyabashi Preliminary Motion, paras. 23, 25, 38, pp. 17, 18, 25. The objections raised concerned about the previous formulation of paragraph 5.8 contained in the Kanyabashi Amended Indictment, which read as follows: From April to July 1994, incitement to hatred and violence was propagated by various prominent persons, including members of the Government and local authorities. The President, Théodore Sindikubwabo, the Prime Minister, Jean Kambanda, Ministers Pauline Nyfiframasuhuko and André Rwamakuba, local authorities such as the Préfets, Sylvain Nsabimana and Alphonse Nteziryayo, the Bourgmestres Joseph Kanyabashi, Ladislas Ntaganzwa and Elie Ndayambaje publicly incited the people to exterminate the Tutsi population and its "accomplices". In response to the Kanyabashi Preliminary Motion, the Trial Chamber ordered the Prosecution to amend and clarify paragraph 5.8 "align[ing] the wording of this paragraph of the Indictment with that of paragraphs 7, 13 and 14 of the initial Indictment dated 15 June 1996, which is more precise". See 31 May 2000 Decision, para. 5.21. Kanyabashi also did not contend that the evidence of Witness QI was outside the scope of paragraph 5.8 of the Kanyabashi Indictment in his opening submissions. See Kanyabashi Opening Statement, T. 10 July 2007 p.

8. Besides advancing a generic claim of vagueness of the timeframe of the incitement by megaphone allegation in his closing brief, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, considers that Kanyabashi also failed to object clearly to Witness QI's evidence on the mid-June 1994 megaphone announcement for lack of notice. See Kanyabashi Closing Brief, para. 301 ("Without having a specific date, a specific place and an identifiable victim, it would be impossible to establish the falsity of the account of the megaphone incident."). Although concerned by the practice of trial chambers to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of final deliberations, the Appeals Chamber considers that none of the Trial Chamber's oral rulings Kanyabashi relies upon could have reasonably been understood as suggesting to the Defence to refrain from making objections 893 Case No. ICTR-98-42-A 14 December 2015

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19471/H well-prepared cross-examination of Witness QI with respect to the megaphone incident the witness recounted. 5938 Kanyabashi also called witnesses to rebut Witness QI's account of seeing him delivering a message through a megaphone in June 1994939 and requested the addition of Witness D-2-17-A to his witness list for the specific purpose of rebutting Witness QI's testimony that he saw Kanyabashi using a megaphone from his hiding place in June 1994.5940 2558. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to the number of incidents of incitement by megaphone of which Kanyabashi was alleged to be responsible. However, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, considers that Kanyabashi was ultimately put on adequate notice of the relevant material facts with respect to the number of alleged incidents of incitement by megaphone and that the vagueness of the Indictment did not impair his ability to prepare his defence. The Appeals Chamber, Judge Pocar and Judge Agius dissenting, therefore concludes that the Trial Chamber's error concerning the form of the Indictment regarding the number of incidents of incitement by megaphone did not invalidate its decision to convict Kanyabashi on the basis of the May and June 1994 megaphone announcements.

4. Conclusion 2559. As discussed above, the Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi pursuant to Article 6(3) of the Statute in relation to the killings perpetrated by communal policemen at Kabakobwa Hill on 22 April 1994 in the absence of sufficient notice of the material facts underpinning the conviction. Consequently, the Appeals Chamber grants Ground 1.1 of Kanyabashi's appeal and reverses his convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II based on these killings. The Appeals Chamber will examine the impact of this finding, if any, in Section XII below.

2560. The Appeals Chamber, however, dismisses Kanyabashi's contentions that he lacked sufficient notice of his alleged responsibility as a superior in relation to the killings perpetrated by related to the indictments. See Kanyabashi Appeal Brief, para. 250, referring to T. 6 March 2002 pp. 83, 84, 104-106, 122-124, T. 15 March 2001 pp. 9, 10, T. 23 March 2004 pp. 56, 57. See also supra paras. 1107, 1280. 5938 Witness QI, T. 24 March 2004 pp. 69-80 (closed session); T. 25 March 2004 pp. 4-16 (closed session). 5939 Witness D-21-B, T. 7 February 2008 pp. 64-69, 72-75 (closed session); Witness D-2-5-I, T. 22 January 2008 p. 25 (closed session), 27; Witness D-2-14-W, T. 11 February 2008 pp. 41, 42 (closed session); Witness D-13-D, T. 21 February 2008 p. 45; Witness D-2-YYYY, T. 28 November 2007 p. 45 (closed session). See also Kanyabashi Closing Brief, paras. 298, 299. 5940 Kanyabashi 11 December 2007 Motion, paras. 16, 29-33, 51, p. 12 and Annex I, pp. 25-32. As noted above, Kanyabashi was ultimately "not able to get this witness to testify". See supra, para. 2483, fn. 5770. 894 Case No. ICTR-98-42-A 14 December 2015

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19470/H soldiers at Matyazo Clinic in late April 1994. The Appeals Chamber, Judge Pocar and Judge Agius dissenting with respect to the mid-June 1994 megaphone announcement, further dismisses Kanyabashi's contentions that he lacked sufficient notice of his alleged responsibility for committing direct and public incitement to commit genocide through two megaphone announcements in late May and mid-June 1994. In light of the Trial Chamber's analysis concerning the cumulative effect of the defects in the co-Accused's Indictments in the Trial JudgementS941 and the absence of any substantiation, the Appeals Chamber also dismisses Kanyabashi's allegation of error regarding the assessment of the cumulative effect of the defects of the Indictment on his fair trial rights. Accordingly, the Appeals Chamber, Judge Pocar and Judge Agius dissenting in part, dismisses Grounds 2.1, 2.2, 2.7 in part, and 3.1 of Kanyabashi's appeal. 5941 Trial Judgement, paras. 125-131. 895 Case No. ICTR-98-42-A 14 December 2015

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19469/H C. Kabakobwa Hill (Grounds 1.2-1.7) 2561. The Trial Chamber convicted Kanyabashi of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(3) of the Statute for failing to prevent the crimes committed by members of the Ngoma commune police at Kabakobwa Hill on 22 April 1994 and for failing to punish them.*42 2562. Kanyabashi contends that the Trial Chamber erred in its assessment of the evidence relevant to this event and in concluding that he had sufficient knowledge that his subordinates might commit crimes or had committed crimes at Kabakobwa Hill, $943 2563. The Appeals Chamber recalls that it has concluded that the Trial Chamber erred in convicting Kanyabashi in relation to the killings perpetrated at Kabakobwa Hill on 22 April 1994 in the absence of sufficient notice of the material facts underpinning his convictions and, on this basis, reversed his convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il in relation to these killings 5944 Consequently, the Appeals Chamber dismisses Grounds 1.2 through 1.7 of Kanyabashi's appeal as moot.

5942. See supra, para.

2505. See supra, paras. 2520, 2559. 896 Case No. ICTR-98-42-A 14 December 2015

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19468/H D. Matyazo Clinic (Grounds 2.1 to 2.6, 2.7 in part) 2564. Based on the testimonies of Prosecution Witnesses QI and RL, the Trial Chamber, Judge Ramaroson dissenting, found that, in late April 1994, following an initial attack by soldiers, Kanyabashi went to Matyazo Clinic, addressed the Tutsis sheltering there, and thereafter ordered soldiers to open fire on the Tutsis, resulting in many deaths. 594s 2565. Noting that the Prosecution only charged Kanyabashi under Article 6(3) of the Statute in relation to this event, the Trial Chamber found that it was not proven that Kanyabashi exercised de jure authority over the soldiers. 946 However, recalling that Kanyabashi ordered the soldiers to shoot at the Tutsis and that they obeyed this order, the Trial Chamber concluded that "Kanyabashi exercised effective control over these soldiers on an ad hoc or temporary basis, and that he was in a superior-subordinate relationship over them."5947 Consequently, the Trial Chamber, Judge Ramaröson dissenting, convicted Kanyabashi of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(3) of the Statute for failing to prevent the soldiers from committing these killings and

punish them.5948 2566. Kanyabashi submits that no reasonable trier of fact could have convicted him for the killings at Matyazo Clinic based on the evidence on the record. 5949 In particular, he argues that the relevant evidence does not demonstrate that he was in a superior-subordinate relationship with the soldiers who allegedly followed his orders or that he had effective control over them. $950 In his view, while the fact that the persons followed orders may be sufficient to establish responsibility for ordering under Article 6(1) of the Statute, it is insufficient to prove effective control.5951 Kanyabashi also submits that the Trial Chamber erred in its overall assessment of the evidence concerning this $945 Trial Judgement, paras. 2084, 2103, 5818. 5946 Trial Judgement, paras. 5819, 5820, 5822. 5947 Trial Judgement, para. 5823. 5948 Trial Judgement, paras. 5824, 5826, 5974, 5975, 6061-6063, 6105, 6106, 6124, 6173, 6174, 6186. 5949 Kanyabashi Notice of Appeal, paras. 16-18, sub-paras. 2.2-2.4.4, 2.6-2.7.2; Kanyabashi Appeal Brief, paras. 149- 151, 153-155, 157, 158, 169-220, 222-224; Kanyabashi Reply Brief, paras. 63-77. See also AT. 20 April 2015 pp. 12- 5950 Kanyabashi Notice of Appeal, sub-para, 2.2.6; Kanyabashi Appeal Brief, paras. 170, 172; Kanyabashi Reply Brief paras. 56-62; AT. 20 April 2015 pp. 51, 54. Kanyabashi argues that credible Defence evidence reflects that the soldiers who attacked Matyazo Clinic believed that he was an RPF accomplice, further undermining the finding of his control ver them. See Kanyabashi Appeal Brief, para. 171; AT. 20 April 2015 p. 51 951 See Kanyabashi Appeal Brief, para. 169 897 Case No. ICTR-98-42-A 14 December 2015

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19467/H event." He requests that the impugned conclusions be set aside and that he be acquitted of the crimes committed at Matyazo Clinic.93 2567. The Prosecution responds that the Trial Chamber reasonably assessed the evidence pertaining to the killings at Matyazo Clinic.'94 It submits that the nature of Kanyabashi's orders, the promptness with which they were executed, and evidence that Kanyabashi transported the soldiers to Matyazo Clinic demonstrate his superior responsibility for the crimes committed by these soldiers." It points to further evidence demonstrating that Kanyabashi "was an extremely influential and powerful man" to show that soldiers "would obey" his orders. 5956 2568. The Appeals Chamber recalls that the imposition of superior responsibility necessitates a pre-existing superior-subordinate relationship between the accused and the perpetrators.957 While proof that an accused is not only able to issue orders but that his orders are actually followed provides an example of effective control,5958 the Appeals Chamber has held that: [t]he ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists. However, it is

possible to imagine scenarios in which one of two persons of equal status or rank - such as two soldiers or two civilian prison guards - could in fact exercise 'effective control' over the other at least in the sense of a purely practical ability to prevent the conduct of the other by, for example, force of personality or physical strength. The Appeals Chamber does not consider the doctrine of command responsibility - which developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others - as having been intended to impose criminal liability on persons for the acts of other persons of completely equal status. 5959 5952 Kanyabashi Notice of Appeal, paras. 16-18, sub-paras. 2.3-2.4.4, 2.6-2.7.2; Kanyabashi Appeal Brief, paras. 150, 151, 153-155, 157, 158, 173-220, 222-225; Kanyabashi Reply Brief, paras. 63, 71-77. See also AT. 20 April 2015 B, anyabashi Notice of Appeal, para. 18; Kanyabashi Appeal Brief, paras. 212, 227. 5954 Prosecution Response Brief, paras. 1786-1854. See also AT. 15 April 2015 pp. 34, 35. 5955 Prosecution Response Brief, paras. 1787, 1791, 1794, 1795. See also ibid., paras. 1788, 1789. The Prosecution also points to evidence that Kanyabashi had previously been escorted by soldiers to Matyazo Clinic, moved around with them, and that they were stationed at his house. See ibid., paras. 1793, 1794; AT. 15 April

2015 pp. 36, 38. $956 Prosecution Response Brief, paras. 1792, 1793. Specifically, the Prosecution refers to evidence showing that: (i) Kanyabashi was in a senior political position and that Butare Town, for which he was bourgmestre, was second only to Kigali: (ii) Kanyabashi "had outstanding political experience [and] intimate knowledge of the decision makers"; iii) President Sindikubwabo was Kanyabashi's friend; (iv) Kanyabashi "was the dean of the Butare mayors"; and (v) "Kanyabashi's Tutsi wife could freely pass through road blocks - which were often manned by the soldiers - since Kanyabashi was her 'true identity card'." See idem (internal references omitted). See also AT. 15 April 2015 pp. 35, 36, 5957 Halilovié Appeal Judgement, para. 210 ("Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command.") (internal reference omitted). See also Bizimungu Appeal Judgement, para. 133 ("The Appeals Chamber recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators.") (internal reference omitted). 5958 See Halilovié Appeal Judgement, para.

207. See also Blaskié Appeal Judgement, para. 69. 5959 See Celebici Appeal Judgement, para. 303 (internal reference omitted). 898 Case No. ICTR-98-42-A 14 December 2015

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19466/H 2569. The Appeals Chamber observes that, in finding that Kanyabashi had superior responsibility over the soldiers at Matyazo Clinic within the meaning of Article 6(3) of the Statute, the Trial Chamber relied exclusively on its findings that he ordered soldiers to shoot at the Tutsis sheltering at Matyazo Clinic and that the soldiers obeyed this order. 960 Having previously determined that Kanyabashi - a civilian authority who was the bourgmestre of Ngoma Commune5961 - did not have de jure authority over the soldiers, 5962 the Trial Chamber considered that he nonetheless "exercised effective control over these soldiers on an ad hoc or temporary basis, and that he was in a superior-subordinate relationship over them.*5963 2570. The Appeals Chamber considers that the Trial Chamber's findings that Kanyabashi ordered soldiers to shoot at Tutsis and that the soldiers obeyed this order may be demonstrative of the fact that Kanyabashi was in a position of authority or influence that could compel the commission of a crime through the execution of his orders. 5964 As noted above, these findings could be indicative of the fact that Kanyabashi exercised effective control over the soldiers. However, the Appeals Chamber finds that no reasonable trier of fact could have found that a single order from a civilian authority which was followed by soldiers demonstrated a pre-existing

superior-subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent the soldiers from committing crimes or to punish them for the crimes committed. $966 2571. In so finding, the Appeals Chamber notes that the conduct of Kanyabashi as found by the Trial Chamber could have provided a basis for individual criminal liability pursuant to Article 6(1) of the Statute. However, as already emphasised, liability under Article 6(3) of the Statute hinges on the existence of a superior-subordinate relationship which imposes an obligation to prevent crimes or punish culpable subordinates for them. The record relied upon by the Trial Chamber, however, 5960 Trial Judgement, para. 5823. 5961 Trial Judgement, para. 53. 5962 Trial Judgement, para. 5822. 5963 Trial Judgement, para. 5823. 5964 This is the type of authority that could allow for the imposition of ordering liability under Article 6(1) of the Statute. See Semanza Appeal Judgement, para. 361 ("Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber's approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in

Kordié and Cerkez, the actus reus of 'ordering' is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused's order. The Trial Chamber thus committed no legal error in its enunciation of the elements of sodering.") (internal references omitted). See supra, para. 2568. ("[International humanitarian law entrusts commanders with a role of guarantors of laws dealing with humanitarian protection and war crimes, and for this reason they are placed in a position of control over the acts of their subordinates, 899 Case No. ICTR-98-42-A 14 December 2015

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19465/H does not support the conclusion that Kanyabashi was in this position with respect to the soldiers who attacked Matyazo Clinic and, consequently, that he was under this obligation. Accordingly, the Appeals Chamber concludes that the Trial Chamber erred in convicting Kanyabashi under Article 6(3) of the Statute on the sole basis that the soldiers executed his orders to shoot at Tutsi refuges at Matyazo Clinic. 5967 2572. Moreover, the Appeals Chamber finds that the evidence referred to by the Prosecution does not support as the only reasonable conclusion the finding that Kanyabashi was in a superior-subordinate relationship with the soldiers involved in the Matyazo Clinic massacre within the meaning of Article 6(3) of the Statute. Specifically, the Appeals Chamber observes that, in the "Factual Findings" section of the Trial Judgement, the Trial Chamber considered that Witnesses QI and RL consistently testified that soldiers accompanied Kanyabashi in his vehicle when he arrived at Matyazo Clinic on the day of the attack. 68 It also summarised Witness RL's testimony that, approximately five days before the event, Kanyabashi had arrived at Matyazo Clinic accompanied by about six soldiers in camouflage uniform and that Witness QI testified that soldiers lived at Kanyabashi's house. 970 The Appeals Chamber finds that this evidence - which was not relied upon by the Trial

Chamber when finding Kanyabashi responsible under Article 6(3) of the Statute 971 _ allows for reasonable inferences other than the existence of a de facto hierarchical relationship wherein Kanyabashi was the superior of the soldiers who attacked Matyazo Clinic. One such inference is that Kanyabashi willingly assisted the soldiers without being in a superior-subordinate relationship with them. and it is this position which generates a responsibility for failure to act."). Cf. Bagilishema Appeal Judgement, paras. 33, 35. $967 The Appeals Chamber highlights that Kanyabashi's situation is materially distinct from the Trial Chamber's findings that Nyiramasuhuko and Ntahobali bore superior responsibility for crimes committed by Interahamwe who followed their orders at the Butare Prefecture Office as well as Ntahobali's superior responsibility for crimes committed by Interahamwe in relation to the killing of Ruvurajabo and Tutsi refugees at the EER. See supra, Sections IV.F.4, V.G.3(b), V.I.4. V.J.4. In this regard, the repeated collaboration between Nyiramasuhuko and Ntahobali and Interahamwe in attacks at the prefectoral office in particular as well as extensive evidence of the Interahamwe consistently following their orders provided a reasonable basis to establish that a pre-existing superior-subordinate relationship existed between Nyiramasuhuko and Ntahobali, on one hand, and

the Interahamwe, on the other hand, and that Nyiramasuhuko and Ntahobali exercised effective control over them. 5968 Trial Judgement, para. 2084 ("Both witnesses testified to the presence of soldiers in or near the clinic and further testified that Kanyabashi was accompanied by soldiers during his visit. In this connection, the Chamber recalls Witness QI's testimony that he saw six soldiers close to the gate of the clinic and an additional two soldiers accompanying Kanyabashi. Witness RL similarly testified to the presence of a total of eight soldiers at the clinic, three or four of whom had arrived with Kanyabashi.") (internal references omitted), referring to Witness QI, T. 23 March 2004 p. 51, T. 24 March 2004 pp. 48 (closed session), 55, 56, Witness RL, T. 30 March 2004 pp. 16, 17 (closed session). $969 Trial Judgement, para. 2034, referring to Witness RL, T. 25 March 2004 pp. 77-79, T. 29 March 2004 p. 63 (closed session). See also ibid., para. 2037. 5970 Trial Judgement, para. 2031, referring to Witness QI, T. 24 March 2004 pp. 56, 57. 5971 See, in particular, Trial Judgement, para. 5823 ("The Chamber recalls, however, that Kanyabashi ordered the soldiers to shoot at the Tutsis sheltering at Matyazo Clinic in late April 1994, and that the soldiers obeyed this order [...]. Based on this fact, the Chamber finds beyond a reasonable doubt that Kanyabashi exercised effective control over 900 Case No. ICTR-98-42-A 14 December 2015

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19464/H 2573. Turning to the evidence that Kanyabashi was "an extremely influential and powerful man",972 the Appeals Chamber is not convinced that a reasonable trier of fact could have found that Kanyabashi was in a superior-subordinate relationship with the soldiers who killed the Tutsi refugees at Matyazo Clinic on this basis. In this respect, it bears noting that the Trial Chamber did not rely on evidence of Kanyabashi's influence and authority to establish his superior responsibility with respect to these soldiers and that it implicitly found that this general evidence of Kanyabashi's influence and authority was insufficient to demonstrate his superior responsibility over the soldiers implicated in the Kabakobwa Hill massacre. 5973 2574. In light of the foregoing, the Appeals Chamber concludes that the Trial Chamber erred in finding that Kanyabashi was responsible pursuant to Article 6(3) of the Statute for the killings of Tutsi refugees who sought shelter at Matyazo Clinic. As a result, Kanyabashi's remaining challenges to the Trial Chamber's findings concerning this event are moot.

2575. Accordingly, the Appeals Chamber grants the relevant part of Ground 2.2 of Kanyabashi's appeal and reverses his convictions for genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II in relation to the killings at Matyazo Clinic. The Appeals Chamber will examine the impact of this finding, if any, in Section XII below. these soldiers on an ad hoc or temporary basis, and that he was in a superior-subordinate relationship over them.") (emphasis added). See also ibid, paras. 2103, 5816-5822, 5824-5826. See Witness FAU, T. 8 March 2004 p. 68; Witness QI, T. 24 March 2004 p. 56; André Guichaoua, 35,12 October 2004 p. 62, T. 14 October 2004 p. 9; Bernadette Kamanzi, T. 26 November 2007 pp. 37, 50. See generally Trial Judgement, paras. 5794-5796. 901 Case No. ICTR-98-42-A 14 December 2015

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19463/H E. Incitement by Megaphone (Grounds 3.2 to 3.8) 2576. The Trial Chamber found that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.5974 It further found that, "around mid-June 1994 Kanyabashi [again] used a megaphone to tell the population to clear bushes along the road in order to remove potential hiding places for the Inkotanyi, to flush out people who were hiding in the bushes, and to kill those found there, including children, old men and women."$975 The Trial Chamber determined that the terms "enemy" and "Inkotanyi", used by Kanyabashi, referred to and were understood to refer to Tutsis in general.5976 The Trial Chamber concluded that Kanyabashi's May and June 1994 megaphone announcements constituted direct and public incitement to commit genocide and, accordingly, convicted him of committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute.5977 2577. Kanyabashi argues that the Trial Chamber erred in its assessment of the evidence and in finding him responsible for direct and public incitement to commit genocide. The Appeals Chamber will consider these challenges in turn.

1. Assessment of Evidence 2578. The Trial Chamber relied principally on the evidence of Witness QJ to find that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.978 The Trial Chamber considered that Witness TK, although not referring to the same incident as Witness QJ, provided various details that corroborated Witness QJ's evidence as to "the manner in which the announcements were made and the content of the announcements" 5979 With respect to the mid-June 1994 megaphone announcement, the Trial Chamber relied primarily on the direct evidence of Witness QI.5980 In assessing both incidents, the Trial Chamber also considered evidence which, in its view, established that megaphone announcements from a vehicle were part of the modus operandi by 5974 Trial Judgement, paras. 3813, 5928, 6009. 5975 Trial Judgement, paras. 3824, 5928, 6009. 5976 Trial Judgement, paras. 3814, 3825, 3826, 5928, 6010. See also ibid., para. 6012 $977 Trial Judgement, paras. 6009-6013, 6037, 6186. The Trial Chamber found that there was insufficient evidence to sabit hat appalatis con ten oried do the subs, ent iling and found him not guily of the crime of $979 Trial Judgement, para.

3804. See also ibid., paras. 3802, 3803. 5980 See Trial Judgement, para.

3824. See also ibid., paras. 3815, 3825. 902 Case No. ICTR-98-42-A 14 December 2015

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19462/H which messages from Kanyabashi, in his capacity as bourgmestre, were delivered to the population of Ngoma Commune from April through June 1994.5981 2579. Kanyabashi contends that the Trial Chamber erred in: i) assessing evidence related to the fabrication of evidence against him; (ii) evaluating exculpatory evidence that was inconsistent with the conclusions that he incited genocide; (iii) finding the existence of a modus operandi; (iv) assessing evidence directly related to the late May 1994 megaphone announcement; (v) assessing evidence directly related to the June 1994 megaphone announcement; and (vi) finding that killings occurred after these announcements.5982 The Appeals Chamber will address these contentions in turn. (a) Fabrication of Evidence 2580. Before turning to its assessment of the Prosecution evidence, the Trial Chamber recalled that the Defence had asserted that "Prosecution Witnesses QJ, TK, and QI were Ibuka members who were induced to falsely testify as to this allegation against Kanyabashi.'5983 However, the Trial Chamber referred to its prior determination that the evidence of Defence Witnesses D-2-21-T, D-13-D, and D-2-18-O "as to the alleged Ibuka membership of Witnesses QI, TK and QJ [did] not undermine the credibility of these Prosecution witnesses.*5984 2581. Kanyabashi submits that, when evaluating such allegations, the Trial Chamber erred

in failing to assess collectively the testimonies of Defence Witnesses D-2-21-T, D-2-18-0, D-13-D, D-2-13-D, and D-1-4-O concerning evidence fabrication by Witnesses QJ, TK, and QI as well as in only considering whether Prosecution witnesses were members of Ibuka.5985 He emphasises that Witness D-2-21-T testified that Witnesses QJ and TK were involved in three meetings, the purpose of which was to forge evidence about a "megaphone story" against Kanyabashi, and that the witness implicated Witness QI as well.5986 He argues that the rejection of Witness D-2-21-T's $981 Trial Judgement, paras. 3812, 3824. See also ibid., para. 3811. 5982 Kanyabashi Notice of Appeal, sub-paras. 3.2-3.8.6; Kanyabashi Appeal Brief, paras. 256-338; Kanyabashi Reply Brief, paras. 98-133. 5983 Trial Judgement, para.

3793. Appeal Brief, para.

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19461/H evidence on the basis that the allegations raised by his testimony were "tardy" and because the witness "did not take down notes during these meetings" was unreasonable. 5987 2582. Kanyabashi further argues that the Trial Chamber erred in accepting evidence from Witnesses QJ and TK, who had close personal ties and were in regular contact after the genocide, even though it determined that they were not truthful in denying that they had discussed the events with each other. He argues that their evidence, which sought to downplay their personal connection, was consistent with other evidence in the record that other witnesses, such as Witnesses SJ and QY, had been instructed to lie and should have been rejected on this basis 5989 As a demonstration of their collusion, Kanyabashi stresses that only in Witness TK's second statement to Tribunal investigators, which was signed on the same day Witness QJ gave a statement about the "megaphone incident", did Witness TK discuss "a message over a microphone by a spokesperson for Kanyabashi" 5990 Kanyabashi also stresses that, during Witness QJ's testimony, the witness "imputed to Kanyabashi words which were different from those mentioned in his statements, but almost identical with those used by [Witness TKJ]."5991 2583. With respect to Witness QI, Kanyabashi contends that, while the Trial Chamber considered Witness D-2-21-T's

evidence of Witness QI's role in fabricating evidence against Kanyabashi, it did not evaluate evidence from Witness D-2-18-0 which implicated him in meetings or Witness QA's testimony that Witness QI's former employer incited Witness QA to accuse falsely Kanyabashi. 992 In addition, Kanyabashi argues that the Trial Chamber should have considered evidence concerning the witness's links with the RPF as raising further doubts about his credibility.5993 He argues that the Trial Chamber placed undue emphasis on the fact that Witness QI was not cross-examined about the meetings in rejecting the allegations of fabrication of evidence, given that the Defence only learned of them years after the witness had testified. 5994 Kanyabashi contends that, under the circumstances, it was unreasonable to rely on Witness QI's uncorroborated evidence. 5995 5987 Kanyabashi Notice of Appeal, sub-para. 4.1.1.3; Kanyabashi Appeal Brief, para.

319. Kanyabashi notes that hi: Defence did not need "to prove collusion or fabrication of evidence" but only raise reasonable doubt. See Kanyabash Appeal Brief, paras. 180-183, 319. Kanyabashi Notice of Appeal, sub-para. 4.1.1.1; Kanyabashi Appeal Brief, paras. 322-324, 326, 327. 5989 Kanyabashi Notice of Appeal, sub-paras. 3.3.2, 3.3.3; Kanyabashi Appeal Brief, para. 325. 5990 Kanyabashi Appeal Brief, para.

321. Kanyabashi highlights that Witness TK did not mention Kanyabashi or the 5992 Kanyabashi Appeal Brief, paras. 190, 283, 331. 5993 Kanyabashi Appeal Brief, paras. 185-189, 194. 5994 Kanyabashi Appeal Brief, para. 331. 5995 Kanyabashi Appeal Brief, para. 331. 904 Case No. ICTR-98-42-A 14 December 2015

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19460/H 2584. The Prosecution responds that Kanyabashi fails to show any error in the Trial Chamber's assessment of the evidence concerning the allegations that Witnesses QJ, TK, and QI fabricated evidence. 5996 2585. The Appeals Chamber finds no merit in Kanyabashi's unsupported contention that the Trial Chamber erred in failing to assess collectively the testimonies of Witnesses D-2-21-T, D-2-18-0, D-13-D, D-2-13-D, and D-1-4-0. The Trial Chamber assessed the evidence of these witnesses in detail in a prior section of the Trial Judgement on allegations of fabrication of evidence. 5997 Although the Trial Chamber organised its deliberations by assessing the Defence evidence witness-by-witness and prior to the assessment of the Prosecution evidence concerning the megaphone announcements, this organisation of the Trial Judgement does not demonstrate that the Trial Chamber did not view the evidence collectively.5998 Likewise, the Trial Judgement reflects that the Trial Chamber did not limit its analysis simply to whether Prosecution witnesses were members of Ibuka, but considered specific allegations that Witnesses QJ, TK, and QI participated in meetings where individuals were instructed to implicate Kanyabashi in crimes.5999 2586. The Appeals Chamber also rejects Kanyabashi's argument that the Trial Chamber unreasonably rejected Witness D-2-21-T's evidence implicating Witnesses

QJ and TK in evidence fabrication on the basis that the allegations it raised were "tardy" and because the witness "did not take down notes". This argument ignores that the Trial Chamber's analysis specifically enumerated nine other factors that led it to conclude that the witness's evidence was neither credible nor reliable. 6000 2587. Concerning the submission that the Trial Chamber failed to view the evidence of Witnesses QJ and TK with sufficient caution given their close personal relationship, the Appeals Chamber notes the following statement in the Trial Judgement: The Chamber recalls that Witness QJ testified that he is married to Witness TK, which was confirmed by Witness TK. Both witnesses also testified that they had never discussed the events of April to July 1994 together, and did not know of each other's plans to testify before this Tribunal. The Chamber recalls its previous finding that while it does not believe that these witnesses never discussed the events at issue in this case, or their plans to testify before this Tribunal, this alone does not undermine Witness TK or Witness QI's credibility [..].6001 $996 Prosecution Response Brief, paras. 1806-1811, 1907, 1919, 1934, 1943. See also AT. 20 April 2015 pp. 36, 37. 5997 Trial Judgement, paras. 343-370. 5998 See Trial Judgement, paras. 343-370. 5999 See Trial Judgement, paras. 343-384. 60X0 Trial Judgement,

paras. 346-359. Moreover, the Appeals Chamber dismisses Kanyabashi's suggestion that the Trial Chamber misapplied the burden of proof. When discussing allegations of fabrication of evidence, the Trial Chamber recalled that the Defence evidence only needed to raise a reasonable doubt. See ibid., paras. 343, 383, 2097-2099. 6001 Trial Judgement, para. 3795 (internal references omitted). See also ibid., paras. 375 ("The Kanyabashi Defence also highlights the fact that Witnesses TK and QJ, a married couple, testified that they did not discuss with each other the events that took place between April to July 1994, and this couple testified that they did not discuss with each other 905 Case No. ICTR-98-42-A 14 December 2015 an

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19459/H In this regard, the Trial Chamber found, as Kanyabashi argues, that these witnesses sought to minimise the appearance that they had discussed the events. However, Kanyabashi does not demonstrate that, in the circumstances of this case, no reasonable trier of fact could have found their evidence credible. In the view of the Appeals Chamber, the Trial Chamber's finding that Witnesses QJ and TK lacked credibility as to whether they discussed the events with each other and about their involvement in this proceeding does not necessarily imply that they fabricated evidence against Kanyabashi.6002 Given the broad discretion vested in triers of fact when assessing the demeanour and credibility of witnesses, the Appeals Chamber is not persuaded that the Trial Chamber was required to reject all of Witness QJ's and TK's evidence because it did not believe that these witnesses never discussed the events at issue in this case, or their plans to testify before the Tribunal. 6003 2588. Furthermore, while Kanyabashi argues that the increasing similarity between the prior statements of Witness TK and the information and evidence provided by Witness QJ reveals that they colluded, a careful analysis does not sustain this argument. Specifically, while Witness TK's second statement to Tribunal investigators is the first time she discussed a message conveyed on behalf of Kanyabashi asking

the population to search for the enemy and was signed on the same day that Witness QJ gave a statement to Tribunal investigators,500 Kanyabashi ignores that Witness TK's first statement only concerned events that she witnessed at the Butare Prefecture Office. Consequently, it is reasonable that she would not have given information about the megaphone announcements she heard when she was not at the prefectoral office. 005 In addition, Kanyabashi's argument that the witnesses colluded appears all the more speculative when considering that, unlike Witness QJ, Witness TK did not identify Kanyabashi as the person making their plans to testify before this Tribunal. The Defence asserts that this testimony was incredible, that the similarity of their evidence indicates that these Ibuka members fabricated their testimony. The Chamber does not believe Witness TK and OJ's testimony that they never discussed the events at issue in this case, or their plans to testify before the ICTR. Nevertheless, Chamber considers that the Defence assertions in this regard do not undermine Witnesses TK's or QJ's credibility.") (internal references omitted), 2677. 6002 In particular, Kanyabashi emphasises that this conduct mirrors that of, for example, Witnesses SJ and QY, who were found to have lied before the Trial Chamber. The Appeals Chamber recalls that it has already considered and rejected arguments

that information concerning allegations of false testimonies from Witnesses SJ and QY was relevant to the assessment of the credibility of several other Prosecution witnesses, including Witnesses QJ and TK. See supra, Section III.J.2(a)(ii)b. In this context, the Appeals Chamber rejects Kanyabashi's contention. 6003 See also supra, paras. 1822, 1823. Compare Exhibit D49 (Witness TK's December 1996 Statement), p. K0035616 (Registry pagination) with Witness QJ's Statements, pp. K0035667-K0035670 (Registry pagination). See Exhibit I48 (Witness's TK Statement, dated 12 November 1996) (confidential). Moreover, the Appeals Chamber finds no merit in Kanyabashi's contention that Witness TK's fourth statement of Nyiramasuhuko making a megaphone announcement is inconsistent with her prior statements implicating the bourgmestre of Ngoma Commune in doing so. Specifically, in this statement, Witness TK described a distinct megaphone announcement by Nyiramasuhuko that she heard advertising a meeting to welcome Sindikubwabo. Although Witness TK did not refer to the megaphone announcement given on behalf of Kanyabashi that she heard, this statement was expressly intended to "supplement and clarify" her previous statements and clearly referred to a separate event. See Exhibit D53 (Witness TK's Statement, dated 22/23 April 1998) (confidential), p. K0052251 (Registry pagination). Case No. ICTR-98-42-A 14 December 2015

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19458/H the megaphone announcement in any of her prior statements or in her testimony. Kanyabashi also does not show that Witness QJ's evidence about what Kanyabashi said through the megaphone is materially inconsistent with his prior statements or so similar to Witness TK's evidence that no reasonable trier of fact could have found that the witnesses did not collude. 6006 These contentions are therefore dismissed.

2589. Turning to Kanyabashi's assertion that the Trial Chamber failed to evaluate Witness D-2-18-O's evidence implicating Witness QI in meetings where persons were encouraged to give false testimony against Kanyabashi, the Appeals Chamber observes that the Trial Chamber summarised this aspect of the witness's evidence in detail6007 and later determined that his evidence in this regard suffered from "serious credibility issues", 6008 Kanyabashi fails to show any error in the Trial Chamber's conclusion.

2590. Likewise, the Appeals Chamber notes that the Trial Chamber did not fail to evaluate Witness QA's evidence. The Trial Chamber expressly rejected the entirety of Witness QA's evidence because the witness lacked credibility. 6009 Further, the Appeals Chamber does not consider that Witness QA's evidence that Witness QI's former employer encouraged Witness QA to accuse falsely Kanyabashi would have required a reasonable trier of fact to speculate as to whether this person also influenced Witness QI to accuse falsely Kanyabashi.6010 Similarly, the Appeals Chamber does not consider that Witness QI's evidence of his links with the RPF required the Trial Chamber to assess his evidence with particular caution. 011 The Appeals Chamber is also not persuaded that the Trial Chamber, which relied notably on the fact that Kanyabashi "had ample opportunity to discover this information before the testimony of the said Proscution witnesses", 6012 placed undue emphasis on the fact that Witness QI was not cross-examined about the meetings in which evidence was allegedly fabricated against Kanyabashi when dismissing evidence to this effect. 6013 2591. Based on the foregoing, the Appeals Chamber finds that Kanyabashi has not demonstrated that the Trial Chamber erred in its analysis of the evidence implicating Prosecution witnesses in 600 Compare Witness QJ's Statements, p. K0035673 (Registry pagination) with Witness QJ, T. 12 November 2001 p. 26 and T. 14 November 2001 p. 100 with Witness TK's December 1996 Statement, p. K0035616 (Registry pagination), Witness TK, T. 20 May 2002 pp. 26, 27. Trial Judgement, paras. 284-286. 6008 See Trial Judgement, para.

361. See also ibid., para.

360. The Trial Chamber determined that Witness D-2-18-O's evide i suld ere, ari. 3763578,382, 951, 1° S, is, 199, 2604, 371, 3376. 6010 See also supra, para. 304. 6011 Witness QI, T. 23 March 2004 pp. 80, 81 (closed session), T. 24 March 2004 pp. 13-16 and 43, 44 (closed session), T. 25 March 2004 pp. 25-27. 6012 Trial Judgement, para. 347. 6013 Trial Judgement, paras. 346-363. 907 Case No. ICTR-98-42-A 14 December 2015

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19457/H evidence fabrication or that it failed to exercise sufficient caution with respect to the evidence of Witnesses QJ, TK, and QI. (b) Exculpatory Evidence 2592. Kanyabashi argues that the Trial Chamber failed to assess evidence that is inconsistent with the testimonies of Witnesses QJ, TK, and QI that he incited the population to kill Tutsis during the genocide. 614 In this respect, he points to evidence showing that he: (i) had been on a list to be arrested in 1990; (ii) was attacked in the February 1991 issue of the Ijambo review for his ties with Tutsis; (iii) had been nicknamed "Kanyabatutsi" given his closeness to Tutsis; (iv) was close with the Tutsi Prefect Habyalimana as evidenced by a letter from him,6015 and (v) wrote a letter to his daughter in May 1994 expressing his "helplessness" and "his resignation to death" 6016 2593. Kanyabashi further points to: (i) a 14 May 1994 speech in which Kambanda criticised the administrative authorities of Ngoma Commune for their links with the RPF; (ii) evidence that Marcel Gatsinzi was unaware of Kanyabashi being implicated in the genocide; and (iii) his role in hiding and caring for his Tutsi family in his home and Tutsis in the Ngoma commune office. 6017 He also highlights his participation in meetings in Matyazo in May 1994 and in Cyarwa in June 1994 in an effort to stop killings and points to his role in assisting the

safe and humane transfer of Tutsi refugees to Rango.0018 2594. The Prosecution responds that Kanyabashi's contentions should be dismissed as he repeats arguments already raised at trial without identifying any error in the Trial Chamber's reasoning.6019 2595. The Appeals Chamber observes that, at trial, Kanyabashi referred to this evidence when contesting the charge of conspiracy to commit genocide. 020 The Trial Chamber considered his arguments when assessing and rejecting the Prosecution case on this issue. 021 Moreover, the Trial Chamber considered in its sentencing deliberations the evidence and arguments Kanyabashi now relies upon on appeal. 022 The Trial Chamber expressly noted the existence of "evidence indicative of Kanyabashi's efforts, on occasions, to stop the massacres from spreading and to assist the 6014 Kanyabashi Notice of Appeal, sub-para. 3.4.3; Kanyabashi Appeal Brief, paras. 272, 282. 6015 Kanyabashi Appeal Brief, para. 273 (French). Kanyabashi also argues that he preached the ideals of the PSD party, which were peace, solidarity, and complementarity. See ibid., para. 274. 6016 Kanyabashi Appeal Brief, para.

276. Cf. AT. 20 April 2015 p. 51. 6017 Kanyabashi Appeal Brief, paras. 275, 277, 278. 6018 Kanyabashi Appeal Brief, paras. 279, 280. 6019 Prosecution Response Brief, paras. 1916, 1917. 6020 Kanyabashi Closing Brief, paras. 23-29. 6021 See Trial Judgement, para. 1899, referring to Kanyabashi Closing Brief, para. 29. 6022 Trial Judgement, para. 6251, referring to Kanyabashi Closing Brief, paras. 23, 24, 27. See also ibid., paras. 3248, 6252, 6256. 908 Case No. ICTR-98-42-A 14 December 2015

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19456/H refugees" in determining the individual circumstances relevant to this sentence. 23 In this context, the Appeals Chamber is not persuaded that the Trial Chamber ignored the evidence Kanyabashi points to or that the Trial Chamber was required to discuss this evidence when assessing allegations of Kanyabashi's alleged incitement by megaphone. 24 Kanyabashi does not show that this evidence would have precluded a reasonable trier of fact from finding that he made inciting statements by megaphone in May and June 1994.

2596. For these reasons, the Appeals Chamber finds that Kanyabashi has not demonstrated that the Trial Chamber failed to consider the alleged exculpatory evidence to which he points. (c) Modus Operandi 2597. In assessing the testimony of Witness QJ concerning Kanyabashi's announcement by megaphone in late May 1994, the Trial Chamber noted that Witness TK as well as Witnesses D-2-5-I, D-2-13-O, and D-2-YYYY "corroborated and complemented'6025 his evidence as it established that "megaphone announcements from a moving vehicle were part of the modus operandi by which messages from Bourgmestre Kanyabashi were delivered to the population of Ngoma commune in the period from April through June 1994.»6026 Likewise, the Trial Chamber found that Witness QI's testimony concerning Kanyabashi's announcement by megaphone in June 1994 was "also supported by evidence [...] which establishe[d] that megaphone announcements from a moving vehicle were part of the modus operandi by which messages from the bourgmestre were disseminated to the population of Ngoma commune?»6027 2598. Kanyabashi submits that the evidence on the record does not support the Trial Chamber's findings on the existence of a modus operandi wherein he utilised a megaphone to disseminate messages to the population of Ngoma Commune from April through June 1994.6028 He contends that Witnesses D-2-5-I, D-2-13-O, and D-2-YYYY

testified about messages of general interest disseminated through megaphone by people other than Kanyabashi and that they explicitly denied that this practice continued after April 1994.6029 He further argues that Witness TK testified about 6023 Trial Judgement, para. 6256. 6024 The Trial Chamber also considered evidence that Kanyabashi assisted Tutsis by providing travel documents that 6025 Trial Judgement, para. 3813. 6026 Trial Judgement, para.

3812. See also ibid., para. 3811. 6027 Trial Judgement, para. 3824. 6028 Kanyabashi Notice of Appeal, sub-paras. 3.5-3.5.4; Kanyabashi Appeal Brief, paras. 284-297; Kanyabashi Reply Brief, paras. 107-109. See also AT. 20 April 2015 p. 20. 6029 Kanyabashi Appeal Brief, paras. 288, 290-295. 909 Case No. ICTR-98-42-A 14 December 2015

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19455/H only one event occurring after April 1994 without implicating Kanyabashi.°30 According to Kanyabashi, contrary to the Trial Chamber's finding that none of the Defence witnesses provided an explanation as to why the practice of transmitting messages stopped in April 1994, Witness D-2-YYYY testified that they were discontinued because the administrative services were paralysed after April 1994.6031 2599. The Prosecution responds that the Trial Chamber reasonably concluded that megaphone announcements from April through June 1994 were part of a modus operandi. 6032 2600. The Appeals Chamber observes that the Trial Chamber exclusively relied on the evidence of Witnesses TK, D-2-5-I, D-2-13-O, and D-2-YYYY in reaching its conclusion on the existence of a modus operandi of megaphone announcements from a moving vehicle by which Kanyabashi disseminated messages to the population of Ngoma Commune from April through June 1994.6033 The Appeals Chamber notes that Witness TK testified about a single event in which she heard a megaphone message delivered from a vehicle at the end of May 1994 that concerned a message from the Ngoma Commune bourgmestre.6034 Witnesses D-2-5-I, D-2-13-0, and D-2-YYYY testified that, before the war, megaphone announcements conveyed messages to the people of Ngoma Commune but clarified that this practice stopped between May and July 1994.6035 Moreover,

contrary to the Trial Chamber findings, Witness D-2-YYYY explained that this practice was discontinued after 6 April 1994 as the war paralysed such administrative services. 6036 However, the Trial Chamber relied on the Defence witnesses' evidence to make a finding - that from April through June 1994 delivering megaphone announcements from a moving vehicle was a modus operandi employed by Kanyabashi in his capacity of Ngoma Commune bourgmestre - which is contradictory to their testimonies that megaphone announcements were discontinued between April and July 1994. The Appeals Chamber finds that no reasonable trier of fact could have made such finding on the basis of their evidence.

2601. Furthermore, the Appeals Chamber is not satisfied that Witness TK's evidence alone, which concerns a single megaphone announcement in May 1994, could reasonably support the modus operandi finding of the Trial Chamber. 6030 Kanyabashi Appeal Brief, para. 287. 6031 Kanyabashi Appeal Brief, para.

289. Kanyabashi argues that the Trial Chamber improperly shifted the burden of proof and required him to prove why the dissemination of the messages through a megaphone did not continue in April 1994. See idem; Kanyabashi Reply Brief, para, 108. Prosecution Response Brief, paras. 1921-1924. 6033 Trial Judgement, para. 3812. 6034 See Trial Judgement, paras. 3802, 3803. 6035 Witness D-2-5-1, T. 22 January 2008 pp. 23, 24 (closed session), 27; Witness D-2-13-0, T. 6 November 2007 p. 25, 26; Witness D-2-YYYY, T. 28 November 2007 pp. 60, 62 (closed session) 6 Witness D-2-YYYY, T. 11 December 2007 p. 37 (closed session) 910 Case No. ICTR-98-42-A 14 December 2015 Qu

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19454/H 2602. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding that the evidence of Witnesses TK, D-2-5-I, D-2-13-O, and D-2-YYYY established that megaphone announcements from a moving vehicle were part of a modus operandi by which messages from Kanyabashi were delivered to the population of Ngoma Commune from April through June 1994. The Appeals Chamber will consider whether this error occasioned a miscarriage of justice after assessing the remainder of Kanyabashi's challenges with respect to each megaphone announcement. (d) Late May 1994 Megaphone Announcement 2603. As noted above, the Trial Chamber relied on the evidence of Witness QJ to find that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.037 The Trial Chamber considered that Witness TK, although not referring to the same incident as Witness QJ, provided various details that corroborated Witness QJ's evidence as to the "manner in which the announcements were made and the content of the announcements". 6038 2604. Kanyabashi contends that the Trial Chamber erred in: (i) evaluating Witness QJ's identification evidence; (ii) assessing the credibility of Witness QJ; (iii) finding that Witness TK's evidence corroborated Witness QJ's evidence; (iv) reversing the burden of proof when assessing Defence

evidence; and (v) rejecting the evidence from Defence witnesses on the basis of their relationships with Kanyabashi. 6039 The Appeals Chamber will address these contentions in turn. (i) Identification 2605. With respect to Witness QJ's identification evidence, the Trial Chamber stated: Turning to Witness QI's identification of Kanyabashi, the Chamber notes Witness QJ testified that he knew Kanyabashi because Kanyabashi was a senior public official in Ngoma commune where the witness was living in 1994. Witness QJ testified that Kanyabashi lived nearby and typically drove past the hotel. Further, Witness QJ saw Kanyabashi several times driving around the city in his own car, on which occasions Kanyabashi was obliged to stop at the roadblocks. Witness QJ also frequently saw Kanyabashi stop to speak to those manning the roadblock at the Hotel Faucon. Lastly, Witness QJ had previously seen Kanyabashi attend a meeting at the MRND Palace in Butare sometime between 17 and 21 April 1994. In light of the number of occasions on which Witness QJ had previously seen Kanyabashi, and Witness QJ's positive identification of Kanyabashi in court, the Chamber is persuaded that Witness QJ's identification of Kanyabashi at the Hotel Faucon roadblock in May 1994 was reliable. 6040 6037 See Trial Judgement, paras. 3796, 3813, 3814. 6038 Trial Judgement, para.

3804. See also ibid., paras. 3802, 3803. 6039 Kanyabashi Notice of Appeal, sub-paras. 3.2, 3.3.2, 3.3.5, 3.6.2, 3.6.3, 3.6.5; Kanyabashi Appeal Brief, paras. 257- 263, 269, 272-281, 299-316, 332, 333; Kanyabashi Reply Brief, paras. 98-104, 112-122, 128-131. See also AT. 20 April 2015 p. 20. 6040 Trial Judgement, para. 3800 (internal references omitted). 911 Case No. ICTR-98-42-A 14 December 2015

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19453/H 2606. Kanyabashi submits that the Trial Chamber applied the wrong legal standard to Witness QJ's identification evidence by placing undue weight on his prior knowledge of Kanyabashi and his ability to identify him in court. 041 He also argues that the circumstances surrounding his identification by Witness QJ were difficult and required a careful analysis that the Trial Chamber erroneously did not conduct. 6042 Specifically, Kanyabashi contends that the Trial Chamber erred in accepting Witness QJ's identification evidence because the witness: (i) could not estimate the distance at which he saw him;6043 and (ii) gave inconsistent evidence as to whether Kanyabashi was seated between two persons in the vehicle or not. 04 He further argues that Witness QJ's evidence that Kanyabashi was being driven was contradicted by Witness QI's testimony as well as by Defence Witnesses D-2-YYY, D-2-5-I, D-2-14-W, D-2-17-I, D-21-B, and Bernadette Kamanzi whose evidence reflects that Kanyabashi drove himself and was accompanied by a policeman.604s Kanyabashi also questions the reliability of the identification, arguing that Witness QJ "imputed the same statements to Nsabimana as those imputed to Kanyabashi, at the same roadblock and in the same vague manner."6046 2607. The Prosecution responds that the Trial Chamber properly assessed Witness QJ's evidence and that a slight variation in his

testimony does not detract from the reasonableness of the Trial Chamber's reliance on it. 6047 The Prosecution also submits that Witness QJ's evidence concerning Nsabimana is irrelevant to assessing his identification evidence of Kanyabashi. 6048 2608. The Appeals Chamber rejects Kanyabashi's assertion that the Trial Chamber applied the wrong legal standard when assessing Witness Q's prior knowledge of Kanyabashi and in-court identification. These were factors considered in addition to Witness QJ's numerous sightings of Kanyabashi prior to the megaphone announcement at the Hotel Faucon roadblock, in Butare Town, 6041 Kanyabashi Notice of Appeal, sub-para. 3.6.5.1, referring to Trial Judgement, paras. 3800, 3821; Kanyabashi Reply Brief, para. 128. 6042 Kanyabashi Appeal Brief, para.

332. See also Kanyabashi Notice of Appeal, sub-paras. 3.6.5.1; Kanyabashi Reply Brief, para. 128. 6043 Kanyabashi Notice of Appeal, sub-paras. 3.6.5, 3.6.5.1, 3.6.5.5; Kanyabashi Appeal Brief, para. 333; Kanyabashi Reply Brief, para.

129. Kanyabashi Appeal Brief, paras. 309, 333, referring to Witness QJ, T. 12 November 2001 pp. 24-31, 34, T. 15 November 2001 p. 17. 6015 Kanyabashi Appeal Brief, para. 310, referring to Witness QI, T. 23 March 2004 pp. 50, 51, T. 24 March 2004 pp. 77, 78 (closed session), Witness D-2-YYYY, T. 28 November 2007 pp. 49-52 (closed session), Witness ID-2-5-I. pp. 4, 5, Witness D-2-17-I, T. 25 February 2008 pp. 64-66 (closed session), Witness D-21-B, T. 13 May 2008 pp. 48, 49 closed session). Bernadette Kamanzi, T. 22 November 2007 p. 39 246 Kanyabashi Appeal Brief, para. 333 6047 Prosecution Response Brief, paras. 1947, 1948. 6048 Prosecution Response Brief, para. 1949. 912 Case No. ICTR-98-42-A 14 December 2015

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19452/H and at a meeting at the MRND Palace and Kanyabashi does not demonstrate that improper weight was placed on them. 6049 2609. As regards Kanyabashi's contention that Witness QJ was unable to estimate the distance between him and Kanyabashi on the occasion of the megaphone announcement, the Appeals Chamber observes that the witness was able to provide a detailed description of the location at which he saw him — the Hotel Faucon roadblock - and why Witness QJ was in its vicinity. 6050 Kanyabashi's contention that Witness QJ was unable to provide a specific numerical estimate of the distance fails to demonstrate that the Trial Chamber erred in relying on his ability to identify Kanyabashi. 6051 2610. Likewise, the Appeals Chamber finds no material variance in Witness QI's evidence as to Kanyabashi's placement in the vehicle 6052 Furthermore, evidence from Witness QI as well as Witnesses D-2-YYY, D-2-5-I, D-2-14-W, D-21-B, and Kamanzi does not contradict Witness QJ's evidence, as their accounts consist of assertions that Kanyabashi typically drove himself and was usually only accompanied by a policeman. 6053 Notably, while Witness QJ testified that Kanyabashi was not driving the vehicle when he made the announcement, 05 he, like these witnesses, also testified about Kanyabashi generally driving himself. 605s 2611. Finally, Kanyabashi's assertion that Witness QI's testimony

that he saw Nsabimana issue the same instructions as Kanyabashi at the Hotel Faucon roadblock necessarily undermines the witness's identification of Kanyabashi making similar statements is without merit. Witness QJ's evidence that Nsabimana gave similar instructions at the Hotel Faucon roadblock is consistent with See Trial Judgement, para. 3800. 6050 Witness QJ, T. 8 November 2001 pp. 96, 102, 134, 135 (closed session), T. 12 November 2001 pp. 25, 34, T. 15 November 2001 pp. 11-16. See also Trial Judgement, paras. 3754, 3796. 6051 Witness QJ, T. 12 November 2001 p. 34. 6052 Witness QJ, T. 12 November 2001 pp. 26, 30, T. 15 November 2001 pp. 16, 17 (closed session). 6053 Witness QI, T. 23 March 2004 p. 51 (testifying that he saw Kanyabashi arriving at the dispensary in a car that he drove alongside two armed soldiers), T. 24 March 2004 pp. 71, 78 (closed session) (testifying that Kanyabashi was in his vehicle and driving it when he saw him making a megaphone announcement in June 1994); Witness D-2-YYYY, T. 28 November 2007 pp. 49-52 (closed session) (testifying that, as far as he knew, Kanyabashi did not have a driver and that when he saw Kanyabashi between 6 April and July 1994, he was driving himself and accompanied by a police officer); Witness D-2-5-I, T. 21 January 2008 p. 56 (stating that Kanyabashi travelled in the commune's white Peugeot 305, drove himself, and a

policeman but never gendarmes or soldiers); Witness D-2-14-W, T. 12 February 2008 pp. 4-6 (testifying that when he saw Kanyabashi "on several occasions", "Imlost of the time" Kanyabashi was driving himself and clarifying that, when he saw Kanyabashi between 6 April and 3 July 1994, he "didn't pay attention as to whether [Kanyabashi] was driving himself or whether he was being driven by any driver whatsoever."); Witness D-21-B, T. 13 May 2008 pp. 48, 49 (closed session) (testifying generally that, when he saw Kanyabashi leave his home, he was accompanied by a policeman and the policeman was not driving); Witness D-2-17-I, T. 25 February 2008 pp. 64-66 (closed session) (testifying that he saw Kanyabashi leave a meeting at Huye Stadium one week after the death of the President and that Kanyabashi was driving himself and was accompanied by policemen); Bernadette Kamanzi, T. 22 November 2007 p. 39 (testifying that when he accompanied Kanyabashi to Mpare, Kanyabashi drove the vehicle and they were accompanied by a policeman who sat next to Kanyabashi). 6054 Witness OJ. T. 12 November 2001 pp. 26, 30. T. 15 November 2001 pp. 16, 17 (closed session). 6055 Witness QJ, T. 12 November 2001 pp. 32, 33. Case No. ICTR-98-42-A 14 December 2015

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19451/H his testimony that he frequently heard announcements similar to the one Kanyabashi gave being made by other people during the relevant time period 6056 Furthermore, Witness QJ described Nsabimana's physical appearance and correctly stated that he was the prefect following the removal of Prefect Habyalimana 6057 2612. Based on the foregoing, the Appeals Chamber finds that Kanyabashi has not shown that the Trial Chamber erred in its assessment of Witness QJ's identification of him. (i) Credibility 2613. The Trial Chamber found Witness QJ's testimony about the late May 1994 megaphone announcement to be detailed and consistent. 6058 2614. Kanyabashi contends that the Trial Chamber failed to apply sufficient caution to Witness QJ's evidence with respect to the details of the late May 1994 megaphone announcement.6059 He points to the Trial Chamber's evaluation of the inconsistencies in Witness QJ's evidence as to whether Kanyabashi gave instructions over a megaphone on one or two occasions at the Hotel Faucon roadblock. 6060 He also highlights that Witness QJ testified that he, Kanyabashi, gave instructions each time he passed the roadblock but did not refer to him using a megaphone and instead testified that he could hear him because he was close to him. 6061 Kanyabashi appears to argue that, in this context, it is unclear during which event he used a megaphone and that this

ambiguity raises doubts as to the public nature of the alleged incitement. 6062 2615. Kanyabashi also submits that no reasonable trier of fact could have found Witness QJ credible and that his testimony was detailed and coherent 6063 He argues that the Trial Chamber 6056 Witness QJ, T. 12 November 2001 p. 32 6057 See Witness QJ, T. 8 November 2001 pp. 100, 101, 107 (closed session), T. 12 November 2001 pp. 10, 11. 605% Kanyabashi Notice of Appeal, sub-paras. 3.6.2.1, 3.6.2.2; Kanyabashi Appeal Brief, paras. 312-316; Kanyabashi Reply Brief, para.

119. Kanyabashi Appeal Brief, para. 313, referring to Trial Judgement, para. 3801. 6061 Kanyabashi Appeal Brief, paras. 314, 315, referring to Witness QJ, T. 12 November 2001 p. 35, T. 14 November 2001 p.

126. Kanyabashi also points out that the Presiding Judge summarised Witness QJ's account without mentioning Kanyabashi using a megaphone. See ibid., para. 314, referring to Witness QJ, T. 15 November 2001 pp. 45, 46 (closed session). See also AT. 20 April 2015 pp. 21, 22. 6062 Kanyabashi Appeal Brief, para.

314. See also ibid., heading 3.6.2.2 "Contradictions regarding the acts and their public nature", fn. 988, referring to Kalimanzira Appeal Judgement, paras. 157-165. Kanyabashi highlights that, in its closing brief, the Prosecution only relied on Witness QJ with respect to its allegation that Kanyabashi issued instructions at a roadblock, but did not rely on Witness QJ's evidence in support of the allegation that these instructions were issued by megaphone. See Kanyabashi Appeal Brief, para.

315. See also Kanyabashi Reply Brief, para. 118; AT. 20 April 2015 pp. 21, 22. 6063 Kanyabashi Notice of Appeal, sub-paras. 3.6.2, 3.6.5; Kanyabashi Appeal Brief, paras. 308-316; Kanyabashi Reply Brief, paras. 118-122, 128-131. See also AT. 20 April 2015 p. 20. 914 Case No. ICTR-98-42-A 14 December 2015

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19450/H unreasonably disregarded Witness QJ's "recollection problems" and several contradictions in his testimony that undermine the witness's credibility and reliability. 6064 2616. The Prosecution responds that the Trial Chamber properly assessed Witness QJ's credibility and that Kanyabashi fails to show any error in its reasoning related to Witness QJ's inconsistencies and recollection problems. 6065 2617. The Appeals Chamber finds that Kanyabashi fails to identify material inconsistencies in Witness QJ's evidence as to his incitement by megaphone in late May 1994 that would prevent a reasonable trier of fact from relying on the witness' evidence. The Trial Chamber noted that Witness QJ initially testified that he saw Kanyabashi make the megaphone announcement on two occasions but later testified that he only witnessed Kanyabashi make this announcement on one occasion, in May 1994,606 The Trial Chamber did not consider the discrepancy to be significant in light of the passage of time between the events at issue and Witness QJ's testimony. 6067 Kanyabashi does not demonstrate any error in this reasoning.

2618. Kanyabashi also fails to demonstrate that Witness QJ's evidence about his observations of Kanyabashi at the Hotel Faucon roadblock reveals that he provided contradictory evidence as to whether Kanyabashi used a megaphone. The Appeals Chamber observes that Witness QJ testified that he often saw Kanyabashi at the Hotel Faucon roadblock. 6068 The witness explained that, on occasions other than the one in which Kanyabashi used the megaphone in May 1994, he saw Kanyabashi stopped at the Hotel Faucon roadblock in his private vehicle and that, each time, Kanyabashi reminded people manning it to be careful and instructed them to ensure that no enemy go through 069 Having reviewed the relevant aspects of Witness QJ's direct and cross-examination, 6064 Kanyabashi Appeal Brief, para.

308. Kanyabashi argues that Witness QJ: (i) was unable to recall specific facts approximately 60 times during his testimony; (ii) testified that he went to the Butare Prefecture Office only twice, then stated that he went there "often" before testifying again that he went there twice; (iii) testified that Nsabimana went to all of the roadblocks to announce a message similar to Nsabimana at the Hotel Faucon roadblock; and (iv) testified that he could see everything from his hiding place during an attack against Tutsis hiding in the Hotel Faucon but later retracted this. See idem (emphasis omitted). See also Kanyabashi Reply Brief, paras. 118, 119; AT. 20 April 2015 p. 20. 6065 Prosecution Response Brief, paras. 1934-1940. See also AT. 20 April 2015 pp. 42, 43. 6066 Trial Judgement, para. 3801. 6067 Trial Judgement, para. 3801. 6068 Witness QJ, T. 12 November 2001 p. 25 ("A. The road he normally took was the one that passes in front of Hotel Faucon because he lived nearby and I saw him often at the roadblock."). 6069 Witness QJ, T. 12 November 2001 pp. 32-34 ("Q. Can you tell us if you saw Bourgmestre Kanyabashi at any other occasion, aside from these two occasions that you saw him in the pickup truck? A. I saw him several times and I also saw him in his own private car, which is a PeugleJot 505, and he drove around in this car in the city. [...] Q. Did you see Bourgmestre

Kanyabashi stop at any of the roadblocks? A. He necessarily had to go to the roadblock and to stop. Not only did the bourgmestre who is in the vehicle had to stop at the roadblock, but also pedestrians also had to stop to go through a check at the roadblock. Further, they had to stop at the roadblock because the roadblock had to be opened for them because there was no other way of going through. [...] Q. Can you tell this Court if you saw Bourgmestre Kanyabashi speak to anyone at the roadblock? A. I saw him often. Each time he went through the roadblock, he had to remind people who were manning the roadblock that they had to be careful and ensure that no enemy went through. 915 Case No. ICTR-98-42-A 14 December 2015

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19449/H the Appeals Chamber also finds that Kanyabashi does not demonstrate that the witness provided contradictory evidence about whether he used a megaphone in May 1994.6070 2619. Turning to Kanyabashi's contention that Witness QJ was generally unreliable, the Appeals Chamber observes that Kanyabashi merely refers to excerpts from Witness QI's testimony in which the witness could not remember precise details when questioned about specific, and often peripheral, aspects of his testimony.6071 Although Kanyabashi highlights Witness QJ's inability to recall the specific date when the megaphone announcement by Kanyabashi occurred, 5072 Witness QJ consistently stated that the announcement took place in May 1994 and acknowledged his inability to recall the exact day. 073 Kanyabashi does not show that a reasonable trier of fact could not have relied on his evidence in these circumstances. Likewise, Kanyabashi fails to identify any material inconsistencies in Witness QJ's testimony that a reasonable trier of fact should have addressed in assessing Witness QJ's evidence in relation to this event or that would have precluded it from finding the witness to be credible with respect to it. 6074 That was what he said often. Q. What did the word 'enemy' mean? A. When they said Umwansi or enemy - I spell Umwansi. U-M-W-A-N-Z-I. When this word was used, it is also intended to mean Tutsi. And,

again, to refer to the Tutsis, they could say 'snakes' or 'Nyenzi,' or so on, and so forth."). 6070 See Witness QJ, T. 12 November 2001 pp. 32-34, T. 14 November 2001 pp. 123, 124 and 129-138 (closed session); T. 15 November 2001 pp. 9-17 (closed session). The portions of Witness QJ's testimony highlighted by Kanyabashi generally concern questions to and responses from the witness about when Kanyabashi was addressing the persons manning the roadblock. Kanyabashi does not demonstrate, however, that the evidence of Witness QJ speaking to soldiers manning the roadblock is inconsistent with his evidence that he observed Kanyabashi using a megaphone and "informing the people of Ngoma that the enemies are among us and you are requested to seek them everywhere" at the Hotel Faucon roadblock. See Witness QJ, T. 12 November 2001 p. 26, T. 14 November 2001 p.

100. The witness's reflects that his statements to those manning the roadblock mirrored his "announcements". See T. 14 November 2001 p. 95 ("Q. Witness QJ, you testified to the effect that Mr. Kanyabashi, at a roadblock, allegedly told the soldiers manning the roadblock to do their work properly so as not to let the enemy through. Do you recall saying that? A. Yes, he said that, and these were announcements that he was making.") (emphasis added). Witness QJ repeatedly indicated that the announcements were made throughout Butare Town. See T. 12 November 2001 p. 25 ("Q. Can you describe what he was doing when you saw him at the roadblock? A. He made announcements from his vehicle and that, throughout the city."), T. 14 November 2001 pp. 97, 98 "O. Witness OJ, is it not correct that this announcement that he made was made at the roadblock at Hotel Faucon to soldiers. [...] THE WITNESS: No, the announcement was made across the whole Butare town and on about three 6071 Kanyabashi points to instances wherein Witness QJ could not recall precise details with respect to: (i) his meetings with Prosecution investigators (see Witness QJ, T. 12 November 2001 pp. 43-46, and 70, 79, 92, 93, 95, 96 (closed session), T. 13 November 2001 p. 42, T. 15 November 2001 pp. 19, 59 (closed session)); (ii) incidents unrelated to the Kanyabashi's megaphone announcement (see Witness QJ, T. 12 November

2001 p. 123, T. 13 November 2001 pp. 45, and 81(closed session), 117, T. 15 November 2001 pp. 66, 68 (closed session)); and (iii) issues related to his general credibility (see Witness QJ, T. 12 November 2001 p. 50, T. 13 November 2001 pp. 28, 30 (closed session), and 38, 59, 118, and 129, 131, 132, 134 (closed session), T. 14 November 2001, pp. 24, 25, 27, 30, 47, 52, 53 (closed session), 64, 65, 73, 77, 84, 86, 92, 101, 104, 119, 122, 123, T. 15 November 2001 pp. 52, 58, 64, 66, 68. 111 (closed session)). 6012 Kanvabashi Appeal Brief, para. 308. 6073 See Witness QJ, T. 12 November 2001 p. 25, T. 15 November 2001 pp. 9, 10 (closed session). 6074 The Appeals Chamber notes that: (i) Witness QJ consistently testified that he went to the Butare Prefecture Office on two occasions, and, when read in context, his assertion that he "often went to the [prefectoral office] in the evenings" merely reflects that on the two occasions that he went there, it was in the evening (see Witness QJ, T. 8 November 2001 p. 137 (closed session); T. 12 November 2001 p. 12); (ii) when Witness QJ's testimony is read in context, it is apparent that his statement that Nsabimana "took that itinerary; he went through all the roadblocks that [Witness QJ] mentioned" was based on Witness QJ's supposition that, at the time, Nsabimana would have had to pass through certain roadblocks, Case No. ICTR-98-42-A 14 December 2015

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19448/H 2620. The Appeals Chamber therefore dismisses Kanyabashi's contention that the Trial Chamber erred in finding that Witness QJ's evidence was detailed and consistent. (iii) Corroboration 2621. When assessing Witness QJ's evidence of Kanyabashi making a megaphone announcement in May 1994, the Trial Chamber recalled Witness TK's testimony that, while hiding in a convent in Butare at the end of May 1994, she heard a vehicle drive past broadcasting an announcement through a megaphone that the Ngoma bourgmestre wished to inform the population that the enemy was still among them and that they had to find the enemy 6075 The Trial Chamber noted that Witness TK could not identify the person delivering the announcement except that the voice she heard was not Kanyabashi's. 6076 It further concluded that Witnesses QJ and TK were "not testifying about one and the same announcement [made] by Kanyabashi in mid-May 1994.*6077 Nonetheless, the Trial Chamber considered that "various details" of Witness TK's evidence, "such as the manner in which the announcements were made and the content of the announcements" corroborated Witness QJ's testimony. 6078 2622. Kanyabashi argues that the Trial Chamber erred in concluding that Witness TK corroborated Witness QJ's evidence, as the two witnesses testified about different incidents, and Witness TK, unlike Witness QJ, did not identify Kanyabashi

as the person making the announcement. 079 In addition, Kanyabashi contends that the Trial Chamber erred in failing to examine sufficiently whether Witnesses QJ and TK, in light of their relationship and continuous closeness after the genocide, had inadvertently influenced each other's evidence. 6080 in addition to the Hotel Faucon roadblock, based on the route available, as opposed to being an assertion that he had seen Nsabimana passing through those roadblocks, which is consistent with Witness QJ's testimony that he only saw Nsabimana at the Hotel Faucon roadblock (see Witness QJ, T. 8 November 2001 pp. 142, 143 (closed session), T. 13 November 2001 pp. 107, 108 (closed session)); and (iii) Witness QJ originally testified that he could see everything that happened during the attack against Tutsis hiding in the Hotel Faucon from his hiding place (see Witness QJ, T. 13 November 2001 p. 58), but subsequently clarified that he could not "see" the backyard but could "hear" what was occurring (see Witness QJ, T. 14 November 2001 pp. 47-49, 54, 55 (closed session)). 6075 Trial Judgement, para. 3802. 6076 Trial Judgement, paras. 3802, 3803. 6077 Trial Judgement, para.

3804. See also ibid., para. 3802 ("However, [Witness TK's] testimony supports Witness QJ's account with regard to the content of the message, the method by which it was disseminated, and the approximate time and place of the announcement."). 6078 Trial Judgement, para.

3804. See also ibid., para.

3802. The Trial Chamber also noted that Witness D-2-13-D's testimony that the commune office owned a Toyota pick-up corroborated Witness QJ's testimony that Kanyabashi was in a Toyota pickup. See ibid., para. 3796. 6079 Kanyabashi Notice of Appeal, sub-para. 3.6.1.2; Kanyabashi Appeal Brief, paras. 299, 300, 306; Kanyabashi Reply Brief, paras. 112-114. See also AT. 20 April 2015 p. 19. 6080 Kanyabashi Appeal Brief, paras. 301-304. 917 Case No. ICTR-98-42-A 14 December 2015

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19447/H 2623. The Prosecution responds that the Trial Chamber reasonably concluded that the testimony of Witness QJ was corroborated by Witness TK's evidence after expressly considering their ties.' 6081 2624. The Appeals Chamber observes that the Trial Chamber recognised that Witness TK did not testify about the megaphone announcement in May 1994 that Witness QJ testified about. 6082 However, it noted that her testimony corroborated Witness QI's testimony with respect to the "manner in which the announcements were made and the content of the announcements" 6083 The Trial Chamber recalled that Witness QJ also testified "that these announcements were repeated frequently. 6084 Although Witness TK was not testifying about the same event as Witness QJ, on which Kanyabashi's criminal liability is based, it is clear that the Trial Chamber found that Witness TK's testimony provided circumstantial corroboration for that event.6085 The Appeals Chamber, Judge Pocar and Judge Agius dissenting, sees no error in the Trial Chamber's approach.° S 2625. The Appeals Chamber is also not persuaded that the Trial Chamber failed to sufficiently examine whether Witnesses QJ and TK, in light of their relationship and continuous closeness after the genocide, had influenced each other's evidence. As noted above, the Trial Chamber expressly considered the circumstances in which they testified and determined that it did not find credible that they had not discussed the events or their participation in this proceeding.6087 Kanyabashi does not point to elements in the witnesses' testimonies demonstrating intentional or unintentional evidence contamination, which would have precluded a reasonable trier of fact from relying on their evidence.

2626. Consequently, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, finds that Kanyabashi has not demonstrated that the Trial Chamber erred in concluding that Witness TK's evidence partly corroborated Witness QJ's testimony. (iv) Reversal of Burden of Proof 2627. The Trial Chamber did not find credible Defence evidence that Witnesses QJ and TK did not hear the megaphone messages or that Kanyabashi was not implicated in the megaphone 6081 Prosecution Response Brief, paras. 1928-1933. See also AT. 20 April 2015 p. 43. 6082 Trial Judgement, para. 3804. 6083 Trial Judgement, para.

3804. See also ibid., para. 3802. 6084 Trial Judgement, para. 3804 (internal reference omitted). 6085 Trial Judgement, paras. 3812, 3813. 6086 The Appeals Chamber recalls that two prima facie credible testimonies corroborate one another when one testimony is compatible with the other regarding the same fact or a sequence of linked facts. See Nizeyimana Appeal Judgement, para. 96; Gatete Appeal Judgement, para. 125; Kanyarukiga Appeal Judgement, paras. 177, 220; Ntawukulilyayo Appeal Judgement, para. 121; Nahimana et al. Appeal Judgement, para.

428. Trial Judgement, paras. 375, 3795. 918 Case No. ICTR-98-42-A 14 December 2015

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19446/H announcements. 6088 In particular, it did not accept Witness AND-17's evidence that Witness QJ could not have heard the megaphone announcements, noting that Witness AND-17 was not continuously with Witness QJ and had made several implausible statements under oath.6089 The Trial Chamber also disregarded Witnesses D-2-YYYY's and D-2-17-I's testimonies as they were not continuously at the location in May 1994 from which Witness TK allegedly heard the inciting remarks. 6090 Finally, it found the testimonies of Witnesses D-2-17-1, D-2-YYYY, D-2-5-1, D-2-14-W, D-2-13-O, D-13-D that they never heard Kanyabashi making a megaphone announcement from a moving vehicle to be of a limited weight, noting that none of these witnesses was continuously in Butare and that some of them had close personal or professional ties with Kanyabashi. 6091 2628. Kanyabashi argues that the Trial Chamber reversed the burden of proof by requiring the Defence to present evidence demonstrating that its witnesses were permanently present at the same locations and on the same dates as Witnesses QJ and TK in order to counter their testimonies. 6092 He contends that the Trial Chamber erred in considering that Witness AND-17's evidence did not raise doubt in Witness QJ's testimony, as the former, although not "attached" to Witness QJ, was continuously present - "night and day" - on the same premises as

Witness QJ from April to June 1994.6093 In the same vein, Kanyabashi submits that the Trial Chamber erred in finding that, because Witness D-2-17-I was not continually at the location in May 1994 from which Witness TK allegedly heard inciting statements, his evidence could not raise reasonable doubt in Witness TK's testimony. 094 In this regard, he argues that the Trial Chamber erred in finding that Witness D-2-17-I was absent from the convent on four occasions during the relevant period as opposed to two and suggests that the witness was, in fact, present on the relevant day. 6095 Kanyabashi also submits that the Trial Chamber required him to prove that Witness D-2-14-W was continuously present in Butare Town and contends that its finding that he left it is speculative as the witness only testified to having left his cellule. 6096 2629. Kanyabashi further contends that, in light of the public nature of the incitement testified to by Witnesses QJ and TK, "[e]verybody must have heard it" and, consequently, Defence evidence 6088 Trial Judgement, paras. 3797-3799, 3805-3810. 6089 Trial Judgement, paras. 3797-3799. 6090 Trial Judgement, paras. 3805, 3806. 6091 Trial Judgement, paras. 3809, 3810. 6092 Kanyabashi Notice of Appeal, sub-para, 3.2.3; Kanyabashi Appeal Brief, paras. 258, 259, 263; Kanyabashi Reply Brief, paras. 98-100, 103, 104. 6093 Kanyabashi Appeal Brief, para.

262. Kanyabashi Appeal Brief, para.

260. Kanyabashi also contends that, while the Trial Chamber found that Witness D-2-17-I was vague about his movements, he was prevented from questioning him in this regard. See idem, referring at Wil A D Brit, Para bruary 2008 p. 22, 26,27, 31. 919 Case No. ICTR-98-42-A 14 December 2015

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19445/H that such incitement did not occur necessarily raised a reasonable doubt.9? He argues that the fact that approximately 30 other Prosecution witnesses, who were in Butare Town, were not questioned about this incident should have led a reasonable trier of fact to have reasonable doubt that it occurred. 6098 2630. The Prosecution responds that the Trial Chamber did not shift the burden of proof but correctly exercised its discretion in finding that the evidence of Witnesses AND-17, D-2-17-1, and D-2-14-W did not raise a reasonable doubt with respect to the Prosecution case. 6099 It further responds that Kanyabashi's argument resting on the public nature of the incitement is unsupported. 6100 2631. The Appeals Chamber finds that the Trial Chamber's acceptance of the Prosecution evidence that incitement occurred over Defence evidence that it did not does not demonstrate the imposition of an improper evidentiary burden on the Defence to prove a case rather than raise reasonable doubt. The Appeals Chamber recalls that, when faced with competing versions of the same event, it is the prerogative of the trial chamber to decide which version it considers more credible. 6101 2632. Similarly, the Appeals Chamber finds no merit in Kanyabashi's challenges to the Trial Chamber's assessment of Witness AND-17's evidence. The Trial Chamber rejected Witness AND-17's assertion that he was

continuously with Witness QJ during the relevant period as a detailed assessment of Witness AND-17's testimony belied this statement. 102 Beyond identifying inconsistencies in his testimony, the Trial Chamber further found Witness AND-17's evidence "to be neither credible, nor reliable" based on several other "implausible statements under oath."6103 Kanyabashi does not demonstrate any error in the Trial Chamber's recounting of Witness AND-17's evidence nor does he demonstrate that the Trial Chamber applied an incorrect burden when assessing it.

2633. As regards Witness D-2-17-I's evidence, the Trial Chamber concluded that his testimony did not contradict Witness TK's evidence as he was not continuously present at the location where 6096 Kanyabashi Appeal Brief, para. 261; Kanyabashi Reply Brief, para. 102. 6097 Kanyabashi Appeal Brief, para. 263. 6098 Kanyabashi Appeal Brief, para. 263. 6099 Prosecution Response Brief, paras. 1891-1902. The Prosecution contends that Kanyabashi's arguments that Trial Chamber's shifted the burden of proof are underdeveloped and should be summarily dismissed. See ibid., para. 1895. 6100 Prosecution Response Brief, paras. 1903-1906. 6101 See, e.g., Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29. 6102 Trial Judgement, para. 3798. 6103 Trial Judgement, para. 3799. 920 Case No. ICTR-98-42-A 14 December 2015

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19444/H Witness TK was hiding when she heard the megaphone announcement in May 1994.6104 In this regard, the Trial Chamber noted that Witness D-2-17-I testified that he left the location on four occasions. 6105 The Appeals Chamber observes, however, that Witness D-2-17-I testified that he only left twice in May 1994.010 Nonetheless, the Appeals Chamber does not consider that this error occasioned a miscarriage of justice. Kanyabashi's assertion that Witness D-2-17-T's evidence reflects that he would have been with Witness TK on the day she heard inciting remarks is not substantiated. 6107 2634. With respect to Witness D-2-14-W, the Appeals Chamber observes that the Trial Chamber considered that Kanyabashi did not establish that the witness was continuously present in Butare Town throughout late May 1994.6108 While Kanyabashi argues that the witness's evidence only reflects that he left his cellule, the Appeals Chamber fails to see how any error in this regard has occasioned a miscarriage of justice.6109 Notably, the witness's evidence reflects that he did not reside in the centre of Butare Town but about two kilometres away.6110 Accordingly, the Appeals Chamber considers that Kanyabashi does not show that the witness would have necessarily been in a position to hear what Witnesses QJ and TK heard. Moreover, as found below, the Trial Chamber also considered Witness D-2-14-W's interest in defending Kanyabashi due to their relationship.1"1 Kanyabashi does not demonstrate that the Trial Chamber reversed the burden of proof when assessing this witness's evidence.

2635. Finally, the Appeals Chamber finds speculative Kanyabashi's contention that, because of the public nature of the incitement, Defence evidence that it did not occur and the fact that other Prosecution witnesses in Butare Town were not questioned about it must have raised doubt.

2636. Based on the foregoing, the Appeals Chamber dismisses Kanyabashi's contention that the Trial Chamber reversed the burden of proof when assessing the late May 1994 megaphone announcement. 6104 Trial Judgement, para. 3806. 6105 Trial Judgement, para. 3806. 6106 Particularly, while Witness D-2-17-1 first generically testified that he left the convent four times between May and July 1994, he then clarifies that he returned home twice on May 1994 and twice on June 1994. Compare Witness D-2-17-I, T. 27 February 2008 p. 18 (closed session) with T. 27 February 2008 pp. 22, 26, 27, 31 (closed session). ore vene A real Carmins his else here consulp and icted Kurt erie co term Whate a in miso his presence at the convent. See supra, Section VIII.A. 1(b). 108 Trial Judgement, para. 3809. 6109 See Witness D-2-14-W, T. 11 February 2008 pp. 38-41 (closed session); Witness D-2-14-W's testimony reflects that he went, for example, to Huye Stadium. 6110 See, e.g., Witness D-2-14-W, T. 11 February 2008 p. 40 (closed session). 6111 See infra, para. 2641. 921 Case No. ICTR-98-42-A 14 December 2015

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19443/H (v) Relationships with Witnesses 2637. In assessing Defence evidence in relation to the megaphone announcement in late May 1994, the Trial Chamber stated that: personal ties with Kanyabashi. 6112 2638. Kanyabashi argues that none of the Defence witnesses had ties with him that would support the Trial Chamber's conclusion that they would falsely testify on his behalf. 113 He contends that the Trial Chamber unreasonably rejected the testimonies of Witnesses D-2-5-I, D-2-YYYY, and D-2-14-W because of close professional ties. 114 He further contends that the Trial Chamber erred in asserting that he had close personal ties with Witnesses D-2-13-0 and D-13-D, as the former simply lived on the same hill as him and the latter was merely a neighbour and not a friend. 6115 2639. The Prosecution responds that the Trial Chamber correctly assessed the ties between Kanyabashi and his Defence witnesses and argues that he attempts to substitute his assessment of the evidence for that of the Trial Chamber. 6116 2640. The Appeals Chamber recalls that a witness's close personal relationship to an accused is one of the factors which a trial chamber may consider in assessing the witness's evidence, 117 and that it is for the trier of fact to determine whether a particular witness may have an incentive to distort the truth. 118 Kanyabashi does not show that the Trial Chamber erred in considering the ties between him and the Defence witnesses when assessing the credibility of their evidence.

2641. The Appeals Chamber further notes that, in finding that Witnesses D-2-5-I and D-2-YYYY had "close professional ties to Kanyabashi" 6119 the Trial Chamber relied on their evidence that they worked closely with Kanyabashi when employed as policemen in Ngoma Commune and that Witness D-2-YYYY had been employed in that capacity under Kanyabashi's supervision for several years.5120 In reaching the same conclusion with respect to Witness D-2-14-W, the Trial 6112 Trial Judgement, para. 3810 (internal references omitted). 6113 Kanyabashi Notice of Appeal, sub-para. 3.3.5; Kanyabashi Appeal Brief, para. 269. 6114 Kanyabashi Notice of Appeal, sub-para. 3.3.5; Kanyabashi Appeal Brief, para. 269. 6115 Kanyabashi Notice of Appeal, sub-para. 3.3.5; Kanyabashi Appeal Brief, para. 269. 6116 Prosecution Response Brief, paras. 1645, 1646, 1910, 1911. See, e.g., Kanyarukiga Appeal Judgement, para. 121; Karera Appeal Judgement, para. 137; Bikindi Appeal Judgement, para. 117. 6118 Gacumbitsi Appeal Judgement, para. 71. 6119 See Trial Judgement, para. 3810. 6120 See Witness D-2-YYYY, T. 26 November 2007 p. 62 (closed session), T. 3 December 2007 p. 8 (closed session), T. 5 December 2007 p. 56 (closed session); Witness D-2-5-I, T. 11 December 2007 p. 51 (closed session), T. 21 January 2008 p. 60 (closed session). 922 Case No. ICTR-98-42-A 14 December 2015

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19442/H Chamber relied on the witness's evidence that his employment was linked closely to a project that Kanyabashi was involved in funding.6121 Kanyabashi does not show any error in the Trial Chamber's evaluation of these ties when considering the credibility of Witnesses D-2-5-I, D-2-Y Y Y Y, and D-2-14-W.

2642. As regards the Trial Chamber's conclusion that Witnesses D-2-13-0 and D-13-D "testified to close personal ties with Kanyabashi", 6122 the Appeals Chamber notes that the evidence cited by the Trial Chamber supports its conclusion concerning Witness D-2-13-0.6123 By contrast, the Appeals Chamber observes that Witness D-13-D's testimony relied upon by the Trial Chamber reflects that, while the witness lived in the vicinity of Kanyabashi, he stated that Kanyabashi was not a "personal friend" 6124 The Trial Chamber also appears to have disregarded additional evidence of Witness D-13-D distancing his family from Kanyabashi®s.6125 The Appeals Chamber considers that, based on the evidence cited, no reasonable trier of fact could have found that Witness D-13-D had close personal ties with Kanyabashi. However, it finds that this error has not occasioned a miscarriage of justice as the Trial Chamber's assessment in any event reveals that it considered Witness D-13-D's evidence to be of low probative value with respect to the late May 1994 megaphone announcement. 126 2643. Consequently, the Appeals Chamber finds that Kanyabashi has not demonstrated any error in the assessment of his ties with Defence witnesses that would warrant the intervention of the Appeals Chamber. (vi) Conclusion 2644. The Appeals Chamber has rejected the vast majority of Kanyabashi's allegations of error with

respect to the Trial Chamber's assessment of the evidence concerning the late May 1994 megaphone announcement, including, Judge Pocar and Judge Agius dissenting, that Witness TK's evidence corroborated Witness QJ's evidence concerning the May 1994 megaphone announcement. The Appeals Chamber has, however, determined that the Trial Chamber erred in finding that the evidence established that megaphone announcements from a moving vehicle were part of a modus operandi by which messages from Kanyabashi were delivered to the population of Ngoma 6121 Trial Judgement, para. 3810; Witness D-2-14-W, T. 11 February 2009 pp. 7, 9 (closed session). 6122 Trial Judgement, para. 3810. 6123 Witness D-2-13-0, T. 5 November 2007 p. 16 (closed session). See also Witness D-2-13-0, T. 7 December 2007 Bize See Witness D-13-D, T. 14 February 2008 p. 31. 6125 Witness D- 13-D, T. 20 February 2008 p. 25 (closed session). 6126 See Trial Judgement, para. 3809. 923 Case No. ICTR-98-42-A 14 December 2015

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19441/H Commune from April through June 1994.6127 The Appeals Chamber will now determine whether this error has occasioned a miscarriage of justice.

2645. The Appeals Chamber observes that the Trial Chamber relied on Witness QI's evidence to reach its factual conclusion with respect to the late May 1994 megaphone announcement in the following terms: 2646. Kanyabashi argues that this statement reflects the unambiguous conclusion that Witness QJ's evidence would not have been relied upon but for the existence of the modus operandi as corroboration. 129 2647. The Prosecution responds that the Trial Chamber could have relied on the testimony of Witness QJ with or without corroboration. 6130 2648. The Appeals Chamber, Judge Pocar and Judge Agius dissenting, finds Witness TK's evidence alone, which the Trial Chamber found credible and corroborative of Witness QI's testimony, sufficient to sustain the Trial Chamber's reliance on Witness QI's direct evidence that around late May 1994 Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them. In this respect, the Appeals Chamber recalls that it has rejected, Judge Pocar and Judge Agius dissenting, Kanyabashi's allegation of error with respect to the Trial Chamber's assessment that Witness TK's evidence corroborated Witness QJ's evidence concerning the May 1994 megaphone announcement. Accordingly, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, notes that the Trial Chamber relied upon Witness TK's evidence that

she overheard a vehicle drive past and a megaphone broadcasting an announcement delivered on behalf of the bourgmestre of Ngoma Commune in May 19946131 The Appeals Chamber, Judge Pocar and Judge Agius dissenting, is satisfied that this evidence is sufficiently complementary and corroborative of Witness QJ's evidence of "announcements being disseminated from a vehicle with a public address system". 6132 Consequently, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, finds that the Trial Chamber's error in finding and relying on the existence of a modus operandi has not occasioned a miscarriage of justice. 6127 See supra, Section VIII.E.1(c). 6128 Trial Judgement, para. 3813. 6129 Kanyabashi Appeal Brief, paras. 297, 307. See also AT. 20 April 2015 pp. 19-21. 6130 AT. 20 April 2015 p. 42. 924 Case No. ICTR-98-42-A 14 December 2015

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19440/H 2649. Accordingly, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, concludes that Kanyabashi has failed to demonstrate that the Trial Chamber erred, on the basis of Witness QI's evidence, in finding that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them. (e) Mid-June 1994 Megaphone Announcement 2650. With respect to the allegation that Kanyabashi made inciting statements through a megaphone in June 1994, the Trial Chamber recalled Witness QI's evidence that, in mid-June 1994 while hiding above a bread oven at his employer's house, he saw Kanyabashi exit his white Peugeot 305 with a hand-held megaphone and announce that the Bourgmestre of Ngoma Commune wanted the population to come early in the morning to clear the bushes along the road so the "Inkotanyi" would not find anywhere to hide. 133 It further recalled that Witness QI testified that "Kanyabashi said they should flush out people hiding in the bushes, and everybody found in those bushes should die, including children, old men and women."6134 The Trial Chamber found Witness QI's testimony "credible, reliable and convincing" and relied on it to find that, around mid-June 1994, Kanyabashi used a megaphone to disseminate inciting statements to commit genocide. 135 2651. Kanyabashi argues that the Trial Chamber

erred in: (i) assessing Witness QI's identification evidence; (ii) evaluating the witness's credibility; and (ili) reversing the burden of proof. 136 The Appeals Chamber will address these contentions in turn. (i) Identification 2652. The Trial Chamber considered Witness QI's prior knowledge of Kanyabashi, the conditions in which the witness observed Kanyabashi, and Defence evidence that was presented as challenging the reliability of this identification 6137 It concluded that, "notwithstanding the conditions in which Witness QI found himself at the time of observing Kanyabashi's megaphone announcement, and taking into account not only the content of the announcement, but also that Witness QI was already 6131 See Trial Judgement, paras. 3757, 3802, 3803. 6132 Trial Judgement, para. 3813. 6133 Trial Judgement, para. 3815. 6134 Trial Judgement, para. 3815. 6135 Trial Judgement, para. 3824. 6136 Kanyabashi Notice of Appeal, sub-paras. 3.2, 3.2.4, 3.6.4-3.6.5.5; Kanyabashi Appeal Brief, paras. 258, 259, 263, 2281321 3 am, parti: Sly Bris, paras: 125-127. 925 Case No. ICTR-98-42-A 14 December 2015

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19439/H familiar with Kanyabashi, [...] Witness QI's identification of Kanyabashi on that day in June 1994 [was] reliable."6138 2653. Kanyabashi submits that the Trial Chamber erred in its assessment of Witness QI's identification evidence. 139 He argues that evidence recalled in the Trial Judgement demonstrates that the identification was unreliable or lacked credibility and contends that Witness QI had vision problems. 0140 2654. The Prosecution responds that the Trial Chamber correctly assessed Witness QI's identification evidence. 6141 2655. The Appeals Chamber observes that, in support of his argument, Kanyabashi simply lists paragraphs of the Trial Judgement or evidence considered by the Trial Chamber. His contentions merely reflect disagreement with the Trial Chamber's analysis without demonstrating how the Trial Chamber's detailed consideration of Witness QI's ability to identify Kanyabashi was unreasonable.

2656. Kanyabashi's argument that Witness QI had vision problems is likewise without merit. In support of this contention, Kanyabashi refers to a passage of Witness QI's examination-in-chief during which he could not recognise a picture on the screen.6142 However, the fact that Witness QI may have had vision problems while testifying 10 years after having observed the events does not undermine the reasonableness of the Trial Chamber's reliance on his evidence.

2657. Consequently, the Appeals Chamber dismisses Kanyabashi's contention regarding Witness QI's identification evidence. (ii) Credibility 2658. Kanyabashi argues that Witness QI's credibility is questionable given that, while he could approximate the date and time of the event when testifying in 2004, he was unable to do so when giving his statement to Tribunal investigators in 1999.6143 He also submits that the Trial Chamber did not consider Witness QI's evidence in light of his former employer's ties with Kanyabashi.6144 6138 Trial Judgement, para.

3821. See Kanyabashi Appeal Brief, paras. 209, 332, 334; Kanyabashi Reply Brief, paras. 125-127. 6140 Kanyabashi Appeal Brief, paras. 209, 334, referring to Witness QI, T. 25 March 2004 p. 54 (closed session). Prosecution Response Brief, para.

1950. See Witness QI, T. 25 March 2004 p. 54 (closed session) ("Q. Witness, you can see a red and white house. Do you see a red and white house on the photograph? A. Yes, but because of my sight problem, I can not see well I have eye Bio Kanyabashi Notice of Appeal, sub paras. 3.6.4, 3.6.4.1, 3.6.4.3-36,4.5; Kanyabashi Appeal Brief, para. 329. 614 Kanyabashi Appeal Brief, para.

330. In this regard, Kanyabashi highlights that, despite the fact that Witness QI was hiding in his former employer's house, he testified that he never discussed the megaphone announcements with him or his wife. See idem, referring to Witness QI, T. 25 March 2004 pp. 9, 10 (closed session). 926 Case No. ICTR-98-42-A 14 December 2015

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19438/H In this regard, Kanyabashi contends that it is unreasonable to believe Witness QI's evidence that he made inciting remarks precisely in front of the house of Witness QI's former employer since, at the relevant time, he - Kanyabashi - was hiding this person's son. 145 2659. Kanyabashi also raises general challenges to the witness's credibility, emphasising that Judge Ramaroson found that Witness QI was not a credible witness when assessing the events at Matyazo Clinic 146 He also points to Witness QI's testimony that he was not "psychologically" well and argues that the witness's evidence reflected that he "clearly wanted to incriminate Kanyabashi".614 He further submits that material aspects of Witness QI's evidence, through cross-examination, turned out to be hearsay or inexact. 6148 2660. The Prosecution responds that the Trial Chamber considered the inconsistencies between Witness QI's evidence and his previous statements and that it was in its discretion to conclude that he was credible. 6149 It submits that Kanyabashi's arguments concerning Witness QI's former employer are unsupported and speculative. 150 The Prosecution further contends that it was within the Trial Chamber's discretion to accept Witness QI's evidence after having examined the conditions under which he testified. 6151 2661. The Appeals Chamber notes that, with regard to the inconsistencies between

Witness QI's prior statements and testimony, Witness QI's prior statement reflects that he did not remember the date of the events.6152 While testifying in 2004, the witness stated that the megaphone announcement he witnessed occurred in June at about 2.00 p.m. 153 The Trial Chamber addressed this issue in the Trial Judgement and accepted the witness's explanation that, at the time he gave his statement, he forgot the precise date of the incident and that he was not "psychologically well". 6154 Kanyabashi does not demonstrate that no reasonable trier of fact could have accepted the witness's explanation for the variance.

2662. Moreover, the Appeals Chamber considers that Kanyabashi does not show that the Trial Chamber failed to consider sufficiently Witness QI's evidence in light of his former employer's ties with Kanyabashi. His contention that he would not have made inciting remarks in front of Witness QI's former employer's home because he was hiding that individual's son does not 6145 Kanyabashi Appeal Brief, para. 330. 6146 Kanyabashi Appeal Brief, para. 328. 6147 Kanyabashi Appeal Brief, para. 329. 6148 Kanyabashi Appeal Brief, para. 329. 6149 Prosecution Appeal Brief, para.

1944. See also AT. 20 April 2015 pp. 42, 43. 6150 Prosecution Response Brief, para. 1945. 615l Prosecution Response Brief, para. 1944. 6152 Witness QI's Statement, p. K0028864 (Registry pagination). 6133 Witness QI, T. 23 March 2004 p. 59 (closed session). See also Witness QI, T. 24 March 2004 p. 77 (closed session). 927 Case No. ICTR-98-42-A 14 December 2015

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19437/H demonstrate that no reasonable trier of fact could have relied on Witness QI's evidence to the contrary.

2663. With respect to Kanyabashi's general contentions concerning Witness QI's credibility, he does not show that, because Judge Ramaroson found Witness QI lacking credibility with respect to the events at Matyazo Clinic, a reasonable trier of fact could not have found that his evidence concerning the mid-June 1994 megaphone announcement was credible, reliable, and convincing. 615s Furthermore, while excerpts of Witness QI's evidence reflect the significant emotional impact that recalling the genocide had on the witness,6156 Kanyabashi does not demonstrate that this would have prevented a reasonable trier of fact from relying on Witness QI's evidence nor does he show that the witness's evidence reflected that he sought to incriminate Kanyabashi in a manner that would raise questions about his credibility.6157 As regards Kanyabashi's contention that shifts in Witness QI's evidence during cross-examination further undermine his credibility, the Appeals Chamber considers that Kanyabashi only points to clarifications made by the witness, without demonstrating that these clarifications would have led a reasonable trier of fact to reject his testimony. 6158 2664. Based on the foregoing, the Appeals Chamber concludes that Kanyabashi has failed to demonstrate that the Trial Chamber erred in its assessment of Witness QI's credibility. (iii) Reversal of Burden of Proof 2665. Kanyabashi

repeats his argument that the Trial Chamber reversed the burden of proof by requiring the Defence to present evidence demonstrating that his witnesses were "permanently" present at the same locations and on the same dates as Witness QI in order to counter his evidence. 159 He also contends that, in light of the incitement testified to by Witness QI, "[e]verybody must have heard it" and argues that, although approximately 30 other Prosecution witnesses were in Butare Town, the fact that they were not questioned about this incident 6154 Trial Judgement, para. 3822. 6155 The Appeals Chamber observes that, in her dissenting opinion, Judge Ramaroson concluded that "[a]ll these inconsistencies are serious and major discrepancies which lead me to conclude that Witnesses QI and RL are not credible witnesses." See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Dissenting Opinion of Judge Arlette Ramaroson, dated 24 June 2011, signed 18 July 2011, filed 19 July 2011 (originally filed in French, English translation filed on 21 May 2014) ("Judge Ramaroson Dissenting Opinion"), para.

30. However, as her opinion is confined to the Trial Chamber's conclusions relating to the Matyazo Clinic and because she joined the majority in relying on Witness QI as it relates to mid-June 1994 megaphone announcement, this statement can only reasonably be interpreted to concern Witness QI's evidence concerning the Matyazo Clinic. 6156 See Witness QI, T. 24 March 2004 p. 61 ("It's when I start to remember the events of that time, I feel disturbed. Sometimes I'm even incapable of speaking. That's why I spoke of those days how I did, with regard to the events that fisaw, and I don't think I'll be able to continue speaking about this."). See also supra, paras. 304, 2590. 6158 Witness QI, T. 24 March 2004 p. 57, T. 25 March 2004 p. 4 (closed session). 6159 Kanyabashi Appeal Brief, paras. 258 (emphasis omitted), 259. See also AT. 20 April 2015 pp. 55, 56. 928 Case No. ICTR-98-42-A 14 December 2015

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19436/H necessarily raises reasonable doubt that it occurred. 160 In this regard, he notes that although Witness TG was in the same compound as Witness QI, the former was not questioned about this issue. 6161 2666. The Prosecution responds that the Trial Chamber applied the correct burden of proof and reasonably assessed the evidence on the record. 162 The Prosecution further contends that it was not obliged to question other Prosecution witnesses about this incident. 6163 2667. Kanyabashi does not substantiate his position that the Trial Chamber reversed the burden of proof when assessing Defence evidence pertaining to Witness QI's testimony. He does not point to any aspect of the Defence evidence contradicting or relating to Witness QI's testimony and his contentions in this regard are dismissed. Furthermore, Kanyabashi's contention that reasonable doubt arises from the fact that other Prosecution witnesses were in Butare Town but were not questioned as to this incident is speculative.

2668. Accordingly, the Appeals Chamber dismisses Kanyabashi's contention that the Trial Chamber reversed the burden of proof when assessing Defence evidence concerning the mid-June 1994 megaphone announcement. (iv) Conclusion 2669. Based on the foregoing analysis, the Appeals Chamber finds that Kanyabashi has not demonstrated that the Trial Chamber erred in its assessment of the evidence concerning the mid-June 1994 megaphone announcement. However, the Appeals Chamber recalls its previous determination that the Trial Chamber erred in finding that the evidence established that megaphone announcements from a moving vehicle were part of a modus operandi by which messages from Kanyabashi were delivered to the population of Ngoma Commune from April through June 1994.6164 2670. The Appeals Chamber observes that the Trial Chamber relied on Witness QI's evidence to reach its conclusion with respect to the mid-June 1994 megaphone announcement in the following terms: the Chamber considers Witness QI's testimony on Kanyabashi's megaphone announcement in mid-June 1994 to be credible, reliable and convincing. His testimony is also supported by evidence cited above which establishes that megaphone announcements from a moving vehicle 929 Case No. ICTR-98-42-A 14 December 2015

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19435/H were part of the modus operandi by, which messages from the bourgmestre were disseminated to the population of Ngoma commune.

2671. Kanyabashi argues that, in view of the importance of the modus operandi finding in the Trial Chamber's reliance on Witness QI's testimony about the mid-June 1994 megaphone announcement, the error should result in the overturning of his conviction on this basis. 165 2672. The Prosecution responds that the Trial Chamber could have relied on the testimony of Witness QI with or without corroboration. 6167 2673. The Appeals Chamber, Judge Pocar and Judge Agius dissenting, rejects Kanyabashi's contention and finds that the Trial Chamber's error in finding the existence of a modus operandi did not result in a miscarriage of justice. The language in the Trial Judgement cited above reflects that Witness QI's evidence alone was sufficient to support the Trial Chamber's conclusions as to the mid-June 1994 megaphone announcement. Consequently, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, dismisses Kanyabashi's contentions related to this event. (f) Killings 2674. The Trial Chamber, based on the evidence of Witnesses QJ, TK, and QI, determined that, "following Kanyabashi's megaphone announcements in mid-May 1994 and in June 1994, searches were conducted for Tutsis and consequently more Tutsis were killed.»6168 2675. Kanyabashi argues that the evidence does not support the conclusion that killings resulted from the megaphone communications.6169 He contends that the

error is relevant to the Trial Chamber's determination of his sentence. 6170 2676. The Prosecution responds that direct and public incitement to commit genocide is an inchoate crime and, thus, does not require demonstration that Kanyabashi's megaphone announcements resulted in any subsequent killings.6171 2677. The Appeals Chamber recalls that the crime of direct and public incitement to commit genocide is an inchoate crime, punishable even if no act of genocide has resulted therefrom. 172 Notably, the Trial Chamber did not convict Kanyabashi of genocide on the basis of ensuing killings, 6165 Trial Judgement, para. 3824. 6166 See Kanyabashi Appeal Brief, para.

297. See also ibid., para. 307. 6167 AT. 20 April 2015 p. 42. 6168 See Trial Judgement, para.

3832. See also ibid., paras. 3827-3831, 6009, 6010. 6169 Kanyabashi Appeal Brief, para. 338. 6170 Kanyabashi Appeal Brief, para. 338. 6171 Prosecution Response Brief, paras. 1955-1958. 6172 Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678. 930 Case No. ICTR-98-42-A 14 December 2015

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19434/H finding that there was insufficient evidence to establish that Kanyabashi's conduct contributed to them.6173 2678. Notwithstanding this finding, the Trial Chamber concluded that "the fact that after both megaphone announcements searches were conducted and more Tutsis were killed" constituted further evidence that the public understood that the "enemy" and "Inkotanyi" referred to in Kanyabashi's speeches were Tutsis and that they were to be killed.6174 The Appeals Chamber recalls that in determining whether a speech constitutes a direct and public incitement to commit genocide, it may be helpful to examine how the speech was understood by its intended audience in order to determine its true message. 175 The Trial Chamber's analysis reveals that this was the assessment the Trial Chamber undertook.

2679. In this regard, the Appeals Chamber finds that Kanyabashi's challenge fails to appreciate that the Trial Chamber's conclusion concerning the public understanding of the words that he used in his megaphone announcements was primarily based on the evidence of Witnesses QJ and QI as well as Expert Witness Ntakirutimana who testified that the term "enemy" or "Inkotanyi" meant Tutsis. 6176 2680. Furthermore, and contrary to Kanyabashi's contentions, the Trial Chamber's sentencing deliberations reveal that, while it considered the number of victims resulting from the attacks at the Matyazo Clinic and Kabakobwa Hill, it did not consider killings resulting from the megaphone announcements in determining his sentence. 17 Consequently, Kanyabashi fails to identify an error that would invalidate his sentence or have occasioned a miscarriage of justice.

2681. As a result, the Appeals Chamber dismisses Kanyabashi's contentions regarding the ensuing killings without further consideration. (g) Conclusion 2682. In light of the foregoing, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, finds that Kanyabashi has failed to demonstrate any error in the Trial Chamber's assessment of the evidence concerning the late May and mid-June 1994 megaphone announcements that occasioned a miscarriage of justice and warrants the intervention of the Appeals Chamber. 6173 Trial Judgement, paras. 5930, 5931. 6174 Trial Judgement, para.

6010. See also ibid., para. 6009. 6175 Cf. Nahimana et al. Appeal Judgement, paras. 701, 711. 6176 Trial Judgement, paras. 3814, 3825, 3826. 6177 Trial Judgement, para. 6254. 931 Case No. ICTR-98-42-A 14 December 2015

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19433/H 2. Criminal Responsibility 2683. In the "Factual Findings" section of the Trial Judgement, the Trial Chamber determined that the term "enemy" as heard by Witness QJ in the late May 1994 megaphone announcement was a reference to Tutsis in general. 6178 It similarly accepted Witness QI's interpretation of Kanyabashi's mid-June 1994 megaphone announcement that his use of the expression "Inkotanyi" was a reference to "Tutsis hiding in the bushes" 6179 In both instances, the Trial Chamber considered interpretations of the words "enemy" and "Inkotanyi" given by Prosecution Expert Witness Évariste Ntakirutimana that supported this conclusion. 6180 2684. In the "Legal Findings" Section of the Trial Judgement, the Trial Chamber recalled the following: Around late May 1994 Kanyabashi drove through Butare town with a megaphone and instructed the population to search for the enemy among them. Further, around mid-June 1994 Kanyabashi used a megaphone to tell the population to clear bushes along the road in order to remove potential hiding places for the Inkotanyi, to flush out people who were hiding in the bushes, and to kill those found there, including children, old men and women. After both of Kanyabashi's announcements in mid-May and June 1994 searches were conducted for Tutsis, and consequently, more Tutsis The Chamber recalls that after hearing Kanyabashi's announcements by

megaphone in May and June 1994, the public understood that the "enemy" and "Inkotany" were Tutsis and they were to be killed, as further evidenced by the fact that after both megaphone announcements searches were conducted and more Tutsis were killed.[...] The Chamber also considers Kanyabashi's spoken words encouraging the population to search for the "enemy" and "clear bushes", being references to killing Tutsis, evidences Kanyabashi had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group.°181 2685. Kanyabashi submits that Witness QJ's evidence is too ambiguous to support as the only reasonable conclusion that the term "enemy" meant Tutsis and, consequently, that he possessed genocidal intent. 182 In support of his contention, he asserts that this term was used in late May 1994 during the RPF advance and reasonably could have been a reference to these combatants. 183 During the appeals hearing, Kanyabashi further pointed to Witness QI's evidence reflecting that "no one was going through the roadblocks" when this announcement was made as well as evidence which, in his view, suggests that Kanyabashi was only speaking to the persons manning the roadblock rather than the public in general. 184 Kanyabashi argued that, based on the evidence, it could not be 6178 Trial Judgement, para. 3814. 6179 Trial Judgement, paras. 3825, 3826. 6180 See Trial Judgement, paras. 3814, 3825. 6181 Trial Judgement, paras. 6009, 6010, 6012. 6182 Kanyabashi Appeal Brief, para. 336. 6183 Kanyabashi Appeal Brief, para. 336. 6184 AT. 20 April 2015 pp. 21, 22, referring to Witness QJ, T. 12 November 2001 pp. 32, 33, 40, 41 (French), T. 14 November 2001 pp. 107, 141, 143 (French), T. 15 November 2001 p. 14 (closed session) (French). 932 Case No. ICTR-98-42-A 14 December 2015

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19432/H concluded that his statements satisfied the public element of the crime of direct and public incitement to commit genocide. 185 2686. Kanyabashi also contends that the evidence of Witness QI is insufficient to establish that Kanyabashi incited the population to clear the bushes with the intention to kill Tutsis.186 He argues that the limited number of crimes that followed the megaphone announcements belies the conclusion that his statements constituted direct and public incitement to commit genocide. 6187 Finally, Kanyabashi appears to argue that the Trial Chamber erred in relying on Expert Witness Ntakirutimana's evidence when it refused to hear his own Defence expert evidence in rebuttal. 188 2687. The Prosecution responds that the Trial Chamber correctly interpreted the evidence and concluded that Kanyabashi's statements amounted to direct and public incitement to commit genocide and that Kanyabashi fails to substantiate his interpretations to the contrary. 189 It argues that the Trial Chamber reasonably found that Kanyabashi's incitement by megaphone was of a public nature by virtue of the fact it was made through a public-address system. 190 The Prosecution also contends that Kanyabashi's contentions concerning the absence of killings is irrelevant as this crime is an inchoate offence.' 6191 2688. The Appeals Chamber finds no merit in Kanyabashi's argument that

Witness QJ's evidence was too ambiguous to support as the only reasonable conclusion that the term "enemy" used in the late May 1994 megaphone announcement was a reference to Tutsis in general.6192 The Trial Chamber considered that the witness's interpretation that the reference to the "enemy" included Tutsis was supported by the evidence of Expert Witness Ntakirutimana, Defence Expert Witness Eugène Shimamungu, and a prior finding of the Trial Chamber - based on an extensive 6185 AT. 20 April 2015 pp. 22, referring to Ngirabatware Appeal Judgement, paras. 53-60 6186 Kanyabashi Appeal Brief, para. 336. 6187 Kanyabashi Appeal Brief, para.

337. Rule 92bis, 24 April 2008 ("24 April 2008 Decision"). 6189 Prosecution Response Brief, paras. 1951-1954. 6190 AT. 20 April 2015 pp. 43-45. 6191 Prosecution Response Brief, para. 1954. 6192 See Witness QJ, T. 12 November 2001 pp. 26 ("A. [Kanyabashi] used to say that the bourgmestre of Ngoma commune is informing the people of Ngoma that the enemies are among us and you are requested to seek them everywhere."), 33, 34 ("Q. What did the word 'enemy' mean? A. When they said Umwanzi or enemy — I spell Umwanzi. U-M-W-A-N-Z-I. When this word was used, it is also intended to mean Tutsi. And, again, to refer to the Tutsis, they could say 'snakes' or 'Nyenzi", or so on, and so forth."). 933 Case No. ICTR-98-42-A 14 December 2015

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19431/H review of evidence - which reflected that, at the time, words such as "enemy" were used to refer to Tutsis. 6193 2689. Furthermore, the Appeals Chamber finds that Kanyabashi's contention that Witness QJ's evidence shows that Kanyabashi only intended to address persons manning the roadblock and that there was no public audience when he made the allegedly inciting statement reflects a fragmented reading of the record and the Trial Chamber's findings. The Trial Chamber conclusions, which are reasonably supported by Witness QJ's testimony, are that Kanyabashi was addressing the "population", that he was using a megaphone, and that he drove through town making the announcement. 194 Kanyabashi's reliance on an incomplete understanding of the record and the Trial Chamber's conclusions fails to demonstrate that the Trial Chamber erred in finding that the announcement as described by Witness QJ was "public" 6195 2690. Likewise, Kanyabashi fails to show that Witness QI's evidence was insufficient to establish that Kanyabashi incited the population to clear the bushes with the intention to kill Tutsis.196 The Trial Chamber assessed the meaning of the term "Inkotanyi" based on Witness QI's testimony and that of Expert Witness Ntakirutimana. 197 Kanyabashi does not demonstrate any error in the Trial Chamber's assessment of their evidence in this regard. Furthermore, Witness QI

testified, inter alia, that the instruction to clear the bushes so that the Inkotanyi would not find anywhere to hide was accompanied by an additional instruction to "flush out people hiding in the bushes, and everybody found in those bushes should die, including children, old men and women."6198 6193 See Trial Judgement, para. 3814, referring to ibid., Section 3.4.12.2. See also ibid., paras. 573-578. The Appeals Chamber notes that Kanyabashi provides additional citations in support of his contention in his reply brief. See Kanyabashi Reply Brief, para. 132, referring to Exhibit DS74 (Kambanda's speech of 15 May 1994), pp. 2-4, 11- 13, 18, 22, 23, 27, Witness D-2-5-W, T. 4 October 2007 p. 17 (closed session), Filip Reyntjens, T. 21 November 2007 pp. 47, 66, 67. Recalling that reply briefs shall be limited to arguments in reply to the response brief, and noting that the Prosecution did not have the opportunity to respond to Kanyabashi's argument in this respect, the Appeals Chamber will not consider these additional references. In any event, the Appeals Chamber observes that Kanyabashi merely refers to abstracted excerpts of evidence, most of which was considered and relied upon by the Trial Chamber in reaching its conclusions elsewhere in the Trial Judgement that "enemy" was used to refer to Tutsis. See Trial Judgement, paras. 574-578, 583, 867-890, 5555-5558, 5563-5565. The Trial Chamber did not consider the evidence of Witness D-2-5-W in this respect; however, Kanyabashi merely refers to a portion of his testimony in which he states that at a meeting he attended with Kanyabashi, someone referred to the enemy as "anyone supporting the RPF or anyone working for the RPF". See Witness D-2-5-W, T. 4 October 2007 p. 17 (closed session). See Trial Judgement, para.

3813. See also Witness QJ, T. 12 November 2001 p. 25, T. 14 November 2001 pp. 97- 6195 See Trial Judgement, para.

6011. In light of this conclusion, Kanyabashi's reliance on paragraphs 53-60 of the Ngirabatware Appeal Judgement is misplaced. Similarly, the Appeals Chamber considers that Kanyabashi's references to the Presiding Judge's summary of Witness QJ's evidence, as confirmed by the Prosecution, is not a reflection of the evidence on the record but how a limited number of individuals might have understood it at the time. See Witness QJ, T. 15 November 2001 pp. 45, 46. This, however, does not demonstrate any error in the Trial Chamber's ultimate evaluation of Witness QJ's testimony. 6196 See Witness QI, T. 23 March 2004 pp. 59, 60 (closed session) ("A. He meant the Tutsi that were in the bushes that were being sought after in the bushes they were hiding."), 68 (closed session), T. 24 March 2014 pp. 77, 78 (closed session); Witness QI's Statement. Trial Judgement, paras. 3825, 3826. 6198 See Trial Judgement, para. 3815. 934 Case No. ICTR-98-42-A 14 December 2015

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19430/H The Appeals Chamber considers that Kanyabashi has not demonstrated that these remarks allowed for a reasonable inference other than reflecting the intention of those following the instructions to kill Tutsis.

2691. Moreover, the Appeals Chamber has already considered and rejected Kanyabashi's contentions concerning the relevance of the Trial Chamber's determination as it relates to killings that followed the megaphone announcement.199 The Appeals Chamber finds that, in the circumstances of this case, the same rationale applies in this instance.

2692. Finally, Kanyabashi appears to simply disagree with the Trial Chamber's decision rejecting his motion to replace one Defence expert witness with another without demonstrating how it erred in reaching this conclusion. 5200 2693. Based on the foregoing, the Appeals Chamber finds, Judge Pocar and Judge Agius dissenting, that Kanyabashi has not demonstrated that the Trial Chamber erred in convicting him for direct and public incitement to commit genocide.

3. Conclusion 2694. In light of the above, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, finds that Kanyabashi has failed to demonstrate that the Trial Chamber erred in finding him responsible for directly and publicly inciting the commission of genocide by making megaphone announcements in Butare Town in late May and mid-June 1994 and dismisses Grounds 3.2 through 3.8 of Kanyabashi's appeal. 6199 See supra, para. 2681. 6200 See 24 April 2008 Decision, paras. 18, 20, 52-54. 935 Case No. ICTR-98-42-A 14 December 2015

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19429/H IX. APPEAL OF ÉLIE NDAYAMBAJE 2695. The Trial Chamber found Ndayambaje guilty of committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute for inciting a crowd outside Mugombwa Church to kill the Tutsis who were taking refuge in the church on 20 and 21 April 1994 and based on a speech he made at his swearing-in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994.6201 The Trial Chamber also found Ndayambaje guilty of genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for: i) aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill from 22 to 24 April 1994; and (ii) instigating the killings of Tutsi women and girls abducted from Mugombwa Sector on the basis of his words at the statue of the Virgin Mary ("Virgin Mary Statue") after his swearing-in ceremony of 22 June 1994.6202 2696. Ndayambaje raises challenges to his indictment and submits that the Trial Chamber showed bias in the assessment of the evidence. He also challenges the Trial Chamber's findings regarding his alibi and contends that the Trial Chamber erred in not conducting site

visits. Ndayambaje further challenges the Trial Chamber's findings concerning his responsibility in relation to the incidents at Mugombwa Church on 20 and 21 April 1994, the killings perpetrated at Kabuye Hill on 22, 23, and 24 April 1994, his swearing-in ceremony held on 22 June 1994, and the abduction of Tutsi women and girls after his swearing-in ceremony. The Appeals Chamber will address these contentions in turn. 6201 Trial Judgement, paras. 5995-6002, 6026-6029, 6038, 6186. 6202 Trial Judgement, paras. 5949, 5976, 5977, 6064-6066, 6107, 6108, 6125, 6175, 6176, 6186. See also infra, para, 3246, fns. 6351, 7443. 936 Case No. ICTR-98-42-A 14 December 2015

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19428/H A. Indictment (Grounds 1 to 6) 2697. Ndayambaje submits that he was not charged with the criminal conduct on the basis of which he was convicted or lacked notice thereof, and that he was materially prejudiced in the preparation of his defence. 203 He also contends that the "immeasurable accumulation of events not pleaded in the Indictment has caused [him] irreparable prejudice."6204 Ndayambaje requests that the Appeals Chamber overturn all his convictions.620s 2698. The Appeals Chamber will examine Ndayambaje's submissions related to notice of the allegations pertaining to the incidents at Mugombwa Church, before turning to his submissions related to notice of the allegations concerning Kabuye Hill, his swearing-in ceremony, and the abduction of Tutsi women and girls. 6206 1. Mugombwa Church (Grounds 1; 2, and 6 in part) 2699. Based primarily on the evidence of Prosecution Witness QAR, 207 the Trial Chamber found that, by his presence at Mugombwa Church, Muganza Commune, Butare Prefecture, on 20 and 21 April 1994 and given his "considerable moral authority", Ndayambaje encouraged the attacks on the Tutsis taking refuge inside the church that took place on these two days, resulting in the deaths of hundreds, if not thousands, of Tutsis.6208 The Trial Chamber also determined that, on 20 April 1994, Ndayambaje spoke to a group of armed people posted outside the church and told them that their work would no longer be very difficult since the refugees were all gathered together 6203 Ndayambaje Notice of Appeal, paras. 5-9, 14-65; Ndayambaje Appeal Brief, paras. 7-138. To facilitate legibility, the Appeals Chamber will use the term "Indictment" in the body text of the present section when referring to the Ndayambaje Indictment. 6204 Ndayambaje Notice of Appeal, para.

17. See also Ndayambaje Appeal Brief, paras. 22, 134, 137. 6205 Ndayambaje Notice of Appeal, paras. 27, 31, 39, 49, 58, 64, 65; Ndayambaje Appeal Brief, paras. 43, 49, 79, 99, 119, 132, 138. 6206 The Appeals Chamber notes that Ndayambaje submits that the Trial Chamber erred in law in deferring until deliberations its decision on objections relating to the exclusion of evidence of facts that were not pleaded in the Ndayambaje Indictment. He argues that, as a result, he was only notified of the charges against him during the delivery of the Trial Judgement. He contends that, in doing so, the Trial Chamber deprived him of his right to be clearly informed of the charges against him in order to prepare his defence. See Ndayambaje Appeal Brief, para.

18. See also Ndayambaje Notice of Appeal, para.

53. The Appeals Chamber reiterates that the practice of trial chambers in the exercise of their discretion to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of their final deliberations on the case is a cause of concern. As held above, leaving the issue of whether facts could be relied upon as a potential basis for liability unresolved until the end of the trial creates uncertainty, which can be a source of potential prejudice to the Defence. See supra, para.

1280. However, the Appeals Chamber considers that, as any matter related to the conduct of the proceedings before a trial chamber, the timing of the ruling on the motions before it, in the absence of any specific provision, is a matter within the discretion of the trial chamber. The Appeals Chamber recalls that, in order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber committed a discernible error resulting in prejudice to that party. See supra. para.

138. The Appeals Chamber considers that Ndayambaje's general contention of error as developed in his appeal brief fails to demonstrate that he was prejudiced by the Trial Chamber's decision to postpone consideration of a number of his objections. 6207 Trial Judgement, paras. 1227, 1232, 1241, 1245, 1246. 6208 Trial Judgement, paras. 5754-5757. 937 Case No. ICTR-98-42-A 14 December 2015

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19427/H inside the church and that some of them should stay and watch the people in the church while others should search for those hiding in ditches and bushes.209 It further determined that the next morning, Ndayambaje again addressed the crowd outside the church, stating that "he could see they were interested in the Tutsis' cows and asking them what they would pay if the Tutsi owners of the cattle escaped."6210 The Trial Chamber found that Ndayambaje's public addresses at Mugombwa Church on 20 and 21 April 1994 directly and publicly incited the commission of genocide. 6211 2700. On this basis, the Trial Chamber convicted Ndayambaje of committing direct and public incitement to commit genocide (Count 4) as well as aiding and abetting genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively), and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common of the Geneva Conventions and of Additional Protocol II (Count 9) pursuant to Article 6(1) of the Statute. 6212 2701. In summarising the Prosecution case against Ndayambaje with respect to these allegations, the Trial Chamber referred to paragraph 6.37 of the Indictment.6213 The Indictment indicates that the allegations in paragraph 6.37 were being pursued under, inter alia, Counts 2, 6, 7, and 9 pursuant to Articles 6(1)

and 6(3) of the Statute and under Count 4 pursuant to Article 6(1) of the Statute. 6214 2702. Prior to examining the relevant evidence, the Trial Chamber noted that the location and dates of the massacre at Mugombwa Church were not specified in the Indictment and that Ndayambaje's role therein was not sufficiently pleaded. 215 It found that the Indictment was therefore defective in this regard 6216 However, the Trial Chamber determined that the defect was cured and that the Prosecution gave Ndayambaje timely, clear, and consistent notice that he was "accused of participating in, including through giving orders, and supervising the massacre at 6209 Trial Judgement, paras. 1245, 5754. 6210 Trial Judgement, paras. 1246, 5755. 6211 Trial Judgement, paras. 5995-6002. 6212 Trial Judgement, paras. 1245, 1246, 5754-5758, 5976, 5977, 5995-6002, 6038, 6064-6066, 6107, 6108, 6125, 6175, 6176, 6186. 6213 Trial Judgement, paras. 1018, 1019. Paragraph 6.37 of the Ndayambaje Indictment reads as follows: 6.37 As from 20 April, in Muganza commune and the surrounding area, Élie Ndayambaje ordered supervised and participated in massacres of the Tutsi population, committed by militiamen, soldiers communal policemen and communal authorities. 6214 Ndayambaje Indictment, pp. 40-46. 6215 Trial Judgement, para. 1024. 6216 Trial Judgement, para. 1024. 938 Case No. ICTR-98-42-A 14 December 2015

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19426/H Mugombwa Church, Muganza commune, along with other commune authorities in late April 1994.*6217 2703. Ndayambaje submits that the location and dates of the massacre perpetrated at Mugombwa Church as well as his participation therein were not pleaded in the Indictment, and that such defect was neither curable nor cured. 6218 He also argues that the Indictment failed to put him on notice that he was alleged to have aided and abetted the killings at the church and that he was charged with direct and public incitement to commit genocide based on his addresses at the church. 6219 He contends that the Trial Chamber therefore erred in convicting him in relation to the events at Mugombwa Church and that his convictions should be reversed. 6220 (a) Location, Dates, and Participation in the Attacks 2704. As noted above, the Trial Chamber found that the location and dates of the massacre at Mugombwa Church were not specified in the Indictment and that Ndayambaje's role therein was not sufficiently pleaded. 22l It nonetheless determined that the summary of the anticipated evidence of Prosecution Witnesses FAG, FAU, and TU appended to the Prosecution Pre-Trial Brief, together with the Prosecution's opening statement, gave timely, clear, and consistent notice to Ndayambaje that he was accused of participating in, including through giving orders, and supervising the massacre at

Mugombwa Church in late April 1994.6222 It found that the defect in paragraph 6.37 of the Indictment was cured and that Ndayambaje was not prejudiced in the preparation of his defence. 6223 2705. Ndayambaje submits that the defect in the Indictment concerning the location and dates of the massacre perpetrated at Mugombwa Church as well as his participation therein was neither curable nor cured 6224 Pointing out that the Prosecution was in possession of the relevant material facts when filing the Indictment, Ndayambaje submits that the Prosecution chose not to mention these facts in the Indictment and that, as a result, it was legitimate for him to understand that these 6217 Trial Judgement, paras. 1029, 1031. 6218 Ndayambaje Notice of Appeal, paras. 5, 6, 16, 19-27, 29; Ndayambaje Appeal Brief, paras. 26-43. See also AT. 21 April 2015 pp. 11-17, 65-67. 6219 Ndayambaje Notice of Appeal, paras. 26, 28-30, 59-61, 63; Ndayambaje Appeal Brief, paras. 32, 35, 44-49, 126. See also AT. 21 April 2015 pp. 21, 22. 6220 Ndayambaje Notice of Appeal, paras. 25-27, 31, 59-61, 63; Ndayambaje Appeal Brief, paras. 43, 48, 49, 124, 131, 6222 Trial Judgement, paras. 1025-1031, referring to Witness Summaries Grid, item 32, Witness FAU ("Witness FAU's Summary"), item 96, Witness TU ("Witness TU's Summary"), Witness FAG's Summary, Prosecution Opening 6224 Ndayambaje Notice of Appeal, paras, 5, 6, 16, 19-27, 29; Ndayambaje Appeal Brief, paras. 7-17, 26-43, 47. See also Ndayambaje Reply Brief, paras. 8-10; AT. 21 April 2015 pp. 11-17, 66, 67. 939 Case No. ICTR-98-42-A 14 December 2015

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19425/H events were not part of the Prosecution case. 225 He contends that, by convicting him on the basis of his participation in this massacre, the Trial Chamber proceeded to a "de facto illegal expansion of the Indictment'6226 as the allegation concerning these events constituted a separate charge which could only have been added through a formal amendment of the Indictment. 6227 2706. Ndayambaje further submits that, since none of the summaries of the anticipated evidence relied upon by the Trial Chamber were marked as relevant to paragraph 6.37 of the Indictment, they could not be considered as providing unambiguous information. 228 He also asserts that: (i) Witness FAG's Summary and prior statements do not provide clear and consistent notice regarding his presence at the church on 20 and 21 April 1994,6229 (ii) Witness FAU's prior statements are contradictory with one another and Witness FAU's Summary directly contradicts Witness FAG's Summary;6230 (ii) Witness TU's Summary is inconsistent with Witnesses FAU's and FAG's summaries as it refers to events at Mugombwa Church on 24 April 1994,6231 and (iv) the Prosecution's opening statement refers to massacre at the church in late April 1994 without specifying the date or his alleged criminal conduct. 232 Ndayambaje adds that the Prosecution failed to indicate in its pre-trial brief that Witness QAR, the sole witness who

testified to his presence at the church, would testify in relation to the attacks on Mugombwa Church, and that the Trial Chamber erred in admitting evidence in relation to these events. 6233 2707. Ndayambaje submits that the lack of notice regarding the events at Mugombwa Church caused him serious prejudice as it prevented him from conducting efficient investigations and organising his defence. 6234 6225 Ndayambaje Appeal Brief, para.

27. See also Ndayambaje Reply Brief, para.

8. Ndayambaje also highlights that, in contrast with the Ndayambaje Indictment, the Prosecution pleaded specific locations in Ngoma Commune in the Kanyabashi Indictment. See Ndayambaje Appeal Brief, para. 28. 6226 Ndayambaje Appeal Brief, para. 27. 6227 Ndayambaje Notice of Appeal, paras. 5, 6, 14-23; Ndayambaje Appeal Brief, paras. 10, 26-29. 6228 Ndayambaje Notice of Appeal, para. 18; Ndayambaje Appeal Brief, paras. 14, 33, 34, 37, 38. See also Ndayambaje Appeal Brief, paras. 59, 92; Ndayambaje Reply Brief, para. 11; AT. 21 April 2015 p.

69. Ndayambaje Appeal Brief, paras. 36, 37, referring to statements of Witness FAG of 11 August 1998, 18 November 1999, and 23 February 2000 admitted as Exhibit D261 on 18 October 2004 and Exhibits D188 and D189 on 24 March 2004, respectively (confidential) ("Witness FAG's 1998 Statement", "Witness FAG's 1999 Statement". and "Witness FAG's 2000 Statement", respectively). Ndayambaje argues that Witness FAG did not provide clear and implicating him in the events at Mugombwa Church. See idem. Ndayambaje Appeal Brief, paras. 38, 39, referring to statements of Witness FAU of 9 October 1999, 29 December 1999, 22 February 2001 (admitted on 22 February 2001 as Exhibit D195 (confidential)) ("Witness FAU's Statement"), and 22 November 2001. See also Ndayambaje Reply Brief, para. 19. 6231 Ndayambaje Appeal Brief, para. 40. 6232 Ndayambaje Appeal Brief, para. 41. 6233 Ndayambaje Notice of Appeal, paras. 14, 23; Ndayambaje Appeal Brief, para. 35, referring to Trial Judgement, para.

1025. See also Ndayambaje Appeal Brief, para. 202; Ndayambaje Reply Brief, para. 16. 3234 Ndayambaje Notice of Appeal, para. 24; Ndayambaje Appeal Brief, paras. 22, 29. See also AT. 21 April 2015 pp. 68, 69. 940 Case No. ICTR-98-42-A 14 December 2015

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19424/H 2708. The Prosecution responds that the Trial Chamber correctly found that the defective indictment was cured by post-indictment information and that Ndayambaje received sufficient notice of his participation in the Mugombwa Church attacks and suffered no prejudice since he was able to prepare a comprehensive defence. 6235 2709. There is no dispute that the Indictment was defective in relation to the allegation concerning Ndayambaje's responsibility for the massacre at Mugombwa Church on 20 and 21 April 1994 as there is no mention of the relevant location and dates in paragraph 6.37 of the Indictment or anywhere else in the Indictment. 6236 2710. However, the Appeals Chamber finds that the allegation of Ndayambaje's participation in the Mugombwa Church massacre did not constitute a new charge but fell within the broader allegation relating to Ndayambaje's participation in massacres of the Tutsi population in Muganza Commune from 20 April 1994 pleaded in paragraph 6.37 of the Indictment.

2711. Moreover, the Appeals Chamber is not persuaded by Ndayambaje's argument that it was legitimate for him to interpret the Prosecution's failure to set forth the relevant material facts of this specific allegation in the Indictment as indicating that it was not part of its case. While the Prosecution should have specifically pleaded the material facts of the dates, location, and Ndayambaje's participation in the Mugombwa Church massacre in the Indictment that were in its possession prior to the filing of the Indictment, 237 the Appeals Chamber does not consider that these omissions could have reasonably been understood as demonstrating that the Prosecution did not intend to prosecute Ndayambaje in relation to this massacre. In the view of the Appeals Chamber, the fact that the Prosecution disclosed the prior statements of Witnesses QAR and TU which expressly refer to the attacks on Mugombwa Church and Ndayambaje's involvement therein 6235 Prosecution Response Brief, paras. 1997-1999, 2002-2009, 2052, 2053. See also AT. 21 April 2015 pp. 36, 37. In particular, the Prosecution contends that: (i) Witnesses FAU's, FAG's, and TU's summaries were linked to the counts with which Ndayambaje was charged and it was not required to link the summaries to a specific paragraph in the Ndayambaje Indictment; and (ii) the fact that Witness QAR's evidence related to Mugombwa Church was not summarised in its pre-trial brief is irrelevant to the question of whether Ndayambaje received sufficient notice of the charge. See Prosecution Response Brief, paras. 1997, 2002. See Trial Judgement, para.

1024. See statements of Witness QAR of 20 June 1995, 20 May 1997, and 14 October 1997, disclosed on 21 January 1997 and 4 November 1998 and admitted on 22 November 2001 as Exhibit D11B (confidential) ("Witness OAR's 1995 Statement", "Witness QAR's May 1997 Statement", and "Witness QAR's October 1997 Statement", respectively); statement of Witness TU of 18 December 1996, disclosed on 4 November 1998 on 16 June 1999 ("Witness TU's Statement"). See also The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Letter from the Prosecution, 1997; 4 November 1998 Disclosure; The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, "Transmission of Redacted Statements in the case of The Prosecutor v Elie Ndayambaje (ICTR - 96 - 8)", 16 June 1999. The Appeals Chamber notes that the statements of Witnesses FAG and FAU concerning Ndayambaje's involvement in the Mugombwa Church massacre were either made or disclosed after the filing of the Ndayambaje Indictment on 11 August 1999. 941 Case No. ICTR-98-42-A 14 December 2015

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19423/H in 1997, 1998, and 1999,5238 prior to the filing of the Indictment, shows that these attacks formed part of the Prosecution case at the time the Indictment was issued.

2712. The Appeals Chamber therefore rejects Ndayambaje's contentions that the Trial Chamber allowed a "de facto illegal expansion of the Indictment" by convicting him in relation to this massacre and that the defect in the Indictment related to Ndayambaje's responsibility for the killings perpetrated at Mugombwa Church on 20 and 21 April 1994 was not curable.

2713. Turning to Ndayambaje's challenge to the Trial Chamber's finding that the defect regarding the dates, location, and his general participation in the massacre was cured, the Appeals Chamber finds no merit in Ndayambaje's argument that the summaries of the Prosecution witnesses' anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegation against him as they were not explicitly linked to any paragraph of the Indictment. 6239 The Appeals Chamber considers that it would have been preferable for the Prosecution to provide greater specificity given the vagueness of the Indictment and its pre-trial brief in this respect. However, it is satisfied that the contents of Witnesses FAG's, FAU's, and TU's summaries and the fact that they were expressly marked relevant to Ndayambaje and to Counts 1 through 9 of his Indictment - which, in turn, were linked to paragraph 6.37 of the Indictment 240 - provided clear notice to Ndayambaje that the Prosecution intended to rely on the evidence of these witnesses in support of the allegation of his participation in the massacres of the Tutsi population in Muganza Commune set forth in paragraph 6.37.

2714. With regard to Ndayambaje's allegation of inconsistencies within and between the witnesses' statements and summaries, the Appeals Chamber is not persuaded that Witness FAG's Summary and prior statements gave inconsistent information regarding Ndayambaje's implication in the events at Mugombwa Church. While Witness FAG's Summary and prior statements did not explicitly mention Ndayambaje's presence at Mugombwa Church during the days of the attacks, they clearly and consistently implicated him in the events there.241 The Appeals Chamber also 6238 See supra, fn. 6237. 6239 The Appeals Chamber observes that the jurisprudence Ndayambaje points to does not require that the witness's summaries appended to a Prosecution's pre-trial brief be linked to the relevant paragraphs of an indictment in order to provide timely, clear, and consistent information detailing the factual basis underpinning the charge. It also notes that Rule 73bis(B)(iv)(c) of the Rules relied upon by Ndayambaje only states that, at the pre-trial conference, the trial chamber may order the Prosecutor to file "[the points in the indictment on which each witness will testify" and that, in paragraph 108 of the Trial Judgement, the Trial Chamber merely recalled the well-established jurisprudence that the summaries appended to a Prosecution's pre-trial brief may in some cases serve to put the accused on notice of

the allegations against him. See Ndayambaje Notice of Appeal, para. 18, referring to Rule 73bis(B)(iv)(c) of the Rules, Trial Judgement, para. 108; Ndayambaje Appeal Brief, paras. 14, 33, 34, 37, 38. See Ndayambaje Indictment, pp. 40-45. 6241 In relevant part, Witness FAG's Summary reads as follows: FAG states that they were ordered by Venant, Kanyenzi, Bosco, the assistant bourgmestré of Muganza, and Viateur to go to Mugombwa where there was group of attackers that was brought there by Ndayambaje. FAG 942 Case No. ICTR-98-42-A 14 December 2015

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19422/H rejects Ndayambaje's contention that Witness FAU's prior statements are contradictory as unsubstantiated. It also finds that his argument that Witness FAU's Summary contradicts Witness FAG's Summary is without merit as the fact that Witness FAU's Summary did not refer to Ndayambaje's involvement in the same terms as Witness FAU's Summary does not render the summaries of their anticipated evidence contradictory.

2715. Furthermore, while Witness TU's Summary refers to the date of the attack on Mugombwa Church as 24 April 1994, the Appeals Chamber finds that this discrepancy was minor and was not inconsistent with Witness FAU's Summary which referred to "April 1994" or Witness FAG's Summary which did not provide any date. Likewise, Ndayambaje fails to demonstrate any inconsistency between the date range "as from 20 April" provided in the Indictment, 6242 the dates indicated in the relevant witnesses' summaries, and the Prosecution's opening statement which referred to "the end of April" 6243 While Witnesses FAG's, FAU's, and TU's summaries and the Prosecution's opening statement did not mention the exact dates in late April 1994 or Ndayambaje's specific criminal conduct in relation to the Mugombwa Church attacks, the Appeals Chamber finds no error in the Trial Chamber's conclusion that these materials, read together, put Ndayambaje on notice that the Prosecution intended to hold him responsible for his participation in the killings at Mugombwa Church that occurred in late April 2014.

2716. Finally, the Appeals Chamber is of the view that the fact that the Prosecution failed to indicate that Witness QAR - the sole witness who ultimately testified to his presence at Mugombwa Church during the attacks - would testify about the Mugombwa Church massacre in the summary of her anticipated evidence is irrelevant. The question at issue is whether Ndayambaje had sufficient notice of the material facts underpinning the charge against him so as to prepare his defence, not whether the charge was proven through the witnesses initially identified by the states that the attackers threw grenades at the Tutsi and killed them. The attackers finished off the survivors. FAG saw Ndayambaje driving the pick-up with about twenty Burundians on board. In relevant part, Witness FAG's 1999 Statement reads as follows: In April 1994, [...] Ndayambaje sought assistance from Burundian refugees armed with grenades, fuel. Thes attacked Mugombwa where the Tutsis had sought refuge. I participated in this attack. Many of the victims o Mugombwa parish [were] buried a few days later. In relevant part, Witness FAG's 2000 Statement reads as follows: [n April 1994, [...] KANYENZI, Venant, [...] Bosco, Assistant Bourgmestre of Muganza, and VIATEUR who was then Conseiller of Mugombwa ordered the inhabitants of Bishya to go to Mugombwa. On tha The Appeals Chamber considers Ndayambaje's reference to Witness FAG's 1998 Statement irrelevant as it does not discuss any incident at Mugombwa Church. 6242 Ndayambaje Indictment, para. 6.37. 6243 Prosecution Opening Statement, T. 12 June 2001 p. 85. 943 Case No. ICTR-98-42-A 14 December 2015

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19421/H Prosecution.24 The Appeals Chamber also finds no error in the Trial Chamber's admission of Witness QAR's evidence on the Mugombwa Church attacks as a trial chamber may admit any relevant evidence which has probative value, such as evidence which is relevant to the proof of an allegation pleaded in the indictment. 6245 2717. For the foregoing reasons, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in finding that the defects in the Indictment concerning the dates and location of the Mugombwa Church attacks as well as his participation therein were cured. (b) Aiding and Abetting Responsibility 2718. Ndayambaje submits that the Trial Chamber erred in convicting him for aiding and abetting the killings perpetrated at Mugombwa Church as this form of responsibility was not mentioned in the Indictment, the Prosecution Pre-Trial Brief, or the Prosecution's opening statement. 6246 He also argues that the Indictment failed to put him on notice that he was alleged to have had knowledge that his acts and omissions aided and abetted the assailants and that the assailants possessed genocidal intent. 6247 2719. The Prosecution responds that the paragraphs in the charging section include all forms of responsibility under Article 6(1) of the Statute and that paragraph 6.56 of the Indictment, which is of general application, specifically

emphasised that Ndayambaje aided and abetted massacres. 248 It argues that all material facts were pleaded in the Indictment and that further notice was provided in its pre-trial brief, leaving no doubt that Ndayambaje was charged "at a minimum" with aiding and abetting 6249 The Prosecution further argues that Ndayambaje did not raise any objections at trial concerning the modes of liability or argued that he did not know that he was charged pursuant to aiding and abetting in his closing brief. 250 It contends that Ndayambaje suffered no prejudice as he fully defended against all material facts of aiding and abetting. 251 6244 Cf. Ntabakuze Appeal Judgement, para. S0. See Kanyarukiga Appeal Decision, para. 11; Admissibility Appeal Decision of 2 July 2004, para. 15. 6246 Ndayambaje Notice of Appeal, paras. 59-61, 63-65; Ndayambaje Appeal Brief, paras. 120-126, 131, 132. See also Ndayambaje Reply Brief, paras. 39, 40; AT. 21 April 2015 pp. 21, 22, 66, 67. 6247 Ndayambaje Appeal Brief, para. 32. 6248 Prosecution Response Brief, para.

2047. See also AT. 21 April 2015 pp. 36, 37, 41. 6249 Prosecution Response Brief, paras. 2048-2050. The Prosecution asserts that Ndayambaje's mens rea for aiding and abetting as well as his knowledge of the perpetrators' genocidal intent could be inferred from the facts pleaded in the Ndayambaje Indictment. See ibid., para. 2049. 6250 Prosecution Response Brief, para. 2051, referring to The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, 3 April 2009) (confidential) ("Ndayambaje Closing Brief"), para. 70. 944 Case No. ICTR-98-42-A 14 December 2015

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19420/H 2720. Ndayambaje replies, inter alia, that the Prosecution's argument that he did not suffer prejudice from the lack of notice is "irrational" and without merit. 6252 2721. The Trial Chamber did not discuss in the Trial Judgement whether Ndayambaje had received sufficient notice that he could be held responsible for aiding and abetting the Mugombwa Church massacre, concluding generally that he was put on notice that he was "accused of participating in, including through giving orders, and supervising the massacre at Mugombwa Church, Muganza commune, along with other commune authorities in late April 1994.»6253 Although Ndayambaje did not specifically object to the vagueness of paragraph 6.37 of the Indictment regarding his alleged form of responsibility under Article 6(1) of the Statute, 6254 the Appeals Chamber considers that it would have been preferable for the Trial Chamber to explain why it was satisfied that Ndayambaje was put on sufficient notice that he could be held responsible for aiding and abetting the killings perpetrated at Mugombwa Church.

2722. The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged. 255 When it is alleged that the accused planned, instigated, ordered, or aided and abetted the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the "particular acts" or the "particular course of conduct" on the part of the accused which forms the basis for the charges in question. 6256 2723. The Appeals Chamber observes that the Prosecution generally indicated in the charging section of the Indictment that the relevant counts were pursued pursuant to Article 6(1) of the Statute, without specifying any particular form of responsibility. In paragraph 6.37 of the Indictment, the Prosecution alleged that Ndayambaje "ordered, supervised and participated in massacres", without identifying any particular acts on the part of Ndayambaje that may characterise a responsibility for aiding and abetting. Although the Prosecution alleged in paragraph 6.56 of the Indictment, which elaborates on Ndayambaje's responsibility in broad terms, that Ndayambaje that he said "encouraging words" to the attackers, did not argue that his cross-examination was impeded in any manner, and called several witnesses to establish that he was not present at the church. It also points out that Ndayambaje questioned Witness QAR on the identity of several persons in order to ascertain whether they were at the church with her, which illustrates that Ndayambaje had time to investigate these events. See Prosecution Response Brief,

ERNESSES 6253 Trial Judgement, para. 1031. 6254 Ndayambaje had objected to the vagueness of paragraph 6.37 of the Ndayambaje Indictment as regards the nature of his participation in the massacres referred therein. See Ndayambaje Closing Brief, paras. 61-63. 6255 winkindi Appeal Decision, para. 48; Blaskie Appeal Judgement, para. 215. 6256 See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 172; Ntawukulilyayo Appeal Judgement, para. 188; Blaskié Appeal Judgement, para. 213. 945 Case No. ICTR-98-42-A 14 December 2015

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19419/H "aided and abetted [his] subordinates and others in carrying out the massacres", it failed to link this paragraph to paragraph 6.37 or the allegation concerning Ndayambaje's participation in killings in Muganza Commune and the surrounding area pleaded therein, and to specify Ndayambaje's impugned conduct. In this context, the Appeals Chamber is not satisfied that the Indictment put Ndayambaje on sufficient notice of his particular acts or course of conduct which formed the basis for the charge of aiding and abetting the massacres invoked in paragraph 6.37. The Appeals Chamber stresses that the relevant question is not whether Ndayambaje was given notice that he was charged with aiding and abetting crimes, but whether he was given notice that he was charged with aiding and abetting the killings alleged in paragraph 6.37 and whether the particular acts or course of conduct on his part with respect to the killings which formed the basis of the charge against him were identified.

2724. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to the allegation that Ndayambaje aided and abetted the massacres in which he was alleged to have participated in paragraph 6.37 of the Indictment.

2725. The Appeals Chamber, however, finds that this error does not invalidate the Trial Chamber's decision to convict Ndayambaje on this basis as it considers that the ambiguity of the Indictment was remedied by the information provided by the Prosecution in its pre-trial brief. Specifically, the Appeals Chamber finds that the Indictment read in conjunction with Witnesses FAG's, FAU's, and TU's summaries gave notice to Ndayambaje that he was alleged to have contributed to the Mugombwa Church massacre through, inter alia, his presence at the church during the days of the attacks and his influence and moral authority over the assailants. 6257 Ndayambaje's alleged knowledge of his contribution to the massacre and of the assailants' genocidal intent was also abundantly clear from these materials 6258 While the information provided through the summaries also indicated that Ndayambaje transported attackers and grenades to the church, supervised the massacre and issued instructions, this was not inconsistent with the fact that Ndayambaje may also have been responsible for aiding and abetting the crimes by providing moral support and encouragement by his presence. The Appeals Chamber concludes that the subsequent 6257 In paragraph 30 of the Prosecution Pre-Trial Brief, it is only stated in a very general manner that, knowing that massacres of the civilian population were being

committed, Ndayambaje and others took no measures to stop them and "[i]nstead of intervening to control and appeal to the perpetrators, [Ndayambaje and others] ordered, aided and abetted the acts." 6258 Ndayambaje also argues in general terms in his appeal brief that the Trial Chamber erred in convicting him as the Ndayambaje Indictment failed to plead his genocidal intent. See Ndayambaje Appeal Brief, para.

131. The Appeals Chamber considers that any error as regards the pleading of Ndayambaje's genocidal intent in relation to his participation in the killings perpetrated at Mugombwa Church would not have the potential of invaliding his convictions for aiding and abetting these killings as this form of responsibility does not require a finding that the aider and abetter had genocidal intent. In any case, the Appeals Chamber notes that the Prosecution pleaded under the count of genocide 946 Case No. ICTR-98-42-A 14 December 2015

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19418/H information provided to Ndayambaje through Witnesses FAG's, FAU's, and TU's summaries sufficiently informed him of the course of conduct on his part supporting the generally pleaded charge of aiding and abetting, thereby curing the defect in the Indictment.

2726. This conclusion is bolstered by a review of the conduct of Ndayambaje's defence at trial which reflects that he was provided with sufficient information to conduct meaningful investigations and prepare an effective defence against the allegation that his presence at Mugombwa Church encouraged the killings perpetrated there on 20 and 21 April 1994. In defending against the allegation that he was not present during the days of the attacks, Ndayambaje testified and called witnesses to support his alibi for 20 and 21 April 1994 and to rebut the allegations of his presence which, together with his moral authority, is the basis of his conviction for aiding and abetting the killings at Mugombwa Church.6259 Ndayambaje also extensively cross-examined Witness QAR on aspects of her evidence regarding his role and presence during the days of the attacks. 260 2727. In these circumstances, the Appeals Chamber finds that Ndayambaje was ultimately provided with sufficient information detailing the factual basis supporting his conviction for aiding and abetting the killings perpetrated at Mugombwa Church and dismisses Ndayambaje's appeal in this respect. (c) Direct and Public Incitement to Commit Genocide 2728. Ndayambaje submits that the Trial Chamber erred in convicting him of direct and public incitement to commit genocide on the basis of alleged inciting statements he made at

Mugombwa Church as the Indictment does not contain any specific allegations of inciting statements. 261 He argues that these specific "events at the Church warranted separate charges"6262 and that the Trial Chamber erred in failing to consider whether the Indictment had been cured of its defects in this respect or assess the prejudice suffered. 263 In the alternative, he submits that the defect was not cured through the summary of the anticipated evidence of Witnesses QAR, FAU, FAG, or TU that Ndayambaje acted "with the intent to destroy, in whole or in part, a racial or ethnic group". See Ndayambaje Indictment, p. 41. 62.59 Trial Judgement, para.

1196. See also ibid., paras. 1094-1118, 1122-1126, 1136, 1137, 1144, 1149, 1154 | 165-1173, 1181-1193. See also The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Pre-Defence Brief 23 December 2004 (originally filed in French, English translation filed on 8 February 2005) ("Ndayambaje Pre-Defence Brief"), Annex 3 "List of Defence Witnesses". 6260 Witness QAR, T. 20 November 2001 pp. 115, 116, 119-121, 124-128, 130-134; T. 21 November 2001 pp. 5-13, 33-34, 38-49, 52-56. 6261 Ndayambaje Notico of Appeal, paras. 16, 26, 28-31; Ndayambaje Appeal Brief, para. 45; Ndayambaje Reply Brief, para.

21. See also AT. 21 April 2015 p. 67. 262 Ndavambaie Appeal Brief, para. 45 6263 Ndayambaje Appeal Brief, paras. 46, 48; Ndayambaje Reply Brief, para. 21. 947 Case No. ICTR-98-42-A 14 December 2015

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19417/H "such as analyzed" in the Trial Judgement 264 He also argues that the Indictment failed to put him on notice that he was alleged to have had genocidal intent. 6265 2729. In its response brief, the Prosecution does not respond directly to Ndayambaje's submissions about the lack of notice of the charge of direct and public incitement to commit genocide at Mugombwa Church, simply pointing out that "Ndayambaje's inciting words at the church" were mentioned in Witness QAR's prior statement of 20 May 1997,6266 It also asserts that Ndayambaje did not raise a contemporaneous objection to Witness QAR's testimony at trial and that his behaviour at trial shows that he had sufficient notice of what he was charged with and suffered no prejudice from the alleged lack of notice. 267 In this respect, the Prosecution argues that Ndayambaje extensively cross-examined Witness QAR on the events at Mugombwa Church, notably about her prior statements, did not argue that his cross-examination was impeded in any manner, and called several witnesses to establish that he was not present at the church. 268 According to the Prosecution, all of this shows that Ndayambaje understood the Mugombwa Church charges, had thoroughly investigated the charges, and was well equipped to defend against them. 269 At the appeals hearing, in response to a specific question by the Appeals Chamber, the Prosecution

argued that paragraph 6.33 of the Indictment "was found to be vague" but that "the vagueness was cured through the post-indictment material that specified [Ndayambaje's] inciting words and the impact [they] had."6270 2730. The Appeals Chamber notes that Ndayambaje objected to Witness QAR's testimony at trial on the ground that there was no allegation about Mugombwa Church in the Indictment. 6271 He also objected in his closing brief to the vagueness of paragraph 6.37 of the Indictment as regards the nature of his participation in the massacres referred therein 272 as well as that of paragraph 5.8 of the Indictment which alleged that he publicly incited the people to exterminate the Tutsi population 6261 Ndayambaje Appeal Brief, para. 47. 6265 Ndayambaje Appeal Brief, para. 32. 6266 Prosecution Response Brief, para. 2001, referring to Witness QAR's May 1997 Statement. 6267 Prosecution Response Brief, paras. 2000, 2004, 2005. 6268 Prosecution Response Brief, paras. 2001, 2005-2007. See also ibid., para. 2052 where the Prosecution asserts that Ndayambaje challenged the evidence that he said "encouraging words" to the attackers. 6269 Prosecution Response Brief, paras. 2006-2008. 6270 AT. 21 April 2015 pp. 37, 38, referring to the summaries and prior statements of Witnesses TO and QAQ. When told by the Appeals Chamber that the summaries and prior statements of Witnesses TO and QAQ

referred to Ndayambaje's Swearing-In Ceremony and not Mugombwa Church, the Prosecution argued that Witness QAR's statement and summary provided Ndayambaje with notice. See ibid., p. 42. 6271 Witness QAR, T. 3 March 2004 p. 42 (closed session); The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Requête en extrême urgence d'Elie Ndayambaje aux fins d'exclure les témoignages et/ou les portions de témoignages des témoins entendus au procès sur des faits qui sont en dehors de l'acte d'accusation, 31 May 2006 ("31 May 2006 Motion"), paras. 140-182. The Trial Chamber dismissed Ndayambaje's request for exclusion of witnesses' testimonies for lack of notice in the Ndayambaje Indictment primarily because it was not "satisfied that there [was] a basis to exclude the concerned testimonies at this stage." It stated that "[some of the matters raised may be considered at a later stage of the proceedings". See 1 September 2006 Decision, para. 25, p. 9. 948 Case No. ICTR-98-42-A 14 December 2015

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19416/H and its accomplices. 273 He further specifically claimed that the allegations of incitement made in paragraphs 5.8 and 6.33 of the Indictment were unrelated and too general in nature to include his specific acts at Mugombwa Church as recounted by Witnesses QAR and FAG. 6274 2731. The Trial Chamber failed to address Ndayambaje's contention that the allegation of incitement at Mugombwa Church was not pleaded in the Indictment. The Trial Chamber instead limited its examination to the question of whether Ndayambaje was put on notice regarding the dates, location, and his general participation, including through giving orders and supervising, in the Mugombwa Church massacre. 275 The Appeals Chamber recalls that a trial chamber is not obliged to address each and every submission made at trial and has discretion to decide which argument to address. 276 However, considering the importance of the matter, the Appeals Chamber considers that the Trial Chamber should have addressed Ndayambaje's claim that he was not charged with direct and public incitement to commit genocide at Mugombwa Church. The Appeals Chamber finds that the Trial Chamber's failure to address Ndayambaje's contention regarding the pleading of his responsibility for direct and public incitement to commit genocide in relation to the Mugombwa Church massacre infringed Ndayambaje's right to a reasoned opinion under

Article 22 of the Statute and Rule 88(C) of the Rules. The Appeals Chamber will determine whether this error of law invalidates the Trial Chamber's decision to convict Ndayambaje for direct and public incitement to commit genocide in relation to the Mugombwa Church massacre in examining whether Ndayambaje was charged on this basis and, if so, whether he was provided with sufficient information on the material facts underpinning the charge against him.

2732. The Appeals Chamber observes that, as argued by Ndayambaje, paragraph 6.33 of the Indictment could not put him on notice of the allegation of incitement at Mugombwa Church on 20 and 21 April 1994 as it expressly refers to Ndayambaje inciting the population to kill Tutsis "[i]n June 1994". The Appeals Chamber also notes that there is no mention of any inciting statements in paragraph 6.37 of the Indictment. This paragraph, however, was among those expressly relied upon in support of the count of direct and public incitement to commit genocide (Count 4). 27 The Appeals Chamber considers that this reliance gave notice to Ndayambaje that the Prosecution intended to engage his responsibility under this count in relation to the massacres referred to in paragraph 6.37. The Appeals Chamber also observes that paragraph 5.8 of the 6272 Ndayambaje Closing Brief, paras. 61-63. 6273 Ndayambaje Closing Brief, para. 48. 6274 Ndayambaje Closing Brief, paras. 80, 81. See also ibid., paras. 78, 79, fn.

74. See also 31 May 2006 Motion, paras. 144, 145, 182 275 See Trial Judgement, paras. 1023-1031 6276 See, e.g., Gatete Appeal Judgement, para. 65; Nchamihigo Appeal Judgement, para. 165; KrajiSnik Appeal Judgement, para. 139; Kvocka et al. Appeal Judgement, para. 23. 6277 See Ndayambaje Indictment, p. 42. 949 Case No. ICTR-98-42-A 14 December 2015

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19415/H Indictment, which was being pursued under Count 4 pursuant to Article 6(1) of the Statute, clearly indicates that Ndayambaje was alleged to have publicly incited people to exterminate the Tutsi population. 6278 2733. The Appeals Chamber finds that paragraph 6.37 of the Indictment read together with paragraph 5.8 and the charging section of the Indictment put Ndayambaje on notice that he was charged with direct and public incitement to commit genocide through inciting the massacres of the Tutsi population in Muganza Commune. The allegation concerning Ndayambaje's inciting statements at Mugombwa Church did not therefore constitute a separate charge.

2734. However, as Ndayambaje was convicted based on the statements he made at Mugombwa Church on 20 and 21 April 1994, such statements constitute material facts underpinning his responsibility for direct and public incitement to commit genocide which should have been pleaded in the Indictment. Nevertheless, there is no mention of any inciting statements in paragraph 6.37 of the Indictment, and paragraph 5.8 of the Indictment does not refer to the attacks on Mugombwa Church. The Indictment is therefore defective in this regard 2735. Turning to whether the defect was cured, the Appeals Chamber observes that there is no reference to Mugombwa Church in Witness QAR's Summary 6279 and no mention of Ndayambaje making inciting statements at Mugombwa Church in Witnesses FAU's, FAG's, and TU's summaries or prior statements or in the Prosecution's opening statement. While Witness TU's Summary and Witness FAG's Statement refer to Ndayambaje's "instructions]" and "orders" to kill Tutsis, 6280 the Appeals Chamber considers that they could reasonably be understood as underpinning the charges of ordering genocide, murder, extermination, or violence to life rather than that of direct and public incitement to commit genocide. The Prosecution correctly points out that Witness QAR's May 1997 Statement mentions that Ndayambaje proffered inciting words against Tutsis at the church, 28l However, the Prosecution did not signal in its pre-trial brief that it 6278 Ndayambaje Indictment, p.

42. Paragraph 5.8 of the Ndayambaje Indictment reads as follows: From April to July 1994, incitement to hatred and violence was propagated by various prominent persons, including members of the Government and local authorities. [...] Elie Ndayambaje [...] publicly incited the people to exterminate the Tutsi population and its "accomplices". 6279 Witness Summaries Grid, item 5, Witness QAR ("Witness QAR's Summary"). 6280 The Appeals Chamber notes that Witress TU's Summary refers to Ndayambaje "speaking over a microphone, ordering the Hutus to kill the Tutsis" in Muganza Commune in the commune vehicle on 20 April 1994. However, read in context, this statement does not appear to relate to Mugombwa Church. A review of Witness TU's prior statement to Tribunal investigators of 18 December 1996 confirms that these orders given through microphone from the commune vehicle do not relate to Mugombwa Church but to Bishya. See Witness TU's Statement, p. 2241 (Registry pagination). 6281 See Witness QAR's May 1997 Statement, which reads, in relevant part, as follows: Then around 1 pm, through the broken church windows, I saw Elie NDAYAMBAJE arrive outside the church in a white Toyota pick-up. [...] He said the following to a crowd of Hutus assembled there: "The Tutsis must not escape for their God has delivered them" Then he added: "I am going to give weapons to those who do not have any." 950 Case No. ICTR-98-42-A 14 December 2015

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19414/H intended to rely on this aspect of Witness QAR's evidence. The Appeals Chamber recalls that mere service of witness statements is insufficient to inform the Defence of material facts that the Prosecution intends to prove at trial. 6282 2736. The Appeals Chamber finds that, even when Witness QAR testified at trial that Ndayambaje made inciting statements to the assailants and the crowd gathered outside the church, 283 it was not clear that the Prosecution intended to rely on that part of her testimony to prove that Ndayambaje committed direct and public incitement to commit genocide at Mugombwa Church. In any event, any information in this regard would have been provided too late in the proceedings to constitute "timely" notice.

2737. Consequently, the Appeals Chamber finds that the defect in the Indictment concerning Ndayambaje's inciting statements at Mugombwa Church was not cured through post-indictment disclosures.

2738. The Appeals Chamber recalls that a vague or ambiguous indictment which is not cured of its defect by the provision of timely, clear, and consistent information causes prejudice to the accused 284 The defect may only be deemed harmless through demonstrating that the accused's ability to prepare his defence was not materially impaired. 6285 When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his ability to prepare his defence was materially impaired.286 When, however, an accused has previously raised the issue of lack of notice before the trial chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his defence was not materially impaired. 6287 2739. The Appeals Chamber recalls that Ndayambaje raised a contemporaneous objection to Witness QAR's testimony in relation to the allegation related to Mugombwa Church and objected to the vagueness of the Indictment regarding the allegation of direct and public incitement to 6282 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 162; Ntagerura et al. Appeal Judgement, para. 139; Ntakirutimana Appeal Judgement, para. 27. 6283 See Witness QAR, T. 19 November 2001 pp. 17, 26, 27, 29. The Appeals Chamber observes that Witness QAR's testimony on Ndayambaje's inciting statements was not made as a

response to the Prosecution's specific inquiry on the matter, but was part of a response to the Prosecution's general question about the conduct of the people who were outside the Mugombwa Church and whether Ndayambaje was carrying anything in his vehicle. See ibid., pp. 16, 17, 26. 6284 See, e.g., Sainovic et al. Appeal Judgement, para. 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para.

58. See, e.g., Sainovié et al. Appeal Judgement, para. 262; Ntabakuze Appeal Judgement, para. 82; Ntakirutimana Appeal Judgement, para. 58; Kupreskié et al. Appeal Judgement, para.

122. See, e.g., Nzabonimana Appeal Judgement, para. 30; Sainovié et al. Appeal Judgement, para. 224; Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para.

200. See, e.g., Nzabonimana Appeal Judgement, para. 30; Ntabakuze Appeal Judgement, fn. 189; Niyitegeka Appeal Judgement, para. 200; Kupreskié et al. Appeal Judgement, paras. 122, 123. 951 Case No. ICTR-98-42-A 14 December 2015 1.

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19413/H commit genocide at the church. 288 Thus, the burden rests on the Prosecution to prove that the ability of Ndayambaje to prepare his defence was not materially impaired.

2740. The Appeals Chamber finds that the Prosecution has failed to meet this burden. The Prosecution correctly points out that Ndayambaje called several witnesses and extensively cross-examined Witness QAR at trial in relation to the massacre perpetrated at Mugombwa Church. However, an examination of the trial record shows that Ndayambaje's defence primarily focussed on establishing that he was not present during the attacks on Mugombwa Church and his role in a distribution of weapons. At no point during cross-examination did Ndayambaje question Witness QAR concerning the inciting statements such as the content of the statements, the audience, the manner in which the statements were uttered, or the place and other circumstances in which the statements were made. The fact that Ndayambaje did not call any witnesses 290 or made any attempt at trial to refute any allegation concerning direct and public incitement to commit genocide in relation to the Mugombwa Church attacks demonstrates his lack of preparation.

2741. Although Ndayambaje objected, particularly in his 31 May 2006 Motion and closing brief, to the vagueness of the Indictment regarding the charge of public and direct incitement to commit genocide in relation to the events at Mugombwa Church, 291 his objections do not reflect that he fully understood that Witness QAR's evidence on his addresses at the church on 20 and 21 April 1994 was intended to underpin the charge of direct and public incitement to commit genocide.

2742. For the foregoing reasons, the Appeals Chamber finds that the Prosecution has failed to prove on appeal that Ndayambaje's ability to prepare his defence was not materially impaired by the defect in the Indictment concerning his responsibility for committing direct and public incitement to commit genocide based on his statements at Mugombwa Church on 20 and 21 April 1994. The Appeals Chamber, accordingly, concludes that the Trial Chamber erred in convicting Ndayambaje of committing direct and public incitement to commit genocide on this basis. 288 See supra, para. 2730 289 See Witness QAR, T. 20 November 2001 pp. 115, 119-121, 124-128, 130-134, T. 21 November 2001 pp. 5-13, 33 6290 See also Ndayambaje Pre-Defence Brief. 6291 31 May 2006 Motion, paras. 140-182; Ndayambaje Closing Brief, paras. 80, 81. See also Ndayambaje Closing Brief, paras. 78, 79, fn. 74. 952 Case No. ICTR-98-42-A 14 December 2015

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19412/H 2. Kabuye Hill (Grounds 5, and 6 in part) 2743. The Trial Chamber found that, on 20 April 1994, Ndayambaje and several armed soldiers and communal policemen travelled to Ngiryi Bridge where they arrested Tutsi refugees fleeing to Burundi and forced them to return to Gisagara marketplace, following which soldiers and policemen escorted the refugees to Kabuye Hill 6292 The Trial Chamber also found that Ndayambaje was present at Kabuye Hill on 22 April 1994 when soldiers, policemen, and armed civilians attacked Tutsis gathered on the hill, resulting in the death of thousands of Tutsis 6293 In addition, the Trial Chamber found that Ndayambaje: (i) transported soldiers, civilians, and communal policemen to Kabuye Hill, where they participated in attacks against Tutsis on 23 and 24 April 1994; (ii) distributed weapons at Kabuye Hill and at the Muganza commune office on 23 April 1994, which were later used in the massacres at Kabuye Hill; and (iii) was present during the attacks at Kabuye Hill on 23 and 24 April 1994 that resultéd in thousands of deaths. 294 2744. After finding that the interception at Ngiryi Bridge and forced escorting of the refugees to Kabuye Hill did not constitute an act of genocide and did not rise to a similar gravity as other crimes against humanity, the Trial Chamber acquitted Ndayambaje of genocide and persecution as a crime against humanity for the

interception and forced movement of the Tutsi refugees from Ngiryi Bridge to Kabuye Hill.6295 However, the Trial Chamber convicted Ndayambaje of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively), and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 9) pursuant to Article 6(1) of the Statute for aiding and abetting the killings at Kabuye Hill from 22 to 24 April 1994.6296 2745. In summarising the Prosecution case against Ndayambaje with respect to the events of 20 April 1994 and the attacks at Kabuye Hill from 22 to 24 April 1994, the Trial Chamber referred to paragraphs 6.30, 6.31, and 6.32 of the Indictment.6297 The Indictment indicates that the 6292 Trial Judgement, paras. 1414, 5766. 6293 Trial Judgement, paras, 1423, 1424, 5769. 6294 Trial Judgement, paras. 1431, 1444, 1452, 1455, 1456, 5772. 6295 Trial Judgement, paras. 5767, 5768, 6110-6113. 629 Trial Judgement, paras. 5777, 5976, 5977, 6064-6066, 6107, 6108, 6175, 6176, 6186. 6297 Trial Judgement, para. 1248, fn.

2672. Paragraphs 6.30, 6.31, and 6.32 of the Ndayambaje Indictment read as follows: On 20 April 1994, Elie Ndayambaje took communal policemen to Gisagara. Teaming up with soldiers, they arrested the refugees and took them to the neighboring hill, which was called Kabuye. The soldiers and communal police separated the Tutsi from the other refugees and forced them to relinquish their traditional tools. 6.31 On 22 April 1994, Elie Ndayambaje, accompanied by communal policemen, gendarmes, soldiers and civilians armed with traditional tools and weapons, attacked the Tutsi refugees who had gathered at Kabuye. 953 Case No. ICTR-98-42-A 14 December 2015 Lu

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19411/H allegations in paragraphs 6.30, 6.31, and 6.32 were being pursued under, inter alia, Counts 2, 6, 7, and 9 pursuant to Articles 6(1) and 6(3) of the Statute. 6298 2746. Addressing Ndayambaje's assertion that paragraphs 6.30, 6.31, and 6.32 of the Indictment lacked specificity, the Trial Chamber found that, when reading the Indictment as a whole, these paragraphs provided sufficient notice to Ndayambaje to enable him to prepare his defence. 299 Specifically, the Trial Chamber found that the "key elements of the Kabuye Hill events", such as the movements of Tutsis to Kabuye Hill, the attacks that took place there, and the distribution of weapons, were "linked" in the Indictment to a specific date or dates and to a specific location 6300 Similarly, it stated that: (i) Ndayambaje was "placed at the scene of each of these events"; (ii) Ndayambaje's role as a superior over subordinates could be "inferred from the Prosecution's allegations elsewhere in the Indictment"; and (iii) the alleged attackers were identified by reference to their category.301 The Trial Chamber further found that the mode of transportation used, the precise number of grenades thrown into the crowd of Tutsis, and the precise number of victims were not material to the Prosecution case. 6302 2747. Ndayambaje submits that the Trial Chamber erred in finding that: (i) the interception of refugees at Ngiryi

Bridge was pleaded in the Indictment and in admitting evidence related to this event; (i) the circumstances surrounding the transportation of the attackers were not material; (iii) he was sufficiently on notice of the distribution of weapons; (iv) he was informed of his involvement in the events at Kabuye Hill by reason of his authority over the unidentified attackers at Kabuye Hill; and (v) he aided and abetted the massacres at Kabuye Hill because this mode of participation was not pleaded in the Indictment. 303 Consequently, Ndayambaje requests the Appeals Chamber to reverse all the findings and convictions related to the events at Ngiryi Bridge, to the transportation of attackers, and to the crimes committed at Kabuye Hill. 6304 The Appeals Chamber will address Ndayambaje's contentions in turn. Numerous Tutsis were killed or wounded. During the night, armed civilians surrounded the survivors and prevented them from escaping. 6.32 On 23 and 24 April 1994, the attacks on the Tutsi refugees at Kabuye continued. Elie Ndayambaje transported the attackers to Kabuye and issued them weapons. Elie Ndayambaje threw grenades into the crowd of refugees. During these attacks, numerous Tutsi were killed or wounded. 6298 Ndayambaje Indictment, pp. 40-45. 6299 Trial Judgement, paras. 1253-1255. 6300 Trial Judgement, para. 1255. 6301 Trial Judgement, para. 1255. 6302 Trial Judgement, para. 1255. 6303 Ndayambaje Notice of Appeal, paras. 51, 52, 54, 55, 59-61, 63; Ndayambaje Appeal Brief, paras. 100-118, 120-126, 131, 132. See also Ndayambaje Reply Brief, paras. 31, 32, 34; AT. 21 April 2015 pp. 10, 11, 21, 22, 67 304 Ndayambaje Notice of Appeal, paras. 57, 58, 64, 65; Ndayambaje Appeal Brief, paras. 109, 119, 132, 13€ 954 Case No. ICTR-98-42-A 14 December 2015

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19410/H (a) Interception at Ngiryi Bridge and Forced Return to Gisagara 2748. Ndayambaje submits that the allegation that, on 20 April 1994, he travelled to Ngiryi Bridge with several armed soldiers and communal policemen, where they arrested Tutsi refugees fleeing to Burundi and forced them to return to Gisagara marketplace, was not pleaded in the Indictment. 6305 He argues that the events at Ngiryi Bridge cannot be linked to the events at Gisagara, which is pleaded in paragraph 6.30 of the Indictment, or to Kabuye Hill since these were different places. 306 Ndayambaje asserts that the Trial Chamber erred in failing to inquire whether he had received sufficient notice of the allegation concerning the interception of refugees at Ngiryi Bridge despite the fact that the allegation was a separate charge that had to be specified in the Indictment. 307 Ndayambaje contends that, in "admitting evidence thereon, [the Trial Chamber] radically and illegally transformed the Indictment."6308 He underlines that "in admitting evidence of the events at Ngiryi not pleaded in the Indictment" the Trial Chamber caused him serious prejudice. 309 2749. The Prosecution responds that Ndayambaje's challenge is moot since he was not convicted for the interception of refugees at Ngiryi Bridge and forced movement of the Tutsi refugees and that the Trial Chamber "only relied on the incident as one piece

of evidence for determining the mens rea for the Kabuye Hill massacre."6310 2750. Ndayambaje replies that he can dispute on appeal whether he was on notice of these incidents since the Trial Chamber relied on these facts in support of its finding that he possessed genocidal intent in relation to the events at Kabuye Hill,6311 He also argues that, had the Trial Chamber correctly concluded that this charge was not in the Indictment, it would have excluded the related evidence. 6312 2751. As noted above, the Trial Chamber did not convict Ndayambaje for his role in intercepting and forcing Tutsi refugees to return to Gisagara and then go to Kabuye Hill on 20 April 1994.6313 To the extent that Ndayambaje argues that the Trial Chamber erred with regard to the pleading of the interception and forced movement of the Tutsi refugees on 20 April 1994 as a separate 6305 Ndayambaje Notice of Appeal, paras. 52, 54; Ndayambaje Appeal Brief, paras. 100-102, referring to Trial Judgement paras. 1248, 1414. See also Ndayambaje Appeal Brief, paras. 105, 106. Ndayambaje Notice of Appeal, para. 55; Ndayambaje Appeal Brief, paras. 102, 106. 6307 Ndayambaje Notice of Appeal, para. 53; Ndayambaje Appeal Brief, paras. 102, 105. 6308 Ndayambaje Appeal Brief, para.

103. See also Ndayambaje Notice of Appeal, para. 52; Ndayambaje Appeal Brief, para, 107. Ndayambaje Appeal Brief, para.

108. See also Ndayambaje Notice of Appeal, para. S6. 6310 Prosecution Response Brief, para. 2040. 6311 Ndayambaje Reply Brief, para. 31 (French). 6312 Ndayambaje Reply Brief, para. 31. 6313 See supra, para.

2744. See also AT. 21 April 2015 p. 26. 955 Case No. ICTR-98-42-A 14 December 2015

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19409/H allegation underpinning criminal charges, his argument is dismissed as it does not have the potential to impact Ndayambaje's conviction or sentence. 6314 2752. However, the Appeals Chamber notes that the Trial Chamber relied on the interception and forced movement of Tutsi refugees and Ndayambaje's role in these events in finding that he had the required mens rea for the crimes of which he was ultimately convicted in connection with the events at Kabuye Hill on 22 April 1994.6315 As discussed below, the Appeals Chamber is satisfied that the Indictment put Ndayambaje on notice that he was alleged to have had the requisite mens rea to incur responsibility for aiding and abetting genocide at Kabuye Hill on 22 April 1994.6316 The Appeals Chamber recalls that, with respect to the mens rea, an indictment may plead either: (i) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded, or (ii) the evidentiary facts from which the state of mind is to be inferred.317 As the interception of the Tutsi refugees at Ngiryi Bridge and their forced return to Gisagara and subsequent movement to Kabuye Hill, including Ndayambaje's role therein, was ultimately merely relied upon as evidence of Ndayambaje's state of mind expressly pleaded in the Indictment, the Appeals Chamber considers that the evidentiary facts by which Ndayambaje's mens rea would be established did not need to be pleaded in the Indictment.

2753. In addition, insofar as Ndayambaje is contesting the admission of evidence concerning the interception of the refugees and their forced return to Gisagara, the Appeals Chamber recalls that a trial chamber may admit any relevant evidence which it deems to have probative value, such as evidence which is relevant to the proof of an allegation pleaded in the Indictment, 6318 Ndayambaje's argument that the Trial Chamber would have excluded the related evidence had it correctly concluded that the charge regarding the interception and forced movement of the refugees was not pleaded in the Indictment fails to appreciate that this evidence was relevant to Ndayambaje's mens rea which was pleaded in the Indictment.

2754. For the foregoing reasons, as Ndayambaje was not convicted for the interception of Tutsi refugees and their forced return to Gisagara, the Appeals Chamber finds that any error regarding the pleading of these events in the Indictment would not have invalidated the Trial Judgement. 6314 See supra, para. 34. 6315 Trial Judgement, paras. 5770, 5771. The Trial Judgement reflects that the Trial Chamber did not rely on the events that led the refugees to Kabuye Hill to establish the genocidal intent of those who attacked the refugees at Kabuye. Hill on 23 and 24 April 1994. See ibid., paras. 5771, 5773. 6316 See infra, para.

2773. See, e.g., Kanyarukiga Appeal Decision, para. 9; Nchamihigo Appeal Judgement, para. 136; Nahimana et al. Appeal Judgement, para.

347. See also Blaskic Appeal Judgement, para.

219. See Kanyarukiga Appeal Decision, para. 11; Admissibility Appeal Decision of 2 July 2004, para. 15. 956 Case No. ICTR-98-42-A 14 December 2015

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19408/H The Appeals Chamber also finds no error in the Trial Chamber admitting this evidence to prove Ndayambaje's mens rea for the crimes for which he was ultimately convicted in connection with the events at Kabuye Hill. (b) Transportation of Attackers 2755. Ndayambaje submits that the Trial Chamber erred in finding that the circumstances surrounding the transportation of policemen and soldiers were not material to the Prosecution case. 6319 In his view, as transportation is the alleged criminal conduct on the basis of which he was ultimately found guilty, the points of departure and destination, the means used, the dates and times, the identity of those transported, and their behaviour had to be specified in the Indictment. 6320 2756. The Prosecution responds that all of the material facts for the Kabuye Hill massacres were pleaded in the Indictment, including the place of the massacre, the timeframe, Ndayambaje's participation, and the identity of the attackers, who were identified by categories.321 2757. The Appeals Chamber recalls that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the "particular acts" or "the particular course of conduct" on the part of the accused which forms the basis for the charges in question. 322 2758.

The Appeals Chamber notes that paragraph 6.32 of the Indictment specifies that, on 23 and 24 April 1994, Ndayambaje transported attackers to Kabuye Hill, and that paragraph 6.31 of the Indictment identifies the attackers by reference to their category of "communal policemen, gendarmes, soldiers and civilians armed with traditional tools and weapons". In the view of the Appeals Chamber, the acts which formed the basis for the charge pertaining to the transportation of attackers were clearly set forth in the Indictment and the identification of the attackers by reference to their category was sufficient to provide appropriate notice. The Appeals Chamber is also not convinced by Ndayambaje's undeveloped assertion that the Trial Chamber erred in finding that the mode of transportation used was not material to the Prosecution case. Similarly, the Appeals Chamber finds unsubstantiated and unmeritorious Nayambaje's argument that the behaviour of the 6319 Ndayambaje Notice of Appeal, para. 54; Ndayambaje Appeal Brief, para.

110. See also AT. 21 April 2015 pp. 10, Lo Ndayambaje Appeal Brief, para. 110. 6321 Prosecution Response Brief, para.

2041. The Prosecution contends that, in any event, witnesses' summaries and statements disclosed to Ndayambaje further fleshed out the charges against him, including regarding the transport o soldiers, and that Ndayambaje knew what he was charged with and suffered no prejudice. See ibid., paras. 2043-2046 6322 Ndindiliyimana et al. Appeal Judgement, para. 172; Ntawukulilyayo Appeal Judgement, para. 188; Blaskic Appeal Judgement, para. 213. 957 Case No. ICTR-98-42-A 14 December 2015 ти

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19407/H attackers during the transportation was a material fact. 323 Rather, the material fact was that the attackers whom Ndayambaje transported attacked Tutsis after they arrived at Kabuye Hill.

2759. Accordingly, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in finding that the material facts concerning the transportation of the attackers to Kabuye Hill were sufficiently pleaded in the Indictment. (c) Distribution of Weapons 2760. Ndayambaje submits that the Trial Chamber erred in finding that he had been sufficiently notified of the allegation of weapons distribution at Kabuye Hill.324 Specifically, he argues that, in its assessment of whether he was provided with clear and consistent information on the distribution of weapons at Kabuye Hill, the Trial Chamber failed to consider the fact that the Prosecution Pre-Trial Brief, the Prosecution's opening statement, and the witnesses' statements did not provide further information but rather exacerbated the confusion as to the information that was provided to him. 325 Ndayambaje also points to the fact that the Trial Chamber found elsewhere that the Indictment was defective and was not cured in respect of the distribution of weapons at Mugombwa Church and argues that the same holds true for the distribution of weapons at Kabuye Hill. 6326 2761. The Prosecution responds that the allegation of Ndayambaje's participation in the massacres by distributing weapons was pleaded in the Indictment and reaffirmed in its closing brief, and that witnesses' summaries and statements provided

Ndayambaje with additional information regarding the charge against him.327 The Prosecution further argues that Ndayambaje has not pointed to any confusing information from the witnesses' statements.6328 2762. The Appeals Chamber notes that paragraph 6.32 of the Indictment clearly put Ndayambaje on notice that, on 23 and 24 April 1994, he was alleged to have transported attackers to Kabuye Hill 6323 See Ndayambaje Appeal Brief, para. 110; Trial Judgement, para. 1255. 6324 Ndayambaje Notice of Appeal, para. 54; Ndayambaje Appeal Brief, para.

111. See also AT. 21 April 2015 pp. 10, 6sd Ndayambaje Appeal Brief, paras. 111, 112. Ndayambaje contends that the written statements of witnesses exacerbated the confusion as to the information provided to him with regard to the location of the distribution of weapons, as the witnesses stated that it occurred at Kabuye, at a neighbouring hill, at the office in Muganza Sector, in Butare, or at Bishya, in various and incompatible circumstances. See idem. Ndayambaje contends that Prosecution Witness EV is the sole witness who placed the distribution of weapons at Kabuye Hill. See ibid., para, 112. 6326 Ndayambaje Appeal Brief, paras. 113, 512. 6327 Prosecution Response Brief, paras. 2041, 2043. With regard to Ndayambaje's argument that the information provided to him states that he was involved in criminal conduct at different places, the Prosecution avers that this is simply due to the fact that witnesses saw him in different places, including at Kabuye Hill and Muganza Commune on his way to or from Kabuye Hill. The Prosecution contends that in any event, Ndayambaje knew what he was charged with and suffered no prejudice. See ibid., paras. 2044-2046. 6328 Prosecution Response Brief, para. 2043. 958 Case No. ICTR-98-42-A 14 December 2015

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19406/H and issued them weapons.32 Ndayambaje's argument that he was insufficiently notified of the allegation of weapons distribution at Kabuye Hill is undeveloped and Ndayambaje fails to specify which material facts were ambiguously or not sufficiently pleaded in the Indictment. In the absence of any demonstration of defect in the Indictment, the Appeals Chamber fails to see why the Trial Chamber should have considered the information provided in the Prosecution's pre-trial brief and opening statement and the witnesses' statements in this respect.

2763. Moreover, Ndayambaje's argument relating to the notice of the distribution of weapons at Mugombwa Church is inapposite. With regard to Mugombwa Church, the Trial Chamber found that the Indictment did not specify the alleged site of the distribution of weapons or the identities of those who received the weapons, that the Indictment was defective, and that this defect was subsequently not cured.330 In contrast, paragraph 6.32 of the Indictment related to Kabuye Hill states the site of the weapons distribution and paragraph 6.31 of the Indictment clearly identifies the attackers by category.

2764. For the above reasons, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in finding that he was provided with sufficient notice of the allegation of distribution of weapons at Kabuye Hill on 23 and 24 April 1994. (d) Authority Over Unidentified Attackers 2765. Ndayambaje submits that the Trial Chamber erred in finding that he was informed of his involvement in the events at Kabuye Hill by reason of his authority over the unidentified attackers. 633' According to him, the Trial Chamber "erred in law in finding that in the instant case, identification by fictitious categories was sufficient to inform [him], leaving paragraphs 6.30 to 6.32 vague and not informing him in a clear and consistent manner as to his involvement in the events of Kabuye and his possible authority over poorly identified attackers. '6332 2766. The Prosecution responds that all material facts for the events at Kabuye Hill were pleaded, including the categories of attackers. 333 It submits that Ndayambaje's argument is obscure, undeveloped, and incapable of showing that the Trial Chamber erred in finding that his authority 6329 See also Trial Judgement, para. 1255 959 Case No. ICTR-98-42-A 14 December 2015

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19405/H and importance were pleaded and that his contentions as to the pleading of this issue are moot as he was not found responsible as a superior. 6334 2767. Ndayambaje replies that he did not raise the issue of his responsibility as a superior, but rather underscored the illogical approach of the Trial Chamber in stating that the transportation and distribution of weapons at Kabuye Hill had been pleaded in the Indictment because of his authority over unidentified attackers.6335 2768. Contrary to Ndayambaje's contention, the Trial Judgement does not reflect that the Trial Chamber relied on his authority over unidentified attackers in finding that the transportation and distribution of weapons in Kabuye Hill had been sufficiently pleaded in the Indictment. It is clear from the Trial Judgement that the Trial Chamber found that the key elements of the Kabuye Hill events, such as the attacks that took place there and the distribution of weapons, were pleaded in paragraphs 6.31 and 6.32 of the Indictment with sufficient specificity. 336 The Trial Chamber referred to other paragraphs of the Indictment only to clarify Ndayambaje's "alleged relationship with his subordinates'6337 and "his role as a superior over subordinates"6338 in relation to the pleading of Ndayambaje's superior responsibility. 339 As far as Ndayambaje argues that his position of authority is not sufficient to

identify the attackers at Kabuye Hill, the Appeals Chamber recalls that it already determined that the Trial Chamber did not err in finding that the identification of the attackers by reference to their category provided Ndayambaje with sufficient notice. 6340 2769. The Appeals Chamber therefore rejects Ndayambaje's arguments that the Trial Chamber erred in finding that he was informed of his involvement in the events at Kabuye Hill by reason of his authority over the attackers, as it did not rely on Ndayambaje's authority to find that the charge was sufficiently pleaded in the Indictment or that the attackers were sufficiently identified in the Indictment. (e) Responsibility for Aiding and Abetting 2770. Ndayambaje submits that the Trial Chamber erred in finding that he aided and abetted the massacres at Kabuye Hill from 22 through 24 April 1994 whereas this form of responsibility was 6334 Prosecution Response Brief, para. 2042. 3336 Trial Judgement, para. 1255 337 Trial Judgement, para. 1254 38 Trial Judgement, para. 125 39 The Appeals Chamber recalls that Ndayambaje was not convicted for the events at Kabuye Hill on the basis ‹ uperior responsibility pursuant to Article 6(3) of the Statute. See Trial Judgement, paras. 5768, 5780 See supra, para. 2758 960 Case No. ICTR-98-42-A 14 December 2015

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19404/H not pleaded in the Indictment.341 Ndayambaje adds that neither the Prosecution's pre-trial brief nor its opening statement mentioned aiding and abetting and that the Trial Chamber chose that form of responsibility proprio motu. 342 2771. The Prosecution responds that the paragraphs in the charging section of the Indictment include all modes of liability under Article 6(1) of the Statute and that paragraph 6.56 of the Indictment, which is of general application, specifically emphasised that Ndayambaje aided and abetted massacres, 343 It argues that all material facts were pleaded in the Indictment, that further notice was provided in the Prosecution Pre-Trial Brief, and that Ndayambaje did not suffer any prejudice. 6344 2772. The Appeals Chamber notes the general reference to Article 6(1) of the Statute in the charging section of the Indictment 345 and that, in paragraph 6.56 of the Indictment which elaborates in broad terms on Ndayambaje's responsibility, it is stated that Ndayambaje "aided and abetted [his] subordinates and others in carrying out the massacres of the Tutsi population and its accomplices." As held above in relation to Mugombwa Church, the Appeals Chamber considers that this, on its own, was insufficient to put Ndayambaje on notice that he was charged with aiding and abetting the killings at Kabuye Hill and of his conduct underpinning this charge.

346 2773. However, the Appeals Chamber observes that paragraphs 6.31 and 6.32 of the Indictment informed Ndayambaje of the material facts underpinning the charge of aiding and abetting the killings of Tutsi refugees at Kabuye Hill from 22 to 24 April 1994. Paragraph 6.31 sets forth that on 22 April 1994, Ndayambaje, accompanied by communal policemen, gendarmes, soldiers, and civilians armed with traditional tools and weapons attacked the Tutsi refugees who had gathered at Kabuye Hill. Paragraph 6.32 expressly states that Ndayambaje "transported the attackers to Kabuye and issued them weapons." In the view of the Appeals Chamber, the information provided in these paragraphs characterises Ndayambaje's conduct for aiding and abetting the killings of Tutsi 6341 Ndayambaje Notice of Appeal, paras. 59-61; Ndayambaje Appeal Brief, paras. 124, 126, 131. See also Ndayambaje Appeal Brief, paras. 120-123; AT. 21 April 2015 pp. 21, 22, 67. Ndayambaje Appeal Brief, paras. 126, 132. In the alternative, Ndayambaje argues that the Trial Chamber erred in convicting him as the Indictment failed to plead his genocidal intent. See ibid., paras. 104, 131. As held above in relation to Mugombwa Church, the Appeals Chamber considers that any error as regards the pleading of Ndayambaje's genocidal intent in relation to his participation in the killings perpetrated at Kabuye Hill would not have the potential of invaliding his convictions for aiding and abetting these killings as this form of responsibility does not require a finding that the aider and abetter had genocidal intent. See supra, fn.

6258. In any case, the Appeals Chamber recalls that the Prosecution pleaded under the count of genocide that Ndayambaje acted "with the intent to destroy, in whole or in part, a racial or ethnic group". See Ndayambaje Indictment, p. 41, referring, inter alia, to ibid., paras. 6.31, 6.32. 6343 Prosecution Response Brief, paras. 2047, 2049. The Prosecution also reiterates that Ndayambaje did not raise any objections at trial concerning modes of liability, See ibid., para. 2051. 6344 Prosecution Response Brief, paras. 2048, 2052, 2053. See also AT. 21 April 2015 p. 41. 6345 Ndayambaje Indictment, pp. 40-46. 6346 See supra, paras. 2723, 2724. 961 Case No. ICTR-98-42-A 14 December 2015

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19403/H refugees at Kabuye Hill from 22 to 24 April 1994. Similarly, the Appeals Chamber is satisfied that the Indictment, when read as a whole, put Ndayambaje on notice that he was alleged to have been aware of the genocidal intent of the attackers at Kabuye Hill and to have known that his actions would assist the attackers in the killing of Tutsi refugees. 347 Considering the Indictment as a whole, and in particular its charging section as well as paragraph 6.56 in combination with paragraphs 6.31 and 6.32, the Appeals Chamber finds that Ndayambaje was sufficiently put on notice that he was charged with aiding and abetting the killings at Kabuye Hill from 22 to 24 April 1994 and of his conduct which formed the basis of this charge.

2774. Accordingly, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that he was not sufficiently put on notice of the allegation that he aided and abetted the killings of Tutsi refugees at Kabuye Hill from 22 to 24 April 1994.

3. Ndayambaje's Swearing-In Ceremony (Grounds 3, and 6 in part) 2775. The Trial Chamber found that, on the occasion of his public swearing-in ceremony as the bourgmestre of Muganza Commune on 22 June 1994 held in the woods near the Muganza commune office, Ndayambaje, together with Nteziryayo, "told the population to continue with their 'work' and urged them to "sweep the dirt outside'", as well as instructed that those hiding Tutsis and refusing to hand them over should be killed. 348 The Trial Chamber also found it established beyond reasonable doubt that, after the ceremony, searches for Tutsis took place and killings followed. 6349 The Trial Chamber concluded that the audience understood the words used by Ndayambaje to mean they needed to kill Tutsis and that this was further evidenced by the searches conducted and the killings of Tutsis after the ceremony,6350 The Trial Chamber convicted Ndayambaje of committing direct and public incitement to commit genocide (Count 4) pursuant to Article 6(1) of the Statute on the basis of the statements he made at his swearing-in ceremony. 6351 6347 See, e.g., Ndayambaje Indictment, paras. 5.17, 6.9, 6.17, 6.18, 6.24, 6.26, 6.27, 6.30-6.32, 6.51, 6.54, 6.56. 6348 Trial Judgement, paras, 4642, 4645, 5948, 6026. 6349 Trial Judgement, para. 4645. 6350 Trial Judgement, para. 6027. 6351 Trial Judgement, paras. 6029, 6038, 6186. In the "Legal

Findings" section of the Trial Judgement related to genocide, the Trial Chamber also considered Ndayambaje's utterances at the swearing-in ceremony in the context of his responsibility for instigating the ensuing abduction and killings of Tutsi women and girls from Mugombwa Sector. The Trial Chamber found that there was a causal connection between Ndayambaje's words at his swearing-in ceremony and the abduction and killing of the Tutsi women and girls, including one named Nambaje, and that, by prompting the assailants to perpetrate these crimes, Ndayambaje instigated genocide. See ibid., paras. 5953-5956. The Trial Chamber also held that, by his words at the Virgin Mary Statue in Mugombwa Sector during the abduction, Ndayambaje instigated the killing of the abducted women and girls, including Nambaje. See ibid., paras. 5957-5959, 6031. The Trial Judgement reflects that the Trial Chamber did not ultimately convict Ndayambaje of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for instigating the killing of the Tutsi women and girls, including Nambaje, based on his 962 Case No. ICTR-98-42-A 14 December 2015

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19402/H 2776. In summarising the Prosecution case against Ndayambaje with respect to the incitement of the population to kill Tutsis during Ndayambaje's Swearing-In Ceremony, the Trial Chamber referred to paragraphs 5.8, 6.33, and 6.38 of the Indictment 6352 The Indictment indicates that the allegations in paragraphs 5.8, 6.33, and 6.38 were being pursued under Counts 1 through 3 and 5 through 9 pursuant to Articles 6(1) and 6(3) of the Statute and under Count 4 pursuant to Article 6(1) of the Statute. 6353 2777. The Trial Chamber found that paragraph 6.38 of the Indictment did not refer to Ndayambaje's Swearing-In Ceremony or to any criminal conduct by Ndayambaje. 354 It also determined that paragraphs 5.8 and 6.33 of the Indictment "encompass[ed] the allegation that Ndayambaje incited the population at his swearing-in ceremony"635S but that paragraph 5.8 was very general in nature and paragraph 6.33 failed to provide details of specific incidents of incitement and concluded that both paragraphs were, therefore, defective.6356 However, the Trial Chamber found that the defect in the Indictment regarding the charge of incitement at Ndayambaje's Swearing-In Ceremony in June 1994 was cured by clear, consistent, and timely information, and that no prejudice was caused to Ndayambaje with respect to this allegation.6357 2778. When addressing, in the Trial Judgement, Ndayambaje's

contention that the Indictment failed to plead the killings that allegedly followed the ceremony, the Trial Chamber further relied on paragraph 6.37 of the Indictment, 6358 It held that, although this paragraph failed to refer to any utterances at his swearing-in ceremony, but instead solely relied on his utterances at the Virgin Mary Statue after the ceremony. See ibid., paras. 5957-5959, 5976 ("Ndayambaje also instigated the killing of Tutsis after his swearing-in ceremony on 22 June 1994."), 5977, 6064 ("The Chamber has found Ndayambaje guilty of genocide for [...] instigating the killing of Tutsis after his swearing-in ceremony".), 6066, 6107 ("Ndayambaje [...] instigated the killing of Tutsis after his swearing-in ceremony."), 6108, 6125, 6175 ("Ndayambaje [...] instigated the killing of Tutsis after his gue Tria in dement, para. 226, 19-1:64276,68 Parentas 5. 6.33, and 6.38 of the Ndayambaje Indictment read as follows: 6.33 In June 1994, Elie Ndayambaje incited the population to kill Tutsis. 6.38 Despite these crimes, Elie Ndayambaje was appointed Bourgmestre of Muganza on 20 June 1994 by the Interim Government led by Jean Kambanda. 6353 Ndayambaje Indictment, pp. 40-45. 6354 Trial Judgement, para. 4285. 6355 Trial Judgement, para. 4286. 6356 Trial Judgement, paras, 4286, 4287. 6357 Trial Judgement, para.

4297. See also ibid., paras. 4290-4296. 6358 Trial Judgement, paras. 4298, 4300. For paragraph 6.37 of the Ndayambaje Indictment, see supra, fn. 6213. 963 Case No. ICTR-98-42-A 14 December 2015

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19401/H specific crimes which Ndayambaje allegedly ordered, supervised, or participated in, this defect was cured through post-indictment disclosures.535g 2779. Ndayambaje submits that the allegations relating to the inciting statements made at his swearing-in ceremony and the ensuing killings were not pleaded in the Indictment, and that such defects were neither curable nor cured, 6360 Ndayambaje requests the Appeals Chamber to reverse all his convictions entered on the basis of his conduct at the ceremony, 6361 The Prosecution responds that the Trial Chamber correctly found that the defects of the Indictment concerning those allegations were cured and that Ndayambaje suffered no prejudice. 362 2780. The Appeals Chamber notes that there is no dispute that the Indictment was impermissibly vague in relation to the allegation concerning Ndayambaje's inciting statements during his swearing-in ceremony. While paragraph 6.38 of the Indictment mentions Ndayambaje's appointment as bourgmestre of Muganza Commune on 20 June 1994, it does not refer to Ndayambaje's Swearing-In Ceremony, the speeches during this event, or any criminal conduct by Ndayambaje. Similarly, paragraphs 5.8 and 6.33 of the Indictment do not mention Ndayambaje's Swearing-In Ceremony but plead in broad terms that Ndayambaje incited the population to kill Tutsis. 363 These paragraphs do not specify the date, location, circumstances or the alleged utterances of Ndayambaje that were found to constitute incitement.

2781. With respect to the pleading of the killings that followed the ceremony, the Appeals Chamber observes that Ndayambaje was not ultimately convicted on the basis that killings were perpetrated as a result of his utterances at the ceremony. The Trial Chamber solely relied on the fact that Tutsis were killed after the ceremony as evidence that the audience understood Ndayambaje's message that they needed to kill Tutsis.364 For his words at the ceremony, the Trial Chamber only convicted Ndayambaje of committing direct and public incitement to commit genocide. 365 As the crime of direct and public incitement to commit genocide is an inchoate crime, the crime is punishable irrespective of whether the incitement substantially contributed to the commission of acts of genocide 366 Consequently, the Appeals Chamber considers that there is no need to examine 6359 Trial Judgement, paras. 4302, 4304-4307. 6360 Ndayambaje Notice of Appeal, paras. 32-36; Ndayambaje Appeal Brief, paras. 50-75, 78. See also AT: 21 April 2015 pp. 10, 11, 17-22. Ndayambaje Notice of Appeal, para. 39; Ndayambaje Appeal Brief, para. 79. 6362 Prosecution Response Brief, paras. 2010-2029. 6363 The Trial Judgement reflects that the Trial Chamber relied solely on paragraphs 5.8 and 6.33 of the Ndayambaje Indictment, and not paragraph 6.38 of the Ndayambaje Indictment, to find that the Ndayambaje Indictment was defective, curable, and cured. See Trial Judgement, paras. 4285-4288. 6364 See Trial Judgement, para. 6027. 6365 Trial Judgement, para.

6029. See supra, para. 2775, fn. 635 1. 6366 Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678. 964 Case No. ICTR-98-42-A 14 December 2015

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19400/H whether Ndayambaje was given sufficient notice of the killings that followed his swearing-in ceremony and dismisses Ndayambaje's arguments in this respect.

2782. The Appeals Chamber will now consider whether the Trial Chamber erred in finding that the defect in the Indictment concerning the charge of direct and public incitement to commit genocide through Ndayambaje's utterances at his swearing-in ceremony was curable, and if so, whether the Trial Chamber erred in finding that the defect was cured. (a) Whether the Defect Was Curable 2783. Ndayambaje submits that the Trial Chamber erred in convicting him on the basis of alleged inciting statements made during his swearing-in ceremony as the Indictment does not contain any allegation of incitement at this event. 367 He contends that the Trial Chamber erroneously and artificially linked this charge to paragraphs 5.8, 6.33, and 6.38 of the Indictment. 368 Ndayambaje further argues that, by doing so, the Trial Chamber contradicted its own position: (i) in paragraph 3233 of the Trial Judgement, where it found that the defect in paragraphs 5.8 and 6.33 could not be cured; 369 and ii) in paragraph 2912 of the Trial Judgement, where it concluded that mentioning a "main element", which was not pleaded in the Indictment, in the summaries of anticipated evidence appended to the Prosecution Pre-Trial Brief constituted a radical transformation of the Prosecution case. 370 Ndayambaje submits that, by convicting him on the basis of inciting statements at his swearing-in ceremony, the Trial

Chamber proceeded to an illegal expansion of the Indictment as the facts underpinning the allegation were additional material facts which supported on their own a separate charge, and could only have been added through a formal amendment of the Indictment. 6371 2784. The Prosecution responds that the Trial Chamber correctly found that the vagueness in paragraphs 5.8, 6.33, and 6.38 of the Indictment concerning Ndayambaje's incitement at his swearing-in ceremony was cured. 6372 6367 Ndayambaje Notice of Appeal, para. 33; Ndayambaje Appeal Brief, paras. 50-57. See also AT. 21 April 2015 Bfrs Nalayambaje Notice of Appeal, para 33; Ndayambuje Appeal Brief, paras, S0, 54, 57. See also AT. 21 April 2015 pp. 17-20. At the appeals hearing, Ndayambaje further argued that, since paragraph 6.38 of the Ndayambaje Indictment reads that he was appointed bourgmestre on 20 June 1994 "[dJespite these crimes", "it is clear that the in[cite]ment referred to in 6.33 occurred before June 1994." See ibid., p. 20 and p. 25 (French). 6369 Ndayambaje Notice of Appeal, para. 34; Ndayambaje Appeal Brief, para.

51. See also AT. 21 April 2015 pp. 18, 6370 Ndayambaje Appeal Brief, paras. 56, 57; Ndayambaje Reply Brief, paras. 24, 25. 6371 Ndayambaje Notice of Appeal, para. 33; Ndayambaje Appeal Brief, paras. 52, 54, 57. 6372 Prosecution Response Brief, paras. 2010, 2011. The Prosecution elaborates that in paragraph 5.8 of the Ndayambaje Indictment it is alleged that Ndayambaje incited the population to kill Tutsis between April and July 1994, and that in paragraph 6.33 of the Ndayambaje Indictment it is alleged, more precisely, that he so incited in June 1994. 965 Case No. ICTR-98-42-A • 14 December 2015

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19399/H 2785. The Appeals Chamber finds that the allegation concerning Ndayambaje's inciting statements at his swearing-in ceremony did not constitute a new charge but fell within the broader allegation relating to Ndayambaje's public incitement to exterminate the Tutsi population in June 1994 expressly pleaded in paragraph 6.33 of the Indictment and, in broader terms, in paragraph 5.8 of the Indictment.6373 Similarly, the Appeals Chamber does not consider that the material facts on which the Trial Chamber entered its convictions could have, on their own, supported a separate charge. As vague as the charge set out in paragraphs 5.8 and 6.33 was, the Indictment nonetheless pleaded the charge for which Ndayambaje was ultimately convicted, namely his responsibility for directly and publicly inciting the extermination of Tutsis in June 1994.

2786. The Appeals Chamber also rejects Ndayambaje's argument that the Trial Chamber's finding that paragraphs 5.8 and 6.33 of the Indictment could be cured contradicts its own conclusion in paragraph 3233 of the Trial Judgement. The Appeals Chamber notes that, in paragraph 3233 of the Trial Judgement, the Trial Chamber found that paragraphs 5.8 and 6.33 could not be relied upon to include the allegation that Ndayambaje ordered that roadblocks be erected and encouraged those at roadblocks to search for and kill Tutsis. It found that such allegations were new charges that could not be cured by subsequent disclosures. As Ndayambaje was charged in paragraphs 5.8 and 6.33 with inciting the population to kill Tutsis, the Appeals Chamber considers that paragraph 3233 of the Trial Judgement does not contradict the Trial Chamber's finding that paragraphs 5.8 and 6.33 could include allegations relating to Ndayambaje's inciting speech at his swearing-in ceremony.

2787. Ndayambaje's argument that the Trial Chamber contradicted its own reasoning in paragraph 2912 of the Trial Judgement is likewise without merit. In this paragraph, the Trial Chamber found that his participation in meetings was "an essential ingredient" of the crime of conspiracy to commit genocide which was not contained in the Indictment and, therefore, the subsequent inclusion of such information in the Witness Summaries Grid appended to the Prosecution Pre-Trial Brief constituted a radical transformation of the Prosecution case. Contrary to its finding in paragraph 2912 of the Trial Judgement, the Trial Chamber did not find with regard to the events at Ndayambaje's Swearing-In Ceremony that an essential ingredient was not pleaded in The Prosecution adds that paragraph 6.38 of the Ndayambaje Indictment refers to the appointment of Ndayambaje as Muganza bourgmestre on 20 June 1994. See idem. 6373 The Appeals Chamber is not convinced by Ndayambaje's argument during the appeals hearing that reading paragraphs 5.8 and 6.33 of the Ndayambaje Indictment in conjunction with paragraph 6.38 of the Ndayambaje Indictment leads to the conclusion that the crime described in paragraphs 5.8 and 6.33 necessarily occurred before Ndayambaje was appointed bourgmestre of Muganza. In the view of the Appeals Chamber, a plain reading of the Ndayambaje Indictment shows that the phrase "despite these crimes" in paragraph 6.38 relates to the criminal conduct of Ndayambaje in Muganza Commune and the surrounding area from 20 April 1994 as alleged in paragraph 6.37 of the Ndayambaje Indictment. 966 Case No. ICTR-98-42-A 14 December 2015

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19398/H the Indictment, but rather that paragraphs 5.8 and 6.33 of the Indictment were very general in nature and, for this reason, defective. 6374 2788. The Appeals Chamber concludes that Ndayambaje has not demonstrated that the Trial Chamber erred in finding that the defect in the Indictment regarding his responsibility for direct and public incitement to commit genocide through his utterances at his swearing-in ceremony of 22 June 1994 was curable. The Appeals Chamber now turns to consider whether the Trial Chamber erred in finding that the defect was cured by the provision of clear, consistent, and timely information detailing the factual basis underpinning the charge. (b) Whether the Defect Was Cured 2789. The Trial Chamber determined that the summary of the anticipated evidence of Prosecution Witnesses TO and AQ appended to the Prosecution Pre-Trial Brief, 375 their corresponding witness statements,376 and the subsequent addition of Witness RV to the Prosecution's witness list in July 20016377 provided Ndayambaje with clear, consistent, and timely information that the allegation that he incited the population to kill Tutsis at his swearing-in ceremony in June 1994 was part of the Prosecution case.378 In particular, the Trial Chamber found that, despite the fact that Witness TO's Summary and Witness TO's June 1997 Statement referred to this event as occurring in May 1994,

"the description of the event as 'Ndayambaje's swearing-in ceremony' and the reference to Nteziryayo being the préfet of Butare at the time of the meeting, sufficed to put the Ndayambaje Defence on notice that the 'meeting' in question concerned Ndayambaje's swearing-in ceremony which occurred in June 1994."6379 Similarly, while the Trial Chamber found that Witness QAQ's 1997 Statement refers only to "a meeting in May" 6380 it also found that 6374 Trial Judgement, paras. 4286, 4287. Trial Judgement, paras. 4290, 4292, referring to Witness Summaries Grid, item 11, Witness QAQ (""Witness QAQ's Summary"), Witness TO's Summary. 3376 Trial Judgement, paras. 4291, 4292, referring to statement of Witness TO of 11 June 1997, disclosed on 25 March 1999 and 4 December 2000 and admitted as part of Exhibit D13 on 6 March 2002 (confidential) ("Witness TO's June 1997 Statement"); statement of Witness QAQ of 14 May 1997, disclosed on 4 November 1998 and 17 June 1999 and admitted as Exhibit D85 on 13 November 2002 (confidential) ("Witness QAQ's 1997 Trial Judgement, para.

4296. See also ibid., para. 4282, referring in turn to statement of Witness RV of 15 January 1997, disclosed on 14 March 2001 and statement of Witness RV of 2 October 1997, disclosed on 14 March 2001. 6378 Trial Judgement, paras. 4290-4297. 6379 Trial Judgement, para.

4294. The Trial Chamber refers to the previous section of the Trial Judgement discussing Nteziryayo's notice of the allegation against him concerning Ndayambaje's Swearing-in Ceremony. See ibid., par Trial Judgement, para.

4294. The Trial Chamber refers to the previous section of the Trial Judgement discussing Nteziryayo's notice of the allegation against him concerning Ndayambaje's Swearing-in Ceremony. See ibid., para.

4279. The Appeals Chamber notes that, in paragraph 4294 of the Trial Judgement, the Trial Chamber stated that Witness QAQ's 1997 Statement referred to "a meeting in May", whereas it stated in paragraph 4277 of the Trial Judgement that, according to the witness, the meeting took place towards "the end of May or early June 1994". The latter is the correct quote of Witness QAQ's 1997 Statement. 967 Case No. ICTR-98-42-A 14 December 2015

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19397/H Ndayambaje would have been aware that the meeting Witness QAQ referred to in this statement was Ndayambaje's Swearing-In Ceremony since the statement mentioned that "during this meeting Préfet Nteziryayo sacked Bourgmestre Chrysologue Bimenyimana and replaced him with Ndayambaje. 6381 2790. Ndayambaje submits that the Trial Chamber erred in finding that the Indictment was cured of its defect concerning the allegation of incitement to commit genocide at his swearing-in ceremony 6382 In particular, Ndayambaje reiterates that the Trial Chamber erred in not considering that the Prosecution failed to link the relevant summaries of anticipated evidence to the relevant paragraphs of the Indictment. 6383 2791. In addition, Ndayambaje argues that the Trial Chamber: (i) noted that Witness TO's Summary and Witness TO's June 1997 Statement referred to "May 1994" as the date of the ceremony but failed to take this inconsistency into consideration; 384 (ii) failed to consider the inconsistencies between Witness TO's June 1997 Statement, which it expressly considered, and Witness TO's prior written statements of 8 October 1995 and 16 October 1997 "which placed the meeting respectively in May or/and in late June 1994 and which mentioned another subsequent meeting which allegedly took place two weeks later", 6385 (iji) erred in finding that Witness AQ's Summary and Witness QAQ's 1997

Statement provided him with clear notice, since they referred to a meeting that was held in late May or early June 1994,6386 and (iv) failed to consider the inconsistencies between Witness QAQ's Summary and Witness QAQ's 1997 Statement, on one hand, and the witness's statement of 19 June 1995, on the other hand. 6387 2792. The Appeals Chamber understands Ndayambaje to further argue that the information provided through the prior statements of Prosecution Witness TP and the summaries of the anticipated evidence of Prosecution Witnesses TP, QAR, QAF, QAL, FAD, FAL, FAU, SM, TW, and TX was not coherent with that provided by Witnesses TO's and QAQ's summaries and 6381 Trial Judgement, para. 4294. 6382 Ndayambaje Appeal Brief, paras. 58-75; AT. 21 April 2015 pp. 18, 19. 6383 Ndayambaje Notice of Appeal, paras. 18, 32, 35, 36; Ndayambaje Appeal Brief, paras. 14, 58, 59. See also AT. 21 April 2015 pp. 69, 70. 6384 Ndayambaje Appeal Brief, para. 63 (French). 6385 Ndayambaje Appeal Brief, para. 63 (internal references omitted), referring to statement of Witness TO of 8 October 1995, disclosed on 7 May 2001 in French and Kinyarwanda and on 1 October 2001 in English, admitted as part of Exhibit D13 on 6 March 2002 (confidential) ("Witness TO's 1995 Statement"), Witness TO's June 1997 Statement, and statement of Witness TO of 16 October 1997, disclosed on 4 November 1998 and admitted as

part of Exhibit D13 on 6 March 2002 (confidential) ("Witness TO's October 1997 Statement"). 6386 Ndayambaje Appeal Brief, para. 65. 6387 Ndayambaje Appeal Brief, paras. 65-67 (French), referring to statement of Witness QAQ of 19 June 1995, disclosed on 7 May 2001 in French and on 19 September 2001 in English, and admitted as Exhibit D84 on 13 November 2002 (confidential) ("Witness QAQ's 1995 Statement"). Ndayambaje relies on the fact that Witness QAQ's 1995 Statement states that he became bourgmestre at the end of May 1994 and held a meeting in June 1994 following which all Tutsi girls were killed. See ibid., para. 66. 968 Case No. ICTR-98-42-A 14 December 2015

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19396/H statements and added to the confusion since none of them refer to his swearing-in ceremony but instead to another meeting undated or held in May or June 1994.6388 Ndayambaje adds that, while the Trial Chamber acknowledged that the Prosecution's opening statement was silent on his alleged incitement during the swearing-in ceremony, it failed to imply from this silence that this allegation was not part of the Prosecution case against him. 6389 2793. Ndayambaje also submits that, as there was no indication in the Indictment that any crime was committed during his swearing-in ceremony, it was not possible to specify the form of responsibility 639º In the alternative, Ndayambaje argues that the Trial Chamber erred in convicting him as the Prosecution failed to plead his genocidal intent in his Indictment. 6391 2794. The Prosecution responds that the Trial Chamber correctly found that the defect in paragraphs 5.8, 6.33, and 6.38 of the Indictment concerning this allegation was cured. 392 It contends that the prior statements and summaries of the anticipated evidence of Witnesses "TO, QAQ, and QAF supported the allegation that Ndayambaje had incited the population to kill the Tutsis" at Ndayambaje's Swearing-In Ceremony, 6393 While acknowledging that there were minor variations as to the exact date of the events referred to by Witnesses TO and QAQ, the Prosecution argues that

"the two witnesses describe the events in a clear and consistent manner that would have enabled Ndayambaje to understand the charges against him."6394 2795. The Prosecution further responds that the information provided in Witness TP's summary and statements was not inconsistent with the information provided by other witnesses6395 and that Ndayambaje fails to demonstrate that the slight difference regarding the dates given in the summaries of the other witnesses he points to caused confusion to an extent that would undermine the Trial Chamber's finding that he had sufficient notice of the incitement at his swearing-in ceremony. 6396 2796. Concerning Ndayambaje's argument that it failed to plead the form of responsibility in the Indictment, the Prosecution responds that Ndayambaje's conduct at trial showed that he was never 6388 Ndayambaje Appeal Brief, paras. 69-74. 6389 Ndayambaje Appeal Brief, para. 75 (French). 6390 Ndayambaje Notice of Appeal, para. 63; Ndayambaje Appeal Brief, para. 130; AT. 21 April 2015 pp. 21, 22. 6391 Ndayambaje Appeal Brief, para. 131. 6392 Prosecution Response Brief, para. 2010. 6395 Prosecution Response Brief, paras.

2023. See also ibid., para. 2025. 6396 Prosecution Response Brief, para. 2026. 969 Case No. ICTR-98-42-A 14 December 2015

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19395/H concerned about the form of responsibility as he never raised a contemporaneous objection on this matter, and that he challenged every piece of evidence that he asked people to kill Tutsis at his swearing-in ceremony. 6397 2797. The Appeals Chamber finds no merit in Ndayambaje's argument that the witness summaries appended to the Prosecution Pre-Trial Brief could not inform him of the allegations against him because the Prosecution did not indicate "the relevant paragraphs on which their testimonies would be based". 398 The Appeals Chamber is of the opinion that it would have been preferable for the Prosecution to provide greater specificity given the vagueness of the Indictment and its pre-trial brief in this respect. However, it is satisfied that the contents of Witnesses TO's and QAQ's summaries and the fact that they were expressly marked relevant to Ndayambaje and, inter alia, to Count 4 of the Indictment - which, in turn, was linked to the relevant paragraphs, including paragraphs 5.8 and 6.33 of the Indictment6399 - provided clear notice to Ndayambaje that the Prosecution intended to rely on the evidence of these witnesses in support of the allegation that he publicly incited the population to kill Tutsis in June 1994 set forth in paragraphs 5.8 and 6.33.6400 2798. The Appeals Chamber also notes that, contrary to Ndayambaje's argument, the Trial Chamber

considered the inconsistency between Witness TO's Summary and Witness TO's June 1997 Statement, which referred to "May 1994" as the date of the meeting in Muganza Commune during which Ndayambaje would have incited the commission of genocide. 401 The Appeals Chamber concurs with the Trial Chamber that from the description of the meeting as "Ndayambaje's swearing-in ceremony" it should have been clear to Ndayambaje that the meeting in question was Ndayambaje's Swearing-In Ceremony which occurred in June 1994.6402 2799. The Appeals Chamber further notes that, as argued by Ndayambaje, the Trial Chamber did not discuss Witness TO's 1995 Statement and Witness TO's October 1997 Statement. While these statements are consonant with each other and with Witness TO's June 1997 Statement with respect 6397 Prosecution Response Brief, paras. 2051, 2052. 6398 Ndayambaje Appeal Brief, para. 59. 6399 See Ndayambaje Indictment, p. 42. 6400 See also supra, fn. 6239. 6401 Trial Judgement, para. 4294. 6402 See Trial Judgement, para.

4294. The Appeals Chamber observes, however, that Witness TO's Summary, while clearly stating that Ndayambaje made public incitements at his swearing-in ceremony, is confusing as it appears to suggest that the witness attended two meetings at which Ndayambaje and Nteziryayo made inciting speeches - in May 1994, being Ndayambaje's Swearing-In Ceremony, and in late June 1994 where Nteziryayo introduced Ndayambaje. Notwithstanding this ambiguity in the phrasing of Witness TO's Summary, when reading it in conjunction vith the witness's written statements previously disclosed to Ndayambaje, which Ndayambaje should have beer prompted to examine upon reading Witness TO's Summary, it is clear that the witness was expected to testify that he attended only one meeting where Nteziryayo and Ndayambaje were present and made inciting speeches and that this meeting was Ndayambaje's Swearing-In Ceremony. 970 Case No. ICTR-98-42-A 14 December 2015

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19394/H to Ndayambaje's Swearing-In Ceremony, 5403 Witness TO's October 1997 Statement states that the swearing-in ceremony took place in late June 1994.6404 However, Witness TO clarified in his June 1997 statement, which the Trial Chamber considered, that he "no longer remember[ed] the exact date of this ceremony but [that] it probably took place at the beginnin[g] of May 1994.*6405 The Appeals Chamber considers that, in light of Witness TO's admission that he no longer remembered the exact date of the ceremony and the clear indication that Witness TO's Summary and prior statements referred to the meeting held to swear-in Ndayambaje as bourgmestre of Muganza Commune, the references to May 1994 in the witness's summary and June 1997 statement were not such as to affect the clarity of the notice provided to Ndayambaje that the Prosecution intended to prove through Witness TO that he made inciting statements at his swearing-in ceremony.

2800. Likewise, the Appeals Chamber rejects Ndayambaje's argument regarding alleged inconsistencies and lack of clarity in Witness QAQ's Summary and prior statements. The Appeals Chamber notes that, according to Witness QAQ's Summary, Ndayambaje made direct and public incitements at a meeting at "the end of May/early June 1994", but that Witness QAQ's Summary does not provide further information concerning this meeting. However, when Witness AQ's Summary is read together with Witness QAQ's 1997 Statement, it is clear that the meeting took place in the yard of the Muganza commune office and that on this occasion "the Préfet replaced the sacked Bourgmestre Chrisologue with Ndayambaje" 6406 Since Witness QAQ's Summary contained clear allegations against Ndayambaje and was expressly linked to his Indictment, the Appeals Chamber considers that Ndayambaje should have been prompted to examine the contents of Witness QAQ's 1997 Statement upon reading Witness QAQ's Summary. Finally, the Appeals Chamber fails to see any inconsistency between Witness QAQ's 1995 Statement and Witness QAQ's Summary and Witness QAQ's 1997 Statement as Ndayambaje submits. 6407 6403 See Witness TO's 1995 Statement, p. K0181563 (Registry pagination) (describing the meeting as the swearing-in ceremony of bourgmestre Ndayambaje); Witness TO's June 1997 Statement, p. K0043434 (Registry pagination) (describing the

meeting as "Elie Ndayambaje's new swearing-in ceremony which took place in the woods near the communal office"); Witness TO's October 1997 Statement, p. K0052738 (Registry pagination) (describing the meeting "the meeting to introduce the new Bourgmestre, Elie Ndayambaje, who had just replaced Chrysologue Bimenyimana"). The Appeals Chamber is of the view that the fact that Witness TO's Summary, Witness TO's 1995 Statement, and Witness TO's June 1997 Statement mention another meeting two weeks later, where Ndayambaje asked people to strengthen the roadblocks and night patrols because the "Inkotanyi" arrived, is irrelevant as to whether Ndayambaje was on notice that he made inciting statements at his swearing-in ceremony in June 1994. no reference to the date of the meeting in Witness TO's 1995 Statement. Statement, p. K052738 (Registry pagination). 5406 Witness OAO's 1997 Statement, p. K0043430 (Registry pagination). 6407 See Witness QAQ's 1995 Statement, pp. K0181567, K0181568 (Registry pagination). 971 Case No. ICTR-98-42-A 14 December 2015

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19393/H 2801. Accordingly, the Appeals Chamber considers that, despite the minor inconsistencies as regards their estimates of when the meeting took place in May or June 1994, it was clear from Witnesses TO's and QAQ's summaries and prior statements that they were referring to Ndayambaje's Swearing-In Ceremony. The Appeals Chamber also finds that, according to the information provided in paragraph 6.38 of the Indictment, Ndayambaje was on clear notice that it was alleged that his swearing-in ceremony could not have taken place before he was appointed as bourgmestre of Muganza Commune on 20 June 1994, which coincides with the allegation in paragraph 6.33 of the Indictment that Ndayambaje incited the population to kill Tutsis in June 1994.

2802. Turning to Ndayambaje's arguments that the prior written statements of Witness TP and the summaries of the anticipated testimonies appended to the Prosecution Pre-Trial Brief of Witnesses TP, QAR, QAF, QAL, FAD, FAL, FAU, SM, TW, and TX did not refer to the swearing-in ceremony but to a meeting that occurred on a different date, the Appeals Chamber finds that Ndayambaje failed to explain how this could render the information provided by the Prosecution concerning Ndayambaje's alleged criminal conduct at his swearing-in ceremony inconsistent or unclear. The fact that other witnesses mentioned a meeting held in May or in June 1994, which was not identified as Ndayambaje's Swearing-In Ceremony, does not render, in and of itself, the information provided by Witnesses TO and QAQ regarding Ndayambaje's Swearing-In Ceremony unclear or inconsistent.408 Moreover, given its brevity, the Appeals Chamber does not find that the lack of reference in the Prosecution's opening statement to Ndayambaje's alleged incitement during his swearing-in ceremony affects the timely, clear, and consistent information provided to Ndayambaje in this respect by the Prosecution.

2803. Regarding the pleading of the form of responsibility, the Appeals Chamber notes that, in the charging section of the Indictment, Ndayambaje is generally charged with the crime of direct and public incitement to commit genocide (Count 4) pursuant to Article 6(1) of the Statute. 409 However, the Appeals Chamber observes that, in paragraphs 5.8 and 6.33 of the Indictment, it is clearly pleaded, respectively, that Ndayambaje "publicly incited the people to exterminate the Tutsi population and its 'accomplices'" and "incited the population to kill Tutsis". It is therefore clear from the relevant paragraphs of the Indictment that Ndayambaje was charged with committing direct and public incitement to commit genocide.

2804. Finally, the Appeals Chamber finds Ndayambaje's undeveloped alternative argument that the Trial Chamber erred in convicting him as the Indictment failed to plead his genocidal intent 6408 Witness Summaries Grid, items 5, 16, 24, 32, 35, 40, 79, 94, 97, 98; statement of Witness TP of 20 June 1995, disclosed on 15 November 2000 in French, on 4 December 2000 in Kinyarwanda and on 23 May 2001 in English; statement of Witness TP of 16 October 1997, disclosed on 4 November 1998. 972 Case No. ICTR-98-42-A 14 December 2015

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19392/H unmeritorious since, in Count 4, the Prosecution specifically pleaded that Ndayambaje was "responsible for direct and public incitement to kill and cause serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group". 6410 2805. In light of the above, the Appeals Chamber finds that Ndayambaje has failed to show that the Trial Chamber erred in finding that he was provided with timely, clear, and consistent information putting him on notice of the allegation that he committed direct and public incitement to commit genocide through statements he made at his swearing-in ceremony in June 1994.

4. Abduction of Tutsi Women and Girls in Mugombwa (Grounds 4, and 6 in part) 2806. The Trial Chamber found that, after Ndayambaje's Swearing-in Ceremony on 22 June 1994, a group of Tutsi women and girls from Mugombwa Sector, Muganza Commune, including one named Nambaje, were abducted by assailants from Saga. 41' It determined that the assailants came to search for the women and girls because they had attended the swearing-in ceremony "where they were told to search for and throw out dirt" 6412 The Trial Chamber further found that, during the abduction, Ndayambaje came to the Virgin Mary Statue in Mugombwa Sector and made it clear to the abductors that they "were free to do what they wanted with the girls" 6413 The Trial Chamber found that the abducted women and girls were subsequently taken to a brick factory at Gasenyi where they were killed 414 On the basis of his words at the Virgin Mary Statue, the Trial Chamber convicted Ndayambaje of genocide (Count 2), extermination and persecution as crimes against humanity (Counts 6 and 7, respectively), and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 9) pursuant to Article 6(1) of the Statute for instigating the killing of the Tutsi women and girls, including Nambaje. 415 6409 Ndayambaje Indictment, p. 42. 6410 Ndayambaje Indictment, p. 42. 6411 Trial Judgement, paras. 4708, 4717, 5949. 6412 Trial Judgement, para.

5953. See also ibid., para. 4717. 6413 Trial Judgement, paras. 4746, 5949, 6030. 6414 Trial Judgement, paras. 4723, 4746, 5949. 6415 Trial Judgement, paras. 5959, 5976, 5977, 6064, 6066, 6107, 6108, 6125, 6175, 6176, 6186. The Trial Chamber determined that, because Ndayambaje's words at the Virgin Mary Statue were only addressed to the abductors and not to the general public, Ndayambaje could not be held responsible for direct and public incitement to commit genocide in relation to this event. See ibid., paras. 6030, 6032, 6033. As discussed in Section IX.A.3 above, although the Trial Chamber found that there was a causal connection between Ndayambaje's words at his swearing-in ceremony and the abduction and killing of the Tutsi women and girls, including Nambaje, and held that, by prompting the assailants to perpetrate these crimes, Ndayambaje instigated genocide, Ndayambaje was ultimately not convicted for instigating genocide for the killing of the abducted women and girls based on his inciting statements at his swearing-in ceremony. See supra, para. 2775, fn.

6351. As a result, the Appeals Chamber will disregard Ndayambaje's arguments under Ground 4 of his appeal alleging lack of notice that his utterances at the swearing-in ceremony instigated genocide for the killing of the abducted Tutsi women and girls. See Ndayambaje Appeal Brief, paras. 85, 87, 92. 973 Case No. ICTR-98-42-A 14 December 2015

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19391/H 2807. In summarising the Prosecution case against Ndayambaje with respect to the abduction of Tutsi women and girls, the Trial Chamber referred to paragraph 6.37 of the Indictment. 416 The Indictment indicates that the allegations in paragraph 6.37 were being pursued under Counts 2, 6, 7, and 9 pursuant to Articles 6(1) and 6(3) of the Statute and under Count 4 pursuant to Article 6(1) of the Statute. 417 2808. The Trial Chamber found that the allegation with regard to Ndayambaje's presence during the abduction of the Tutsi women and girls was not sufficiently pleaded in the Indictment, as it failed to specify the site or the date of the allegation, and that the Indictment was therefore defective. 418 However, the Trial Chamber determined that the defect was subsequently cured and that Ndayambaje was put on adequate notice of the material facts underpinning the relevant charge. 419 2809. Ndayambaje submits that the allegation regarding his responsibility for the killing of the abducted Tutsi women and girls was not pleaded in the Indictment and that such defect was neither curable nor cured. 420 He requests the Appeals Chamber to reverse all his convictions entered on the basis of his involvement in these killings.6421 The Prosecution responds that the Trial Chamber correctly found that the defect of the Indictment concerning this allegation was cured and

that Ndayambaje suffered no prejudice. 6422 2810. The Appeals Chamber concurs with the Trial Chamber that the Indictment was impermissibly vague in relation to the allegation concerning Ndayambaje's responsibility in the killing of the abducted Tutsi women and girls in Mugombwa. In particular, there is no mention in paragraph 6.37 of the Indictment, or anywhere else in the Indictment, of the abduction of the Tutsi women and girls, the specific date of the abduction, the presence of Ndayambaje at the Virgin Mary Statue and his role in the killing of the Tutsi women and girls. The Appeals Chamber will now discuss whether the Trial Chamber erred in finding that the defect in the Indictment in this regard was curable and, if so, whether the Trial Chamber erred in finding that the defect was cured. 6416 Trial Judgement, para. 4646, fn. 12370. For paragraph 6.37 of the Ndayambaje Indictment, see supra, fn. 6213. 974 Case No. ICTR-98-42-A 14 December 2015

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19390/H (a) Whether the Defect Was Curable 2811. Ndayambaje submits that the Trial Chamber erred in linking the abduction of the Tutsi women and girls after his swearing-in ceremony on 22 June 1994 to paragraph 6.37 of the Indictment since this paragraph "was too vague and too general to support such a specific charge. "6423 Ndayambaje argues that the abduction of the Tutsi women and girls was a material fact that could not properly support a conviction unless it was formally incorporated in the Indictment and that the Trial Chamber radically transformed the Indictment in convicting him on this basis.6424 2812. The Prosecution responds that Ndayambaje's argument that paragraph 6.37 of the Indictment was too vague in order to be cured ignores that curing applies to vague allegations and that Ndayambaje simply disagrees with the Trial Chamber's view without providing any reasons. 0425 2813. The Appeals Chamber finds that the allegation concerning Ndayambaje's responsibility for instigating the killing of the abducted Tutsi women and girls from Mugombwa Sector fell within the broader allegation relating to the killing of Tutsis throughout Muganza Commune pleaded in paragraph 6.37 of the Indictment. Similarly, the Appeals Chamber does not consider that the material facts on which the Trial Chamber entered its convictions could have, on their own, supported separate charges. As vague as the charge set out in paragraph 6.37 was, the Indictment nonetheless pleaded the charge for which Ndayambaje was ultimately convicted, namely his participation in the killing of Tutsis in Muganza Commune from 20 April 1994.

2814. Accordingly, the Appeals Chamber considers that the defect in the Indictment regarding Ndayambaje's responsibility for instigating the killing of the abducted Tutsi women and girls was curable. The Appeals Chamber now turns to consider whether the Trial Chamber erred in finding that the defect was cured by the provision of clear, consistent, and timely information detailing the factual basis underpinning the charge. (b) Whether the Defect Was Cured 2815. The Trial Chamber found that the summary of the anticipated evidence of Witnesses QAR and QAF appended to the Prosecution Pre-Trial Brief and their respective prior written statements provided Ndayambaje with clear, timely, and consistent notice that following a meeting at Muganza Bet, dara ba A:21 A Pri 0 3 p. 80, See 11,15,2, 2mbaje Notice of Appeal, paras, 42, 44; Ndayambaic Appeal 975 Case No. ICTR-98-42-A 14 December 2015

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19389/H commune office in June 1994 an abduction of Tutsi women and girls took place in Mugombwa Sector by assailants from Saga, that he was present during the abduction, and that the women and girls were subsequently killed. 426 2816. Ndayambaje submits that the Trial Chamber erred in finding that the defect was cured and that he did not suffer prejudice from the lack of notice 427 Specifically, Ndayambaje argues that the Prosecution Pre-Trial Brief did not provide any information regarding his alleged responsibility for instigating the abduction at the Virgin Mary Statue or regarding his genocidal intent or knowledge of the attackers' genocidal intent.428 Similarly, he contends that the Prosecution's opening statement did not refer to this incident.

42) Ndayambaje also avers that Witnesses QAR's and QAF's summaries were not linked to paragraph 6.37 of the Indictment. 6430 2817. In addition, Ndayambaje claims that Witnesses QAR's and QAF's prior statements were inconsistent and insufficient to provide him with clear and consistent information on the abduction of the Tutsi women and girls and his involvement thereon. 43l In particular, Ndayambaje argues that: (i) there is no reference to his presence during the abduction in Witness QAF's Statement; (ii) Witness QAR's 1995 Statement mentions a massacre that was linked by the witness to the events "at the Church in April 1994 and not to the swearing-in ceremony in June 1994"; (i¡i) Witness QAR's May 1997 Statement does not refer to any abduction, an omission that was "excused by the [Trial] Chamber; thereby acting ultra vires"; and (iv) Witness QAR's October 1997 Statement does not mention the fate of the four abducted girls to whom it refers. 6432 Ndayambaje adds that he was not provided with any information regarding the abduction of the woman named Nambaje on the basis of which he was also convicted. 6433 2818. Furthermore, Ndayambaje submits that the Trial Chamber erred in law in finding that he instigated the killing of the abducted Tutsi women and girls because this form of responsibility was not pleaded in the Indictment or any other documents of the Prosecution. 6434 In the alternative, 6425 Prosecution Response Brief, para.

2031. Trial Judgement, paras. Witness QAF's Summary, Witness QAR's 1995 Statement, Witness QAR's October 1997 Statement; statement of Witness QAF of 14 October 1997, disclosed on 4 November 1998 and on 15 November 2000 in French and English, respectively, admitted as part of Exhibit D158 on 4 March 2004 ("Witness QAF's Statement"). Ndayambaje Appeal Brief, para. 94. 6430 Ndayambaje Notice of Appeal, para. 43; Ndayambaje Appeal Brief, paras, 86, 92; AT. 21 April 2015 pp. 69, 70. 6431 Ndayambaje Appeal Brief, paras. 87-92. 6432 Ndayambaje Appeal Brief, paras. 88-92. 6433 Ndayambaje Notice of Appeal, para. 47; Ndayambaje Appeal Brief, para. 93. 6434 Ndayambaje Notice of Appeal, paras. 59, 60, 62; Ndayambaje Appeal Brief, paras. 120-125, 127-129, 131 (French); AT. 21 April 2015 pp. 21, 67. 976 Case No. ICTR-98-42-A 14 December 2015

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19388/H Ndayambaje argues that the Indictment failed to plead his genocidal intent. 435 Finally, Ndayambaje submits that the Trial Chamber erred in concluding that he suffered no prejudice from the lack of notice.6436 2819. The Prosecution responds that the Trial Chamber correctly found that paragraph 6.37 of the Indictment was cured and that Ndayambaje received sufficient and consistent notice through the summaries and statements of Witnesses QAR and QAF that, following Ndayambaje's Swearing-in Ceremony, Tutsi women and girls were abducted, that he was present during the abduction, and that the Tutsi women and girls were subsequently killed. 437 With respect to the form of responsibility, the Prosecution responds that the paragraphs in the charging section include all forms of responsibility under Article 6(1) of the Statute and that the Prosecution Pre-Trial Brief notified Ndayambaje that authorities, such as himself, instigated massacres. 438 It also reiterates that Ndayambaje did not raise any objection at trial concerning the modes of liability or argue in his closing brief that he did not know that he was charged pursuant to instigating, 6439 It submits that the record reflects that Ndayambaje understood the nature of the case against him and was fully prepared to defend against this particular allegation, which shows that he did not suffer any prejudice. 440 2820. The Appeals Chamber notes that, as underlined by Ndayambaje, neither the Prosecution's pre-trial brief nor its opening statement provided information regarding the abduction of Tutsi women and girls and Ndayambaje's responsibility in their killing. The Trial Chamber, however, found that Witnesses QAF's and QAR's summaries and statements provided the relevant information to Ndayambaje.

2821. The Appeals Chamber observes that Witness QAF's Summary was marked relevant to the counts of conspiracy to commit genocide and direct and public incitement to commit genocide (Counts 1 and 4, respectively), and not to any of the counts for which Ndayambaje was convicted in relation to the killing of the abducted Tutsi women and girls. In addition, while providing information that the morning after a meeting in Muganza Commune, where Ndayambaje made a speech, Tutsi girls were taken from their hiding places and killed, Witness QAF's Summary does not implicate Ndayambaje in the abduction of the Tutsi girls.44' In the view of the Appeals 6435 Ndayambaje Appeal Brief, para. 131 (French). See also ibid., para. 85. 6436 Ndayambaje Notice of Appeal, paras. 45, 47; Ndayambaje Appeal Brief, paras. 80, 83, 84, 95-97. 6437 Prosecution Response Brief, paras. 2030, 2032-2035. See also AT. 21 April 2015 p. 40. 6438 Prosecution Response Brief, paras. 2047, 2048, referring to Prosecution Pre-Trial Brief, para. 28. 6439 Prosecution Response Brief, para. 2051, referring to Ndayambaje Closing Brief, para. 70. 6440 Prosecution Response Brief, paras. 2036-2039. See also AT. 21 April 2015 p. 41. 6441 The Appeals Chamber also notes that Witness QAF's Statement does not provide any information suggesting that Ndayambaje was directly involved in this abduction of Tutsi women and girls. 977 Case No. ICTR-98-42-A 14 December 2015

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19387/H Chamber, Ndayambaje could not have therefore reasonably understood on the basis of Witness QAF's Summary that he was alleged to have instigated the killing of Tutsi women and girls, abducted after the ceremony, through the utterances he made at the Virgin Mary Statue. The Appeals Chamber finds that the Trial Chamber erred in concluding otherwise.

2822. By contrast, Witness QAR's Summary was marked relevant to Counts 1 through 9 of the Indictment which, in turn, were linked in the Indictment to paragraph 6.37 of the Indictment. 442 The Appeals Chamber finds that the link between Witness QAR's Summary and paragraph 6.37, together with the contents of the summary, put Ndayambaje on notice that the Prosecution intended. to rely on Witness QAR's evidence in support of the allegation of his participation in the massacres in Muganza Commune, as set forth in paragraph 6.37.6443 2823. Moreover, the Appeals Chamber finds that, contrary to Ndayambaje's unsubstantiated submission, 444 it is clear that the incident described in Witness QAR's 1995 Statement in which "women and girls who had been spared were massacred on the orders of Ndayambaje", following an exchange of words regarding their fate between perpetrators from Saga and Ndayambaje, does not refer to another event in April 1994.445 This is also clear from the fact that in this incident Ndayambaje is described as the bourgmestre, a position he only regained in June 1994.6446 The Appeals Chamber also rejects Ndayambaje's argument that the Trial Chamber acted ultra vires because it "excused" the fact that Witness QAR's May 1997 Statement did not mention the abduction incident. 447 As the Trial Chamber noted, Witness QAR's May 1997 Statement "dealt solely with the massacre at Mugombwa Church in April 1994" 6448 It is not uncommon that a specific statement of a witness focuses, as a result of investigatory considerations, on a particular event.

2824. The Appeals Chamber also observes, as the Trial Chamber correctly noted, 449 that Witness QAR's Summary is consistent with Witness QAR's October 1997 Statement, in which it is 6442 See Ndayambaje Indictment, pp. 40-46. In relevant part, Witness QAR's Summary reads as follows: In June 1994, QAR attended a meeting chaired by Nteziryayo, also in attendance was Ndayambaje. [...] The next day, there was a house-to-house search for giris and women hiding. QAR states that four girls and a teacher were brought out. [...] The people were divided as to whether or not these women should be killed. It was decided to wait for Ndayambaje to ask him what to do with them. Ndayambaje arrived and said "were you not told that if you sweep the dirt towards your house, it heaps up and ends up chasing you out of your louse? Then throw away the dirt." QAR later heard that the women were taken by a group to the Mugombwa brickyard. 6443 See also supra, fn. 6239. 6444 See Ndayambaje Appeal Brief, para. 88. 6445 Witness QAR's 1995 Statement, p. K0181455 (Registry pagination). 6446 Witness OAR's 1995 Statement, p. K0181455 (Registry pagination). 6447 See Ndayambaje Appeal Brief, para. 89. 6448 Trial Judgement, para. 4651. 6119 See Trial Judgement, para. 4651. 978 Case No. ICTR-98-42-A 14 December 2015

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19386/H specified that the assailants were waiting for Ndayambaje to decide what to do with the abductees at the Virgin Mary Statue, as some of the abductors wanted to kill them."450 Considering the chain of events, as described in the witness's summary and October 1997 statement, and the fact that Witness QAR's evidence was marked relevant, inter alia, to the counts of murder and extermination as crimes against humanity,545l the fate of the abductees was sufficiently clear to allow Ndayambaje to prepare an effective defence against the allegation. The Appeals Chamber, therefore, does not find any error in the Trial Chamber's approach to Witness QAR's prior statements.

2825. Notwithstanding the Trial Chamber's erroneous reliance on Witness QAF's summary and statement, the Appeals Chamber considers that Witness QAR's Summary, which attributes to Ndayambaje a major and decisive role in the killing of the abductees, along with Witness QAR's 1995 and October 1997 statements, which were disclosed to Ndayambaje before the beginning of the trial, provided him with timely, clear, and consistent information that his involvement at the Virgin Mary Statue in the killing of Tutsi women and girls who were abducted in June 1994 was part of the Prosecution case. The Appeals Chamber does not find that the lack of reference in the Prosecution's pre-trial brief itself and opening statement to Ndayambaje's responsibility for the killing of these Tutsi women and girls affected the timely, clear, and consistent information that was provided to Ndayambaje through Witness QAR's summary and statements.

2826. Moreover, the Appeals Chamber observes that the Trial Chamber appears to have ultimately considered that Nambaje was part of the group of Tutsi women and girls abducted from Mugombwa Sector and killed at Gasenyi.6452 Leaving apart whether the Trial Chamber erred in this regard, 6453 the Appeals Chamber considers that, to the extent that the Trial Chamber found that Nambaje was part of the same group of women and girls abducted from their homes that Witness QAR was expected to testify about, Ndayambaje had the requisite notice and his contention to the contrary is rejected.

2827. With respect to Ndayambaje's argument regarding the lack of notice of the form of responsibility, the Appeals Chamber notes that the Trial Chamber did not discuss in the Trial Judgement whether Ndayambaje had received sufficient notice that he could be held responsible for the contents of Witness QAR's statements disclosed to him upon reading Witness QAR's Summary. See also supra. para, 1101. See supra, para. 2822 6452 See infra, Section IX.H. 1(a). 6453 See infra, Section IX.H.1(a). 979 Case No. ICTR-98-42-A 14 December 2015

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19385/H instigating the killing of the abducted women and girls, concluding generally that he was put on notice that he was "present during the abduction and that the women and girls were subsequently killed.'6454 Although Ndayambaje did not specifically object to the vagueness of paragraph 6.37 of the Indictment regarding his alleged form of responsibility under Article 6(1) of the Statute, 455 the Appeals Chamber considers that it would have been preferable for the Trial Chamber to explain why it was satisfied that Ndayambaje was put on sufficient notice that he could be held responsible for instigating the killing of the abducted women and girls.

2828. As discussed in relation to the notice of Ndayambaje's responsibility in the Mugombwa Church massacre, the Appeals Chamber observes that the Indictment only generally indicates in its charging section that the relevant counts were pursued pursuant to Article 6(1) of the Statute and, in paragraph 6.37 of the Indictment, that Ndayambaje was alleged to have "ordered, supervised and participated in massacres of the Tutsi population" that were committed by others. In the absence of identification of any particular acts on the part of Ndayambaje that may characterise a responsibility for instigating in paragraph 6.37, the Appeals Chamber does not consider that the general reference to Article 6(1) of the Statute and the reference to participation in paragraph 6.37 put Ndayambaje on sufficient notice that he was charged with instigating the killings of the abducted Tutsi women and girls. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to the allegation that he instigated the massacres in which he was alleged to have participated in paragraph 6.37.

2829. However, the Appeals Chamber considers that it is clear from Witness QAR's Summary and her 1995 and October 1997 statements that Ndayambaje was alleged to have ordered or prompted the killing, when he answered the questions of the abductors regarding the fate of the Tutsi women and girls at the Virgin Mary Statue. 6456 The Appeals Chamber finds, therefore, that the failure of the Prosecution to specify the exact form of responsibility in the Indictment was cured since, when reading the Indictment in conjunction with Witness QAR's summary and prior statements, Ndayambaje was put on notice that he was alleged to have instigated the killing of the Tutsi women and girls who were abducted and brought to the Virgin Mary Statue. 6454 Trial Judgement, para. 4654. 6155 See supra, fn. 6254. 6456 Witness QAR's 1995 Statement, p. K0181455 (Registry pagination) ("[The women and girls who had been spared were massacred on the orders of NDAYAMBAJE [...]. He claimed that some of the refugees knew how to write and correspond with the Inkotanyi [...]. [T]he Bou[rIgmestre replied as follows: 'Do as you please. Are they not the ones who are going to relate what happened when the Inkotanyi arrive?''); Witness QAR's October 1997 Statement, p. K0052277 (Registry pagination) ("When the Bourgmestre arrived, he said: 'Were you not told that if you sweep the dirt towards your house, it heaps up and

ends up chasing you out of your house? Then throw away the dirt.""). The Appeals Chamber also notes that the Prosecution Pre-Trial Brief states that "[the massacres and the assaults thus perpetrated were the result of a strategy planned, adopted, instigated, and elaborated by political, civil and military authorities in the country both at the national and local levels." See Prosecution Pre-Trial Brief, para. 28. 980 Case No. ICTR-98-42-A 14 December 2015

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19384/H 2830. Finally, the Appeals Chamber finds Ndayambaje's general and undeveloped alternative argument that the Trial Chamber erred in convicting him as the Prosecution failed to plead his genocidal intent in the Indictment unmeritorious since, in Count 2, in which he is charged with genocide, the Prosecution specifically pleaded that Ndayambaje acted with genocidal intent. *457 2831. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber's erroneous reliance on Witness QAF's summary and statement did not invalidate its conclusion that Ndayambaje received clear, timely, and consistent information putting him on notice that, following a meeting at Muganza commune office in June 1994, an abduction of Tutsi women and girls took place in Mugombwa Sector by assailants from Saga, that he was present during the abduction, and that they were subsequently killed. The Appeals Chamber further considers that the subsequent information provided to Ndayambaje through Witnesses QAR's summary and statements sufficiently informed him of the course of conduct on his part supporting the generally pleaded charge of instigating, thereby curing the defect in the Indictment as regards the form of responsibility.

2832. This conclusion is bolstered by a review of the conduct of Ndayambaje's defence at trial which reflects that he was provided with sufficient information to conduct meaningful investigations and prepare an effective defence against the allegation that Ndayambaje instigated the killings of the abductees at the Virgin Mary Statue. In particular, the Appeals Chamber observes that Ndayambaje cross-examined Witness QAR at length regarding the abduction of Tutsi women and girls at the Virgin Mary Statue. 458 Specifically, Ndayambaje asked questions to the witness about his presence at the Virgin Mary Statue and his behaviour during this event. 459 Moreover, Ndayambaje called several witnesses in order to challenge and contradict the Prosecution's allegation that he was involved in the deaths of the abducted Tutsi women and girls.6460 The Appeals Chamber also notes that Ndayambaje challenged in his closing brief the evidence regarding Witness QAR and the allegation that he was involved in the killing of Tutsi women and girls who were abducted and brought to the Virgin Mary Statue. °461 2833. Accordingly, the Appeals Chamber finds that Ndayambaje was provided with sufficient information detailing the factual basis on which he was convicted in relation to the killing of the abducted Tutsi women and girls from Mugombwa Sector to prepare a meaningful defence. 6457 Ndayambaje

Indictment, pp. 40, 41. 6458 Witness QAR, T. 21 November 2001 pp. 95-113. 6459 Witness OAR, T. 21 November 2001 pp. 99, 100, 104. 6460 Ndayambaje called, inter alia, Witnesses ANGES, BOZAN, JAMES, KWEPO, MATIC, MUZIK, SABINE, and Stan. See Trial Judgement paras. 4648, 4673-4706. See also Ndayambaje Pre-Defence Brief, Annex 3, items 31, 34, 37. 6461 See Ndayambaje Closing Brief, paras. 201, 781-798. 981 Case No. ICTR-98-42-A 14 December 2015

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19383/H 5. Conclusion 2834. Based on the above, the Appeals Chamber finds that the Trial Chamber erred in convicting Ndayambaje for committing direct and public incitement to commit genocide on the basis of his statements at Mugombwa Church on 20 and 21 April 1994 in the absence of sufficient notice that he was prosecuted on this basis. Accordingly, the Appeals Chamber grants Ground 2 of Ndayambaje's appeal and reverses his conviction for committing direct and public incitement to commit genocide at Mugombwa Church. The Appeals Chamber will examine the impact of this finding, if any, in Section XII below.

2835. Nevertheless, the Appeals Chamber dismisses Ndayambaje's contentions that he was not charged with or lacked sufficient notice of his alleged responsibility for aiding and abetting the killings at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill from 22 to 24 April 1994, committing direct and public incitement to commit genocide at his swearing-in ceremony on 22 June 1994, and instigating the killings of Tutsi women and girls abducted from Mugombwa Sector after his swearing-in ceremony.

2836. The Appeals Chamber also dismisses Ndayambaje's claim of prejudice resulting from the accumulation of events not pleaded in the Indictment. 462 The Appeals Chamber recalls that it has found that Ndayambaje was charged with the criminal conduct on the basis of which he was convicted and, with the exception of the charge of direct and public incitement to commit genocide at Mugombwa Church, that the defects in the Indictment concerning these charges were curable and cured by the provision of timely, clear, and consistent information. The Appeals Chamber does not minimise the extent of the Prosecution's failure to provide adequate notice in the Indictment: in respect of the four incidents for which Ndayambaje was found guilty, three were not adequately pleaded in the Indictment. However, Ndayambaje has not demonstrated that the defects in the Indictment materially hampered the preparation of his defence.

2837. Accordingly, the Appeals Chamber dismisses Grounds 1 and 3 through 6 of Ndayambaje's appeal. 6462 See Ndayambaje Notice of Appeal, para. 17; Ndayambaje Appeal Brief, paras. 22, 134, 137. Case No. ICTR-98-42-A 982 14 December 2015 Tre

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19382/H B. Bias (Ground 8) 2838. Ndayambaje submits that the Trial Chamber demonstrated bias in applying different standards when assessing Prosecution and Defence evidence. 463 He contends that the fairness of the trial was affected by the fact that the Trial Chamber "unequally assessed the evidence depending on whether it was adduced by the Prosecution or by the Defence" 6464 He argues that this led to a miscarriage of justice and requests the Appeals Chamber "to apply the proper standard in the assessment of all the evidence on the record. "6465 2839. Specifically, Ndayambaje submits that the Trial Chamber considered as a rule that Prosecution witnesses were credible, 466 which led it to never reject their evidence entirely, while it "rejected a priori" Defence evidence on material facts or only relied on it to corroborate Prosecution evidence!467 He also argues that the Trial Chamber: (i) "wrongly and deliberately 'excused" contradictions and inconsistencies in Prosecution evidence, while rejecting Defence evidence on the basis of "fictitious contradictions" or "futile" and "falsely incriminating reasons",6468 (ii) adopted a fragmentary approach in its assessment of Prosecution evidence, assessing the credibility of Prosecution witnesses by event and not integrally, while determining that Defence witnesses were not credible in light of an overall assessment of their

entire evidence: 6469 (iii) rejected the evidence of Defence witnesses on the basis of the "close ties" they had with him, when it did not discredit Prosecution witnesses on that basis and even found that it enhanced their credibility;6470 and (iv) relied on the fact that Prosecution witnesses were Tutsis and survivors of the genocide to excuse inconsistencies and weaknesses in their testimonies or enhance their credibility, while considering a Defence witness not credible because the witness merely stated that victims of the massacres were both Tutsis and Hutus. 6471 6463 Ndayambaje Notice of Appeal, paras. 76-82; Ndayambaje Appeal Brief, paras. 197-242. See also AT. 21 April 2015 Bio7 Ndayambajc Appeal Brief, para, 197. See also Ndayambaje Reply Brief, para. 62. 6465 Ndayambaje Appeal Brief, paras. 241, 242. See also AT. 21 April 2015 p.

71. In his notice of appeal, Ndayambaje requested the Appeals Chamber to reverse the Trial Chamber's findings regarding its assessment of the credibility of Prosecution and Defence evidence, and to exclude the testimonies of all detained Prosecution witnesses who were awaiting judgement or who were convicted for crimes related to the 1994 events as well as the evidence of the witnesses "who had any dispute with [Ndayambaje] in the past." See Ndayambaje Notice of Appeal, paras. 83, 84. 6466 Ndayambaje Appeal Brief, para. 202. 6467 Ndayambaje Appeal Brief, para.

203. See also Ndayambaje Notice of Appeal, para. 78; Ndayambaje Appeal Brief, pars. 2a,baje Appeal Brief, para.

198. See also Ndayambaje Notice of Appeal, para. 79; Ndayambaje Appeal Brief, paras. 201, 233; Ndayambaje Reply Brief, para.

78. Ndayambaje relies on the example of Prosecution Witness QAR to illustrate the Trial Chamber's alleged erroneous assessment of the testimonies of Prosecution witnesses. See Ndayambaje Appeal Brief, paras. 209-218; Ndayambaje Reply Brief, para. 97. 6469 Ndayambaje Appeal Brief, para. 234. 6470 Ndayambaje Appeal Brief, para.

225. See also Ndayambaje Notice of Appeal, para. 77; Ndayambaje Appeal Brief, para. 226; Ndayambaje Reply Brief, para. 63 471 Ndayambaje Appeal Brief, paras. 227, 228 983 Case No. ICTR-98-42-A 14 December 2015

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19381/H 2840. Ndayambaje also contends that the Trial Chamber "deliberately accused Defence witnesses of lying and attributed to them partial responsibility in the massacres" in the absence of tangible evidence against them,472 and relied on these "inventions" and "false incriminations and speculations" to discredit their evidence and enhance Prosecution evidence at all costs.0473 Ndayambaje further purports that the Trial Chamber failed to provide a reasoned opinion in accepting the evidence of Prosecution witnesses who were detained at the time of their testimonies and failed to take into account this factor when evaluating their credibility, although it did so for Defence witnesses. 6474 2841. In addition, Ndayambaje submits that the Trial Chamber considered as a "simple omission" the Prosecution's failure to include charges in the Indictment, while finding that the late notification of his alibi suggested that it was fabricated and tailored to suit the Prosecution case and faulting him for not cross-examining Prosecution witnesses about his alibi. 475 He also argues that the Trial Chamber "saw nothing wrong" with the late addition of Prosecution Witness RV, while faulting him for reinstating Defence Witness MARVA to his witness list in 2008.6476 2842. The Prosecution responds that the Trial Chamber did not disbelieve Defence witnesses because of some unexplained bias but

because they were not credible 477 It argues that Ndayambaje's generic contention that the Trial Chamber treated Prosecution and Defence witnesses differently is undeveloped and should fail because Ndayambaje merely compared isolated aspects of the Trial Chamber's assessment of the evidence without showing that the evidence of Prosecution and Defence witnesses, when seen in context, required similar treatment. 478 The Prosecution contends that Ndayambaje's claims aimed at showing that the Trial Chamber erred 472 Ndayambaje Appeal Brief, para. 219 (internal reference omitted). $473 Ndavambaje Appeal Brief, heading 2.3.1.4 at p. 50, paras. 219-224. To illustrate his argument. Ndavambaie relies on the example of Ndayambaje Defence Witness BOZAN, whose testimony regarding the abduction of Tutsi women and girls in Mugombwa Sector was rejected by the Trial Chamber on the basis of his participation in the massacre at Mugombwa Church despite the fact that there was no evidence on the record establishing his criminal involvement. 647^ Ndayambaje Notice of Appeal, paras. 80, 81; Ndayambaje Appeal Brief, paras. 198, 208, 235-237. In his notice of appeal, Ndayambaje pointed to a motion in which he requested the exclusion of the testimonies of detained witnesses, which he argues was entirely rejected by the Trial Chamber, like his application for certification to appeal. See Ndayambaje

Notice of Appeal, para. 81, referring to The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Élie Ndayambaje Confidential and Extremely Urgent Motion for Inadmissibility of Testimonies of Witnesses Heard During Trial Who, Prior to their Testifying, were Detained in Lock-Ups and other Detention Centres in Rwanda, 13 October 2004 (originally filed in French, English translation filed on 18 April 2005) (confidential). In the absence of any identification of error and any substantiation in his appeal brief, the Appeals Chamber finds that Ndayambaje has abandoned this contention. 6475 Ndayambaje Appeal Brief, paras. 204, 205. 6476 Ndayambaje Appeal Brief, para. 205. 6477 See Prosecution Response Brief, paras. 2085, 2089, 2123. 6478 Prosecution Response Brief, paras. 2086, 2139, 2151. See also ibid., para. 2087. 984 Case No. ICTR-98-42-A 14 December 2015

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19380/H in its assessment of the evidence are generally undeveloped and unsupported by the record and should be summarily dismissed. 647g 2843. The Appeals Chamber recalls that a presumption of impartiality attaches to the judges of the Tribunal and that this presumption cannot be easily rebutted 480 An appearance of bias exists if, notably, "the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias."648l It is for the appealing party alleging bias to rebut the presumption of impartiality enjoyed by judges of this Tribunal.6482 The Appeals Chamber also reiterates that it would be "truly extraordinary" that decisions rendered by a judge or a chamber could suffice to establish bias.483 2844. In the present case, the Appeals Chamber observes that, like Nyiramasuhuko,6484 Ndayambaje seeks to demonstrate bias on the part of the Trial Chamber through a fragmented view and incomplete reading of the Trial Judgement, challenging only the Trial Chamber's exercise of its discretion in assessing specific parts of the record and particular aspects of the evidence which led to adverse findings. 485 In particular, Ndayambaje's submissions ignore the Trial Chamber's analysis that led to the rejection of Prosecution evidence implicating him in certain crimes 486 as well as the fact that he was acquitted of some of the charges brought against him by

the Prosecution 6487 Ndayambaje also overlooks that the Trial Chamber provided reasons for rejecting the testimony of Defence witnesses 488 and accepting the evidence of Prosecution witnesses despite 6479 Prosecution Response Brief, paras. 2142, 2143, 2150. 6480 Karemera and Ngirumpatse Appeal Judgement, para. 24; Hategekimana Appeal Judgement, para. 16; Nahimana et al. Appeal Judgement, para. 48; Akayesu Appeal Judgement, para.

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

197. See also supra, paras. 95, 273, 405. 6481 Sainovié et al. Appeal Judgement, para. 1055; Nahimana et al. Appeal Judgement, para. 49, quoting Akayesu Appeal Judgement, para.

203. See also Furundzija Appeal Judgement, para.

189. Renzaho Appeal Judgement, para. 23; Karera Appeal Judgement, para. 254; Niyitegeka Appeal Judgement, para.

45. See also Rutaganda Appeal Judgement, paras. 39-125. Renzaho Appeal Judgement, para. 23; Karera Appeal Judgement, para. 254; Niyitegeka Appeal Judgement, para.

45. See also Rutagarida Appeal Judgement, paras. 39-125. See supra, para. 406 6484 See supra, Section IV.A.1. 6485 Ndayambaje's challenges to the assessment of the evidence raised under Ground 8, where developed, have been addressed by the Appeals Chamber in the context of the challenges to each of his convictions. See infra, Sections IX.C, E-H. 6486 See, e.g., Trial Judgement, paras. 1427, 1450, 1451, 4602, 4603, 4607, 4643. 6487 See Trial Judgement, paras. 5719-5728 (conspiracy to commit genocide), 5766-5768 (arrest and forced movement of refugees to Kabuye Hill as genocide), 5765, 5778-5781 (superior responsibility for the events at Mugombwa Church and Kabuye Hill), 6109-6114 (arrest and forced movement of refugees to Kabuye Hill as persecution as a crime against humanity), 6129-6131 (guarding the refugees at night at Kabuye Hill as other inhumane acts as a crime against humanity). 6488 nonetheless determined that the Trial Chamber erred in failing to consider Ndayambaje Defence evidence on two occasions. See infra, paras. 3106, 3152, 3153. 985 Case No. ICTR-98-42-A 14 December 2015

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19379/H the existence of contradictions or inconsistencies, 489 and relied on Defence evidence in establishing certain material facts 490 and in instances where their testimonies were not corroborative of Prosecution evidence. 491 Likewise, Ndayambaje fails to appreciate that, where relevant, the Trial Chamber expressly referred to its assessment of the evidence of Prosecution witnesses regarding particular incidents when deliberating on the evidence of the same witnesses concerning different incidents.492 Contrary to Ndayambaje's claim, the Trial Judgement also reflects that the relationship between Defence witnesses and Ndayambaje was just one of several factors considered by the Trial Chamber when assessing their evidence, 493 and that the Trial Chamber did not rely on the fact that Prosecution witnesses were Tutsis or survivors of the genocide to "excuse inconsistencies and weaknesses" in their testimonies or reject the evidence of a Defence witness merely because the witness stated that the victims of the massacres were both Tutsis and Hutus. 6494 2845. Moreover, Ndayambaje's contention that the Trial Chamber "deliberately accused Defence witnesses of lying and attributed to them partial responsibility in the massacres" in the absence of tangible evidence and relied on these "inventions" and "false incriminations" to discredit their evidence is not supported by a review of

the Trial Judgement. The passages of the Trial Judgement Ndayambaje points to reflect the Trial Chamber's normal exercise of its judicial function to draw conclusions from the evidence on the record and provide a reasoned opinion for its conclusions.495 The fact that the Trial Chamber may have committed some errors in the assessment of the evidence cannot reasonably be interpreted as implying any deliberate or malicious intention on the part of professional judges who are bound by the highest standards of integrity and impartiality. 496 6489 The Appeals Chamber has addressed and dismissed Ndayambaje's specific challenges to the Trial Chamber's assessment of Prosecution Witness QAR in the sections examining his allegations of error pertaining to Mugombwa Church, Ndayambaje's Swearing-In Ceremony, and the abduction and killing of Tutsi women and girls from Mugombwa Sector. See infra, Sections IX.E.1, IX.G.1, IX.H.1. Likewise, the Appeals Chamber has found no merit in Ndayambaje's challenges to the assessment of the evidence of Prosecution Witnesses TP, QAL, FAU, RV, FAL, FAG, and QAQ related to Kabuye Hill and Ndayambaje's Swearing-In Ceremony. See infra, Sections IX.F.2(a)(i), (iv)-(vi), IX.G. 1(b), (c), (e), (f), (h), (i). 6490 See, e.g., Trial Judgement, paras. 1227, 1229-1231, 1243, 1244, 1410, 1430, 1435, 1448, 4724-4726, 4728, 4729. 6491 See, e.g., Trial Judgement, paras.

1402, 1403, 1411, 1412. 6492 See, e.g., Trial Judgement, paras. 4602, 4710. See, e.g., Trial Judgement, paras. 1202-1206, 1209, 1213-1217, 1220-1223, 1388-1394, 1401-1404, 1417, 1446, See Ndayambaje Appeal Brief, fn. 305, referring to Trial Judgement, paras. 1243, 1405, 1448, 4710, 4746. The Appeals Chamber notes that the Trial Chamber did not reject the evidence of Ndayambaje Defence Witness SABINE on the basis that he stated that the victims were both Hutus and Tutsis but rather because the Trial Chamber found that his testimony amounted to a denial of the genocide and suffered from internal inconsistencies. See Trial Judgement, para. 4722. 6495 See Ndayambaje Appeal Brief, paras. 219-221, fins. 275, 284-287, 293, referring to Trial Judgement, paras. 1198, 1199, 1203-1206, 1212-1217, 1220-1223, 1228, 1230, 1243, 1389-1393, 1395-1398, 1401, 1446, 4636-4640, 4721, 4722, 4731, 4737, 4739, 4744. 6496 In this respect, the Appeals Chamber refers to its finding that, although the Trial Chamber erred in its assessment of Witness BOZAN's responsibility in the massacres at Mugombwa Church at one point in the Trial Judgement, this error has not occasioned a miscarriage of justice. See infra, para.

3289. The Appeals Chamber does not see how this error, which is the only one Ndayambaje points to under Ground 8 of his appeal in support of his contention, shows that the Trial Chamber wrongly and deliberately tried to discredit Defence evidence as Ndayambaje claims it did. 986 Case No. ICTR-98-42-A 14 December 2015

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19378/H The Appeals Chamber also notes that Ndayambaje's contention regarding the failure to consider the detained status of Prosecution witnesses is likewise without any merit as the Trial Chamber expressly considered and discussed their status when evaluating their credibility, 497 2846. Neither the arguments addressed above, nor Ndayambaje's remaining submissions regarding the lack of notice in the indictment, the Trial Chamber's assessment of Ndayambaje's alibi evidence, and the timing of addition of witnesses, even if they revealed errors in the Trial Chamber's exercise of its discretion, would lead a reasonable observer, properly informed, to reasonably apprehend bias on the part of the Trial Chamber.

2847. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to show that the Trial Chamber applied a double standard in its assessment of Prosecution and Defence evidence and to rebut the presumption of impartiality attached to the judges of the Trial Chamber. Accordingly, the Appeals Chamber dismisses Ground 8 of Ndayambaje's appeal. See Ndayambaje Appeal Brief, para. 219, fn.

276. Similarly, the Appeals Chamber does not see how the Trial Chamber's error regarding Ndayambaje Defence Witness KEPIR's implication in the Kabuye Hill attacks discussed under Ground 7 of Ndayambaje's appeal shows bias from the Trial Chamber. See infra, Section IX. C.3(c)(vi). 6497 The Appeals Chamber understands Ndayambaje's submissions and references as pointing to the evidence adduced by Prosecution Witnesses FAG, FAU, RV, QBZ, QAF, and FAL. See Ndayambaje Appeal Brief, para. 237, fn.

331. The Appeals Chamber observes that the Trial Chamber considered the detained status of Witnesses FAG, FAL, FAU, RV, and QAF in the Trial Judgement. See Trial Judgement, paras. 1226, 1429, 4630, 4713. The Appeals Chamber notes that the Trial Chamber did not rely on the evidence provided by Witness QBZ. See ibid., paras. 393, 1260. 987 Case No. ICTR-98-42-A| 14 December 2015

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19377/H C. Alibi (Ground 7) 2848. At trial, Ndayambaje presented alibi evidence for the period of 20 through 24 April 1994, seeking to raise doubt as to his participation or involvement in: (i) the interception of refugees at Ngiryi Bridge on the morning of 20 April 1994; (ii) the subsequent massacre at Mugombwa Church on 20 and 21 April 1994; and (iii) the distribution of weapons, transportation of attackers, and attacks on Kabuye Hill from 22 through 24 April 1994.6498 2849. The Trial Chamber noted that Ndayambaje filed his notice of alibi less than one month before the commencement of his Defence case and took this into account when weighing the credibility of the alibi.499 The Trial Chamber ultimately concluded that Ndayambaje's alibi evidence failed to raise reasonable doubt with respect to the Prosecution case that Ndayambaje participated in the interception of Tutsis at Ngiryi Bridge on the morning of 20 April 1994, was present at Mugombwa Church for 15 minutes between about noon and 1.00 p.m. on 20 April 1994 and in the morning of 21 April 1994, and participated in the distribution of weapons, transportation of attackers, and attacks on Kabuye Hill from 22 through 24 April 1994.6500 2850. Ndayambaje argues that the Trial Chamber erred in its assessment of the late notice of alibi, reversed the burden of proof relevant to alibi evidence, and erred in its assessment of the alibi evidence.6501 The Appeals Chamber will address these contentions in turn.

1. Notice of Alibi 2851. On 1 March 2005, the Trial Chamber directed Ndayambaje and his co-accused to "immediately make the necessary disclosures in accordance with Rule 67" of the Rules if they wished to raise an alibi.6502 More than three years later, and less than one month before the commencement of his Defence case, on 29 April 2008, Ndayambaje filed a document entitled "Avis additionnel et identification des témoins d'alibi", in which he recalled that he clearly indicated in his pre-defence brief that he would be contesting his presence at Mugombwa Church and Kabuye Hill at the time of the events based on evidence that he was at the Muganza commune office and in Bar Trial Judgement, paras, 1218, 1244, 1245, 1390-1394, 1397, 1404, 1414, 1417, 1423, 1424, 1431, 1443-1446, 1452. See also ibid., paras. 1225, 1245 (finding that "Ndayambaje came to Mugombwa Church at about noon on 20 April 1994" and "remained on the spot for about 15 minutes and left"). 6501 Ndayambaje Notice of Appeal, paras. 66-75; Ndayambaje Appeal Brief, paras. 139-192; Ndayambaje Reply Brief, paras. 46-60. The Appeals Chamber also addresses in this section Ndayambaje's specific and sufficiently developed challenges to the assessment of the alibi evidence raised under Grounds 8, 17, and 18 of his appeal. 6502 Alibi Decision, para. 29, p.

7. See also Trial Judgement, paras. 1197, 1387, 6439. 988 Case No. ICTR-98-42-A 14 December 2015

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19376/H Kibayi Commune successively. 503 On 23 May 2008, the Trial Chamber considered that this filing of a "further notice of alibi" was the first specific notice of alibi filed by Ndayambaje and that it did not contain sufficient information pertaining to the addresses of certain proposed alibi witnesses.504 2852. In the Trial Judgement, the Trial Chamber recalled that Ndayambaje failed to comply with the Alibi Decision, found that the Ndayambaje Notice of Alibi was no substitute for providing the Prosecution with formal notice of alibi in accordance with the Rules, and took this failure into account when weighing the credibility of the alibi. 505 When considering the late notice of alibi in the context of crimes committed at Kabuye Hill, the Trial Chamber stated that "the late notice the Defence gave regarding its decision to bring alibi evidence suggests that the alibi may be a fabrication, tailored to suit the Prosecution's case."б506 2853. Ndayambaje submits that the Trial Chamber erred in considering that the alibi was fabricated to rebut the Prosecution case based on the late filing of his notice of alibi. 6507 To demonstrate this error, Ndayambaje contends that the Prosecution and the Trial Chamber were informed of his defence of alibi prior to the filing of the Ndayambaje Notice of Alibi through: (i) the statements he gave in 1995 and 1996 to Belgian authorities and

the Prosecution; (ii) Prosecution Witness RV's February 2004 testimony; and (iii) his pre-defence brief filed in December 2004.6508 Ndayambaje also takes specific issue with the Trial Chamber's decision to discredit the evidence of Ndayambaje Defence Witnesses MARVA and Father Tiziano Pegoraro on the "mere suspicion" that it was fabricated based on the fact that they were not identified in the Ndayambaje Notice of Alibi. 509 In this regard, he points out that Witness MARVA was initially withdrawn from his witness list in 2006 at the Trial Chamber's request before being reinstated as an alibi witness in June 2008.6510 Ndayambaje adds that the Trial Chamber improperly described 6503 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Avis additionnel et identification des témoins d'alibi, 29 April 2008 (confidential) ("Ndayambaje Notice of Alibi"), paras. 3-6. 6504 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Prosecution Motion for Further Particulars of Élie Ndayambaje's Alibi Pursuant to Rule 67 (A)(ii)(a), 23 May 2008 (confidential) ("23 May 2008 Decision"), paras. 1, 10, 15. 6505 Trial Judgement, paras. 1197, 1198, 1387, 1388. 6506 Trial Judgement, para. 1388 6507 Ndayambaje Appeal Brief, para. 175, referring to Trial Judgement, paras. 1198, 1387, 1388. See also ibid., Ba A ayumbaic Apeal Brief, Mats 178, 185, See also Ndaymbaie Terply Brief, pan, 17 19 56; AT. 2 April 2015 p.

70. Ndayambaje also argues that the Alibi Decision directing the Defence to provide particulars of the alibi reflects that the Prosecution and the Trial Chamber were aware of his alibi defence at this date and that the Trial Chamber's later 23 May 2008 Decision reflects that the Prosecution, after having reviewed summaries contained in the Ndayambaje Pre-Defence Brief, understood that Ndayambaje would be raising an alibi. See Ndayambaje Appeal Brief, 6510 Ndayambaje Appeal Brief, paras. 178, 399, referring to The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-96-42-T, Decision on Ndayambaje's Motion to Vary His List of Witnesses, 4 June 2008. Ndayambaje highlights contrast, the Trial Chamber did not take into account the Prosecution's failure to indicate that certain Prosecution witnesses would testify about certain events in the evaluation of the witnesses' credibility on these 989 Case No. ICTR-98-42-A 14 December 2015

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19375/H Ndayambaje Defence Witnesses Stan, ANGES, BOZAN, and ALIZA as alibi witnesses and improperly used the late notice of alibi to reject their evidence. 6511 2854. Ndayambaje further argues that the Trial Chamber erred in using the lateness of the notice of alibi to discard it as the Trial Judgement reflects that Ndayambaje received insufficient notice of several of the charges against him, including the fact that the dates of several crimes were not specified. 512 In this context, and considering the investigative burdens on the Defence, Ndayambaje submits that the Trial Chamber's sole reliance on the late filing of the notice of alibi to justify adverse credibility findings of the alibi witnesses was "overly used" and "contrary to the spirit of the law" on alibi. 513 2855. The Prosecution responds that Ndayambaje failed not only to provide timely notice of his alibi, but that the document he filed also did not contain the particulars required to constitute a notice of alibi as required by Rule 67(A) of the Rules. 514 It argues that, contrary to Ndayambaje's claim, neither the Belgian statements nor the Ndayambaje Pre-Defence Brief disclosed his alibi as presented at trial, and that the differences between them and the evidence adduced at trial reflect that the alibi was fabricated.515 The Prosecution emphasises that the failure to raise an alibi in a timely manner may

suggest that it was invented to respond to the Prosecution case and contends that the contradictory and evolving nature of all of Ndayambaje's alibi evidence demonstrates that it was in fact invented. 6516 2856. The Appeals Chamber recalls that Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution of its intent to enter a defence of alibi "[a]s early as reasonably practicable and in any event prior to the commencement of the trial". It also reiterates that the manner in which an alibi is presented may impact its credibility and further recalls that it has previously held that failure to raise an alibi in a timely manner may suggest fabrication of the alibi in order to respond to the Prosecution case. 6517 6511 Ndayambaje Appeal Brief, para. 176; Ndayambaje Reply Brief, para. 58. 6512 Ndayambaje Appeal Brief, paras. 179, 180, 205, referring to Trial Judgement, paras. 1024, 1034, 1053, 1056, 1407, 1450, 4649. See also ibid., para. 183; Ndayambaje Reply Brief, para. 46. 6513 Ndayambaje Appeal Brief, paras. 181-185. In Ndayambaje's view, the Trial Chamber's conduct reflected a predisposition towards conviction. See ibid., para. 185. 3514 Prosecution Response Brief, paras. 2055, 2057. See also AT. 21 April 2015 p. 44. 6515 Prosecution Response Brief, paras. 2056-2059. The Prosecution argues that Ndayambaje's statements to Belgian authorities and his pre-defence brief did not contain the names and addresses of alibi witnesses. See ibid., para.

2057. See also AT. 21 April 2015 pp. 43, 44. 6516 Prosecution Response Brief, paras. 2054, 2062. The Prosecution further argues that if an accused testifies in support of his alibi after having heard other alibi evidence, as Ndayambaje did, the trial chamber is obligated to take this into account when assessing the weight to be given to such testimony. See ibid., paras. 2054, 2061. See also AT. 21 April 2015 p. 51. 6517 See, e.g., Ndahimana Appeal Judgement, paras. 113, 114; Kanyarukiga Appeal Judgement, paras. 97, 101, 102; Munyakazi Appeal Judgement, para. 18. 990 Case No. ICTR-98-42-A 14 December 2015

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19374/H 2857. In the present case, Ndayambaje does not dispute that he did not satisfy the requirements of Rule 67(A)(ii)(a) of the Rules in providing formal notice of his alibi only several years after the close of the Prosecution case. Instead, Ndayambaje submits that the late notice he provided should not have detracted from the alibi's credibility given that elements of his alibi were present in his prior statements to Belgian authorities and the Prosecution and in other evidence before the Trial Chamber. 0518 2858. The Appeals Chamber, however, observes that Ndayambaje has failed to provide precise references with respect to his prior statements to Belgian authorities or the Prosecution to substantiate his argument. Moreover, the Appeals Chamber notes that the Trial Chamber sustained Ndayambaje's objection to the Prosecution using the statements to the Belgian authorities in court6519 and that, similarly, his prior statement to the Prosecution does not form part of the trial record. Under these circumstances, Ndayambaje fails to demonstrate how any consistencies between these statements and the alibi evidence he presented at trial were relevant to the Trial Chamber's determination that the manner in which the alibi was presented could factor into its assessment of its credibility and its determination that the late notice "suggest[ed] that the alibi may be a fabrication,

tailored to suit the Prosecution's case."6520 2859. Having reviewed the testimony of Witness RV highlighted by Ndayambaje as well as the Ndayambaje Pre-Defence Brief, 52' the Appeals Chamber is also not persuaded that the information they provided on Ndayambaje's alibi was so comprehensive or consistent with the evidence led at trial that it would have prevented a reasonable trier of fact from considering the manner in which the alibi was raised when assessing its credibility. Ndayambaje does not demonstrate any error in this regard. 6522 6518 In his reply brief, Ndayambaje further argues that the 1995 statements of Witness Stan to Journalist van den Abeele and his interview before Magistrate Damien Vandermeersch also confirmed elements of his alibi. See Ndayambaje Reply Brief, para.

49. Having reviewed these statements, the Appeals Chamber is not persuaded that information contained in these statements prevented the Trial Chamber from considering that the late notice of alibi adversely impacted its credibility 6519 Ndayambaje, T. 25 November 2008 pp. 4, 5. Ndayambaje's counsel argued that the statements were obtained in violation of the Tribunal's Rules and Statute. Ndayambaje's statements to the Belgian authorities were not part of the record). 6520 Trial Judgement, para. 1388. 6521 See Witness RV, T. 18 February 2004 pp. 9-11, 18, 19 (closed session); Ndayambaje Pre-Defence Brief, pp. 9 ("ANGES: [...] The witness also knows about the activities and movements of Élie Ndayambaje and his family from April to July 1994."), 13 ("GABON: [...] Moreover, around 20.4.94 he witnessed the circumstances surrounding the events when Élie Ndayambaje and his family came to seek refuge in the communal office. A few days later, he also saw Élie Ndayambaje and his family leave the communal office to go and seck refuge in the neighbouring Kibayi commune."), 18 ("KEPIR: [...] The witness will also be in a position to give evidence on several events that occurred in Muganza commune office in 1994 [...]."), 21 ("MARVA: [...] The witness followed Élie Ndayambaje's family wherever they went in 1994."). 6522 Ndayambaje also argues that the Prosecution had remedies available to it to prevent it from being prejudiced by the late notice of alibi and that the Prosecution only exercised them with respect to two alibi witnesses, further 991 Case No. ICTR-98-42-A 14 December 2015

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19373/H 2860. Ndayambaje also fails to show that the Trial Chamber erred in observing in paragraphs 1198 and 1388 of the Trial Judgement that Witnesses MARVA and Tiziano were not named in the Ndayambaje Notice of Alibi. The fact that Witness MARVA was reinstated on the witness list in June 2008, after having been initially removed in January 2006, was expressly taken into consideration by the Trial Chamber 23 and does not demonstrate any error in its analysis. More importantly, Ndayambaje's argument that Witnesses MARVA's and Tiziano's evidence was erroncously rejected on the basis that they were not identified in the Ndayambaje Notice of Appeal ignores the several other reasons the Trial Chamber relied upon in finding that their evidence did not raise reasonable doubt in the Prosecution case. 6524 2861. With respect to Ndayambaje's contention that the Trial Chamber incorrectly described Witnesses Stan, ANGES, BOZAN, and ALIZA as alibi witnesses and improperly used the late notice of alibi to reject their evidence, the Appeals Chamber is of the view that, because the evidence of Witnesses Stan and ANGES tended to show that Ndayambaje was not present at the time of alleged crimes, it was reasonably considered as alibi evidence by the Trial Chamber.6525 The Appeals Chamber further observes that the Trial Chamber provided reasons other than the manner in which the notice of alibi

was raised to find that the evidence of Witness Stan did not raise doubt with respect to the Prosecution case6526 and that the Trial Judgement does not reflect that Witness ANGES's evidence was rejected based on the belated notice of alibi. 527 As for Witnesses BOZAN and ALIZA, the Trial Chamber appears to, have erroneously designated their demonstrating that the Trial Chamber placed too much emphasis on the late notice. See Ndayambaje Appeal Brief, paras. 183-185. See also Ndayambaje Reply Brief, paras. 46, 48. The Prosecution responds that the question of whether remedies were available as a result of the late notice of alibi is irrelevant to the consideration of whether the credibility of the alibi defence is impacted due to its late disclosure. See Prosecution Response Brief, para.

2058. The Appeals Chamber rejects Ndayambaje's argument on the basis that a trial chamber is not required to consider whether the Prosecution suffered prejudice from the late notice of alibi when assessing its credibility. See Ndahimana Appeal Judgement, para. 113; Kanyarukiga Appeal Judgement, para.

98. Trial Judgement, paras. 1198, 1388. 6524 With respect to Witness MARVA, the Trial Chamber observed that the witness, an employee of Ndayambaje living in his house at the time of the events, did not specify when she saw Ndayambaje on the morning of 20 April 1994 and further found that her testimony that Ndayambaje remained with her in the same room in the "IGA building" until 23 April 1994 was contradicted by other evidence and was not credible. See infra, Section IX.C.3(c)(iv). As regards Witness Tiziano, the Trial Chamber found, inter alia, his evidence contradictory and lacking credibility as to the sequence of events in the morning of 20 April 1994. See infra, Section IX.C.3(c)(ii). The Appeals Chamber notes that it has determined in Section IX.C.3(c)(i) below that the Trial Chamber erred in its assessment of Witness Tiziano's alibi evidence in paragraph 1202 of the Trial Judgement but that this error has not occasioned a miscarriage of justice. See infra, para. 2892, fn. 6600. 6525 See Trial Judgement, paras. 1213-1217, 1390, 1394, 1413, 1415. This is implicitly acknowledged by Ndayambaje in his appeal submissions, which rely on the evidence of these two witnesses as alibi evidence. See Ndayambaje Appeal Brief, paras. 154, 404, 410, 413, 443, 527. 6526 In particular, the Trial Chamber found that Witness Stan's evidence concerning Ndayambaje's alibi was not credible

based on: (i) the witness's testimony about his own conduct during the events and his description of the prevailing situation; (ii) inconsistencies between his evidence and prior statements; (iii) his close friendship with Ndayambaje and because he was a "close associate" of Burundian refugees implicated in massacres at Mugombwa Church and Kabuye Hill. See infra, Section IX.C.3(c)(iii). 6527 See infra, para. 2881. 992 Case No. ICTR-98-42-A 14 December 2015

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19372/H testimonies relevant to 20, 21, and 23 April 1994 as alibi evidence.528 Notwithstanding this error, the Trial Judgement reflects that the Trial Chamber did not reject Witness BOZAN's evidence related to this period of time, 29 and provided reasons unrelated to the notice of alibi to find that the evidence of Witness ALIZA did not raise doubt with respect to the Prosecution case. 6530 For these reasons, the Appeals Chamber rejects Ndayambaje's contention that the Trial Chamber placed improper emphasis on the late notice of alibi to discredit the evidence of either witness. 6531 2862. Furthermore, the Appeals Chamber observes that the Trial Chamber considered that sufficient notice was given to Ndayambaje with respect to the timing of the attacks on Mugombwa Church, 6532 and that the Ndayambaje Indictment provided a precise date range of 20 to 24 April 1994 as it related to Ndayambaje's involvement in events leading up to the massacres at Kabuye Hill.6533 Ndayambaje fails to demonstrate how alleged insufficient notice related to these events or investigative burdens would have prevented him from providing notice of his alibi in compliance with Rule 67 of the Rules.

2863. Additionally, Ndayambaje's arguments focus on two conditional statements in paragraphs 1198 and 1388 of Trial Judgement, which reflect that the manner in which the notice of alibi was raised could impact its credibility and the Trial Chamber's finding that the belated notice suggests that the alibi may be a fabrication. However, as discussed in greater detail below, a review of the Trial Chamber's analysis of Ndayambaje's alibi reflects that the Trial Chamber took into account several other factors in concluding that the alibi lacked credibility or that it was of insufficient probative value to raise reasonable doubt in the Prosecution case.

2864. In light of the foregoing, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in considering the manner in which Ndayambaje raised his alibi in evaluating its credibility. 6528 See Trial Judgement, para. 1196, 1415. A review of Witnesses BOZAN's and ALIZA's testimonies, as summarised resent at the time of alleged crimes. See ibid., paras. 1093, 1165-1177, 1319-1327 529 There is no indication in the Trial Judgement that the Trial Chamber did not find the witness credible with respect to the events of 20 and 21 April 1994 at Mugombwa Church. In fact, the Trial Chamber relied on Witness BOZAN's testimony as corroborative of some aspects of the Prosecution evidence. See Trial Judgement, paras. 1227, 1228, 1235. The Appeals Chamber discusses the Trial Chamber's assessment of Witness BOZAN's evidence on 20 and 21 April 1994 at length in Section IX.E.4(c). 6530 See Trial Judgement, paras. 1413, 1415 (assessing the credibility or probative value of the evidence of Witnesses Stan and ALIZA). 6531 See also infra, paras. 2881, 3014. 6532 See Trial Judgement, para. 1031 (finding that Ndayambaje had sufficient notice of attacks at Mugombwa Church "in late April 1994"). 6533 See Ndayambaje Indictment, paras. 6.30-6.32. See also Trial Judgement, para. 1248. 993 Case No. ICTR-98-42-A 14 December 2015

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19371/H 2. Reversal of the Burden of Proof 2865. The Trial Chamber set forth the relevant principles concerning the assessment of the alibi evidence in paragraphs 185 through 187 of the Trial Judgement. The Trial Chamber notably stated that "[to sustain a conviction, the Prosecution must demonstrate that, regardless of the alibi, the facts as alleged are true beyond a reasonable doubt, either by demonstrating that the alibi evidence offered does not negate the presence of the accused at the critical place and at the critical time, or that the alibi evidence is not credible.*6534 2866. Ndayambaje submits that the Trial Chamber misconstrued the standard of proof applicable to alibi evidence when stating that the Prosecution must demonstrate that the alibi evidence offered "does not negate" the presence of the accused at the critical place and time. 535 He contends that the Trial Chamber discarded alibi evidence that did not "negate" the Prosecution evidence and improperly shifted the burden of proof on to him.536 He points to particular language in paragraphs 1198, 1201, 1209, 1211, 1212, 1220, 1223, 1396, 1400, 1403, and 1404 of the Trial Judgement as a reflection of this burden shifting.6537 Ndayambaje further contends that the Trial Chamber erroneously applied a beyond reasonable doubt standard in its assessment of some alibi evidence. 538 In this regard, he refers to the

assessment of Witness MARVA's evidence and points out that the Trial Chamber assessed and discredited the alibi evidence prior to its assessment of the Prosecution evidence. 6539 2867. The Prosecution responds that the Trial Chamber correctly stated the burden of proof applicable to the assessment of alibi evidence and did not reverse the burden of proof. 540 In its view, the Trial Chamber did not use the term "negate" in the manner in which it had been found in the Zigiranyirazo case to show a reversal of the burden of proof, but used this term to explain that alibi evidence may be "irrelevant if it does not address the accused's whereabouts at the critical time" 6541 The Prosecution also contends that the language identified by Ndayambaje in the Trial Judgement does not show that the Trial Chamber reversed the burden of proof. 542 It adds that the Trial Chamber did not have to address evidence in a specific order. 543 6534 Trial Judgement, para, 186, referring to Zigiranyirazo Appeal Judgement, para. 18. 6535 Ndayambaje Notice of Appeal, paras. 66, 69; Ndayambaje Appeal Brief, para. 145. 6536 Ndayambaje Appeal Brief, paras. 140, 146, referring to Zigiranyirazo Appeal Judgement, para.

19. See also ibid., naras. 139, 141-143. Ndayambaje Appeal Brief, paras. 147, 158, 160, 162. See also ibid., paras. 148, 173, 174. 6538 Ndayambaje Appeal Brief, para. 151. 6539 Ndayambaje Appeal Brief, paras. 151, 167, 182, 188. 6540 Prosecution Response Brief, paras. 2063-2065. 6541 Prosecution Response Brief, paras. 2064, 2065. 6542 Prosecution Response Brief, para. 2066. 6543 Prosecution Response Brief, para.

2072. See also ibid., para. 2129. 994 Case No. ICTR-98-42-A 14 December 2015

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19370/H 2868. The Appeals Chamber observes that, when setting forth the principles concerning the assessment of alibi evidence, the Trial Chamber stated that alibi "does not carry a separate burden of proof" and that "[i]f the defence is reasonably possibly true, it must be successful.'»6544 It then recalled the standard of assessing alibi evidence as articulated by the Appeals Chamber in the Zigiranyirazo case, stating that "alibi does not shift the burden of proof to the accused" and that if the alibi evidence is '"likely to raise a reasonable doubt in the Prosecution case,' and '[...] is reasonably possibly true, it must be accepted.6$45 It is in this context that the Trial Chamber stated that "[t]o sustain a conviction, the Prosecution must demonstrate that, regardless of the alibi, the facts as alleged are true beyond a reasonable doubt, [...] by demonstrating that the alibi evidence offered does not negate the presence of the accused at the critical place and at the critical time" 6$46 2869. The Appeals Chamber recalls that phrasing such as "an accused must 'negate' the Prosecution evidence" might indicate that a trial chamber misapplied the burden of proof. 547 However, the statement with which Ndayambaje takes issue does not indicate that the Trial Chamber imposed a burden on the Defence to negate the Prosecution case. To the contrary, the impugned statement expressly

relates to the burden of the Prosecution to prove its case beyond reasonable doubt despite the alibi. 548 As recalled above, the Trial Chamber clearly specified that introducing an alibi does not carry a separate burden of proof and that, if the alibi is reasonably possibly true, it must be accepted 2870. The Appeals Chamber also rejects Ndayambaje's contention that the particular language identified in paragraphs 1198, 1201, 1209, 1211, 1212, 1220, 1223, 1396, 1400, 1403, and 1404 of the Trial Judgement reflects that the Trial Chamber required Ndayambaje to "negate" the Prosecution evidence. 549 With respect to paragraph 1198 of the Trial Judgement, the language identified by Ndayambaje simply indicates that he did not challenge the Prosecution witnesses with the proposition that Ndayambaje was not at the scene of the crime and that this, in the view of the 6544 Trial Judgement, para. 185. 6545 Trial Judgement, para. 186, quoting Zigiranyirazo Appeal Judgement, para. 17. 6546 Trial Judgement, para. 186. 6547 Zigiranyirazo Appeal Judgement, para. 19. 6548 Indeed, the Appeals Chamber observes that the Trial Chamber referred to paragraph 18 of the Zigiranyirazo Appeal Judgement when articulating this standard. There, the Appeals Chamber, in relevant respects, stated: "Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the

alibi, the facts alleged are nevertheless true. The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime." 6549 Ndayambaje argues that the Trial Chamber speculated as to his whereabouts and discarded alibi evidence from witnesses who were unable to "guarantee [Ndayambaje's] whereabouts that they were testifying to". See Ndayambaje Appeal Brief, para. 172, referring to Trial Judgement, paras. 1398, 1402-1404. With the exception of his specific contentions concerning paragraphs 1403 and 1404 of the Trial Judgement which are addressed below, Ndayambaje does not develop this argument further. Having reviewed the relevant paragraphs, the Appeals Chamber dismisses this argument without further consideration as Ndayambaje fails to demonstrate any error. 995 Case No. ICTR-98-42-A 14 December 2015

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19369/H Trial Chamber, detracted from the credibility of the alibi. This is consistent with the Trial Chamber's conclusion that the belated nature of the notice of alibi impacted its credibility. 6551 2871. As for the statements identified by Ndayambaje in paragraphs 1201, 1209, and 1211 of the Trial Judgement, 552 which are repeated in part in paragraphs 1400 and 1403, the Trial Chamber's analysis reflects that the alibi evidence concerning Ndayambaje's whereabouts on the morning of 20 April 1994 was not comprehensive and, by implication, did not reasonably account for the period when he was alleged to have engaged in the relevant conduct. The additional language identified by Ndayambaje in paragraphs 12096553 and 14046554 of the Trial Judgement does not suggest the imposition of a burden to negate the Prosecution case, but is merely an express reflection of the Trial Chamber's finding that the alibi evidence for the morning of 20 April 1994 was not reasonably possibly true.

2872. With respect to paragraphs 1212 and 1396 of the Trial Judgement, where the Trial Chamber stated that it did not find Ndayambaje's account regarding his whereabouts, and those of his mother on 20 April 1994 to be convincing, the Appeals Chamber considers that using the term "convincing" could suggest an incorrect standard for assessing alibi evidence.$S However, read in the context of the analysis that preceded this statement, the Appeals Chamber finds that the Trial Chamber was merely expressing that Ndayambaje's evidence was prima facie "not credible" and was contradicted by other evidence. 556 6350 Ndayambaje Appeal Brief, para. 147, quoting Trial Judgement, para. 1198 ("[T]he Prosecution witnesses were not confronted with the Defence's assertion that Ndayambaje could not have been at the scene of the events because he had an alibi. This further detracts from the credibility of the alibi."). See also ibid., para. 205. 6551 Trial Judgement, para.

1198. See also ibid., para. 1388. 6552 Ndayambaje Appeal Brief, para. 147, quoting Trial Judgement, paras. 1201 ("Witness MARVA [...] does not specify when she saw him for the first time that day."), 1209 ("Witness MARVA did not testify to the whereabouts of the Accused during a substantial part of the morning of 20 April 1994."), 1211 ("Recalling Witness MARVA's evidence above, it is clear that her alibi evidence does not cover the period between 12.00 p.m. and 1.00 p.m. on 20 April 1994"'). In addition, Ndayambaje argues that the Trial Chamber's conclusion in paragraph 1211 that "this would be more than enough time for Ndayambaje to travel from Muganza commune office to his house and the church" is an additional reflection that it imposed a burden on the alibi to exclude the Prosecution case, rather than require the Prosecution to prove its case beyond a reasonable doubt. See ibid., para.

158. The Appeals Chamber is not persuaded by this argument as this statement, read in context, reflects the Trial Chamber weighing the probative value of alibi evidence in light of the proximity of locations and the time to take to travel between them. See Trial Judgement, paNdayambaje Appeal Brief, para 160, quoting Trial Judgement, para. 1209 (*Che Chamber considers that he could have made a return trip from his home to Gisagara in the time between being seen by Witness RV at around 7.30 a.m. and hiding Chanvrier in his guest room [...]. In the absence of any other explanation for the Accused's whereabouts, the Chamber considers that the Defence alibi evidence is not reasonably possibly true, and therefore finds it does not raise a reasonable doubt in the Prosecution case as regards the morning of 20 April 1994."). 6554 Ndayambaje Appeal Brief, para. 147, quoting Trial Judgement, para. 1404 ("In the absence of any other explanation for the Accused's whereabouts, the Chamber considers the Defence alibi as regards the morning of 20 April 1994 not to be reasonably possibly true."). See also ibid., paras. 157, 158, 172. 6555 Cf. Zigiranyirazo Appeal Judgement, para. 19. 6556 Trial Judgement, paras. 1212, 1395. 996 Case No. ICTR-98-42-A 14 December 2015

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19368/H 2873. Likewise, the statements from paragraphs 1220 and 1223 of the Trial Judgement pointed out by Ndayambaje 557 do not show that the Trial Chamber imposed a burden on him to negate the Prosecution case. Rather the Trial Chamber's analysis reveals its conclusion that Defence witnesses' testimonies that they were with Ndayambaje at all times and that he never left the Muganza commune office compound on 21 April 1994 were not credible given the size and layout of the commune office as well as the number of people present.

2874. Turning to Ndayambaje's assertion that the Trial Chamber applied a beyond reasonable doubt standard in assessing some alibi evidence, the Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. 558 Rather the accused must simply produce evidence tending to show that he was not present at the time of the alleged crime. 559 In this case, the Appeals Chamber observes that the Trial Chamber's assessment of Witness MARVA's alibi evidence pointed out by Ndayambaje does not suggest the application of an incorrect burden of proof. 560 In the same vein, the Appeals Chamber finds that the manner in which the Trial Chamber organised its assessment of the evidence, primarily identifying and assessing the alibi evidence before assessing the merits of the Prosecution evidence, in no way reflects a failure to properly apply the applicable burden of proof.

2875. Accordingly, the Appeals Chamber finds that Ndayambaje has failed to show that the Trial Chamber misconstrued the relevant standard of proof applicable to alibi evidence or reversed the burden of proof.

3. Assessment of Alibi Evidence 2876. Ndayambaje submits that the Trial Chamber erred in assessing the alibi evidence relevant to his participation in the events at Ngiryi Bridge, Mugombwa Church, and Kabuye Hill.0561 657 Ndayambaje Appeal Brief, para. 147, quoting Trial Judgement, paras. 1220 ("With respect to the alibi evidence brought by the Defence regarding the whereabouts of Ndayambaje on 21 April 1994, Witness GABON testified that Ndavambaje did not leave the commune office compound on 21 April 1994. [...] Witness GABON would therefore not have had sight of Ndayambaje at all times during 21 April 1994 due to the size and layout of the commune office"). 1223 ("Given the relatively large geographical space and the large number of people present at the commune office, the Chamber does not find that the evidence of Witnesses GABON, KEPIR and MARVA that they were with Ndayambaje at all times over the course of 21 April 1994 to be credible and finds that they were not in a position to state that Ndayambaje never left the commune office on 21 April 1994."). See also ibid., para. 162; Ndayambaje Reply Brief, paras. 53, 55. The Appeals Chamber considers that Ndayambaje's piecemeal quotation of these paragraphs of the Trial Judgement omits analysis showing that the Trial Chamber properly assessed alibi evidence in light of the applicable a Sel, C.8., Nizeyimana Appeal Judgement, para, 35; dahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 414. 6559 See, e.g., Ndahimana Appeal Judgement, para. 91; Zigiranyirazo Appeal Judgement, para. 17; Musema Appeal Judgement, para. 202. 6560 Ndayambaje Appeal Brief, paras. 151, referring to Trial Judgement, para.

1201. See also Trial Judgement, paras. 1221. 1222, 1416, 1417 3561 Ndayambaje Appeal Brief, paras. 173, 174. 997 Case No. ICTR-98-42-A 14 December 2015

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19367/H Specifically, he contends that the Trial Chamber erred in: (i) failing to consider evidence supporting his alibi; (ii) improperly relying on his relationships with the alibi witnesses; and (iii) its assessment of the alibi evidence. 562 Ndayambaje requests that the Appeals Chamber reverse the findings of the Trial Chamber and re-assess the alibi evidence. 563 2877. Prior to addressing Ndayambaje's contentions, the Appeals Chamber reiterates that a trial chamber enjoys broad discretion in assessing the credibility of witnesses and in determining the weight to be accorded to each testimony. 6564 It is within the discretion of the trial chamber to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence. 565 (a) Failure to Consider Evidence 2878. Ndayambaje contends that Witnesses ANGES and RV provided evidence that confirmed his alibi with respect to the events at Mugombwa Church but that the Trial Chamber ignored it. 566 Specifically, Ndayambaje argues that the Trial Chamber failed to consider Witness ANGES's testimony that, on 20 April 1994, she saw him at his residence in Mugombwa at 7.30 a.m. and later on the road from Mugombwa around noon, and Witness RV's testimony that Ndayambaje did not leave the Muganza commune office in the morning of 21 April 1994.6567 2879. The Prosecution

responds that the Trial Chamber assessed and rejected Witness ANGES's evidence relating to 20 April 1994, which lacked credibility, and that Witness RV did not testify that Ndayambaje never left the Muganza commune office in the morning of 21 April 1994.6568 2880. The Appeals Chamber observes that the Trial Chamber found that "Ndayambaje came to Mugombwa Church at about noon on 20 April 1994" and was there for about 15 minutes. 569 6562 Ndayambaje Notice of Appeal, para. 72; Ndayambaje Appeal Brief, paras. 149-152, 154, 156, 163, 168, 202, 387-389, 395, 405-412. See also Ndayambaje Reply Brief, paras. 52, 54-58; AT. 21 April 2015 pp. 25, 26. 6563 Ndayambaje Appeal Brief, para.

192. See also ibid., para. 191. 6564 Ndahimana Appeal Judgement, para. 43; Kanyarukiga Appeal Judgement, para. 121; Bikindi Appeal Judgement, par See, e8, Karemera and Neirumpatse Appeal Judgemen, para, 467; Halegekimana Appeal Judgement, para, 82; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 207. 6566 Ndavambaie Appeal Brief, paras. 163, 345, 347, 359, 404, 418. See also Ndayambaje Notice of Appeal, paras. 141, 143, 149; Ndayambaje Reply Brief, para.

132. Ndayambaje Appeal Brief, paras. 163, 345, 347, 359, 404, referring, inter alia, to Trial Judgement, paras. 1162-1164, Witness RV, T. 16 February 2004 pp. 37-43, 49 (closed session), T. 18 February 2004 pp. 10, 11, 18-23 (closed session). See also Ndayambaje Notice of Appeal, paras. 141, 143, 149; Ndayambaje Reply Brief, para. 132, referring to Witness RV, T. 18 February 2004 p. 19 (closed session). 3568 Prosecution Response Brief, paras. 2076, 2189, 2264, 2265. 6569 Trial Judgement, para.

1245. The Appeals Chamber has concluded in Section IX.E.3 below that the Trial Chamber erred in finding that Ndayambaje was present at Bishya trade centre on the morning of 20 April 1994 but that this error has not occasioned a miscarriage of justice as that event was not a basis for Ndayambaje's convictions. See infra, para.

2991. In this context, the Appeals Chamber considers it unnecessary to assess the alibi in relation to 998 Case No. ICTR-98-42-A 14 December 2015

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19366/H It further found established beyond reasonable doubt that Ndayambaje came to Mugombwa Church for half an hour at around 10.00 a.m. on 21 April 1994, left and returned around 10.30 a.m. before departing again. 570 2881. The Trial Chamber expressly set forth Witness ANGES's evidence that Ndayambaje claims is relevant to his alibi, namely that she saw Ndayambaje at his residence at around 7.30 a.m. on 20 April 1994 and later saw him driving on the road from Mugombwa towards the Muganza commune office in Remera Sector around midday.6571 The Trial Chamber likewise noted that Witness ANGES provided alibi evidence in relation to the events at Mugombwa Church. 572 While the Trial Chamber did not expressly discuss this evidence in the course of its deliberations, the Appeals Chamber, mindful that a trial chamber is not required to articulate every step of its reasoning for each finding it makes or refer to every piece of evidence on the trial record, 573 is not convinced that the witness's evidence was such that it required express consideration in the Trial Judgement. Indeed, the Appeals Chamber notes that Ndayambaje's presence at his home around 7.30 a.m. on 20 April 1994 was not disputed.6574 Witness ANGES's testimony that she saw Ndayambaje driving on the road from Mugombwa towards the Muganza commune office in Remera Sector around midday that day is also not necessarily

inconsistent with the Trial Chamber's finding that "Ndayambaje came to Mugombwa Church at about noon on 20 April 1994" and "remained on the spot for about 15 minutes and left". 6575 2882. Turning to the evidence of Witness RV, the Appeals Chamber notes that, while the Trial Chamber did not expressly recount the witness's evidence about Ndayambaje's presence at the Muganza commune office on the morning of 21 April 1994,6576 it referred to the relevant portions of the transcripts that contain this evidence. 577 The Appeals Chamber sees no error in the Trial Chamber's decision not to address expressly this testimony in the Trial Judgement. Witness RV's evidence was general in nature and, while the witness mentioned Ndayambaje's presence at the 6570 Trial Judgement, para. 1246. 6571 Compare Ndayambaje Appeal Brief, para. 404 (referring to Witness ANGES, T. 20 August 2008 pp. 26, 27, 34, 35, 37-40) with Trial Judgement, paras. 1162-1164 (referring, inter alia, to Witness ANGES, T. 20 August 2008 pp. 26, 27, Trial Judgement, para.

1196. Notably, the Trial Chamber recalled that "all of the alibi witnesses have close ties to Ndayambaje." See ibid., para.

1199. While the Trial Chamber did not expressly refer to Witness ANGES in this context, the witness's testimony reflects that she had known Ndayambaje for years and was a former employee of Ndayambaje who had frequent contact with him in that capacity. See Witness ANGES, T. 20 August 2008 pp. 16, 17, 19, 20, 43 So i o Raeme me Neinarse Appeal Judgenuent, Para, 215; Nahakuze Appeal Julieren, para 161; Kvocka et al. Appeal Judgement, para. 23. 6574 See Trial Judgement, paras. 1200, 1202, 1209. See also ibid., paras. 1065, 1067. 6575 See Trial Judgement, para.

1245. See also ibid., para. 1218 (finding that Ndayambaje's alibi "does not raise a reasonable doubt in the Prosecution case that Ndayambaje was present at Mugombwa Church for 15 minutes between about noon and 1.00 p.m. on 20 April 1994."). 6576 Witness RV, T. 18 February 2004 pp. 18 (closed session), 19. 6577 See Trial Judgement, para. 1070, fn. 2160. 999 Case No. ICTR-98-42-A 14 December 2015

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19365/H Muganza commune office on that morning, he did not specify whether he was in a position to observe that Ndayambaje remained at the commune office the whole morning of 21 April 1994.6578 Witness RV's testimony therefore lacked probative value as to Ndayambaje's continued presence at the Muganza commune office on 21 April 1994.6579 2883. Consequently, the Appeals Chamber finds that Ndayambaje has not shown that the Trial Chamber erred in failing to consider evidence relevant to his alibi. (b) Relationships with Alibi Witnesses 2884. Ndayambaje argues that the Trial Chamber erred by rejecting alibi evidence from witnesses who had professional, personal, or financial ties with him, ignoring that these would be the people with whom Ndayambaje would be in contact during a crisis and who would recall being with him.6580 2885. The Prosecution responds that the Trial Chamber did not err in considering, among other factors, the personal ties between Ndayambaje and the alibi witnesses when assessing their credibility. 581 2886. The Appeals Chamber recalls that it is settled jurisprudence that a witness's close personal relationship to an accused is one of the factors which a trial chamber may consider in assessing the witness's evidence.582 The Appeals Chamber finds that the Trial Chamber did not err in considering these circumstances or in placing improper emphasis on them when

assessing the alibi evidence. 583 In particular, the Appeals Chamber notes that the relationship between alibi witnesses 6578 See Witness RV, T. 18 February 2004 pp.. 19-22 (closed session). The Appeals Chamber also observes that Witness RV was not questioned about Witness QAR's testimony that Ndayambaje came to Mugombwa Church on the morning of 21 April 1994. 6579 The Appeals Chamber observes that the Trial Chamber also dismissed alibi evidence that, similar to Witness RV's evidence, lacked probative value. See Trial Judgement, para. 1223. 6580 Ndavambaie Notice of Appeal, para. 72; Ndayambaje Appeal Brief, paras. 149, 152, 168, 395, 400, 402, 405, 406; Ndayambaje Reply Brief, para.

52. See also AT. 21 April 2015 p. 25. 6581 Prosecution Response Brief, paras. 2067, 2068, 2249, 2262, 2270, 2273. 6582 See, e.g., Kanyarukiga Appeal Judgement, para. 121; Karera Appeal Judgement, para. 137; Bikindi Appeal Judgement, para. 117. 6583 Ndayambaje has pointed to no specific error in the Trial Chamber's reflection of the evidence concerning his relationships with alibi witnesses. Ndayambaje merely argues that the Trial Chamber observed that he did not have any de jure or de facto control over Witness GABON, suggesting that the Trial Chamber erred in assessing his relationship with the witness. See Ndayambaje Appeal Brief, paras. 402, 403. However, Ndayambaje does not dispute the evidence concerning the nature of their relationship prior to 1994 nor demonstrate how the absence of de jure or de facto authority over the witness in 1994 prevented a reasonable trier of fact from noting their prior relationship when assessing Witness GABON's testimony. 1000 Case No. ICTR-98-42-A 14 December 2015

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19364/H and Ndayambaje was just one of several factors considered by the Trial Chamber when assessing their evidence. 8ª The Appeals Chamber therefore dismisses this contention. (c) Assessment of the Alibi Evidence 2887. Ndayambaje argues that the Trial Chamber erred in assessing and discrediting his evidence as well as evidence of Witnesses Tiziano, Stan, MARVA, GABON, and KEPIR. 6585 The Appeals Chamber will assess Ndayambaje's challenges as they relate to him and each witness in turn. 586 (i) Ndayambaje 2888. The Trial Chamber found that the evidence of Ndayambaje and Witness Tiziano that Ndayambaje was at his home at 9.00 a.m. on 20 April 1994 was contradicted by Witness RV and was therefore not credible. 587 In this context, it noted that "Ndayambaje's testimony must be treated with appropriate caution as he has a personal interest in demonstrating that he was not present at Ngiryi Bridge on the morning of 20 April 1994.»6588 The Trial Chamber also did not find Ndayambaje's account as to why he did not evacuate his mother on 20 April 1994 convincing, which cast further "doubt on the version of events given by Ndayambaje."6589 It also considered that the evidence of Ndayambaje as well as the evidence of Witnesses GABON, KEPIR, and MARVA that Ndayambaje never left the Muganza commune office on 21 April 1994 was not credible. 6590 2889. Ndayambaje contends that the Trial

Chamber violated the presumption of innocence by assuming, without any proof, that he had an incentive to minimise his role in the events.6591 With respect to his alibi for 20 April 1994 in particular, he submits that the Trial Chamber: (i) used insignificant contradictions in his evidence and that of Witnesses RV and Tiziano to undermine the credibility of his alibi; (ii) contradicted itself by finding an artificial contradiction between Witness RV's evidence, on one hand, and Ndayambaje's and Witness Tiziano's evidence, on the other, after having determined that their testimonies were coherent regarding their movements and how they met; and (iii) erred in finding him not credible based on the evidence that he did not 6584 See Trial Judgement, paras. 1198-1201, 1203-1207, 1209-1211, 1220-1223, 1389-1394, 1400; 1402-1404, 1413, 1416, 1417, 1445, 1446. 6585 Ndayambaje Appeal Brief, paras. 150-152, 154-156, 169, 170, 201, 202, 387-389, 395-398, 401-403, 405-415, 417. See also AT. 21 April 2015 p. 23. 6586 In several instances, Ndayambaje generally challenges the Trial Chamber's assessment of the alibi evidence without articulating or identifying how it erred. See Ndayambaje Appeal Brief, paras. 443, 477, 479, 527, 529, 579. The Appeals Chamber has assessed Ndayambaje's challenges pertaining to specific witnesses and evidence when developed elsewhere in his appeal but has declined

to address his general and unsubstantiated arguments which fail to satisfy the formal requirements applicable on appeal. See supra, Section II. 6587 Trial Judgement, paras. 1200, 1203, 1401. 6588 Trial Judgement, paras. 1203, 1401. 6589 Trial Judgement, para. 1212. 6590 Trial Judgement, para. 1223. 6591 Ndayambaje Appeal Brief, paras. 413, 415, referring to Trial Judgement, paras. 1203, 1401. 1001 Case No. ICTR-98-42-A 14 December 2015

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19363/H immediately evacuate his mother on 20 April 1994.059 As regards his alibi for 21 April 1994, Ndayambaje contends that his evidence that he did not leave the Muganza commune office on 21 April 1994 was corroborated by Witnesses GABON, MARVA, and KEPIR and was improperly rejected based on an incorrect assessment of the size of the commune office compound due to the Trial Chamber's failure to conduct a site visit. 6593 2890. The Prosecution responds that the Trial Chamber was entitled to consider Ndayambaje's incentive to deny criminal conduct and that, contrary to his claim, the Trial Chamber considered several other factors when finding that his evidence was not credible. 6594 2891. The Appeals Chamber notes that the Trial Chamber's statement that "Ndayambaje's testimony must be treated with appropriate caution as he has a personal interest in demonstrating that he was not present at Ngiryi Bridge on the morning of 20 April 199436595 followed the Trial Chamber's assessment of Ndayambaje's and Witness Tiziano's evidence placing Ndayambaje at his home around 9.00 a.m.596 The Trial Chamber did not find this aspect of Ndayambaje's and Witness Tiziano's testimonies credible as it was contradicted by Witness RV's evidence. 6597 The Appeals Chamber finds that a reasonable trier of fact could have considered the possibility of Ndayambaje's incentive to provide exculpatory

evidence in the context of all the relevant evidence and that the Trial Chamber's consideration does not denote a violation of the presumption of innocence. 598 2892. Moreover, while Ndayambaje argues that the inconsistencies in his and Witness Tiziano's evidence and that of Witness RV are insignificant, he fails to demonstrate any error in the Trial Chamber's exercise of its discretionary power in assessing this evidence. 599 In addition, although 6592 Ndayambaje Appeal Brief, paras. 150, 154, 387, 414. Ndayambaje argues that the evidence showed that the decision to flee was taken in a hurry in light of the emergency and that it was never established that his mother lived under his roof or was under his care or that he allegedly abandoned or neglected his mother. See ibid., para.

414. See also Ndayambaje Reply Brief, paras. 164, 165. 6593 Ndayambaje Appeal Brief, para. 417, referring to Trial Judgement, para. 1223. 6594 Prosecution Response Brief, paras. 2281-2283. 6595 Trial Judgement, paras. 1203, 1401. 6596 Trial Judgement, para. 1200. 6597 Trial Judgement, para. 1200. 6598 Cf. Musema Appeal Judgement, para. 50 ("It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence evidence before it."). 6599 The Trial Chamber observed that Ndayambaje and Witness Tiziano testified that Ndayambaje went to Witness Tiziano's home around 6.00 a.m., departed to see Witness RV, and returned to Ndayambaje's home around 9.00 a.m. See Trial Judgement, para.

1200. While Witness RV confirmed that Ndayambaje and Witness Tiziano came to see him around 6.00 a.m., he testified to going to Ndayambaje's home at 7.30 a.m. and informing Ndayambaje and Witness Tiziano that he was going to Butare, which the Trial Chamber found contradicted the evidence of Ndayambaje and Witness Tiziano that they waited in vain for Witness RV outside Ndayambaje's residence at 9.00 a.m. in order to 1002 Case No. ICTR-98-42-A 14 December 2015 124

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19362/H Ndayambaje correctly notes that the Trial Chamber reached contradictory conclusions as to whether his evidence and that of Witness Tiziano was inconsistent, he fails to demonstrate how the error occasioned a miscarriage of justice. 600 2893. With respect to Ndayambaje's submission that the Trial Chamber erred in emphasising that he did not evacuate his mother from the Mugombwa health centre with the rest of his family when they left for the Muganza commune office on 20 April 1994, the Appeals Chamber considers that, in determining whether his alibi was reasonably possibly true, it was within the Trial Chamber's discretion to consider and assess his claim that he fled with his family to seek refuge in the commune office on 20 April 1994, yet failed to bring his mother with them despite her proximity to Ndayambaje's home. While Ndayambaje contends that no evidence demonstrated that the situation was sufficiently alarming when he evacuated his family to the commune office or that he was responsible for and consequently abandoned his mother, he ignores the Trial Chamber's observation that three nuns in charge of the health centre fled Mugombwa parish in the afternoon of 20 April 1994.6601 2894. Turning to Ndayambaje's contention regarding the assessment of his alibi for 21 April 1994, the Appeals Chamber observes that Ndayambaje points to no evidence demonstrating that the

Trial Chamber incorrectly described the Muganza commune office as a "relatively large geographical space" or stated that there were a "large number of people present" on that day,6602 As discussed in go to Kabuga to address the population. See idem. Consequently, the Appeals Chamber finds that a reasonable trier of fact could have found that Witness RV's evidence was materially inconsistent with the evidence of Ndayambaje and 6600 The Trial Chamber recalled that Witness Tiziano testified that Ndayambaje came to see him around 6.00 a.m. on 20 April 1994, that they went to see Witness RV, that they left the commune office together, that the witness dropped Ndayambaje near his home at an unspecified time before 9.00 a.m., and that the witness later saw Ndayambaje again at the latter's home around 9.00 a.m. See Trial Judgement, para.

1200. The Trial Chamber noted this evidence was "consistent with Ndayambaje's account of his movements on the morning of 20 April 1994" and that Witness RV confirmed that Ndayambaje and Witness Tiziano did come to see him at 6.00 a.m. See idem. However, the Trial Chamber later concluded that Witness Tiziano's "testimony contradicts that of Ndayambaje and Witness RV regarding Ndayambaje's movements on 20 April 1994." See ibid., para.

1202. To support its conclusion, the Trial Chamber highlighted Witness Tiziano's evidence that "he went to Ndayambaje's house at about 9.30 a.m, and left shortly afterwards to return to the parish", that this "was the last time that he saw Ndayambaje", and that he "further testified that when he drove to the Muganza commune office at around 11.30 a.m. to report the situation to the authorities, he was alone." See idem. The Trial Chamber found that this evidence "contradicts Ndayambaje's testimony that he went to [Witness] Tiziano's house at 6.00 a.m. and that they went to the Muganza commune office together to warn the authorities of the insecurity in the area" and that "Ndayambaje's testimony is in concordance with that of Witness RV who testified that he was woken at 6.00 a.m. by Ndayambaje and Father Tiziano warning him of insecurity in the area." See idem. The Appeals Chamber finds that the Trial Chamber's analysis is contradictory in this regard. See also Prosecution Response Brief, para.

2241. However, the error has no impact on the Trial Chamber's conclusion that the evidence of Ndayambaje and Witness Tiziano on Ndayambaje's presence at his home at around 9.00 a.m. is not credible, as their evidence that they returned to Ndayambaje's home only around 9.00 a.m. remains inconsistent with Witness RV's evidence that he saw them there around 7.30 a.m. See Trial Judgement, paras. 1200, 1202. 6601 Trial Judgement, para. 1212. 6602 See Trial Judgement, para.

1223. The Appeals Chamber observes that the Trial Chamber relied, in part, on a sketch provided by Ndayambaje when stating that the Muganza commune office comprises a number of buildings. See Trial Judgement, para. 1220, referring to Exhibit D694 (Sketch Map, by Ndayambaje). 1003 Case No. ICTR-98-42-A 14 December 2015

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19361/H detail below in Section IX.D of this Judgement, Ndayambaje also fails to demonstrate any error in the Trial Chamber's decision not to conduct a site visit. 603 The Appeals Chamber considers that it was within the Trial Chamber's discretion to consider that the relatively large area of the Muganza commune office, coupled with the large number of people present on 21 April 1994, supported the conclusion that Witnesses KEPIR, GABON, and MARVA were not in a position to state that Ndayambaje never left the commune office on 21 April 1994.6604 2895. Accordingly, the Appeals Chamber concludes that Ndayambaje has not demonstrated that the Trial Chamber erred in the assessment of his evidence regarding his whereabouts on 20 and 21 April 1994. (ii) Witness Tiziano 2896. The Trial Chamber found that Witness Tiziano's testimony that he had asked those seeking refuge in Mugombwa Church to leave because it was not safe and, on cross-examination, that he asked them to lay down their weapons because he did not think the refugees would be attacked in the church was contradictory. 6605 The Trial Chamber also stated that "Witnesses QAR and FAU gave first-hand testimony that Father Tiziano attempted to, or succeeded in locking the doors to the church in the morning of 20 April 1994 before leaving the site. 6606 On this basis, it later concluded that, "[considering the testimonies] of

Witnesses QAR and FAU placing Father Tiziano at the massacre site and Father Tiziano's incentive to minimise his role, in addition to his testimony that he did not request help for those seeking refuge in the church", Witness Tiziano's testimony was "not credible as to the sequence of events in the morning of 20 April 1994.'6607 2897. Ndayambaje submits that the Trial Chamber assessed Witness Tiziano's evidence out of context and erred in finding that: (i) his evidence was contradictory; (ii) he did not want to seek help for the refugees in Mugombwa Church; and (iji) he had an incentive to minimise his role in the events.6608 In particular, Ndayambaje contends that the Trial Chamber erred in relying on the evidence of Prosecution Witnesses QAR and FAU that Witness Tiziano locked refugees inside the church to discredit Witness Tiziano, as it had not yet assessed Witnesses QAR's and FAU's 6603 See infra, para. 2941. * Ndayambaje argues that Witness RV partially corroborates his alibi that he never left the Muganza commune offic n 21 April 1994. See Ndayambaje Appeal Brief, fn.

632. However, Ndayambaje also observes that Witness R test to demonstrate to Me Tid chamber wild dischin his said at to he evil, hue on. Nd tie on add April 1994. Trial Judgement, para. 1204. 660% Trial Judgement, para. 1204. 6607 Trial Judgement, para. 1205. 1004 Case No. ICTR-98-42-A 14 December 2015 4

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19360/H testimonies which were contradictory and lacked credibility. 609 He submits that Witness FAU's evidence is hearsay and reflects that he only arrived at the church on 22 April 1994, and therefore could not corroborate Witness QAR's evidence of this event, which she testified happened on 20 April 1994.6610 2898. The Prosecution responds that the Trial Chamber correctly found that Witness Tiziano's testimony was contradictory and that he had an incentive to minimise his role in the events.6611 It argues that Ndayambaje's contentions that the Trial Chamber erred in discussing Witnesses QAR's and FAU's evidence after assessing Witness Tiziano's evidence and that the evidence of Witnesses QAR and FAU was contradictory or lacked credibility are without merit. 6612 The Prosecution further points to evidence that Witness Tiziano could have sought help from authorities at the Muganza commune office yet instead returned with a person implicated in the attack on Mugombwa Church. 613 2899. The Appeals Chamber finds that Ndayambaje fails to substantiate his contention that the Trial Chamber assessed Witness Tiziano's evidence out of context and erred in finding it contradictory. While Ndayambaje argues that the Trial Chamber erred in finding that Witness Tiziano's testimony reflected that "he did not request help for those seeking refuge in the church" 6614 he fails to appreciate

that the Trial Chamber's statement was based on the witness's own acknowledgement that he did not ask the assistant bourgmestre for Muganza Commune whom he had brought to Mugombwa Church to "help in ensuring the security of those seeking refuge in the church.»6615 Ndayambaje also overlooks evidence in the record that the assistant bourgmestre whom Witness Tiziano transported to the church was armed with a machete and was viewed as a killer.6616 Ndayambaje's citations to evidence, primarily from Witness Tiziano, that Witness Tiziano sought help for the refugees fail to demonstrate that the Trial Chamber erred in its assessment of this witness's evidence. 6617 6608 Ndayambaje Appeal Brief, para. 388, referring to Trial Judgement, paras. 1204-1206. See also Ndayamabaje Reply Brief, para. 146 (arguing that Witness Tiziano's evidence that he went to Muganza commune office to get help was partially corroborated by Witnesses FAU, RT, RV, BOZAN, GABON, and Ndayambaje); AT. 21 April 2015 p.

23. Ndayambaje Appeal Brief, paras. 152, 202, 388-391. In particular, Ndayambaje argues that the Trial Chambes ignored evidence that only one of the several doors at the church could be locked from the outside and that refugees left the church after Witness Tiziano left, undermining the conclusion that Witness Tiziano locked refugees in the church. See ibid., paras. 390-395. See also Ndayambaje Reply Brief, para. 53; AT. 21 April 2015 pp. 23-25, 65. 5610 Ndayambaje Appeal Brief, paras. 350-355. 6611 Prosecution Response Brief, paras. 2072, 2240, 2242, 2243. See also AT. 21 April 2015 p. 52. 6612 Prosecution Response Brief, paras. 2072, 2245-2248. 6613 Prosecution Response Brief, para.

2243. See also ibid., para. 2244. 6614 Trial Judgement, para. 1205. 6615 Trial Judgement, para. 1204. 6616 See Witness BOZAN, T. 17 September 2008 pp. 30, 34 (closed session). 6617 See Ndayambaje Appeal Brief, para. 388; Ndayambaje Reply Brief, para. 146. 1005 Case No. ICTR-98-42-A 14 December 2015

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19359/H 2900. Turning to Ndayambaje's argument that the Trial Chamber erred in relying on the "unassessed" testimonies of Witnesses QAR and FAU to find that Witness Tiziano locked persons seeking refuge in Mugombwa Church, the Appeals Chamber, having reviewed the evidence cited by the Trial Chamber, finds no error in the Trial Chamber's statements or assessment of this evidence, which reasonably shows that Witness Tiziano sought to keep refugees locked in the church.6618 Ndayambaje does not demonstrate that Witness FAU's evidence reflects that Witness Tiziano sought to lock the church on 22 April 1994 rather than 20 April 1994 or that it was hearsay rather than direct evidence. 619 Furthermore, to the extent that the Trial Chamber's subsequent statement that Witnesses QAR and FAU gave "convincing eyewitness testimony [...] that Father Tiziano locked those seeking refuge inside the church"6620 is inconsistent with their evidence that he attempted to lock the door or other evidence that locking the door would not lock the entire church, the Appeals Chamber considers that any factual inaccuracy would not have occasioned a miscarriage of justice in the present context. Indeed, the Appeals Chamber considers that, whether or not Witness Tiziano actually locked those seeking refuge inside the church, a reasonable trier of fact could have considered that he was implicated in the attack

and that, consequently, he had an incentive to minimise his role in it. 6621 2901. Furthermore, the Appeals Chamber considers that the fact that the Trial Chamber discussed • the evidence of Witnesses QAR and FAU after discussing that of Witness Tiziano in the Trial Judgement cannot reasonably be interpreted as an indication that the Trial Chamber had not assessed their evidence prior to referring to it when assessing Witness Tiziano's testimony. Read as a whole, the Trial Judgement clearly reflects that the Trial Chamber expressly considered the reliability of Witnesses QAR's and FAU's evidence based on other evidence in the record and assessed their testimonies in light of several credibility challenges. 6622 2902. In light of the above, the Appeals Chamber finds that Ndayambaje has failed to demonstrate any error in the assessment of Witness Tiziano's alibi evidence that would warrant the intervention of the Appeals Chamber. 5618 See Witness QAR, T. 21 November 2001 pp. 12-14; Witness FAU, T. 10 March 2004 pp. 4, 6, 7, 11. 6619 See Witness FAU, T. 10 March 2004 pp. 4, 6, 7, 11, 20. 6620 Trial Judgement, para. 1206 (emphasis added). 621 Ndayambaje argues that the Trial Chamber engaged in speculation and relied on facts not publicly mentioner Juring the hearings in order to discredit Witness Tiziano. See Ndayambaje Appeal Brief, paras. 220-224. However because Ndayambaje fails to substantiate this claim with references to specific findings, the Appeals Chamber dismisses it without further consideration. 6622 See Trial Judgement, paras. 1228-1235, 1237-1244, 1439-1443. 1006 Case No. ICTR-98-42-A 14 December 2015

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19358/H (iii) Witness Stan 2903. The Trial Chamber found that Witness Stan's evidence concerning Ndayambaje's alibi was not credible based on: (i) his testimony about his own conduct during the events and his descriptions of the prevailing situation; (ii) inconsistencies between his evidence and prior statements; (iii) his close friendship with Ndayambaje and because he was a "close associate" of Burundian refugees implicated in massacres at Mugombwa Church and Kabuye Hill. 6623 2904. Ndayambaje contends that the Trial Chamber erred in discrediting Witness Stan's evidence on the basis of having "insinuated" that he was an accomplice witness. 624 He further argues that the Trial Chamber erred in discrediting Witness Stan as a result of an unsupported finding that he had authority over Burundian refugees responsible for attacking Mugombwa Church and Kabuye Hill625 and in finding that the witness failed to inform the authorities of the prevailing insecurity, which was contradicted by his evidence 6626 According to Ndayambaje, the Trial Chamber further erred in using insignificant contradictions between the witness's prior statements and testimony to discredit him, although it found similar contradictions in Prosecution evidence minor or immaterial. 627 He emphasises that the witness, a friar, had devoted his life to the care of refugees and that the Trial Chamber's credibility

findings are inconsistent with the fact that he was later rewarded for his service to humanity. 6628 2905. The Prosecution generally responds that the Trial Chamber did not err in assessing contradictions in Ndayambaje Defence evidence and that Ndayambaje has not shown how inconsistencies within Witness Stan's testimony were so similar to those in the Prosecution witnesses' evidence that they should have been treated alike. 629 It further submits that the Trial Chamber was correct in treating Witness Stan's evidence with caution. 6630 6623 Trial Judgement, paras. 1213-1217, 1390-1394. 6624 Ndayambaje Appeal Brief, paras. 154, 169, 405, 408, 412, referring to Trial Judgement, paras. 1213, 1391, 1392. See also AT. 21 April 2015 p.

26. Ndayambaje Appeal Brief, paras. 405, 407, Witness Stan's duty was to teach about 1,000 youths in the Saga Camp and that he was not responsible for the camp and had no authority over the 60,000 Burundian refugees. See ibid., para. 407, referring to Witness Stan, T. 18 September 2008 pp. 25, 26, T. 22 September 2008 pp. 8, 9, T. 23 September 2008 p.

19. See also Ndayambaje Reply Brief, paras. 142, 160. Ndayambaje Appeal Brief, paras. 405, 409. 6627 Ndayambaje Appeal Brief, paras. 155, 170, 405, 410, referring to Trial Judgement, paras. 1216, 1238-1241, 1393, 1408, 1436, 4592, 4710, 4711. See also AT. 21 April 2015 p. 70. 6628 Ndayambaje Appeal Brief, paras. 405, 411. 6629 Prosecution Response Brief, paras. 2071, 2078. Cf. AT. 21 April 2015 pp. 43, 44. 6630 Prosecution Response Brief, paras. 2274-2277. 1007 Case No. ICTR-98-42-A 14 December 2015

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19357/H 2906. The Appeals Chamber finds that the Trial Chamber did not "insinuate" that Witness Stan was an accomplice, 6631 nor did it err in its assessment of the witness' alibi evidence.

2907. The Trial Chamber did not suggest that it viewed Witness Stan as an accomplice, but stated that it had doubts about Witness Stan's credibility, noting that he had testified that attacks against Tutsis had started by 18 April 1994, yet two days later he left two Tutsis, Mr. Fidèle and his pregnant wife, at a roadblock manned by armed soldiers 6632 The Trial Chamber also noted that Witness Stan did not attempt to find out what happened to these Tutsis but believed that they may have been killed. 6633 Ndayambaje does not show that the Trial Chamber erred in considering Witness Stan's conduct in the midst of the genocide when assessing the witness's credibility. Moreover, Ndayambaje's contention that Witness Stan did apprise himself of what happened to the two Tutsis he had left at the roadblock is not supported by the witness's testimony, which merely reflects that, when he returned to the roadblock, he was informed that they had gone to the hospital. 634 Ndayambaje demonstrates no error in the Trial Chamber's statement that Witness Stan "did not attempt to find out what happened to them but [...] believed they may have been killed", as nothing in the witness's evidence suggests otherwise. 6635 2908. Furthermore, the Trial Chamber stated that it found weak Witness Stan's testimony that he could not have disarmed the Burundian refugees from the Saga Camp even though he knew

that they had participated in killings on or around 20 April 1994, and that machetes were necessary to the work of the refugees. 636 The Trial Chamber noted that Witness Stan was not just a "simple priest", but worked in education in the camp and "therefore exercised a degree of authority over the refugees" 6637 It further noted that the Burundian refugees were not working in the fields at the time, casting doubt on Witness Stan's statement that the machetes were for the refugees' work. 638 In the view of the Appeals Chamber, nothing in these statements suggests that the Trial Chamber treated Witness Stan as an accomplice. Moreover, in support of his contention that the Trial Chamber baselessly attributed to Witness Stan duties which were not his, Ndayambaje simply points to other evidence offered by the witness without demonstrating that the Trial Chamber erred in its reflection 6631 See Niyitegeka Appeal Judgement, para. 98 ("The ordinary meaning of the term 'accomplice' is 'an associate in guilt, a partner in crime.'") (internal reference omitted). See also Karemera and Ngirumpatse Appeal Judgement, para. 42; Munyakazi Appeal Judgement, para. 93; Ntagerura et al. Appeal Judgement, para.

203. Trial Judgement, para. 1213. 6633 Trial Judgement, para.

1213. The Trial Chamber conducted the same analysis when reviewing Witness Stan's evidence later in the Trial Judgement. See ibid., para. 1390. 6634 Ndayambaje Appeal Brief, para. 408; Witness Stan, T. 23 September 2008 p. 4. 6635 Trial Judgement, para. 1213, referring to Witness Stan, T. 23 September 2008 p. 4, T. 24 September 2008 p. 40. 6636 Trial Judgement, para.

1391. See ibid., para. 1214. 6637 Trial Judgement, para.

1391. See ibid., para. 1214. 6638 Trial Judgement, para.

1391. See ibid., para. 1214. 1008 Case No. ICTR-98-42-A 14 December 2015

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19356/H or analysis of the witness's testimony in this regard, or in expressing doubts about why he chose not to try to disarm the Burundian refugees. 6639 2909. In addition, the Trial Chamber expressed doubts about Witness Stan's evidence that he did not inform the prefectoral authorities that the Burundian refugees involved in the killings were armed with traditional weapons because he "had never heard of any measure by a bourgmestre to take away a person's tools" 6640 The Trial Chamber also stated that Witness Stan, while he had the ability to move freely in Butare prior to 25 April 1994, "made no attempt to notify the authorities of the unrest" until the Kibayi commune office secretary requested that Witness Stan accompany him on a visit to the authorities. 641 Again, the Appeals Chamber considers that these statements cannot reasonably be construed as "insinuations" that Witness Stan was an accomplice. Furthermore, while Ndayambaje contends that, contrary to the Trial Chamber's finding, Witness Stan's trip of 20 April 1994 to Butare with the Kibayi commune office secretary demonstrates that he sought to inform authorities of the insecurity situation, 642 the Appeals Chamber finds that he simply disagrees with the Trial Chamber's interpretation of the evidence without demonstrating that the Trial Chamber inaccurately recalled it 643 or abused its discretion when considering it. 644 2910. The Appeals Chamber further finds that Ndayambaje presents no arguments as to how the Trial Chamber erred in identifying or assessing inconsistencies between Witness Stan's testimony and prior statements and fails to substantiate how the Trial Chamber's approach was unreasonable it without further consideration. 6640 Trial Judgement, para. 1392. 6641 Trial Judgement, para.

1392. See also ibid., para.

1215. Ndayambaje Appeal Brief, para. 409, referring to Witness Stan, T. 18 September 2008 pp. 37-40, T. 23 September 2008 pp. 19, 20. 6643 See, in particular, Witness Stan, T. 18 September 2008 p. 37 ("Q. And can you tell us whether the secretary of the Kibayi communal office [...] did he give you any reasons for stopping your vehicle? A. He told me that at the communal office there was disorder, that there had been attacks, and he asked me to accompany him to go and inform the bourgmestre of Kibayi. Q. And did you know at that time where the bourgmestre of Kibayi commune was? A. No, I did not know. It was the secretary of Kibayi who told me that the bourgmestre had gone to Butare. Q. In the light of this information and facing this request from the communal secretary, what did you decide to do? A. [...] I dropped the supplies in a store below the road. I turned, and together we went back to Butare to inform the bourgmestre of Kibayi on the disorder at the communal office."), T. 23 September 2008 p. 60 ("Q. Now, just to round up on these series of questions, Mr. Witness, did you make any attempt to see the préfet of Butare with regard to disarming Burundian refugees, those who were armed with machetes or what you term were just tools for their usage? A. The Burundian refugees were not armed. They had agricultural instruments. And I did not inform. I would not have known how to go about informing the préfectural authorities."). 6611 Ndayambaje appears to argue that the Trial Chamber also erred in its analysis in paragraph 1215 of the Trial Judgement in concluding, similarly with paragraph 1392 of the Trial Judgement, that Witness Stan failed to notify the authorities. See Ndayambaje Appeal Brief, para.

405. Paragraph 1215 of the Trial Judgement generally tracks the analysis in paragraph 1392 of the Trial Judgement. For the reasons detailed above, the Appeals Chamber dismisses Ndayambaje's contention. 1009 Case No. ICTR-98-42-A 14 December 2015

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19355/H in light of its analysis of the Prosecution evidence in the other paragraphs of the Trial Judgement to which he points. 664s 2911. Finally, Ndayambaje's arguments concerning Witness Stan's position as a friar and the fact that he was later rewarded for his service to humanity fail to demonstrate how the Trial Chamber erred in its assessment of the evidence that formed part of the trial record.

2912. For these reasons, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in the assessment of Witness Stan's alibi evidence. (iv) Witness MARVA 2913. In assessing Witness MARVA's alibi evidence, the Trial Chamber observed that the witness, an employee of Ndayambaje living in his house at the time of the events, 646 did not specify when she saw Ndayambaje on the morning of 20 April 1994.6647 It further found that her testimony that Ndayambaje remained with her in the same room in the "IGA building" until 23 April 1994 was contradicted by other evidence and was not credible. 6648 2914. Ndayambaje submits that the Trial Chamber erred in concluding that Witness MARVA did not testify about the time she saw Ndayambaje on the morning of 20 April 1994.6649 In addition, he argues that the Trial Chamber's finding that Witness MARVA's testimony that Ndayambaje remained in the IGA building of the Muganza commune office until 23 April 1994 was contradicted by the evidence of Witnesses GABON and KEPIR as well as Ndayambaje was based on a misunderstanding of the various locations in the Muganza commune office and Witness MARVA's evidence. 650 In support of this contention, Ndayambaje argues that a site visit, complemented by Exhibits P38, D553, D554, and D694, would have demonstrated how small the location was and how there was no contradiction

in their evidence. 651 Moreover, Ndayambaje contends that Witness MARVA's testimony that she remained in the same room with Ndayambaje only concerned 21 April 1994.6652 2915. The Prosecution responds that the Trial Chamber was entitled to find that Witness MARVA's evidence did not raise a reasonable doubt in the Prosecution case as she could 6645 See Trial Judgement, paras. 1238-1241, 1408, 1436, 4710, 4711. 6646 Trial Judgement, paras. 1199, 1389. 6647 Trial Judgement, paras. 1201, 1207, 1400, 1402. See also ibid., paras. 1209, 1403. 6648 Trial Judgement, paras. 1201, 1221-1223, 1416, 1417. a dayambai Appel Bite, a 205, 217, erie to Trail Judgement, para 201, 2 ito AT. 21 April 2015 B3: 25 ayambaje Appeal Brief, para, 401. See also dayambaje Reply Brief, para, 153. 6652 Ndayambaje Appeal Brief, para. 201, fn. 217. 1010 Case No. ICTR-98-42-A 14 December 2015

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19354/H not account for Ndayambaje's whereabouts for a substantial part of the morning of 20 April 1994 and her testimony as to Ndayambaje's whereabouts was contradicted by other Defence witnesses.6653 It further contends that the evidence and a site visit would not demonstrate that Ndayambaje could be inside the IGA building, as testified to by Witness MARVA, and outside it at the same time, as testified to by Witnesses KEPIR and GABON. 6654 2916. Having reviewed the testimony referred to by Ndayambaje, the Appeals Chamber finds that a reasonable trier of fact could have considered that Witness MARVA did not specify the time when she saw Ndayambaje on the morning 20 April 1994.6655 2917. The Appeals Chamber further finds that Ndayambaje's argument that a site visit, complemented by Exhibits P38, D553, D554, and D694, would have prevented the Trial Chamber from discrediting Witness MARVA's evidence is speculative and does not demonstrate any error in the Trial Chamber's analysis of this evidence. 656 Moreover, while Ndayambaje argues that Witness MARVA only testified that Ndayambaje remained in a room in the IGA building on 21 April 1994, a review of the relevant evidence cited by the Trial Chamber®57 does not demonstrate any error in the Trial Chamber's interpretation of Witness MARVA's evidence that Ndayambaje remained in the room until Saturday 23 April 19946658 or its conclusion that this 6653 Prosecution Response Brief, para. 2254, referring to Trial Judgement, paras. 1201, 1209. 6654 Prosecution Response Brief, para.

2257. See also AT. 21 April 2015 p. 52. 6655 Ndayambaje Appeal Brief, para. 201, fn. 217, referring to Witness MARVA, T. 1 July 2008 pp. 19, 20 (closed session); Trial Judgement, paras. 1201 ("Witness MARVA testified that she was with Ndayambaje on the morning of 20 April 1994 at his home although she does not specify when she saw him for the first time that day.") (internal reference omitted), 1402 (noting that Witness MARVA "said she saw Ndayambaje at an unspecified time in the morning of 20 April 1994 when he hid Chanvrier in the guest room" and that she "could not specify at what time Ndayambaje left his home or the time when he was reunited with his family and the witness at Witness KEPIR's residence.") (internal reference omitted). Notably, Witness MARVA's testimony reflects the approximate time when Chanvrier arrived at Ndayambaje's home and that Ndayambaje hid this individual in a guest room, without specifying when exactly Ndayambaje did this. See Witness MARVA, T. 1 July 2008 p. 20 (closed session) ("Q. In any case, witness, are you in a position to tell us at about what time Chanvrier arrived at Ndayambaje's residence? A. I would be hard put to tell the time because this happened a long time ago, but I think the time was about 8:00 or 8:30 a.m. if my memory is not failing me, of course. [...] Q. And when Chanvrier showed up at Ndayambaje's residence, what was done to him? A. He was put in the guest room and he was locked up inside for him to hide. Q. Madam, who is it who put Chanvrier in the guest room in order to hide him? A. Élie Ndayambaje is the one who put him in that room and he locked up the room in order to prevent people from noticing that he was there?"). 6656 See Trial Judgement, para.

1201. With respect to the question of the site visits, see also supra, para. 2894; infra, Section IX.D. 6657 See Trial Judgement, para. 1201, referring to Witness MARVA, T. 1 July 2008 pp. 24-27 (closed session), 66, 2 July 2008 pp. 16, 17 (closed session). See, in particular, Witness MARVA, T. 1 July 2008 pp. 25, 26 (closed session) ("Q. And on that day when you reached the IGA building in the company of all those individuals you have just mentioned, Madam Witness, what day of the week was it? A. It was a Wednesday. Q. Where did you spend the rest of that Wednesday, Madam Witness? A. We stayed in the building, the IGA building. Q. And in the evening and during the following night, [...] where did you then go? A. We spent the night in the very same place. Q. And during that day, and during the evening and the night thereafter, was Mr. Élie Ndayambaje in your company at that place? A. Yes, Mr. Ndayambaje spent the night in the same room as us l...1. O. Madam Witness, on the next day, that is to say, the Thursday, where did you spend the day? A. We spent the entire day in the very same room. Q. And on that Thursday, where was Mr. Ndayambaje? A. Mr. Élie Ndayambaje spent the day in that very same room. Q. And up to what point in time did you remain at the communal office, Madam Witness, in the IGA building, that is? A. We stayed there until Saturday."), T. 2 July 2008 1011 Case No. ICTR-98-42-A 14 December 2015

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19353/H evidence contradicted the evidence of Witnesses KEPIR and GABON as well as Ndayambaje's testimony that he did not remain in that room during this entire period. 6659 2918. . Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in the assessment of Witness MARVA's alibi evidence. (v) Witness GABON 2919. The Trial Chamber found that the evidence of Witness GABON, a former employee of Ndayambaje, 5660 that he slept 27 minutes between 20 and 24 April 1994 "unrealistic" in this respect or not "plausible"6661 and considered that his alibi evidence was not credible. 6662 2920. Ndayambaje argues that the Trial Chamber erred in discrediting Witness GABON's testimony based on his evidence that he only slept for 27 minutes over the course of a four day period. 663 In this regard, he submits that the French version of the transcript reflects that the witness stated he slept approximately 20 to 25 minutes, and not precisely 27 minutes, and that the Trial Chamber placed too much emphasis on the incorrect English translation and this secondary aspect of Witness GABON's testimony. 6664 Ndayambaje also contends that the Trial Chamber was in no position to find that Witness GABON would not have been able to see Ndayambaje at all times on 21 April 1994 as it did not conduct a site visit 6665 2921. The Prosecution responds

that the Trial Chamber correctly assessed Witness GABON's evidence. 666 2922. Recalling the broad discretion trial chambers enjoy in assessing witness credibility, the Appeals Chamber finds that Ndayambaje does not demonstrate that it was unreasonable for the Trial Chamber to consider that the limited amount of time Witness GABON testified to sleeping from 20 to 24 April 1994 impacted the plausibility of his testimony, particularly when the point of p. 16 (closed session) ("Q. Witness, when you got to the IGA, I am suggesting to you that Élie Ndayambaje did not spend all night and all of the next day inside that enclosed room. What do you say to that suggestion? A. He spent the entire day in the IGA room. Q. So your evidence is he never went outside to get some fresh air, to use the bathroom facilities, to check on his vehicle, that he remained inside that room for 24 hours? Have I understood you? A. Upon our arrival at the commune office, he went to see Chrisologue in order to ask about the situation. And when he returned to the room, he never went out again.") (emphasis added). 6659 See Trial Judgement, para. 1201. 3660 Trial Judgement, paras. 1199 ("Witness GABON is a former policeman employed by Ndayambaje. I.... Accordingly, their evidence must be reviewed bearing these personal ties in mind.") (internal reference omitted), 1389 661 Trial Judgement, paras. 1220, 1389. 6662 Trial Judgement, paras. 1220, 1223, 1417, 1446. 6663 Ndayambaje Appeal Brief, paras. 156, 169, 402, referring to Trial Judgement, paras. 1220, 1389. See also AT. 21 April 2015 p. 25. 5664 Ndayambaie Appeal Brief, para. 402, referring to Witness GABON, T. 3 September 2008 pp. 8, 9, 13-17 (closed session) (French). 6665 Ndayambaje Appeal Brief, para.

156. See also Ndayambaje Reply Brief, para. 153. 1012 Case No. ICTR-98-42-A 14 December 2015

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19352/H the witness's evidence was to account for Ndayambaje's whereabouts during that specific period. 667 While Ndayambaje highlights variances between the English and French transcripts as to the precise amount of time Witness GABON slept and argues that the Trial Chamber erred in relying on the incorrect English version, he does not demonstrate that the identified variance is material to the Trial Chamber's analysis. 668 Finally, Ndayambaje fails to demonstrate how the absence of a site visit rendered the Trial Chamber's assessment of Witness GABON's evidence unreasonable. 0669 2923. Based on the above, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in the assessment of Witness GABON's alibi evidence. (vi) Witness KEPIR 2924. In relevant parts of the Trial Judgement, the Trial Chamber found that the fact that Witness KEPIR, a friend of Ndayambaje, was implicated in the massacres at Kabuye Hill by Prosecution Witnesses EV and FAU had a bearing on Witness KEPIR's credibility 6670 2925. Ndayambaje argues that the Trial Chamber erred in fact by relying on the evidence of Witnesses EV and FAU to conclude that Witness KEPIR was among the attackers at Kabuye Hill, and then discrediting his evidence on this basis.6671 He argues that Witnesses EV's and FAU's identification of Witness KEPIR was merely based on the presence of a vehicle and points to evidence that contradicts Witness FAU's description of Witness KEPIR's vehicle to argue that it was unreasonable for the Trial Chamber to rely on Witness FAU's evidence in this regard. 672 2926. The Prosecution does not directly respond to these arguments.

2927. The Appeals Chamber observes that the Trial Chamber expressly stated that Witnesses EV and FAU provided "eyewitness accounts" that "implicated" Witness KEPIR in the massacres at 6666 Prosecution Response Brief, paras. 2258-2263. See also ibid., para. 2078. 6667 See Trial Judgement, paras. 1220, 1389. 6668 Compare Witness GABON, T. 3 September 2008 p. 17 (closed session) ("Q. So, Witness, from Wednesday, Thursday, Friday, and the day of Saturday, you only slept for a total of 27 minutes. [...] A. That is correct. Over those three days, I only slept for 27 minutes.") with ibid., p. 20 (closed session) (French) ("Q. Monsieur le Témoin, mercredi, jeudi, vendredi et toute la journée de samedi, pendant tout ce temps, vous n'avez dormi au total que 25 minutes; c'est bien cela ? [...] R. C'est exact. Au cours de ces trois journées, je n'ai dormi que pendant ces 25 minutes."). 6669 The Appeals Chamber recalls that it has found that Ndayambaje has failed to demonstrate that the Trial Chamber erred by not conducting site visits. See infra, Section IX.D. 6670 Trial Judgement, paras. 1199, 1389. See also ibid., para. 1446. 6671 Ndayambaje Appeal Brief, paras. 202, 396-398. Ndayambaje notes that Witness KEPIR denied being present at Kabuye Hill. See ibid., para. 396, referring to Witness KEPIR, T. 10 September 2008 pp. 74, 75 (closed session), T. 15 September 2008 pp. 26, 27 (closed session). 6672 Ndayambaje Appeal Brief, para. 397, referring to Witness ANGES, T. 20 August 2008 pp. 41, 42 (closed session), Witness GABON, T. 1 September 2008 pp. 20, 21 (closed session), Witness KEPIR, T. 4 September 2008 p. 22 (closed session), Ndayambaje, T. 22 October 2008 pp. 35, 36. 1013 Case No. ICTR-98-42-A 14 December 2015

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19351/H Kabuye Hill and concluded that this had "a bearing on Witness KEPIR's credibility" 6673 The Appeals Chamber notes, however, that Witness FAU did not identify Witness KEPIR at Kabuye Hill and that Witness EV's testimony is too equivocal to be reasonably relied upon as an "eyewitness" account of Witness KEPIR's presence at Kabuye Hill.674 Accordingly, the Appeals Chamber finds that no reasonable trier of fact could have found that "eyewitness accounts" "implicated" Witness KEPIR in attacks on Kabuye Hill based on Witnesses FAU's and EV's evidence. 6675 2928. However, the Appeals Chamber finds that this error does not affect the Trial Chamber's conclusion that Witness KEPIR's alibi evidence was not credible or did not raise reasonable doubt in the Prosecution case regarding Ndayambaje's whereabouts from 20 to 24 April 1994.6676 The Trial Chamber noted that Witness KEPIR was a friend of Ndayambaje and had previously reported to him on professional matters;6677 circumstances which Ndayambaje does not dispute. The Appeals Chamber has found that the Trial Chamber did not err in weighing this type of evidence when assessing the credibility of witnesses. 678 Furthermore, the Trial Chamber correctly recalled Witness FAU's evidence that Ndayambaje used Witness KEPIR's vehicle to pick up weapons for use at Kabuye Hill,6679 While Ndayambaje points to evidence that Witness

KEPIR's vehicle was a colour other than that described by Witness FAU,6680 the Appeals Chamber is not persuaded that a reasonable trier of fact could not have considered Witness FAU's evidence that Witness KEPIR's car was used in the process of obtaining weapons to be used in an attack when assessing Witness KEPIR's credibility. More importantly, Ndayambaje fails to explain how the Trial Chamber erred when concluding that it did not find credible Witness KEPIR's evidence that 3673 Trial Judgement, para. 1199, fn. 2555, referring to Witness EV, T. 25 February 2004 pp. 74, 75, T. 26 February 2004 pp. 60, 61, Witness FAU, T. 4 March 2004 pp. 71, 72, 78, T. 9 March 2004 pp. 46, 47. 6674 See Witness EV, T. 25 February 2004 p. 75, T. 26 February 2004 p.

61. See also Exhibit D676 (Witness KEPIR's Personal Identification Sheet). 6675 Ndayambaje argues the Trial Chamber engaged in speculation in order to discredit Witness KEPIR. See Ndayambaje Appeal Brief, paras. 220-224. Other than the conclusion based on Witness EV's evidence placing Witness KEPIR at Kabuye Hill, Ndayambaje fails to substantiate this claim with references and the Appeals Chamber dismisses this contention without further consideration. 6676 Trial Judgement, paras. 1223, 1399, 1417, 1446. 6677 See Trial Judgement, para. 1389. 6678 See supra, Section IX.C.3(b). 6679 See Trial Judgement, para. 1389, referring to Witness FAU, T. 4 March 2004 pp. 71, 72, T. 9 March 2004 pp. 42, Compare Witness FAU, T. 4 March 2004 p. 71 with Witness ANGES, T. 20 August 2008 pp. 41 (closed session) and Witness GABON, T. 1 September 2008 p. 21 (closed session). Ndayambaje also refers to the testimony of Witness KEPIR. See Ndayambaje Appeal Brief, para. 397, referring to Witness KEPIR, T. 4 September 2008 p. 22 (closed session). However, a review of this evidence reflects that it is not relevant. Likewise, while Ndayambaje also refers to his own testimony at T. 22 October 2008 pp. 35, 36, the only vehicle described in this excerpt is Witness Tiziano's blue, single cabin Toyota Hilux. 1014 Case No. ICTR-98-42-A 14 December 2015

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19350/H he was with Ndayambaje at all times over the course of 21 April 1994 and concluded that he was not in a position to state that Ndayambaje never left the Muganza commune office on that day 6681 2929. The Appeals Chamber therefore concludes that Ndayambaje has failed to demonstrate any error in the Trial Chamber's assessment of Witness KEPIR's alibi evidence that would warrant the intervention of the Appeals Chamber.

4. Conclusion 2930. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in relation to his alibi and, accordingly, dismisses Ground 7 of Ndayambaje's appeal. 6681 Trial Judgement, para.

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19349/H D. Denial of Site Visits (Ground 12) 2931. On 23 September 2004, the Trial Chamber denied a request for site visits made by the Prosecution on the ground that, if the visits were to be made, it was "desirable that they be made at the end of the presentation of the cases of both Parties" and invited the parties to make such a request at the end of the presentation of their cases. 682 In June 2008, the Prosecution again moved the Trial Chamber to conduct site visits,683 to which Ndayambaje responded that the request was premature. 684 On 26 February 2009, the Trial Chamber dismissed the Prosecution's request for site visits in Rwanda, concluding that the visits were no longer necessary since: (i) a considerable number of exhibits, including photographs and maps, had already been tendered to assist the Trial Chamber's familiarisation with the relevant locations; (ii) visiting the sites, which unlikely remained in the same condition 14 years after the events in question, may not provide much assistance in the discovery of the truth and fair determination of the relevant issues; and (iji) the sites proposed were too numerous, may have had "extraordinary logistical and cost implications for the Tribunal", and the visits may not have been "completed in a short period of time."6685 2932. In his closing arguments, Ndayambaje claimed that the Trial Chamber's refusal to

authorise site visits, in particular to Kabuye Hill, led "to a great incomprehension of the sites and, therefore, have caused a great prejudice" 6686 In the Trial Judgement, the Trial Chamber noted that Ndayambaje did not describe the prejudice he allegedly suffered as a result of the Trial Chamber's refusal to conduct site visits or explain the purported "incomprehension" of the sites caused by it. 687 The Trial Chamber recalled that it had considered a number of video and photo exhibits as well as sketches relating to Kabuye Hill and concluded that Ndayambaje's allegation of prejudice was not established and that there was no reason to reconsider the Site Visits Decision.' 6688 2933. On appeal, Ndayambaje submits that the reasons advanced by the Trial Chamber for its refusal to conduct the site visits constitute an error of law which led to errors of fact causing a miscarriage of justice. 6689 In particular, Ndayambaje argues that the Trial Chamber erred in: 5682 See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecutor's Motion for Site Visits in the Republic of Rwanda under Rules 4 and 73 of the Rules of Procedure and Evidence. 23 rherose 200r Paul Sit ViramDecision", larase A S C. R-98 42-T, Prosecutors Motion for Site Visits in the Republic of Rwanda under Rules 4 and 73 of the Rules of Procedure and Evidence, 26 June 2008. The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Réponse d'Elie Ndayambaje à "Prosecutor's Motion for Site Visits in the Republic of Rwanda under Rules 4 and 73 of the Rules of Procedure and Evidence", 30 June 2008 ("Ndayambaje Site Visits Response of 2008"), paras. 5-7. 6685 Site Visits Decision, para. 21, p.

7. See also Trial Judgement, para. 1262. 6686 Ndayambaje Closing Arguments, T. 30 April 2009 p. 6. 6687 Trial Judgement, para. 1263. 6688 Trial Judgement, para. 1263. 6689 Ndayambaje Notice of Appeal, para. 107, referring to Trial Judgement, para. 1262, quoting Site Visits Decision, para. 21; Ndayambaje Appeal Brief, paras. 270, 274, 275, 290. 1016 Case No. ICTR-98-42-A 14 December 2015

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19348/H (i) making findings regarding the state of the relevant sites due to the passage of time that were speculative and in disregarding the fact that many locations and geographic landmarks remained unchanged even after 14 years;6690 (ii) concluding that the analysis of photographs, maps, and sketches alone was sufficient to enable the Trial Chamber to familiarise itself with the locations of the relevant sites;6691 and (iii) "sacrificing]" trial fairness for logistical and financial considerations. 6692 Ndayambaje also contends that it was "incomprehensible and unacceptable"6693 for the judges composing the Trial Chamber to refuse to conduct site visits in the present case when they conducted such visits in other cases at the Tribunal, even more than 14 years after the relevant events, acknowledging the importance of those visits to the assessment of the evidence. 0694 2934. Ndayambaje further submits that visiting the sites was necessary to enable the Trial Chamber to acquire a better understanding of the evidence. 695 In his view, because the Trial Chamber lacked knowledge of the relevant sites, it erred in its assessment of the evidence, which resulted in a number of erroneous findings concerning multiple sites and caused him prejudice. 6696 Ndayambaje requests that the Appeals Chamber disregard all the erroneous findings made by the Trial Chamber resulting from its lack

of knowledge of the locations.6697 2935. The Prosecution responds that Ndayambaje's claim that he suffered prejudice as a result of the Trial Chamber's decision to deny its request for site visits is baseless and should be dismissed. 6698 The Prosecution argues that, during trial, Ndayambaje never asked for a site visit, opposed its request for site visits as premature, and only raised in his closing arguments a cursory and unsubstantiated complaint that the Trial Chamber did not visit Kabuye Hill 669% It submits that, 6690 Ndayambaje Appeal Brief, para. 283. 6691 Ndayambaje Appeal Brief, para.

282. See also Ndayambaje Reply Brief, para. 109. 6692 Ndayambaje Appeal Brief, para.

287. See also ibid., para. 288. 6693 Ndayambaje Appeal Brief, para. 284. 6694 Ndayambaje Appeal Brief, paras. 284, 285, referring to the Hategekimana, Nzabonimana, and Ngirabatware trials. 6695 Ndayambaje Notice of Appeal, para.

102. See also Ndayambaje Appeal Brief, para. 278; Ndayambaje Reply Brief, para. 111 1696 Ndayambaje Notice of Appeal, paras. 103-106; Ndayambaje Appeal Brief, paras. 278-282, 289, 290. See also Ndayambaje Reply Brief, paras. 110, 112, 113; AT. 21 April 2015 pp. 72, 73. Ndayambaje refers in particular to: Mugombwa Church; Kabuye Hill; Muganza commune office; the distance between Muganza Commune and Gisagara; the distance between Gisagara and Ngiryi River; the distance between Muganza Commune and the bourgmestre's residence in Kibayi Commune; the distance between Ndayambaje's residence in Mugombwa and the Muganza commune office; the Muganza-Gisagara-Butare road; and the Virgin Mary Statue. See Ndayambaje Notice of Appeal, para. 104; Ndayambaje Appeal Brief, para.

280. The Appeals Chamber notes that, under Ground 12 of his appeal, Ndayambaje broadly impugns the Trial Chamber's factual findings in relation to all of his convictions, without indicating the manner in which these findings were flawed, save for a specific example related to the descriptions of the layout and size of the Muganza commune office by Defence witnesses. See Ndayambaje Appeal Brief, para. 279, referring to Trial Judgement, para. 1223; Ndayambaje Reply Brief, para.

113. The Appeals Chamber notes, however, that in other parts of his appeal, Ndayambaje highlights specific findings of the Trial Chamber, which, he contends, were affected by the lack of site visits. See, e.g., Ndayambaje Appeal Brief, paras. 106, 156, 188, 314, 337, 401, 417, 427, 495, 500, 636. 6697 Ndayambaje Notice of Appeal, para. 108; Ndayambaje Appeal Brief, para. 290. 6698 Prosecution Response Brief, paras. 2164, 2168. 6699 Prosecution Response Brief, paras. 2164, 2165. See also AT. 21 April 2015 p. 36. 1017 Case No. ICTR-98-42-A 14 December 2015

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19347/H on appeal, Ndayambaje does not explain his failure to seek admission of additional visual aids to further clarify matters of geography and fails to support his allegations of errors of fact by any explanations or evidence. 6700 2936. Ndayambaje replies that he never opposed a site visit but instead argued that the Prosecution's request of 2008 was premature at the time as he had not yet presented his defence. 6701 At the appeals hearing, Ndayambaje further argued that he joined the Prosecution's request for site visits, adding a number of sites to be visited. 6702 2937. The Appeals Chamber notes that, when the Prosecution moved the Trial Chamber to conduct site visits in March 2004, Ndayambaje responded that he agreed with the principle and the necessity of a site visit. 703 However, when the Prosecution made another request for site visits in June 2008, Ndayambaje responded that the request was premature as the presentation of the Defence evidence was still ongoing.6704 Ndayambaje also explicitly expressed his "serious reservations about the utility of such a site visit 14 years after the events, insofar as the configuration of the sites (vegetation, new constructions, renovation of buildings, roads and trails, etc.) [was] no longer the same". 6705 2938. The Appeals Chamber further notes that Ndayambaje did not alert the Trial Chamber about the reversal of the position

he took in 2008 regarding the utility of the site visits until his closing arguments where, for the first time, he voiced "regrets" that the Trial Chamber did not authorise site visits, arguing that this led to "a great incomprehension of the sites" and therefore "caused a great prejudice" 6706 As discussed above, the Trial Chamber interpreted this claim as a request to reconsider the Site Visits Decision, which it dismissed on the grounds that Ndayambaje had failed to substantiate his claim of prejudice and explain how or why there was a purported incomprehension of the sites. 6707 6700 Prosecution Response Brief, paras. 2165-2168. 6701 Ndayambaje Reply Brief, paras. 107, 108, referring, inter alia, to The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Réponse à la Requête du Procureur intitulée "Prosecutor's motion for site visits in the Republic of Rwanda under Rules 4 and 73 of the [RJules of Procedure and Evidence", 1 June 2004 ("Ndayambaje's Site Visits Response of 2004"), paras. 4-6, 9. 6702 AT. 21 April 2015 pp. 86, 87 (French), referring to the 2004 Site Visits Decision. 6703 Ndayambaje's Site Visits Response of 2004, para.

4. See also ibid., paras. 5, 6. Ndayambaje nonetheless noted that the Prosecution's motion was vague and requested that the Trial Chamber order the Prosecution to adduce further information. See ibid., paras. 7, 8, p. 3. 6704 Ndayambaje Site Visits Response of 2008, paras. 5-7. 6705 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Réponse d'Elie Ndayambaje au "Scheduling Order" rendu par la Chambre le 26 Septembre 2008, 29 September 2008, para. 5 (informal translation). 6706 Ndayambaje Closing Arguments, T. 30 April 2009 p. 6. 6707 Trial Judgement, para. 1263. 1018 Case No. ICTR-98-42-A 14 December 2015

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19346/H 2939. The Appeals Chamber finds no error in the Trial Chamber's decision to deny reconsideration of the Site Visits Decision. Indeed, in his closing submissions, apart from vaguely expressing "regrets that the Trial Chamber did not authorise a visit to Kabuye because this decision does affect the overall view of the Defence" and alleging that it "le[d] to a great incomprehension of the sites", particularly as regards Kabuye Hill, Ndayambaje did not advance any argument to substantiate his assertion that he was prejudiced by the Trial Chamber's refusal to authorise site visits, nor did he seek to demonstrate a clear error of reasoning or that the reconsideration of the impugned decision was necessary to prevent an injustice.708 Ndayambaje neither elaborated how his Defence case was affected by the fact that the Trial Chamber did not visit the relevant sites nor, as noted by the Trial Chamber, did he "explain how or why there [was] 'incomprehension' of the sites", 6709 Notably, only on appeal did Ndayambaje argue, inter alia, that the "analysis of the photos, sketches and maps tendered in the trial was insufficient to help [the Trial Chamber] to know and familiarize itself with the locations" and that "[o]nly a site visit would have enabled it to really understand the layout of the sites and avoid making a ruling in the abstract.»6710 2940. The Appeals Chamber also

observes that, on appeal, Ndayambaje complains about the fact that the Trial Chamber did not undertake site visits without explaining why he did not move the Trial Chamber to conduct one after the end of the presentation of his case and advances arguments against the Site Visits Decision that were never raised at trial.6711 Recalling that a party should not be permitted to refrain from raising a matter which was apparent during the course of the trial to raise it only on appeal in the event of an adverse finding against that party, 6712 the Appeals Chamber considers that Ndayambaje has waived his right to introduce this issue as a valid ground of appeal and will accordingly dismiss Ndayambaje's submissions in this regard without further consideration.

2941. Based on the foregoing, the Appeals Chamber dismisses Ground 12 of Ndayambaje's appeal in its entirety. 1019 Case No. ICTR-98-42-A 14 December 2015

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19345/H E. Mugombwa Church (Grounds 9 in part, and 17) 2942. The Trial Chamber found that, by his presence on 20 and 21 April 1994 at Mugombwa Church, Muganza Commune, and given his considerable moral authority, Ndayambaje encouraged the attacks on the Tutsis taking refuge inside the church that took place on these two days, resulting in the deaths of hundreds, if not thousands, of Tutsis.6713 It also found that Ndayambaje's public addresses at Mugombwa Church on 20 and 21 April 1994 directly and publicly incited the commission of genocide. 714 On this basis, the Trial Chamber convicted Ndayambaje of committing direct and public incitement to commit genocide as well as aiding and abetting genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute 715 2943. Ndayambaje submits that the Trial Chamber erred in its assessment of the evidence related to this event and in finding that he "publicly" incited the commission of genocide and possessed genocidal intent. 716 The Appeals Chamber recalls that it has found that the Trial Chamber erred in convicting Ndayambaje of committing direct and public incitement to commit genocide at Mugombwa Church as he lacked notice

that he was charged on this basis and, consequently, reversed his conviction for committing direct and public incitement to commit genocide at Mugombwa Church 6717 In these circumstances, Ndayambaje's contentions regarding his conviction for direct and public incitement to commit genocide and his genocidal intent have become moot and need not be addressed.718 With respect to his convictions for aiding and abetting the killings at the church, Ndayambaje contends that the Trial Chamber erred in: (i) its assessment of Witness QAR's evidence; (ii) ignoring contradictions in the Prosecution evidence; (iii) failing to consider the lack of corroboration; and (iv) its assessment of Defence evidence.' 6719 The Appeals Chamber will address these contentions in turn. 6713 Trial Judgement, paras. 1245, 1246, 5754-5757. 6714 Trial Judgement, paras. 1245, 1246, 5995-6001. 6715 Trial Judgement, paras. 5758, 5976, 5977, 6002, 6038, 6064-6066, 6107, 6108, 6125, 6175, 6176, 6186. 6716 Ndayambaje Appeal Brief, paras. 333, 334, 339, 347-349, 355-358, 360-364, 368, 371, 372, 379-381, 384, 386-388. 394, 395, 398, 400, 402, 404, 407, 412, 415, 416, 418, 420-422, 424. See also Ndayambaje Notice of Appeal, paras. 141, 142, 144 717 See supra, Sections IX.A. 1(c), IX.A.5. 6718 The Appeals Chamber notes that Ndayambaje was otherwise convicted of aiding and abetting genocide and that this orm of responsibility does not require that the aider and abetter had genocidal inten 719 Ndayambaie Notice of Appeal, paras. 141-148; Ndayambaje Appeal Brief, paras. 333-386, 422, 42. 1020 Case No. ICTR-98-42-A 14 December 2015

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19344/H 1. Assessment of Witness QAR's Evidence 2944. In finding that Ndayambaje participated in the events at Mugombwa Church, the Trial Chamber relied primarily on the evidence of Prosecution Witness QAR.6720 It noted that Witness QAR placed Ndayambaje at Mugombwa Church on 20 and 21 April 1994.672) It found her evidence compelling, consistent, and detailed and further noted that it was corroborated by Prosecution and Defence witnesses in several respects. 722 The Trial Chamber also considered alibi evidence, inconsistencies, and contradictions in Witness QAR's evidence, and potentially contradictory Prosecution evidence in the Trial Judgement and concluded that this evidence did not cast doubt on the witness's credibility.0723 2945. The Appeals Chamber will examine Ndayambaje's submission that the Trial Chamber erred in its assessment of Witness QAR's evidence that she saw him at Mugombwa Church, before turning to his contentions that the Trial Chamber failed to apply the standards applicable to identification under difficult circumstances and ignored material inconsistencies and contradictions within Witness QAR's evidence." 6724 (a) Presence of Ndayambaje at Mugombwa Church 2946. The Trial Chamber recalled Witness QAR's testimony that, through one of the church's broken windows, she saw Ndayambaje outside the church about 10 metres away from where she stood at about noon

on 20 April 1994.6725 It also noted that Witness QAR testified to seeing Ndayambaje at Mugombwa Church at 10.00 a.m. on 21 April 1994 about 10 metres away from her position inside the church. 726 The Trial Chamber relied on these aspects of Witness QAR's evidence to find that Ndayambaje was present at Mugombwa Church on 20 and 21 April 1994.6727 2947. Ndayambaje submits that the Trial Chamber erred in finding that Witness QAR saw him at Mugombwa Church on 20 April 1994 through one of the church's broken windows. 728 He argues that: (i) Exhibit P41 contradicts Witness QAR's evidence and shows that the witness could not possibly see him from the position where she claimed she stood; (ii) Witness QAR could not see outside because of the opacity of the window panes; (iri) Witness QAR could not have seen him 6720 Trial Judgement, paras. 1211, 1219, 1227-1235, 1237-1244. 6721 Trial Judgement, paras. 1219, 1227, 1232. 6722 Trial Judgement, paras. 1204, 1205, 1227-1229, 1231, 1233-1235, 1237, 1239, 1242-1245. 6723 Trial Judgement, paras. 1218, 1230, 1241, 1243, 1244. 6724 Ndayambaje Notice of Appeal, paras. 142-144; Ndayambaje Appeal Brief, paras. 243-245, 335, 337-341, 348. See also Ndayambaje Reply Brief, paras. 125-131, 135; AT. 21 April 2015 pp. 22, 23. 6725 Trial Judgement, para. 1227. 6726 Trial Judgement, para.

1232. See Trial Judgement, paras. 1244-1246. 6728 Ndayambaje Appeal Brief, paras. 335, 337-341. See also Ndayambaje Notice of Appeal, paras. 141, 144. 1021 Case No. ICTR-98-42-A 14 December 2015

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19343/H from behind a window as stones were being thrown and she would have been exposing herself to the stones. 729 Ndayambaje also contends that the Trial Chamber failed to consider the testimonies of Witnesses BOZAN and Tiziano that the panes of a single window were broken at 12.30 p.m., which contradicts Witness QAR's testimony that the panes of several windows were broken at 12.00 p.m. 6730 2948. Ndayambaje further submits that the Trial Chamber erred in finding that Witness QAR saw him at Mugombwa Church on 21 April 1994 since neither her viewpoint, nor the crowd inside and outside the church, would have allowed the witness to see and hear everything she described. 731 He contends that Witness QAR acknowledged her inability to see outside the church and to identify the person who threw grenades at the church on 21 April 1994.6732 Moreover, Ndayambaje argues that the witness's implausible account of his distribution of weapons at the church, which was excluded by the Trial Chamber, shows Witness QAR's lack of credibility and that, having found her evidence related to his swearing-in ceremony not credible, the Trial Chamber had no reasons to believe the witness in relation to Mugombwa Church. 6733 In his view, the Trial Chamber further erred in assessing Witness QAR's testimony in an isolated manner and not in light of the other events she testified about. 6734 2949. In

addition, Ndayambaje submits that the Trial Chamber erred as a matter of law in relying on the fact that Witness QAR's testimony on Ndayambaje's presence at Mugombwa Church was consistent with Witness QAR's prior statements to bolster the witness's credibility. 0735 2950. The Prosecution responds that Witness QAR gave consistent, detailed, and clear testimony, supported by video, of her vantage point from where she saw Ndayambaje on 20 April 1994.6736 It submits that: (i) Exhibit P41 actually corroborates the witness's testimony; (il) Witness QAR would not have been exposing herself to stone throwers while observing Ndayambaje through the window since the stone throwers stopped upon Ndayambaje's arrival; and (iii) the Trial Chamber merely "observed" that Witness QAR was consistent in her previous statements and that, in any 6729 Ndayambaje Appeal Brief, paras. 337, 340, 341. See also Ndayambaje Reply Brief, paras. 128, 129. Ndayambaje also asserts that Witness QAR's admission that she could not observe the exterior of the church to identify the person who allegedly threw grenades further demonstrated the implausibility of her account and that a site visit would have allowed the Trial Chamber to see these contradictions. See Ndayambaje Appeal Brief, para.

337. The Appeals Chamber has already rejected Ndayambaje's allegations of error regarding the denial of site visits. See supra, Section IX.D. 6730 Ndayambaje Appeal Brief, para. 339. 6731 Ndayambaje Appeal Brief, para. 343. 6732 Ndayambaje Appeal Brief, para. 337, referring to Witness QAR, T. 21 November 2001 pp. 23, 25, 26. 6733 Ndayambaje Appeal Brief, paras. 344, 370, 578, 579, referring to Trial Judgement, paras. 1036, 1037, 1244-1246, 4602-4604. 6734 Ndayambaje Appeal Brief, paras. 209, 375. 6735 Ndayambaje Appeal Brief, para. 334 6736 Prosecution Response Brief, para. 2180; AT. 21 April 2015 pp. 49, 50. 1022 Case No. ICTR-98-42-A 14 December 2015

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19342/H case, relying on consistent portions of the witness's prior statements to bolster her credibility was permissible in order to rebut the charge of fabrication of testimony. 6737 2951. The Appeals Chamber observes that Ndayambaje did not question Witness QAR on Exhibit P41, the videotape of the commune office and Mugombwa Church made by a Prosecution investigator. 738 Ndayambaje also did not raise any arguments related to this exhibit in his closing brief or during his closing arguments.39 More importantly, having reviewed Exhibit P41, the Appeals Chamber is not persuaded that it effectively shows that Witness QAR could not possibly see Ndayambaje from the position where she claimed she stood.

2952. The Appeals Chamber also finds no merit in Ndayambaje's argument on the opacity of the window panes given Witness QAR's testimony, which the Trial Chamber accepted, that she saw Ndayambaje speaking to the attackers through a broken window, not through a window pane. 6740 Similarly, the Appeals Chamber observes that Ndayambaje's argument that Witness QAR could not have stood near one of the church's windows while stones were being thrown ignores that Witness QAR testified that the crowd outside the church stopped throwing stones upon Ndayambaje's arrival at the church. 6741 2953. The Appeals Chamber further observes that, contrary to Ndayambaje's claim, the Trial Chamber expressly considered the evidence of Witnesses BOZAN and Tiziano as to the number of church windows broken and when they were broken.6742 The Trial Chamber noted that Witness BOZAN testified to only one window being broken but considered that his view of the church was restricted to one side of the church and concluded that his evidence therefore did not cast doubt on Witness QAR's testimony that more than one window was broken. 6743 Ndayambaje does not show how the Trial Chamber erred in reaching this finding. The Trial Chamber also noted Witness Tiziano's evidence that the windows in the church were broken by about 12.30 p.m. and found that this corroborated Witness AR's evidence.6744 Ndayambaje does not demonstrate how 6737 Prosecution Response Brief, paras. 2178, 2180-2184. T. 30 April 2009 pp. 4-46. 6740 Witness OAR, T. 19 November 2001 p. 20; Trial Judgement, para. 1227. 6741 Witness OAR, T. 20 November 2001 pp. 115, 116. 6742 See Trial Judgement, paras. 1227, 1228. 6743 See Trial Judgement, para. 1228. 6744 See Trial Judgement, para.

1228. See also Tiziano Pegoraro, T. 9 September 2008 pp. 11, 13. The Appeals Chamber also notes Ndayambaje's argument that Witness Tiziano's testimony that, upon returning to the church, he saw "les vitres brisées de l'église [...I" was erroneously translated into English in "the broken windows of the church." Ndayambaje argues that the word "vitre" in French translates into "pane" in English and should therefore not have been translated into "window". See Ndayambaje Appeal Brief, para.

339. The Appeals Chamber considers that a reasonable trier of fact, whether relying on the French or English version of Witness Tiziano's testimony, could have found that his testimony corroborated Witness QAR's account of stones being thrown at the church and the breaking of the church's windows. Compare Tiziano Pegoraro, T. 9 September 2008 p. 11 (English) with ibid., p. 13 (French). 1023 Case No. ICTR-98-42-A 14 December 2015

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19341/H the evidence of Witnesses QAR and Tiziano is inconsistent in this regard, as Witness Tiziano testified that he came back to the church "[toward 12.30" and that upon arrival before entering the parish he saw that the windows of the church were broken, 745 which is not inconsistent with Witness QAR's testimony that the windows were broken around noon. 746 Ndayambaje's contention that the Trial Chamber failed to consider the relevant testimonies of Witnesses BOZAN and Tiziano is therefore rejected.

2954. Furthermore, the Appeals Chamber considers that Witness QAR's evidence that she could not see the person who threw grenades at the church on 21 April 1994 does not establish, as Ndayambaje argues, that she would not have been able to see him on that day. The Appeals Chamber observes that the witness testified being at different locations at the moment she saw Ndayambaje and at the moment when the unidentified person threw grenades at the church. 6747 Moreover, the Appeals Chamber notes that the Trial Chamber did not find Witness QAR's account regarding the distribution of weapons implausible, but declined to consider it due to a lack of notice. 748 Ndayambaje does not substantiate his contention that this particular aspect of Witness QAR's testimony was implausible and how it relates to the witness's ability to observe the events at Mugombwa Church on 21 April 1994. Similarly, Ndayambaje does not explain why the rejection of Witness QAR's testimony related to his swearing-in ceremony, which was based on elements that were specific to this very aspect of the witness's testimony,6749 required the Trial Chamber to also reject her evidence regarding events at Mugombwa Church. 6750 His general and undeveloped argument that the Trial Chamber considered Witness QAR's testimony in an "isolated manner" also fails to demonstrate any error in the Trial Chamber's assessment of

Witness QAR's testimony pertaining to Mugombwa Church. 6751 2955. Turning to Ndayambaje's argument regarding the Trial Chamber's reliance on Witness QAR's prior consistent statements, the Appeals Chamber recalls that prior consistent statements cannot be used to bolster a witness's credibility, except to rebut a charge of recent 6745 Tiziano Pegoraro, T. 9 September 2008 pp. 11, 13. 6746 Witness QAR, T. 20 November 2001 p.

119. See also ibid., p. 120. 6747 See Witness QAR, T. 19 November 2001 pp. 11, 13, 20. See also Witness QAR, T. 21 November 2001 pp. 22, 26. Witness QAR testified that when she saw Ndayambaje on 21 April 1994 she was standing near the door from which she came out, near a window which was broken. On the other hand, she testified to being near the alter of the church when the grenades were thrown at the church on 21 April 1994. See idem. 6748 Trial Judgement, paras. 1036, 1037. 6749 Trial Judgement, paras. 4602-4604. 6750 See also infra, para.

3270. It is well-established jurisprudence that trial chambers have the discretion to accept some, but reject other parts of a witness's testimony. See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 6751 The Appeals Chamber notes that it has found no error in the Trial Chamber's assessment of the credibility of Witness QAR's account related to the abduction of Tutsi women and girls in Mugombwa. See infra, Section IX.H.1 (b). 1024 Case No. ICTR-98-42-A 14 December 2015

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19340/H fabrication of testimony.®? In the Ntakirutimana Appeal Judgement, to which Ndayambaje points, the Appeals Chamber also clarified that "there is a difference between using a prior consistent statement to bolster the indicia of credibility observed at trial and rejecting a Defence challenge to credibility based on alleged inconsistencies between testimony and earlier statements. The former is a legal error, while the latter is simply a conclusion that the Defence's arguments are not persuasive. »6753 2956. In his closing brief, Ndayambaje challenged Witness QAR's credibility on the basis of inconsistencies between her testimony and earlier statements and argued, in particular, that Witness QAR did not see him at the church and that her claim was "pure fabrication" 6754 It is in the context of addressing one of these alleged inconsistencies in the Trial Judgement that the Trial Chamber "observe[d] that [Witness QAR] is consistent in her previous statements that she saw Ndayambaje at the site."6755 The Appeals Chamber considers that it is clear from the Trial Judgement that Witness QAR's prior consistent statements were not used to bolster her credibility, but to rebut Ndayambaje's challenges of fabrication of evidence and lack of credibility of the witness. Accordingly, the Appeals Chamber finds that the Trial Chamber did not impermissibly rely on Witness QAR's prior consistent statements to bolster her credibility.

2957. Based on the above, the Appeals Chamber finds that Ndayambaje has not demonstrated that no reasonable trier of fact could have accepted Witness QAR's evidence of seeing Ndayambaje at Mugombwa Church on 20 and 21 April 1994. (b) Identification under Difficult Circumstances 2958. Ndayambaje submits that identification done by a witness in circumstances such as those of Witness QAR required caution and corroboration. 6756 He contends that, in such a situation, the Trial Chamber was required to fully reason its decision, identify the factors it relied upon in support of the identification, and adequately address the factors impacting negatively on the reliability of the identification evidence, which it failed to do. 757 Ndayambaje argues that the Trial Chamber merely stated that it had considered the circumstances surrounding the identification made by 6752 Ntakirutimana Appeal Judgement, para. 147. 6753 Ntakirutimana Appeal Judgement, para. 148. 6754 See Ndayambaje Closing Brief, paras. 160-171. 6755 Trial Judgement, para.

1239. See also ibid., paras. 1238, 1240, 1241. 6756 Ndayambaje Appeal Brief, para.

348. See also Ndayambaje Notice of Appeal, paras. 85, 86; Ndayambaje Appeal Brief, paras. 243, 251. Ndayambaje refers to the following circumstances: (i) the church was full of refugees who had to protect themselves from attackers who were throwing stones and could not have exposed themselves near the windows i) Witness QAR moved about "relentlessly" in the crowd; (iii) Witness QAR was close to the door leading to the sacristy; and (iv) Witness QAR did not see Ndayambaje arrive at the church but was merely informed of his arrival by the other refugees. See Ndayambaje Appeal Brief, para. 348, fn. 494. 6757 Ndayambaje Appeal Brief, paras. 244, 348. 1025 Case No. ICTR-98-42-A 14 December 2015

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19339/H Witness QAR but never provided a reasoned opinion for accepting the identification made by the witness. 758 2959. The Prosecution responds that corroboration of Witness QAR's identification evidence was not required and that, in any event, her evidence was corroborated on many accounts.6759 It submits that the Trial Chamber made no error in its assessment of Witness QAR's identification evidence as it noted that the witness had no difficulty seeing Ndayambaje at Mugombwa Church, that she did not have to identify him as many refugees in the church recognised him, and that, in any event, she knew him since childhood and correctly identified him in court. 6760 2960. Ndayambaje replies that identification of an accused under difficult circumstances cannot automatically be inferred on the sole basis of the witness having prior knowledge of the accused and reiterates that a fully reasoned opinion in such situations is required. 6761 2961. The Appeals Chamber finds that the fact that Witness QAR's identification of Ndayambaje at Mugombwa Church was not corroborated did not prevent the Trial Chamber from relying on this aspect of her evidence. The Appeals Chamber recalls that a trial chamber has the discretion to decide in the circumstances of each case whether corroboration is necessary and whether to rely on uncorroborated, but otherwise credible, witness testimony.

6762 2962. The Appeals Chamber nonetheless recalls that "where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a reasoned opinion."6763 In these instances, the Trial Chamber must "carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence", 6764 6758 Ndayambaje Appeal Brief, para.

245. See also Ndayambaje Notice of Appeal, para. 86; Ndayambaje Reply Brief, B Procution Response Brief, para. 2193. 6760 Prosecution Response Brief, paras. 2152, 2193. See also AT. 21 April 2015 p. 48. 6761 Ndayambaje Reply Brief, para.

135. Ndayambaje adds that none of the refugees who allegedly corroborate Witness QAR's identification evidence testified in court. See idem. 6762 See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para, 251; Nchamihigo Appeal Judgement, para. 42; Milosevic Appeal Judgement, para.

215. The jurisprudence cited by Ndayambaje does not suggest otherwise See Ndayambaje Appeal Brief, para. 348, referring to Kordic Appeal Judgement, para. 274; Bagilishema Appeal Judgement, paras. 78, 79. 6763 Lukic and Lukié Appeal Judgement, para. 136; Renzaho Appeal Judgement, para. 527; Kupreskié et al. Appeal Judgement, para.

39. See also Kalimanzira Appeal Judgement, para. 96. 6764 Lukié and Lukié Appeal Judgement, para. 136; Haradinaj et al. Appeal Judgement, para. 152; Kupreskié et al. Appeal Judgement, para. 39. 1026 Case No. ICTR-98-42-A 14 December 2015

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19338/H 2963. The Trial Chamber did not state that Witness QAR's identification of Ndayambaje was made under difficult circumstances. 765 Rather, it found that Witness QAR saw Ndayambaje outside the church about 10 metres away from where she stood on 20 April 1994 through one of the church's broken windows, and from about 10 metres away from her position inside the church on 21 April 1994.6766 The Appeals Chamber is not convinced that any of the elements Ndayambaje points to demonstrate that the circumstances in which Witness QAR identified Ndayambaje required further reasoning from the Trial Chamber. 767 While Witness QAR had sought refuge in Mugombwa Church on 20 and 21 April 1994, her identification of Ndayambaje at Mugombwa Church did not occur in circumstances that would have made Ndayambaje difficult to identify. 6768 2964. In light of the foregoing, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in its assessment of Witness QAR's identification evidence. (c) Inconsistencies and Contradictions within Witness QAR's Evidence 2965. The Trial Chamber noted discrepancies between Witness QAR's testimony at trial and her prior statements to Tribunal investigators.769 It found Witness QAR's explanations that the discrepancies were a result of her statements not being properly recorded by the investigators to be reasonable and accepted

them. 770 It concluded that the discrepancies between Witness QAR's testimony and her prior statements were not material and did not cast doubt on her credibility. 6771 2966. Ndayambaje submits that no reasonable trier of fact would have accepted Witness QAR's evidence in light of the numerous material inconsistencies and contradictions between her prior statements and her testimony at trial, which undermined her credibility. 72 Ndayambaje lists a number of inconsistencies and contradictions between Witness QAR's testimony and her prior statements which, he argues, concerned key material facts and should have led the Trial Chamber te reject the witness's evidence.773 According to Ndayambaje, it was against all logic that the Trial 6765 See Trial Judgement, para. 1244. 6766 Trial Judgement, paras. 1227, 1232. 6767 See Ndayambaje Appeal Brief, para. 348, fn.

494. The Appeals Chamber has already rejected Ndayambaje's 6770 Trial Judgement, para. 1240. 6771 Trial Judgement, paras. 1239, 1241. 6772 Ndayambaje Appeal Brief, paras. 363-367, 373. See also Ndayambaje Notice of Appeal, paras. 141, 142, 144, 149; Ndayambaje Appeal Brief, para. 215, a i that the pri ste mas 32 34 36,, those cored bit tie Come failed rate, ano contradictory. See ibid., para. 372. 1027 Case No. ICTR-98-42-A 14 December 2015

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19337/H Chamber considered that these contradictions were not material and that they were attributable to errors on the part of the investigators who recorded Witness QAR's prior statements.6774 2967. Ndayambaje further contends that the Trial Chamber failed to consider the contradictions within Witness QAR's testimony in court regarding whether she saw him coming from Remera around 12.00 p.m. or whether she did not see him arrive and was informed of his arrival by the other refugees. 775 In his view, the witness's contradictory versions demonstrate the implausibility of her account. 776 He also argues that the Trial Chamber erred in law and in fact in failing to take into account that Witness QAR was hostile when asked about the discrepancies in her evidence. 6777 2968. The Prosecution responds that the Trial Chamber examined all the inconsistencies raised by Ndayambaje and that he does not demonstrate that it was unreasonable for the Trial Chamber to accept Witness QAR's explanation for them or to consider that they were not material. 6778 2969. Ndayambaje replies that Witness QAR's allegation that the investigators erred in taking her statements is not believable since it is improbable that the investigators could have made so many mistakes and since the witness signed the statements after they were read back to her.779 2970. The Appeals Chamber observes that the Trial

Chamber addressed and found that the inconsistencies between Witness QAR's testimony and prior statements related to the following matters were not material: (i) whether Witness QAR saw Ndayambaje arrive in a vehicle or was informed of his arrival by others; (ii) whether Ndayambaje was holding a gun or not; (iii) whether or not Witness QAR saw who distributed grenades to the attackers, who threw the grenade, and knew the number of grenades thrown; and (iv) whether Witness QAR arrived at the church at 8.00 a.m. or 2.00 p.m. on 20 April 1994.6780 Ndayambaje fails to demonstrate that the first three discrepancies in Witness QAR's evidence referenced above concern key material facts and that the Trial Chamber erred in concluding that they were not material and did not cast doubt on the witness's credibility.

2971. By contrast, the Appeals Chamber considers that a reasonable trier of fact could not have considered that the discrepancy regarding the time Witness QAR arrived at the church on 6774 Ndayambaje Appeal Brief, para. 366 (French). 6775 Ndayambaje Appeal Brief, para. 338. 6776 Ndayambaje Appeal Brief, para. 338. 6777 Ndayambaje Appeal Brief, para. 368, referring to Witness QAR, T. 21 November 2001 pp. 56, 57, 59, 79, Rwamakuba Trial Judgement, paras. 115, 190, 193. 6778 Prosecution Response Brief, paras. 2171-2177. The Prosecution submits that some of the inconsistencies show, if anything, that Witness QAR did not try to incriminate falsely Ndayambaje because her testimony in court was less incriminating than what was recorded in her statements. See idem. 6779 Ndayambaje Reply Brief, para.

126. See also ibid., para. 125. 6780 See Trial Judgement, paras. 1238-1241. See also ibid., paras. 1038, 1043. 1028 Case No. ICTR-98-42-A 14 December 2015

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19336/H 20 April 1994 was not material since it related directly to the witness's ability to see Ndayambaje at the church at around noon. 781 However, the Appeals Chamber recalls that it is within the trial chamber's discretion to determine whether an alleged inconsistency is sufficient to cast doubt on the witness's credibility. 6782 In the case at hand, the Trial Chamber expressly accepted Witness QAR's testimony that she arrived at Mugombwa Church at around 8.00 a.m. because it found her explanation that the discrepancy regarding her time of arrival resulted from the improper recording of her statement by Tribunal investigators.6783 Ndayambaje questions the reasonableness of the Trial Chamber's decision by primarily relying on other trial judgements in which trial chambers allegedly rejected similar explanations.784 The Appeals Chamber recalls that a trial chamber's assessment of the appropriate weight and credibility to be accorded to the testimony of a witness is made on a case-by-case basis. 785 Ndayambaje's submissions fail to recognise that the circumstances in the cases he refers to are distinct 786 and do not demonstrate the unreasonableness of the Trial Chamber's conclusion concerning this particular inconsistency. 6787 2972. The Appeals Chamber also considers that Ndayambaje's argument that it is improbable that the investigators made so many mistakes while taking

Witness QAR's statements is speculative and unsubstantiated. Furthermore, his reliance on the fact that the witness signed the relevant statements, thereby verifying their content in his view, ignores the witness's explanation as to the conditions under which she signed one of the statements 788 and that she was not questioned on whether the contents of the other statement were read back to her before she placed her thumbprint on it.6789 Ndayambaje does not establish that no reasonable trier of fact could have accepted Witness QAR's explanation for the discrepancies between her testimony and prior statements. 6781 See Trial Judgement, paras. 1238, 1241. 6782 Hategekimana Appeal Judgement, para. 190; Rukundo Appeal Judgement, para. 86; Rajelijeli Appeal Judgement, рата.

96. See Trial Judgement, paras. 1238, 1241. 6784 See Ndayambaje Appeal Brief, paras. 366, 367, referring to Gatete Trial Judgement, paras. 206-212, Bagilishema Trial Judgement, paras. 613 et seq., Bizimungu et al. Trial Judgement, para. 211. 6785 See Nchamihigo Appeal Judgement, para. 47. 6786 The Appeals Chamber notes that, in all cases cited by Ndayambaje, the trial chambers' decisions to reject the evidence of a particular witness were not based solely on the inconsistencies with the witness's previous statements or refusal to accept the witness's explanation that the previous statements had not been properly recorded, but also on the basis of a global assessment of the witness's evidence and credibility. See Gatete Trial Judgement, paras. 208-215; Bagilishema Trial Judgement, paras. 613-636; Bizimungu et al. Trial Judgement, paras. 211, 216. Cf. Ntawukulilyayo Appeal Judgement, para. 15 ("It is only when the evidence relied on by the Trial Chamber could not have been accepted by any reasonable trier of fact, or where the evaluation of the evidence is wholly erroneous, that the Appeals Chamber can substitute its own finding for that of the Trial Chamber"). 6788 Witness QAR explained that the person who had driven her to the place where her May 1997 statement was given retrieved her before she had finished giving her statement. She also explained that her statement was read

to her and that she disagreed with certain aspects of it but was told by the investigators that it would not be a problem so she quickly signed it because she had to leave. See Witness QAR, T. 20 November 2001 pp. 30, 40. 789 Ndayambaje submits that an entry on Witness QAR's 1995 Statement shows that its content was read to the witness and that she approved it. However, this aspect was not put to the witness by Ndayambaje who, instead, simply asked the witness whether she was shown such a statement and whether she put her thumbprint on it. She was not questioned on 1029 Case No. ICTR-98-42-A 14 December 2015

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19335/H Against this background, the Appeals Chamber finds that Ndayambaje fails to demonstrate that the Trial Chamber's error in finding that the discrepancy was not material occasioned a miscarriage of justice.

2973. With regard to the inconsistencies in Witness QAR's evidence concerning whether the distribution of weapons took place on "Wednesday" 20 April 1994 or "Thursday" 21 April 1994 and whether Ndayambaje was present when the doors of the church were broken that were not expressly addressed by the Trial Chamber,67%0 the Appeals Chamber observes that Ndayambaje simply enumerates inconsistencies and argues that so many inconsistencies raise doubt as to the witness's credibility without developing or substantiating how these particular inconsistencies undermined the credibility of the witness.67% In these circumstances, and considering that minor inconsistencies commonly occur in witness evidence without rendering the evidence unreliable, the Appeals Chamber finds that Ndayambaje does not demonstrate that the Trial Chamber erred by not expressly discussing these inconsistencies, which do not concern the fundamental features of the witness's evidence. 792 2974. Likewise, the Appeals Chamber rejects Ndayambaje's contention that the Trial Chamber erred in failing to consider the contradiction in Witness QAR's testimony regarding whether she saw Ndayambaje arriving at Mugombwa Church or was informed of his arrival. Not only does the Trial Judgement reflect that the Trial Chamber did not disregard this discrepancy, 5793 but the Appeals Chamber also considers that this discrepancy did

not concern a key material fact and did not prevent a reasonable trier of fact from concluding that the fundamental features of Witness QAR's evidence were credible.' 6794 2975. Finally, with respect to the issue of Witness QAR's purported hostility during cross-examination, the Appeals Chamber considers that, after having reviewed the entirety of the witness's cross-examination, none of the portions of the witness's testimony referenced by whether its content was in fact read back to her before she placed her thumbprint on it. See Witness QAR, See Ndayambaje Appeal Brief, para.

365. As for the alleged inconsistency regarding Ndayambaje's alleged intervention to allow the Hutu women and their children to get out of the church, the Appeals Chamber notes that Ndayambaje does not provide any references in support of his claim. The Appeals Chamber declines to entertain this argument further. See supra, para.

35. Ndayambaje Appeal Brief, paras. 365, 366 (French). 6792 Moreover, the Appeals Chamber notes that Witness QAR explained these inconsistencies in the same manner as she explained the discrepancies expressly addressed in the Trial Judgement and for which the Trial Chamber accepted her The Appeals Chamber observes that the Trial Chamber expressly noted the discrepancy in Witness QAR's testimony on whether or not she saw Ndayambaje arriving at Mugombwa Church when summarising her evidence. It also discussed the same discrepancy in relation to Witness QAR's previous statement in its deliberations, concluding that it was not material and did not cast doubt on the witness's credibility. See Trial Judgement, paras. 1238, 1240, 1241. 6794 See supra, para. 2971. 1030 Case No. ICTR-98-42-A 14 December 2015

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19334/H Ndayambaje revealed conduct that required explicit consideration on the part of the Trial Chamber. 679S 2976. Consequently, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in its assessment of Witness QAR's credibility in light of inconsistencies within her evidence and the witness's demeanour.

2. Contradictions in Prosecution Evidence 2977. Ndayambaje submits that Witness EV's testimony that Ndayambaje was at Ngiryi Bridge in the morning of 20 April 1994 where he intercepted refugees attempting to flee to Burundi before he left for Gisagara and Kabuye directly contradicts Witness QAR's testimony that Ndayambajc was at Mugombwa Church at about noon on 20 April 1994.6796 He argues that since Witnesses EV's and QAR's testimonies are contradictory and mutually exclusive, the Trial Chamber was not in position to conclude which one was true and should have given Ndayambaje the benefit of the doubt, instead of speculating about distances and times.6797 Ndayambaje also underlines that Witness RT placed Ndayambaje at Ngiryi Bridge around 11.00 a.m. on 21 April 1994.6798 2978. Ndayambaje further contends that Witness QAR's testimony that she saw Ndayambaje at Mugombwa Church in the commune vehicle on 20 and 21 April 1994 cannot possibly be true as it was contradicted by the evidence of Witnesses EV and RV.679 Ndayambaje asserts that since Muganza Commune had a single vehicle in 1994, the one described by Witness QAR, he could not have possibly been in Butare and at the commune office, at Mugombwa Church, and in "Gisagara- Ngiryi-Kabuye" at the same time 80° He submits that the Trial Chamber erred in failing to consider these contradictions in the Prosecution evidence.

6801 2979. The Prosecution responds that Witness EV's testimony can be read as saying that he saw Ndayambaje for the first time on 22 April 1994 and that, in any event, he should not have been relied upon. 802 It also submits that Witness RT's testimony does not conflict with Witness QAR's 6795 The Appeals Chamber considers that the trial record shows that Witness QAR merely exhibited frustration with Ndayambaje's counsel when challenged with inconsistencies that the witness considered she had already explained. See Witness QAR, T. 20 November 2001 pp. 111, 112, T. 21 November 2001 pp. 10, 11, 24, 25, 31, 33, 37, 38, 56, 57, 112, 113. Moreover, Ndayambaje's comparison of Witness QAR's demeanour to that of other witnesses in the Rwamakuba Trial Judgement does not show any error on the part of the Trial Chamber as a witness's demeanour must be assessed on case-by-case basis. See Ndayambaje Appeal Brief, para. 368, referring to Rwamakuba Trial Judgement, paras. 115, 190, 193. Ndayambaje Appeal Brief, paras. 342, 346. See also AT. 21 April 2015 p. 23. 6797 Ndayambaje Appeal Brief, paras. 342, 422. See also ibid., para. 190. 6798 Ndayambaje Appeal Brief, para. 345, referring to Trial Judgement, para.

1277. See also ibid., para. 190. 6799 Ndayambaje Appeal Brief, paras. 345-347, 359, 418. See also Ndayambaje Reply Brief, para. 130. 6800 Ndayambaje Appeal Brief, paras. 345-347, 422. 6801 Ndayambaje Appeal Brief, para. 347. 6802 Prosecution Response Brief, para. 2190; AT. 21 April 2015 pp. 45, 46. 1031 Case No. ICTR-98-42-A 14 December 2015

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19333/H evidence because both witnesses provided estimates of the times when they saw Ndayambaje.6803 It underlines that the evidence does not show that Ndayambaje would not have had time to travel between Mugombwa Church and Ngiryi Bridge on 21 April 1994.804 The Prosecution further responds that Witness QAR saw Ndayambaje driving a "white vehicle" which was not necessarily the commune vehicle. 805 It submits that Ndayambaje mischaracterises the evidence of the other witnesses regarding this vehicle. 806 2980. Ndayambaje replies that, even though Witnesses QAR and RT only provided estimates as to when they saw him, this does not eliminate the fact that it was impossible for him to have been at the two locations in different cars at the stated times because of the distance between them. 807 Ndayambaje also emphasises that Witness QAR could only have been referring to the Muganza commune vehicle. 808 2981. The Appeals Chamber observes that, while in support of his submission under this ground of appeal Ndayambaje relies on the Trial Chamber's understanding of Witness EV's timeline of events with respect to his movements on 20 April 1994, he argues in other parts of his appeal that the Trial Chamber erred in assessing Witness EV's timeline for the events at Ngiryi Bridge as the witness's testimony reflects that he saw Ndayambaje at giryi Bridge on Thursday, 21 April 1994 and

not Wednesday, 20 April 1994 as found by the Trial Chamber. 809 The Prosecution does not dispute that the Trial Chamber misconstrued Witness EV's testimony about his timeline.6810 As discussed in further detail in Section IX.F.1 below, a careful review of Witness EV's testimony shows that the witness testified that he was intercepted at Ngiryi Bridge by Ndayambaje on 21 April 1994 and that the Trial Chamber therefore erred in finding that Witness EV testified that the interception at Ngiryi Bridge took place on 20 April 1994.6811 The Appeals Chamber therefore finds no merit in Ndayambaje's argument under this ground of appeal that Witness EV's testimony on Ndayambaje's presence at Ngiryi Bridge contradicted Witness QAR's testimony that Ndayambaje was at Mugombwa Church for approximately 15 minutes around noon on 20 April 1994. 6803 Prosecution Response Brief, para. 2191; AT. 21 April 2015 p. 45. 6804 Prosecution Response Brief, para. 2191. his driver in a car to Mugombwa Church on the morning of 21 April 1994, he did not testify sending the driver in the commune vehicle. It also points out that Witness RT testified to seeing Ndayambaje in a red Toyota-type single cabin ruck and not the white commune vehicle. See ibid., paras. 2190, 2192 Ndayambaje Reply Brief, para.

134. Ndayambaje points out that he was seen in a white vehicle in Mugombwa and in a red one at Ngiryi Bridge. See idem. 6808 Ndayambaje Reply Brief, paras. 131, 133. 6809 Ndayambaje Appeal Brief, paras. 435-437, 457, 460, 463 6810 Prosecution Response Brief, para. 2298. 6811 See infra, para. 3028. 1032 Case No. ICTR-98-42-A 14 December 2015

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19332/H 2982. As regards Ndayambaje's reliance on Witness RT's alleged contradictory testimony, the Appeals Chamber observes that the Trial Chamber found that the witness's account of Ndayambaje's presence at Ngiryi Bridge at around 11.00 a.m. pertained to 20 April 1994 or 21 April 19946812 Regardless of whether Witness RT's account pertained to 20 or 21 April 1994, the Appeals Chamber finds that, given that both witnesses only provided estimates and that undisputed evidence reflects that the travel between the locations took approximately one hour,6813 Witness RT's evidence of seeing Ndayambaje at 11.00 a.m. at Ngiryi Bridge is not incompatible with Witness QAR's evidence that she saw Ndayambaje at Mugombwa Church around noon on 20 April 1994 and between 10.00 and 10.30 a.m on 21 April 1994. Ndayambaje's argument that the witnesses referred to different cars also fails to take into account the Trial Chamber's finding that Ndayambaje had access to both a white and a red vehicle at the time.6814 2983. The Appeals Chamber further notes that Ndayambaje misinterprets the Trial Judgement concerning the use of the Muganza commune vehicle. The Trial Chamber did not find that Ndayambaje came to Mugombwa Church in the Muganza commune vehicle 815 and, contrary to Ndayambaje's suggestion, Witness QAR did not testify to seeing him at the church in the commune vehicle. The witness merely

referred to a "white vehicle" 6816 Having reviewed the relevant parts of Witness QAR's testimony, the Appeals Chamber is not persuaded by Ndayambaje's argument that the witness must have been referring to the Muganza commune vehicle. Even assuming that the vehicle Witness QAR saw was the commune vehicle, Ndayambaje's submissions fail to show that he could not have used this vehicle on 20 and 21 April 1994 to go to Mugombwa Church. 817 2984. The Appeals Chamber therefore concludes that Ndayambaje has failed to show any contradiction between Witnesses EV's, RV's, and RT's evidence and the testimony of Witness QAR. 6812 Trial Judgement, paras. 1406, 1407. 6813 See Trial Judgement, para. 1398. 6814 Trial Judgement, para. 1409. 6815 Cf. Trial Judgement, paras. 1245, 1246. 6816 See Witness QAR, T. 19 November 2001 pp. 16, 21, T. 20 November 2001 p.

120. See also Trial Judgement, Bar he Appeal Chamber notes that Ndayambaje merely refers to the summary of Witness RV's evidence in support of his assertion that Witness RV used the commune vehicle throughout the day on 20 April 1994. Having reviewed the evidence pointed out by Ndayambaje, the Appeals Chamber does not find that such evidence conclusively establishes that Witness RV used the commune vehicle during the entire day on 20 April 1994 or went to Butare with that particular vehicle on that day. See Ndayambaje Appeal Brief, para. 345; Trial Judgement, paras. 1065-1071; Witness RV, T. 16 February 2004 p. 41 (closed session), T. 17 February 2004 pp. 67-69 (closed session), T. 18 February 2004 p. 7 (closed session). Similarly, Ndayambaje's suggestion that Witness RV sent his driver to Mugombwa Church in the commune vehicle and that this precluded Ndayambaje from using this vehicle at 10.00 a.m. on 21 April 1994 is not supported by the evidence to which he refers. See Ndayambaje Appeal Brief, paras. 345, fn. 488, referring to Trial Judgement, para.

1070. See also ibid., paras. 359, 418. 1033 Case No. ICTR-98-42-A 14 December 2015

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19331/H 3. Lack of Corroboration 2985. The Trial Chamber found that aspects of Witness QAR's evidence on the events of 20 and 21 April 1994 were corroborated by: (i) Witnesses BOZAN and Tiziano, who confirmed that the windows of the church were broken; (ii) Witnesses FAU and MAJIK, who also testified about the absence of policemen, priests, and soldiers; (iti) Witnesses JAMES, ALIZA, and FAU, who corroborated the time the attack was launched on 20 April 1994; (iv) Witness FAG, who gave evidence consistent with Witness QAR as to the time the attack was launched on 21 April 1994, that grenades were thrown at the church, and that the attackers set the church on fire; (v) Witnesses FAG and JAMES, who confirmed the presence of Burundian refugees among the assailants and that attackers tried to break down the church door; (vi) Witnesses BOZAN and JAMES, who identified some of the same attackers as Witness QAR; and (vii) Witness JAMES, who also testified that Witness QAR was spared after the intervention of the Hutu father of her child. 6818 2986. Ndayambaje submits that the Trial Chamber erred in relying on Witness FAG to corroborate Witness QAR's evidence on the events at Mugombwa Church. 819 He contends that the Trial Chamber failed to exercise appropriate caution in assessing Witness FAG's credibility, noting that the witness was awaiting a Gacaca decision when he testified in

this case and that he had been released from custody in exchange for confessions in which he had hidden his involvement in the massacre at Mugombwa Church. 20 Ndayambaje also argues that the Trial Chamber erroneously relied on Witness FAG's testimony concerning the events of 20 April 1994 as his evidence did not pertain to 20 April but to 21 April 1994.6821 2987. In addition, Ndayambaje submits that, while the Trial Chamber found that Witness QAR's evidence was corroborated in several aspects, it failed to find corroboration for her testimony that 6818 Trial Judgement, paras. 1227-1229, 1231, 1233-1235, 1237, 1242. 6819 Ndayambaje Notice of Appeal, paras. 142, 144, 145, 151; Ndayambaje Appeal Brief, paras. 356-358, 361, 362. The Appeals Chamber notes that Ndayambaje also challenges under this ground of appeal the credibility of Witness FAU's evidence and notes that these Ndayambaje's challenges to the Trial Chamber's findings on his alibi in relation to Witness Tiziano. See Ndayambaje Appeal Brief, paras. 350-356; supra, paras. 2899-2902. Ndayambaje Appeal Brief, para.

356. See also Ndayambaje Notice of Appeal, paras. 142, 144, 145, 151. 6821 Ndayambaje Appeal Brief, paras. 357, 358. In his reply brief, Ndayambaje submits that nothing suggests that the testimony of Witness FAG related to 21 April 1994, which is contradictory with his submissions in his appeal brief. See Ndayambaje Reply Brief, para.

136. The Appeals Chamber will therefore not entertain this contradictory submission. See supra, para.

35. Ndayambaje adds that the Trial Chamber confused Witness FAG's testimony regarding events that occurred at Kabuye on 22 April 1994 with his account of what happened at Mugombwa Church on 21 April 1994, thus creating new evidence. See Ndayambaje Appeal Brief, para. 358, referring to Trial Judgement, paras. 1048, 1049, Witness FAG, T. 1 March 2004 pp. 14, 15, 18, 19. However, Ndayambaje merely points to paragraphs of the Trial Judgement and portions of Witness FAG's testimony without identifying any error or explaining its impact. The Appeals Chamber therefore declines to consider the merits of this undeveloped argument. 1034 Case No. ICTR-98-42-A 14 December 2015

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19330/H he was present at the church and involved in the crimes committed there. 822 According to him, the Trial Chamber erred in using the evidence of Witnesses FAU, FAG, JAMES, and MAJK to corroborate Witness QAR's evidence since these witnesses did not see Ndayambaje at the church. *23 Ndayambaje also submits that, having made factual findings premised on this error, it is impossible to know if the Trial Chamber's findings regarding his presence and his involvement in the crimes at the church would have been identical without such corroboration. 6824 2988. The Prosecution responds that the Trial Chamber was correct in finding that Witness FAG corroborated several aspects of Witness QAR's accounts. 6825 It argues that the Trial Chamber's mistake in stating that Witness FAG saw Ndayambaje on 20 April instead of 21 April 1994 has no impact on the Trial Chamber's findings as the witness provided relevant evidence on the attack on Mugombwa Church of 21 April 1994.6826 According to the Prosecution, the absence of corroboration of Witness QAR's evidence on Ndayambaje's presence at Mugombwa Church is insufficient to invalidate the Trial Chamber's findings.6827 2989. With respect to the credibility of Witness FAG, the Appeals Chamber observes that the Trial Chamber expressly considered all the information Ndayambaje points to on appeal 828 and stated that it would treat his testimony with caution considering that the witness may have had an incentive to lie during his testimony in order to obtain preferential treatment in connection with his Gacaca sentence. 829 Ndayambaje simply disagrees with the manner the Trial Chamber exercised caution without demonstrating any error in the exercise of its discretion in the assessment of the evidence.

2990. The Appeals Chamber notes that the Trial Chamber did not find that Witness FAG corroborated Witness QAR's testimony with regard to events on 20 April 1994 but regarding the circumstances of the attack that was launched on 21 April 1994.6830 The Trial Chamber also 6822 Ndayambaje Appeal Brief, paras. 360-362. See also Ndayambaje Notice of Appeal, para. 141; AT. 21 April 2015 Bi? dayambaje Appeal Brief, paras, 349, 354, 357, 380. 6824 Ndayambaje Appeal Brief, para. 361. 6825 Prosecution Response Brief, paras. 2198-2206. See also AT. 21 April 2015 pp. 48, 49. 6826 Prosecution Response Brief, paras. 2204, 2205. See also AT. 21 April 2015 p. 46. 6827 Prosecution Response Brief, para. 2195. 6828 The Trial Chamber noted that Witness FAG participated in the attacks on Mugombwa Church and that, at the time of his testimony, he was awaiting a decision by a Gacaca court. It further took into consideration that, while giving detailed information regarding the identities of the assailants and the sequence of events at Mugombwa Church in his astories, pea Ge a mes expand in that ke omit this int marion in hise he was at did, nancre were things he could not talk about at the time", and accepted the witness's evidence insofar as it related to the massacre at Mugombwa Church on 21 April 1994 and his account of how he came to find himself at Mugombwa Church. See Trial Judgement, paras. 1224, 1226, 1236. 6829 Trial Judgement, para. 1226. 6830 See Trial Judgement, paras. 1233, 1234, 1237. 1035 Case No. ICTR-98-42-A 14 December 2015

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19329/H expressly stated that it accepted Witness FAG's evidence insofar as it related to the massacre at Mugombwa Church on 21 April 1994 and his account of how he came to find himself at the church. 831 2991. A review of Witness FAG's testimony, as correctly summarised by the Trial Chamber, reflects that the witness testified that Ndayambaje spoke with community leaders at Bishya trade centre on 21 April 1994.6832 However, in its conclusions on the events at Mugombwa Church, the Trial Chamber found that "on the morning of 20 April 1994, Ndayambaje spoke with community leaders at Bishya trade centre who immediately thereafter directed men at Bishya, including Witness FAG, to Mugombwa Church" 6833 The Trial Chamber provided no reference to the evidence upon which it based this finding and a review of the Trial Chamber's summary of the evidence relevant to Mugombwa Church reveals that no witness provided evidence about such a meeting taking place on 20 April 19946834 As pointed out by Ndayambaje, the Trial Chamber's finding appears to be based on Witness FAG's evidence.6835 The Appeals Chamber therefore finds that the Trial Chamber erred in concluding that the meeting between Ndayambaje and community leaders at Bishya trade centre took place on 20 April 1994 since Witness FAG's evidence, as accepted by the Trial Chamber, indicates that the meeting took place on 21 April

1994,6836 The Appeals Chamber nonetheless finds that this error has not occasioned a miscarriage of justice as none of Ndayambaje's convictions rests on the misstatement of the date when Ndayambaje spoke with community leaders at Bishya trade centre. 6837 2992. Ndayambaje is correct in his assertion that the Trial Chamber relied exclusively on Witness QAR to conclude that Ndayambaje was present at Mugombwa Church on 20 and 21 April 1994 and for his involvement in the events there. 838 The Trial Chamber expressly noted that Witnesses FAU, FAG, JAMES, and MAJIK did not testify to the presence of Ndayambaje at the church on these dates, but found that this aspect of their evidence was not incompatible with 6831 Trial Judgement, para. 1236. 6832 In the Trial Judgement, the Trial Chamber repeatedly referred to Witness FAG's evidence in the context of Mugombwa Church as pertaining to 21 April 1994. The Trial Chamber noted that the witness did not provide a specific date for the events at the church but relied on the witness's explanation that the events took place on the Thursday two weeks after the death of President Habyarimana. See Trial Judgement, paras. 1048-1056. See also ibid., para. 1048, fn. 2088; Witness FAG, T. 1 March 2004 pp. 6, 15 (closed session), T. 2 March 2004 pp. 16-19. 6833 Trial Judgement, para. 1245. 6834 See Trial Judgement, paras. 1038-1193. The Prosecution

does not dispute that no witness provided evidence about such a meeting taking place on 20 April 1994. See Prosecution Response Brief, paras. 2205, 2318. 6835 See Ndayambaje Appeal Brief, para. 358; Trial Judgement, paras. 1048-1056. 6836 See Trial Judgement, paras. 1245, 5754. 6837 The Trial Judgement clearly reflects that, in finding Ndayambaje guilty in relation to the crimes perpetrated at Mugombwa Church on 20 and 21 April 1994, the Trial Chamber relied on evidence of Ndayambaje's presence at Mugombwa Church on 20 and 21 April 1994, his addresses to the attackers while at the church, and his moral authority. See Trial Judgement, paras. 5756-5758, 5995-6002, 6064-6066, 6107, 6108, 6175, 6176. 6838 Trial Judgement, paras. 1219, 1227, 1229, 1230, 1232, 1234, 1244. 1036 Case No. ICTR-98-42-A 14 December 2015

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19328/H Witness QAR's testimony.39 Ndayambaje fails to appreciate that nothing in the Statute or the Rules prevents a trial chamber from relying on uncorroborated evidence. A trial chamber has the discretion to decide in the circumstances of each case whether corroboration is necessary and whether to rely on uncorroborated, but otherwise credible, witness testimony. 840 Ndayambaje does not demonstrate that the evidence of Witness QAR was so lacking in reliability and credibility that no reasonable trier of fact could have relied on it without corroboration.

2993. As to Ndayambaje's argument that the Trial Chamber erred in finding corroboration of Witness QAR's evidence from witnesses who did not corroborate the key fact of his presence at Mugombwa Church, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.811 Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. 842 It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony. 843 Recalling that the Trial Chamber found that the evidence of Witnesses FAU, FAG, JAMES, and MAJIK was not incompatible with Witness QAR's testimony as to Ndayambaje's presence at Mugombwa Church on 20 and 21 April 1994,6844 Ndayambaje's argument that the evidence of these witnesses could not be found to corroborate that of Witness QAR because they only corroborated peripheral aspects of her testimony lacks merit.

2994. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in concluding that Ndayambaje's meeting with community leaders at Bishya trade centre took place on 20 April 1994.6845 However, the Appeals Chamber finds that this error has no impact on Ndayambaje's convictions. The Appeals Chamber dismisses the remainder of Ndayambaje's arguments related to an alleged lack of corroboration. 6839 See Trial Judgement, paras. 1080, 1083, 1230, 1234. 6840 See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimung Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 6841 See Nzabonimana Appeal Judgement, para. 184; Ntabakuze Appeal Judgement, para. 150; Ntawakulilyayo Appeal Judgement, para.

24. See also Munyakazi Appeal Judgement, para. 103. 5842 Ntawukulilvayo Appeal Judgement, para. 24; Munyakazi Appeal Judgement, para. 103; Nahimana et al. Appea Judgement, para.

428. Hase, man, Are a gene para 62 Areal Sudent Judgemen, parato peal Judgement, para, 31; 6844 See Trial Judgement, paras. 1080, 1083, 1230, 1234. 6845 See Trial Judgement, paras. 1245, 5754. 1037 Case No. ICTR-98-42-A 14 December 2015

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19327/H 4. Assessment of Defence Evidence 2995. Ndayambaje submits that the Trial Chamber erred in rejecting the evidence of Defence Witnesses JAMES, MAJK, and BOZAN related to Mugombwa Church. 0846 (a) Witness JAMES 2996. The Trial Chamber observed that Witness JAMES testified that he saw Witness QAR at a bar on the evening of 21 April 1994 and knew that she spent the night at a nearby house, contradicting Witness QAR's evidence that she spent the night of 21 April 1994 at the priest's house. 847 The Trial Chamber determined that Witness JAMES's testimony that Witness QAR was not telling the truth about where she spent the night of 21 April 1994 did not contradict Witness QAR's evidence in any material aspect. 848 The Trial Chamber accepted Witness QAR's evidence that she spent the night of 21 April 1994 at the priest's house, noting that "it is possible that Witness JAMES was mistaken and that he in fact saw her on the following evening."6849 It concluded that Witness JAMES's evidence did not cast doubt on Witness QAR's credibility.6850 2997. Ndayambaje submits that the Trial Chamber erred in rejecting without any valid reason Witness JAMES's evidence even though he raised a reasonable doubt as to the presence of Ndayambaje at Mugombwa Church on 20 and 21 April 1994 and contradicted Witness QAR's evidence on every aspect.6851 He contends that the Trial Chamber speculated that

Witness JAMES might have been mistaken and that this shows that Witness JAMES's evidence raised a doubt. 6852 2998. The Prosecution responds that the Trial Chamber reasonably concluded that Witness JAMES may have been mistaken about the day he saw Witness QAR as the witness conceded that he was not good with dates as he was very young at the time of the events. 853 2999. The Appeals Chamber notes that Ndayambaje's claim that Witness JAMES contradicted Witness QAR in every respect is not supported by the portions of the Trial Judgement to which he oso ial Judgement, para tet, para, 379, See also Ndayambaie Notice of Appeal, paras, 147, 148: AT. 21 April 2015 1038 Case No. ICTR-98-42-A 14 December 2015

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19326/H refers. 6854 In fact, many of the paragraphs Ndayambaje referenced show that the Trial Chamber found Witness JAMES to corroborate Witness QAR's testimony in several aspects. 6855 3000. Moreover, the Appeals Chamber does not agree that the Trial Chamber rejected Witness JAMES's evidence on the basis of mere speculation. The Appeals Chamber recalls that, when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible.6856 In this case, the Trial Chamber found that Witness QAR's eyewitness account was compelling and accepted her account that she spent the night of 21 April 1994 at the priest's house, noting that Witness JAMES's account did not contradict Witness QAR's evidence in any material respect. 857 Ndayambaje disregards this part of the Trial Chamber's reasoning and focuses exclusively on the Trial Chamber's observation that Witness JAMES may have been mistaken regarding the date. Ndayambaje therefore fails to show that no reasonable trier of fact could have accepted Witness QAR's evidence over Witness JAMES's evidence. 0858 3001. The Appeals Chamber dismisses Ndayambaje's submissions regarding the Trial Chamber's assessment of Witness JAMES's evidence concerning Witness QAR's whereabouts on 21 April 1994. (b) Witness MAJK 3002. The Trial Chamber noted that Witness MAJIK testified

that she first "passed by Mugombwa Church at about 11:30 a.m. on 20 April 1994" and that, "[oln her way back past the church an hour later[,] the attackers had not attacked the church."6859 It further noted that Witness MAJIK testified that she did not see Ndayambaje on either of her journeys.6860 The Trial Chamber observed, 6854 See Ndayambaje Appeal Brief, para. 379, referring to Trial Judgement, paras. 1073-1087, 1227, 1231, 1234, 1235, 1237, 1242, 1244. 6855 See Trial Judgement, paras. 1231 (finding that the explosions coming from the church that were heard by Witness JAMES corroborated Witness QAR's account of grenades being thrown at the church), 1234 (finding that Witness JAMES's account that he overheard the attackers talking about an attack in which an axe was used to break down a door corroborated Witness QAR's account of how the church's door was broken), 1235 (Witness JAMES corroborated the identity of some of the attackers), 1237 (finding that Witness JAMES corroborated Witness QAR's account regarding the presence of Burundian refugees among the attackers), 1242 (finding that Witness JAMES corroborated Witness QAR with respect to the intervention of the Hutu father of her child in saving her), 1244 (finding that Witness JAMES corroborated Witness QAR with respect to the time of the attack launched on 21 April 1994 and the throwing of grenades). 6856 See, e.g.,

Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29 ("Where testimonies are divergent, it is the duty of the [trial [c]hamber, which heard the witnesses, to decide which evidence it deems to be more probative, and to choose which of the two divergent versions of the same event it may admit.") (internal reference omitted). 6857 Trial Judgement, para. 1243. 6858 The Appeals Chamber notes that the Trial Chamber rejected other aspects of Witness JAMES's testimony in light of the evidence in the record. See Trial Judgement, paras. 4605, 4737, 4738, 4740. 6859 Trial Judgement, para. 1229. 6860 Trial Judgement, para. 1230. 1039 Case No. ICTR-98-42-A 14 December 2015

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19325/H however, that Witness MAJIK was a passer-by and that she was not at the church for an extended period of time on 20 April 1994.6861 In light of this, it concluded that Witness MAJIK's testimony did not cast doubt on Witness QAR's eyewitness testimony that Ndayambaje came to the church for 15 minutes at about midday on 20 April 1994.6862 3003. Ndayambaje submits that the Trial Chamber misconstrued Witness MAJIK's testimony when finding that she only returned to Mugombwa Church at 12:30 p.m.6863 He claims that the witness testified that she was at the church at about noon on 20 April 1994 and that she did not see him there. 864 In his view, a reasonable trier of fact could not have rejected Witness MAJK's evidence on the basis that she was a passer-by. 865 3004. The Prosecution responds that the Trial Chamber was correct in describing Witness МАЛК as a passer-by since the witness was only in the vicinity of the church for a limited period of time. 866 It also highlights that the Trial Chamber did not state that Witness MAJK came back to the church only at 12.30 p.m. but rather that she left the parish grounds around 12.30 p.m., having remained there for about half an hour.' 6867 3005. Ndayambaje replies that what is important is not the amount of time Witness MAJIK spent at the church but rather that she was there when Witness QAR alleged to have seen Ndayambaje.

868 3006. The Appeals Chamber notes that Witness MAJK testified that she passed in front of Mugombwa Church at "about 11.30" in the morning of 20 April 1994.6869 She stated that she stopped at the parish for a short while to ask a young man what had happened, before continuing to the homes of her aunt and uncle, both of which were closed. 870 Witness MAJI testified that she then returned to Mugombwa Church to see if her uncle was there. 87} She added that she stayed on the parish grounds for "about half an hour" and thought that she left "around 12:25 or 12:30" 6872 3007. In light of this evidence, the Appeals Chamber finds that the Trial Chamber did not err in taking into consideration that Witness MAJIK only stayed on the parish grounds for limited 6861 Trial Judgement, para. 1230. 6862 Trial Judgement, para. 1230. 5863 Ndayambaje Appeal Brief, paras. 385, 386, referring to Trial Judgement, paras. 1088-1092, 1225, 1229, 1230. 6864 Ndayambaje Appeal Brief, para. 386, referring to Witness MAJK, T. 17 June 2008 pp. 56, 57. 6865 Ndayambaje Appeal Brief, paras. 385, 386. See also Ndayambaje Reply Brief, para. 143; AT. 21 April 2015 p. 25. 6866 Prosecution Response Brief, para. 2229 6867 Prosecution Response Brief, para.

2230. The Prosecution also argues that, in any event, Witness MAJIK's evidence is unbelievable and shows that she wanted to help Ndayambaje. See ibid., paras. 2231-2239; AT. 21 April 2015 pp. 50, 6868 Ndayambaje Reply Brief, para. 143. 6869 Witness MJI, T. 17 June 2008 p. 41 (closed session). See also Trial Judgement, para. 1088. 6870 Witness MAJIK, T. 17 June 2008 pp. 42, 44 (closed session). See also Trial Judgement, para. 1089. 6871 Witness MAJIK, T. 17 June 2008 pp. 44, 45 (closed session). See also Trial Judgement, paras. 1089, 1090. 6872 Witness MAJIK, T. 17 June 2008 pp. 44, 45 (closed session). See also Trial Judgement, para. 1090. 1040 Case No. ICTR-98-42-A 14 December 2015

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19324/H amounts of time. In the view of the Appeals Chamber, the Trial Chamber nonetheless did not accurately recall her evidence when stating that she returned to Mugombwa Church "an hour later" after having previously passed by the church at 11.30 a.m., as her testimony reflects that she estimated her return to the church around 12.00 p.m.6873 3008. The Appeals Chamber, however, finds that this error has no impact on the Trial Chamber's conclusion that Witness MAJIK's testimony did not cast doubt on Witness QAR's eyewitness testimony that Ndayambaje came to Mugombwa Church for 15 minutes at about midday on 20 April 19946874 Indeed, both Witnesses QAR and MAJK were very clear that they could not provide exact times but only estimates of what they witnessed or of their whereabouts on 20 April 1994.6875 In these circumstances, a reasonable trier of fact could have considered that Witness MAJIK was present at the church before or after Ndayambaje's short visit at the church, which Witness QAR observed. 876 3009. Consequently, the Appeals Chamber finds that Ndayambaje has not demonstrated that no reasonable trier of fact could have found that Witness MAJK's testimony did not cast doubt on Witness QAR's evidence concerning Ndayambaje's presence at Mugombwa Church on 20 April 1994. (c) Witness BOZAN 3010. The Trial Chamber noted Witness QAR's evidence that, on 20 April 1994, she

saw, through a broken window, Ndayambaje speaking to the attackers as well as that of Witnesses BOZAN, Tiziano, and JAMES that it was not possible to look through the windows of the church unless they were broken, given that they were made of opaque coloured glass. 877 The Trial Chamber added that "It]his evidence supports Witness QAR's account of her sighting of Ndayambaje in the church grounds on that day."6878 The Trial Chamber further found that: 6873 See Trial Judgement, para.

1229. However, the Appeals Chamber observes that the Trial Chamber accurately recalled Witness MAJIK's testimony when summarising it. See ibid., paras. 1088-1092. 6874 See Trial Judgement, para. 1230. 6875 See Witness QAR, T. 20 November 2001 pp. 119 ("I would say [Ndayambaje] got [to the church] around noon"), 131, 132 ("Q. When [Ndayambaje] came around noon, which is the approximate time you gave, when he came with the vehicle and the picture, would it be correct to say that he spent less than 15 minutes in the church premises? A. Yes, that's correct."); Witness МАЛК, T. 17 June 2008 pp. 41 ("Q. So, madam, I will repeat my question. At what time of the day on Wednesday did you pass in front of the church? And if you are able to tell the Court, please do. Tell us at about what time or hour. A. I think the time was at about - was about 11:30.") (closed session), 44 ("Q. For how long did you stay on the church grounds on that occasion? A. I stayed there for about an hour — about half an hour instead."), 45 ("I think I left the church premises around 12:25 or 12:30.") (closed session). See also Trial Judgement, paras. 1040, 1042, 1088, 1090. 6876 Trial Judgement, para. 1230. 6877 Trial Judgement, para. 1227. 6878 Trial Judgement, para. 1227. 1041 Case No. ICTR-98-42-A 14 December 2015

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19323/H there are conflicting accounts of precisely when the windows in the church were broken. Witness QAR testified that as she entered the church at about 8.00 a.m. on 20 April 1994, people were throwing stones at the church, breaking the windows. According to her testimony, the window by which she was standing was broken by noon, enabling her to see Ndayambaje outside the church. Witness BOZAN testified that the attackers had not started throwing stones at the church by around 9.30 a.m. but that later he saw from his vantage point near the presbytery, that at about 11.15 a.m. a single window nearest the priest's house was broken. The Chamber observes that Witness BOZAN testified that he watched the assailants throwing stones from the presbytery gate where he saw only one window broken. His view of the church was restricted to one side of the church and does not cast doubt on the testimony of Witness QAR that more than one window was broken. 6879 In addition, the Trial Chamber found that Witness BOZAN partially corroborated Witness QAR's account with respect to the identity of the assailants on 20 April 1994.6880 3011. Ndayambaje submits that the Trial Chamber erred in its assessment of Witness BOZAN's testimony, 88l He asserts that the Trial Chamber erred in stating that the witness testified about 21 April 1994 since in fact he testified about 20 April 1994.6882 Moreover,

Ndayambaje contends that the Trial Chamber erred in rejecting Witness BOZAN's evidence that he did not see him while at Mugombwa Church on 20 April 1994 between 10.00 a.m. and 1.00 p.m. on the basis of the witness's "unspecified" close ties to him and the witness's involvement in the massacre at the church. 6883 He argues that the Trial Chamber confused Witness BOZAN with another person. 6884 According to Ndayambaje, Witness BOZAN was credible and undermined the credibility of Witness QAR. 6885 3012. The Prosecution concedes that the Trial Chamber mistook Witness BOZAN for another person in relation to another incident but argues that the witness's evidence was in any event incapable of raising a doubt in the Prosecution case against Ndayambaje. 6886 3013. A review of Witness BOZAN's testimony shows that the event he recounted occurred on 20 April 1994 5887 While the Trial Chamber, when summarising his evidence, stated that the witness was talking about 21 April 1994,6888 a plain reading of the Trial Judgement shows that the Trial 6879 Trial Judgement, para, 1228 (internal references omitted). 6880 Trial Judgement, para. 1235. 6881 Ndayambaje Appeal Brief, para.

384. Ndayambaje Appeal Brief, para. 383, referring to Trial Judgement, para. 1177; Witness BOZAN T. 17 September 2008 pp. 51, 52. 6883 Ndayambaje Appeal Brief, para.

382. See also AT. 21 April 2015 p. 25. • 6884 Ndayambaje Appeal Brief, para.

382. See also Ndayambaje Notice of Appeal, paras. 147, 148; Ndayambaje Reply Brief, para. 141; AT. 21 April 2015 p. 25. 6885 Ndayambaje Appeal Brief, para. 382. 6886 Prosecution Response Brief, para.

2220. In addition, the Prosecution responds that Witness BOZAN undoubtedly The Pose ties no is that, in any he ne Wite so BOZ AN is nod radiate Se boars 2e, 5e i: 21 Ar 2015. Bg, 51, 52. See Witness BOZAN, T. 17 September 2008 pp. 44 (closed session), 51. 6888 See Trial Judgement, para. 1177. 1042 Case No. ICTR-98-42-A 14 December 2015

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19322/H Chamber only assessed his evidence with regard to events that occurred on 20 April 1994.6889 The Appeals Chamber considers that the Trial Chamber's misstatement of the date in one paragraph of the Trial Judgement within the summary of Witness BOZAN's evidence had no bearing on its findings and has therefore not occasioned a miscarriage of justice. 6890 3014. The Appeals Chamber observes that Ndayambaje's remaining arguments are all based on the premise that the Trial Chamber found Witness BOZAN not credible and rejected his evidence. There is, however, no indication in the Trial Judgement that the Trial Chamber did not find the witness credible with respect to the events at Mugombwa Church. In fact, the Trial Chamber relied on Witness BOZAN's testimony as corroborative of some aspects of Witness QAR's evidence. 891 The Trial Chamber did not refer to, let alone reject, Witness BOZAN's alleged testimony that he did not see Ndayambaje at the church while he was there between 10.00 a.m. and 1.00 p.m. and Ndayambaje does not provide any reference to support his assertion that the witness so testified. 6892 During Witness BOZAN's examination-in-chief, Ndayambaje did not ask the witness whether he was at the church on the morning of 20 April 1994 and whether he saw him there. 6893 While, upon cross-examination by the Prosecution, Witness BOZAN stated that he was at Mugombwa

Church on the morning of 20 April 1994 between 9.30 a.m. and 12.30 p.m. and answered "no" when asked whether he saw Ndayambaje around the church that day, 894 the Defence objected to any follow-up questions as to whether it was possible that Ndayambaje would have been there and the witness would not have seen him and the Prosecution moved to another line of questioning.' 6895 The Appeals Chamber considers that no reasonable trier of fact could have relied on this aspect of Witness BOZAN's testimony in these circumstances and that, as a result, the Trial Chamber did not have to discuss it.

3015. As Ndayambaje submits, the Trial Chamber mistook Witness BOZAN for another person and erroneously stated that Witness BOZAN was involved in the massacre at Mugombwa Church. 896 However, this erroneous finding was made and relied upon in relation to the abduction of Tutsi women and girls after Ndayambaje's Swearing-In Ceremony, a separate event for which 6889 See Trial Judgement, paras. 1227, 1228, 1244. 6890 See Trial Judgement, para. 1177. 6891 See, e.g., Trial Judgement, paras. 1227, 1228, 1235. 6892 See Ndayambaje Appeal Brief, para. 382. 6893 Witness BOZAN, T. 16 September 2008 pp. 5-10. See also T. 17 September 2008 pp. 39, 43, 44 (closed session). There is also no indication in Witness BOZAN's summary of evidence by the Trial Chamber that he testified that he did not sids ozzi, T. I Seen Cer 0m 204, 15, 199t Se real ond, ement, paras 1165-1177. 6895 Witness BOZAN, T. 17 September 2008 pp. 47-49. 6896 See Trial Judgement, para.

4744. The Appeals Chamber addresses this issue in more detail below in Section IX.H. See infra, para. 3289. 1043 Case No. ICTR-98-42-A 14 December 2015

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19321/H Ndayambaje was convicted.6897 As noted above, the Trial Chamber did not reject Witness BOZAN's evidence insofar as it related to Mugombwa Church 898 Likewise, the Trial Judgement does not reflect that the Trial Chamber relied on Witness BOZAN's alleged ties with Ndayambaje in reaching its findings on his evidence relating to the Mugombwa Church incidents. 899 3016. Accordingly, the Appeals Chamber dismisses Ndayambaje's arguments concerning the assessment of Witness BOZAN's evidence pertaining to Mugombwa Church.

5. Conclusion 3017. In light of the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate any error in the Trial Chamber's assessment of the evidence relating to his involvement in crimes perpetrated at Mugombwa Church on 20 and 21 April 1994 that occasioned a miscarriage of justice and warrants the intervention of the Appeals Chamber. Recalling that Ndayambaje's submissions pertaining to his responsibility for committing direct and public incitement to commit genocide at Mugombwa Church have become moot, the Appeals Chamber concludes that Ndayambaje has failed to demonstrate that the Trial Chamber erred in finding him responsible for aiding and abetting the killings committed at Mugombwa Church on 20 and 21 April 1994 and, accordingly, dismisses the relevant part of Ground 9 and Ground 17 of Ndayambaje's appeal. 6897 See Trial Judgement, paras. 4744, 4746, 5957-5959. The Appeals Chamber will discuss the impact of this error below in the section on the abductions of Tutsis women and girls in Mugombwa. See infra, Section IX.H. 6898 See Trial Judgement, paras. 1227, 1228, 1235. 6899 The Appeals Chamber notes that the Trial Chamber found that Witness BOZAN gave alibi evidence for Ndayambaje. See Trial Judgement, para.

1196. When the Trial Chamber assessed the credibility of the alibi witnesses it found that they all have close ties with Ndayambaje but when discussing these ties in more detail, the Trial Chamber did not mention Witness BOZAN. See ibid., para.

1199. Moreover the summary of Witness BOZAN's evidence does not reflect that the witness provided alibi evidence for Ndayambaje at Mugombwa Church on 20 or 21 April 1994. See ibid., paras. 1165-1177. In light of the foregoing, the Appeals Chamber considers that there is no indication in the Trial Judgement that the Trial Chamber found that Witness BOZAN was not credible because he had close ties with Ndayambaje. 1044 Case No. ICTR-98-42-A 14 December 2015

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19320/H F. Kabuye Hill (Grounds 9 in part, 10, 11, 18) 3018. The Trial Chamber found that, on 20 April 1994, Ndayambaje travelled to Ngiryi Bridge with several armed soldiers and communal policemen where they arrested Tutsi refugees fleeing to Burundi and forced them to return to Gisagara marketplace, following which soldiers and policemen escorted the refugees to Kabuye Hill,690 The Trial Chamber also found that Ndayambaje was present at Kabuye Hill on 22 April 1994 when soldiers, policemen, and armed civilians attacked Tutsis gathered on the hill, resulting in the death of thousands of Tutsis.901 In addition, the Trial Chamber found that Ndayambaje: (i) transported soldiers, civilians, and communal policemen to Kabuye Hill, where they participated in attacks against Tutsis on 23 and 24 April 1994; (ii) distributed weapons at Kabuye Hill and the Muganza commune office on 23 April 1994, which were later used in the massacres of Tutsis at Kabuye Hill; and iii) was present during the attacks at Kabuye Hill on 23 and 24 April 1994 that resulted in thousands of deaths. 6902 3019. After finding that the interception at Ngiryi Bridge and forced escorting of the refugees to Kabuye Hill did not constitute an act of genocide and did not rise to a similar gravity as other crimes against humanity, the Trial Chamber acquitted Ndayambaje of genocide and persecution as a crime against

humanity for the interception and forced movement of the Tutsi refugees from Ngiryi Bridge to Kabuye Hill. 93 However, the Trial Chamber convicted Ndayambaje for aiding and abetting genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il for his role in the attacks at Kabuye Hill from 22 to 24 April 1994.6904 3020. Ndayambaje submits that the Trial Chamber erred in its assessment of the evidence related to the events at Ngiryi Bridge and in convicting him in relation to the attacks at Kabuye Hill. The Appeals Chamber will examine Ndayambaje's challenges to the Trial Chamber's findings pertaining to the events at Ngiryi Bridge and Kabuye Hill on 20 and 22 April 1994 before turning to his submissions related to the attacks on Kabuye Hill on 23 and 24 April 1994.

3021. As a preliminary remark, the Appeals Chamber recalls that, on 9 April 2015, it admitted as additional evidence on appeal a confidential witness statement dated 30 January 2013 relevant to the assessment of the credibility of Prosecution Witness EV, whose evidence was relied upon by the 6900 Trial Judgement, paras. 1414, 5766. 6901 Trial Judgement, paras. 1423, 1424, 5769. 6902 Trial Judgement, paras. 1431, 1444, 1452, 1455, 1456, 5772 6903 Trial Judgement, paras. 5767, 5768, 6110-6113 6904 Trial Judgement, paras. 5777, 5976, 6064-6066, 6107, 6108, 6175, 6176, 6186. 1045 Case No. ICTR-98-42-A 14 December 2015

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19319/H Trial Chamber in relation to the events at Kabuye Hill.6905 On 12 May 2015, the Appeals Chamber admitted as additional evidence on appeal a prior statement and part of the testimony of Witness Claver Habimana in the Ntawukulilyayo case relevant to the assessment of the credibility of Prosecution Witness RT, whose evidence was also relied upon by the Trial Chamber in relation to the events at Kabuye Hill. 6906 In accordance with the relevant standard, if the Appeals Chamber determines that a reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt on the basis of the trial record alone, the Appeals Chamber will then determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt. 907 1. Interception of Tutsi Refugees at Ngiryi Bridge on 20 April 1994 and Attack on Kabuye Hill on 22 April 1994 3022. Based on the evidence of Prosecution Witnesses EV, RT, and TP, the Trial Chamber determined that, on 20 April 1994, Ndayambaje travelled to Ngiryi Bridge with several armed soldiers and communal policemen where they arrested fleeing Tutsi refugees and forced them to return to Gisagara marketplace.908 Specifically, the Trial Chamber found that Witness EV testified that he and other refugees were intercepted at Ngiryi Bridge at daybreak

on 20 April 1994,6909 It also held that his testimony reflected that he arrived at Kabuye Hill before 6.00 p.m. on the same day. 6910 3023. Relying on Witness EV's evidence, as corroborated by the circumstantial evidence of Witnesses RT and TW about Ndayambaje's general involvement in the Kabuye Hill events, the Trial Chamber further found that Ndayambaje was present during the attack at Kabuye Hill on 22 April 1994.69"' It relied on its finding that, on the third day of Witness EV's stay at Kabuye Hill, "which would have fallen on 22 April 1994", the witness saw from a distance of about 20 meters Ndayambaje arriving at Kabuye Hill at around 10.00 a.m.6912 6905 See Decision on Ndayambaje's First Motion to Present Additional Evidence, 9 April 2015 (confidential) (* April 2015 Appeal Decision"), pp. 1, 4; infra, paras. 3107, 3108. • See Decision on Ndayambaje's First, Second, Third, and Fourth Motions for Relief for Rule 68 Violations and to Present Additional Evidence, 12 May 2015 (confidential) ("12 May 2015 Appeal Decision"), paras. 25, 90, 91; infra. paras. 3107, 3108. See supra, para. 33. 6908 Trial Judgement, paras. 1405-1410, 1414 6909 Trial Judgement, paras. 1265, 1406. See also ibid., para. 1407. 6910 Trial Judgement, paras. 1406, 1407. 6911 Trial Judgement, paras. 1418-1424 6912 Trial Judgement, para. 1420. 1046 Case No. ICTR-98-42-A 14 December 2015

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19318/H 3024. Ndayambaje challenges the Trial Chamber's findings that he was present at Ngiryi Bridge on 20 April 1994 and at Kabuye Hill on 22 April 1994.6913 In particular, he contends that the Trial Chamber erred in assessing Witness EV's timeline for the events at Ngiryi Bridge and Kabuye Hill.6914 He argues that Witness EV's testimony reflects that, during the night of "Wednesday" to "Thursday" he was at Ngiryi Bridge and that it was only the following day, on "Thursday", 21 April 1994 - and not Wednesday, 20 April 1994 as found by the Trial Chamber - that he returned to Gisagara. 915 Ndayambaje adds that Witness EV stated that he returned from Ngiryi Bridge to Gisagara on the day President Sindikubwabo addressed the crowd in Gisagara, which is well known to have been Thursday, 21 April 1994.6916 According to Ndayambaje, the Trial Chamber therefore erred in concluding that Witness EV arrived at Kabuye Hill on Wednesday, 20 April 1994 since the witness's evidence indicates that he arrived on Thursday, 21 April 1994.617 He contends that the Trial Chamber further erred in finding that Witness EV testified to Ndayambaje's presence at Kabuye Hill on 20 and 22 April since the witness was in fact referring to 21 and 23 April 1994.6918 Ndayambaje also challenges the Trial Chamber's assessment of other aspects of Witness EV's evidence as well as its reliance on the evidence

of other Prosecution witnesses to establish his presence at Ngiryi Bridge on 20 April 1994 and at Kabuye Hill on 22 April 1994.6919 3025. The Prosecution acknowledges that the Trial Chamber misinterpreted Witness EV's testimony about his timeline as the witness situated the interception of refugees at Ngiryi Bridge on 21 April 1994, and not on 20 April 1994 as found by the Trial Chamber. 20 It argues that the Trial Chamber should not have relied on Witness EV's evidence since "his timeline was confused and cannot be considered reliable" and aspects of his testimony were contradicted by other Prosecution witnesses.6921 In the view of the Prosecution, however, Witness EV's unreliability and the Trial Chamber's erroneous reliance thereupon do not affect the Trial Chamber's finding that Ndayambaje 913 Ndayambaje Notice of Appeal, paras. 89-99, 153-181; Ndayambaje Appeal Brief, paras. 253-270, 425-441 144-461, 463-465, 468-473, 477-479, 519-523, 531. See also Ndayambaje Reply Brief, paras. 100-106, 168-173, 182 193-195; AT. 21 April 2015 p. 27. 6914 Ndayambaje Appeal Brief, paras. 435-437, 457, 460, 463. 6915 Ndayambaje Appeal Brief, para. 435. 6916 Ndayambaje Appeal Brief, paras. 435, 436. 6917 Ndayambaje Appeal Brief, para.

437. Ndayambaje argues that the Trial Chamber prevented the Defence from clarifying this timeframe during the cross-examination of Witness EV. See idem. 6918 Ndayambaje Appeal Brief, paras. 457, 460, 463. 919 Ndayambaje Notice of Appeal, paras. 89-99, 153-181; Ndayambaje Appeal Brief, paras. 253-270, 425-434, 436. 438-441, 444-459, 461, 464, 465, 468-473, 477-479, 519-523, 531; Ndayambaje Reply Brief, paras. 100-106, 168-173 182, 193-195. 655 Prosecution Response Brief, para 2298, 22971, 29, 2305, 215, 2321. See also AT. 21 April 2015 p. 46. 1047 Case No. ICTR-98-42-A 14 December 2015

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19317/H turned back refugees at Ngiryi Bridge since the finding was further supported by Witnesses QAQ's, RT's, and TP's testimonies. 6922 3026. The Prosecution further responds that the Trial Chamber's confusion concerning the timeline of events does not impact its finding about Ndayambaje's involvement in the attack on Kabuye Hill of 22 April 1994 since, even disregarding Witness EV's evidence that should not have been relied upon, "taking the evidence as a whole, there was sufficient circumstantial evidence" from Prosecution Witnesses FAG and QAL "to remove any reasonable doubt that Ndayambaje was involved at Kabuye Hill" on 22 April 1994.6923 3027. Ndayambaje replies that it is not possible to speculate as to what the Trial Chamber's conclusions would have been, had it not incorrectly assessed Witness EV's evidence. 924 He contends that he is prejudiced by the Prosecution moulding its case on appeal by now claiming that the Trial Chamber should not have relied on Witness EV's testimony while pleading that the witness was credible at trial. 6925 3028. The Appeals Chamber notes that a careful review of Witness EV's testimony shows that the witness testified that he was intercepted at Ngiryi Bridge on 21 April 1994 and that he arrived at Kabuye Hill in the evening of the same day, as both Ndayambaje and the Prosecution submit.6926 6922 Prosecution Response Brief, paras. 2301,

2304, 2307-2311, 2325. See also ibid., paras. 2297, 2306. The Prosecution further argues that, even if the finding related to Ngiryi Bridge was overturned, it would have no impact on Ndayambaje's convictions as the Trial Chamber merely relied on this finding as one of several factors showing that Ndayambaje knew of the genocidal intent of the Kabuye Hill assailants. See ibid., paras. 2301, 2305, 2320. 6923 Prosecution Response Brief, paras. 2380, 2424. At the appeals hearing, the Prosecution also suggested that Witness QBZ testified that he saw Ndayambaje at Kabuye Hill on 22 April 1994. See AT. 21 April 2015 p. 46, referring to Prosecution Response Brief, para. 1194, Witness QBZ, T. 23 February 2004 p. 25 et seq. The Trial Chamber found that Witness QBZ in the cited portions of his testimony relied upon by the Prosecution recounted an event that occurred around 13 April 1994. See Trial Judgement, para.

1428. The Prosecution does not challenge this finding. Accordingly, the Appeals Chamber declines to consider this argument further. The Prosecution also argues that, although the Trial Chamber relied on an aspect of Witness EV's testimony that related to 23 April 1994 in reaching its finding for 22 April 1994, another part of Witness EV's testimony in any case reflects that the witness saw Ndayambaje at Kabuye Hill on 22 April 1994. It submits that, accordingly, Ndayambaje fails to demonstrate any error in the Trial Chamber's reliance on Witness EV as to Ndayambaje's presence at Kabuye Hill on 22 April 1994. See Prosecution Response Brief, paras. 2322, 2324, 2332, referring to Witness EV, T. 26 February 2004 pp. 60, 61, T. 25 February 2004 pp. 75, 76. See also AT. 21 April 2015 p.

46. Given that the Prosecution has repeatedly submitted that the Trial Chamber should not have relied on Witness EV's testimony, and given the phrasing of its additional arguments, the Appeals Chamber understands them to be made in the alternative and in order to respond to Ndayambaje's submissions. See Prosecution Response Brief, paras. 2296, 2297, 2300, 2301, 2306, 2315, 2320, 2321. 6924 Ndayambaje Reply Brief, paras. 169, 172, 175. 6925 Ndayambaje Reply Brief, paras. 169-172. See also AT. 21 April 2015 p. 26. 6926 Witness EV insisted several times that he hardly remembered the dates, but rather remembered weekdays. He stated in examination-in-chief that he left his residence on 19 April 1994 and, although he was first confused under cross-examination as to whether he left his house on 18 or 19 April 1994, he further stated that the "events broke out" on "a Tuesday to Wednesday" and that he left his house on a "Tuesday". A review of his testimony shows that, after he left his home with his family, they wandered all night, and the group only decided to leave the town and head to Burundi the next morning. Witness EV's testimony further reflects that he passed by Kabuye Hill on his way to Burundi on "Wednesday", then by Gisagara, before leaving the place in the evening, and that it was only the following morning that they were intercepted at Ngiryi Bridge. He further stated that following the interception, he returned to Gisagara, where President Sindikubwabo spoke to the crowd and that he arrived at Kabuye Hill the same day in the evening, Case No. ICTR-98-42-A 14 December 2015

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19316/H The Trial Chamber therefore erred in finding that Witness EV testified that the interception at Ngiryi Bridge took place on 20 April 1994 and that he arrived at Kabuye Hill on that same day.

3029. Likewise, the Trial Chamber erred in finding that Witness EV testified to seeing Ndayambaje during the attack on the refugees at Kabuye Hill on 22 April 1994 based on a part of his testimony that pertained to the "third day" he spent at Kabuye Hill, since this day corresponded to 23 April 1994 and not 22 April 1994.02 Another part of Witness EV's testimony nonetheless reflects that the witness did testify about seeing Ndayambaje at Kabuye Hill the day after his arrival, which is 22 April 1994.6928 However, the Appeals Chamber notes that one key aspect of this uncorroborated part of Witness EV's testimony - erroneously considered to relate to 20 April 1994 by the Trial Chamber 929 - was rejected by the Trial Chamber as unconvincing. 6930 3030. Considering that the Trial Chamber found that Witness EV was the only witness testifying to Ndayambaje's presence at Kabuye Hill on 22 April 1994693 and that neither Witness FAG nor Witness QAL relied upon by the Prosecution 32 testified to Ndayambaje's presence at Kabuye Hill on that date, 6933 the Appeals Chamber finds that no reasonable trier of fact could have concluded as proven beyond reasonable doubt that Ndayambaje was present at Kabuye Hill on 22 April 1994. a "Thursday". See Witness EV, T. 25 February 2004 pp. 69-76, T. 26 February 2004 pp. 22-45 (French). The Appeals Chamber notes that it is not disputed that President Sindikubwabo was present in Gisagara on Thursday, 21 April 1994. See Ndayambaje Appeal Brief, para. 436; Prosecution Response Brief, para. 2298. 6927 See Trial Judgement, paras. 1269-1271, 1420-1422. 6928 See Witness EV, T. 25 February 2004 p. 75, T. 26 February 2004 p.

60. See also Trial Judgement, paras. 1269, 1270. 6929 See Trial Judgement, paras. 1269, 1270, 1434, 1450. A review of Witness EV's testimony shows that the witness testified that he saw Ndayambaje arriving at Kabuye Hill "before noon" the day following his own arrival at Kabuye Hill and not as the Trial Chamber found on the day he arrived at Kabuye Hill. See Witness EV, T. 25 February 2004 pp. 73-75, T. 26 February 2004 pp. 45-49, 54, 60. See also Trial Judgement, paras. 1267, 1269. The Appeals Chamber acknowledges that according to the English version of the transcripts, Witness EV testified that he saw Ndayambaje "on the day when [he] arrived." See Witness EV, T. 25 February 2004 p. 75 ("Q. On the day when you arrived, were you able to recognise any people amongst the attackers? A. I saw Elie Ndayambaje."). However, the French version of the transcripts differs in this respect, the witness answering in the affirmative to the question whether he recognised anyone the day that followed his own arrival. See Witness EV, T. 25 February 2004 p. 84 (French) ("Q. Le jour qui a suivi, donc, votre arrivée, avez-vous été en mesure de reconnaître qui que ce soit parmi les assaillants? "). Having listened to the relevant audio-recording, the Appeals Chamber notes that the English version of the transcripts does not capture correctly the question asked in English by the Prosecution, which

clearly was about the day following Witness EV's arrival. See audio-recording of Witness EV's testimony of 25 February 2004, at 11:24-11:35. This matter was also later clarified during cross-examination, since Witness EV was directly asked if he witnessed Ndayambaje for the first time on Kabuye Hill on the second day of his own arrival at the scene. See Witness EV, T. 26 February 2004 pp. 54, 59, 60. 6930 Trial Judgement, paras. 1450, 1451 ("While the Chamber agrees that it would have been impossible for Witness EV to remember all the details of his stay at Kabuye Hill, the Chamber considers that an incident as striking as the throwing of a grenade by a figure of authority such as Ndayambaje would have been at the forefront of the witness' mind when he recorded his experience in his previous statements. For that reason, the Trial Chamber accepts the witness' testimony that Ndayambaje distributed weapons at Kabuye Hill but finds his uncorroborated account that Ndayambaje threw grenades and shot at the refugees to be unconvincing."). 3931 Trial Judgement, paras. 1421, 1424 6932 See Prosecution Response Brief, para. 2424. 6933 See Trial Judgement, paras. 1299, 1311-1314, 1418. 1049 Case No. ICTR-98-42-A 14 December 2015

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19315/H 3031. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in holding Ndayambaje responsible for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994 on the basis of his presence during the attack and reverses his convictions for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994.

3032. With respect to the Trial Chamber's findings relating to the interception at Ngiryi Bridge and forced movement of the Tutsi refugees to Kabuye Hill on 20 April 1994, the Appeals Chamber recalls that Ndayambaje was not convicted for these events. 6934 The Trial Judgement also clearly reflects that the Trial Chamber only relied on its factual findings concerning the interception and forced movement to determine the mens rea of the assailants who attacked the refugees at Kabuye Hill on 22 April 1994 and Ndayambaje's knowledge thereof.6935 Because the Appeals Chamber reversed Ndayambaje's convictions for the killings perpetrated at Kabuye Hill on 22 April 1994, the Appeals Chamber finds it unnecessary to examine the impact of the Trial Chamber's error in assessing Witness EV's evidence concerning the date of the interception and forced movement of the refugees on the Trial Chamber's findings on these specific events as any error in this respect would not have occasioned a miscarriage of justice. For the same reason, the Appeals Chamber declines to consider Ndayambaje's remaining challenges to the Trial Chamber's findings regarding the interception at Ngiryi Bridge and forced movement of the Tutsi refugees to Kabuye Hill.

2. Attacks on Kabuye Hill on 23 and 24 April 1994 3033. As noted above, the Trial Chamber found that Ndayambaje: (i) transported soldiers, civilians, and communal policemen to Kabuye Hill, where they attacked Tutsis on 23 and 24 April 1994; (ii) distributed weapons at Kabuye Hill and the Muganza commune office on 23 April 1994, which were later used in the massacres of Tutsis at Kabuye Hill; (iii) was present on 23 and 24 April 1994 during the attacks against Tutsis at Kabuye Hill that resulted in thousands of deaths. 6936 3034. In concluding that Ndayambaje transported attackers to Kabuye Hill on 23 and 24 April 1994, the Trial Chamber relied on the testimonies of Witnesses EV, RT, TW, QAQ, and FAG. 6937 Concerning the distributions of weapons on 23 April 1994, the Trial Chamber relied on Witness RT's account as supported by Witnesses EV's and QAL's testimonies concerning the 6934 Trial Judgement, paras. 5767, 5768, 6110-6113. 6935 Trial Judgement, paras. 5770, 5771. See also ibid., paras. 5772-5776. See also Ndayambaje Appeal Brief, para. 451; Prosecution Response Brief, para.

2295. The Trial Judgement reflects that the Trial Chamber did not rely on the events hat led the refugees to Kabuye Hill to establish the genocidal intent of those who attacked the refugees at Kabuye Hill on 23 and 24 April 1994. See ibid., paras. 5769, 5771, 5773. 6936 Trial Judgement, paras. 1431, 1444, 1452, 1455, 1456, 5772. 6937 Trial Judgement, paras. 1426, 1428-1431. 1050 Case No. ICTR-98-42-A 14 December 2015 Ru

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19314/H distribution at Kabuye Hill, and on the accounts of Witnesses RV and FAU concerning the distribution that took place at the Muganza commune office. 938 The Trial Chamber relied on Witnesses EV, RT, TW, QAQ, and to some extent on Defence Witnesses ALIZA and KEPIR, in finding that attacks were perpetrated on 23 and 24 April 1994 at Kabuye Hill and that Ndayambaje was present during the attacks. 6939 3035. Ndayambaje challenges the Trial Chamber's assessment of Prosecution and Defence evidence regarding these events. 940 (a) Assessment of Prosecution Evidence (1) Witness QAQ 3036. In the section of the Trial Judgement where it discussed the evidence related to the transportation of attackers to Kabuye Hill on 23 and 24 April 1994, the Trial Chamber noted that Witness QAQ testified that "[o]n the day following his arrival at Kabuye Hill, which would have fallen on 24 or 25 April 1994, [he] saw Ndayambaje driving a white vehicle transporting over five gendarmes to Kabuye Hill,"6941 The Trial Chamber relied on Witness QAQ's evidence, along with that of Witnesses EV, RT, TW, and FAG, to conclude that Ndayambaje transported soldiers, civilians, and policemen to Kabuye Hill on 23 and 24 April 1994 where they participated in attacks against Tutsis and that he was present at Kabuye Hill during the attacks perpetrated against the Tutsi refugees on 23 and 24 April 1994.6942 3037.

Ndayambaje submits that the Trial Chamber erred in its assessment of Witness QAQ's testimony. 943 Specifically, he argues that, contrary to the Trial Chamber's finding, it was impossible for Witness QAQ to be in Kabuye Hill on 23 or 24 April 1994 given the timeline the witness gave during his testimony 94* In his view, Witness QAQ's testimony reflects that he could not have been in Kabuye Hill before 26 April 1994, namely after the attacks on the refugees. 5945 6938 Trial Judgement, paras. 1432, 1434-1443. 6939 Trial Judgement, paras. 1448-1452. 6940 Ndayambaje Notice of Appeal, paras. 85-95, 153-160, 164-170; Ndayambaje Appeal Brief, paras. 243-246, 248-260, 480-531. See also Ndayambaje Reply Brief, paras. 178-198. 5941 Trial Judgement, para.

1426. See also ibid., para. 1448; infra, fn. 6953. 6942 Trial Judgement, paras. 1431, 1452. 6943 Ndayambaje Appeal Brief, para. 486. 6944 Ndayambaje Appeal Brief, paras. 481-483. Ndayambaje adds that Witness QAQ confirmed the timeline he gave during his testimony to Defence Witness Évariste-Emmanuel Siborurema. See ibid., para. 482, referring to Évariste-Emmanuel Siborurema, T. 25 August 2008 pp. 52-60 (closed session). The Appeals Chamber observes that Évariste-Emmanuel Siborurema is at times referred to under the pseudonym "Witness NAVIC" in the Trial Judgement a protective measure the witness asked to lift when testifying in court. See Évariste-Emmanuel Siborurema T. 25 August 2008 p. 3. 6945 See Ndayambaje Appeal Brief, para. 483. 1051 Case No. ICTR-98-42-A 14 December 2015

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19313/H He also contends that Witness QAQ acknowledged that he neither saw nor identified Ndayambaje at Kabuye Hill. 6946 3038. In addition, Ndayambaje avers that the testimonies of Witness TW and Defence Witness KWEPO show that Witness QAQ never went to Kabuye Hill since he was hidden elsewhere "during the events" 6947 Ndayambaje also contends that, having found that Witness QAQ's evidence related to Ndayambaje's Swearing-In Ceremony was not credible, the Trial Chamber should have also found him not credible in relation to the events at Kabuye Hill. 6948 3039. The Prosecution responds that it can be inferred from Witness QAQ's evidence that he was on Kabuye Hill either on 23 or 24 April 1994 and that the witness had no reason to lie about Ndayambaje's involvement. 949 The Prosecution adds that Witnesses TW's and KWEPO's evidence does not necessarily contradict Witness QAQ's testimony in this respect. 6950 3040. As reflected in the Trial Judgement, Witness QAQ did not give a clear timeline between the moment he left his house and his arrival at Kabuye Hill.95l The witness specified that he was only providing estimates concerning the dates. 952 The Appeals Chamber nonetheless understands that, in light of his testimony as to the sequence of events and the description given by other Prosecution witnesses, the Trial Chamber concluded that the transportation of attackers that Witness QAQ recounted occurred on 24 April 1994.6953 Having carefully reviewed Witness QAQ's testimony, the Appeals Chamber considers that a reasonable trier of fact could have concluded from his testimony, considered in light of the rest of the evidence, that he arrived at Kabuye Hill on 23 April 19946954 6946 Ndayambaje Appeal Brief, para. 481. 6947 Ndayambaje Appeal Brief, para.

484. See also Ndayambaje Reply Brief, para. 187. 6948 Ndayambaje Appeal Brief, para. 485, referring to Trial Judgement, para.

4607. See also ibid., para. 579; Ndayambaje Reply Brief, para. 183. 6949 Prosecution Response Brief, paras. 2347, 2348. The Prosecution submits that Witness QAQ had lost all notion of time and was not certain about times or the sequence of events. See ibid., paras. 2349, 2350. 6950 Prosecution Response Brief, paras. 2352-2355. The Prosecution contends that Witness Siborurema contradicted Witness KWEPO and probably tailored his testimony in light of Witness QAQ's evidence. See ibid., paras. 2356-2358. 6951 Trial Judgement, para. 1426 ("On the day following his arrival at Kabuye Hill, which would have fallen on 24 or 25 April 1994, Witness QAQ [...]."). See also ibid., paras. 1289, 1290. 6952 The Appeals Chamber notes that Witness QAQ repeatedly indicated before the Trial Chamber that he was only providing estimates concerning the dates, and was not sure "how many days" he spent hiding on the hill before going to Kabuye Hill. See Witness QAQ, T. 12 November 2002 pp. 50, 56 (closed session). See also T. 11 November 2002 p. 25 (closed session), T. 12 November 2002 pp. 14 and 61, 62, 66 (closed session). 5953 The Appeals Chamber notes that the Trial Chamber stated that Witness QAQ saw Ndayambaje driving a vehicle transporting gendarmes "on 24 or 25 April 1994" and, after discussing the evidence of Witnesses EV, RT, TW, and FAG, concluded that the evidence of these five witnesses

demonstrated that Ndayambaje was involved in the transportation of attackers on 23 and 24 April 1994. See Trial Judgement, paras. 1426, 1431. As Witness QAQ was not found to have testified about 23 April 1994, the Appeals Chamber understands that the Trial Chamber concluded that he was testifying about 24 April 1994, and not 25 April 1994 as his testimony could also suggest. The Appeals Chamber notes that the Trial Chamber's later reference to the witness testifying about seeing Ndayambaje "on 23 or 24 April 1994" seems to be a typographical mistake in light of the Trial Chamber's summary of the witness's evidence and its discussion of the most relevant part of his evidence. See ibid., paras. 1289, 1290, 1426, 1448. The Appeals Chamber observes that it is not clear from the witness's evidence whether he left his house on Tuesday, 19 April 1994 or on Wednesday, 20 April 1994. See Witness QAQ, T. 11 November 2002 p. 23 (closed 1052 Case No. ICTR-98-42-A 14 December 2015

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19312/H and that his testimony as to the presence of Ndayambaje, the day after his arrival, pertained to 24 April 1994.6955 3041. As to whether Witness QAQ saw Ndayambaje at Kabuye Hill, the Appeals Chamber notes that the Trial Chamber stated in its deliberations that the witness "saw Ndayambaje" driving a vehicle transporting gendarmes to Kabuye Hill.6956 When summarising his evidence, however, the Trial Chamber correctly noted that Witness QAQ explained during cross-examination that "from where he was he could not personally say whether the person in the car was Ndayambaje" and that he was told by other refugees that the vehicle he saw was Ndayambaje's vehicle and was the same vehicle that had prevented them from continuing on their way to Burundi.6957 The Trial Chamber therefore erred in stating that Witness QAQ saw Ndayambaje at Kabuye Hill. It is unclear to what extent the Trial Chamber relied on this erroneous statement when reaching its finding on Ndayambaje's involvement in the transportation of attackers to Kabuye Hill on 23 April 1994 as the Trial Chamber generally concluded that "the testimony of Witnesses EV, RT, TW, QAQ and FAG [was] credible on the issue of Ndayambaje's involvement in the transportation of attackers and therefore [found] that on 23 and 24 April 1994, Ndayambaje transported soldiers, civilians and policemen to Kabuye Hill."6958 In any event,

Ndayambaje fails to demonstrate that no reasonable trier of fact could have relied on Witness QAQ's testimony, as correctly summarised, that he saw a white vehicle transporting attackers, which the other refugees recognised as Ndayambaje's vehicle, as corroborative of Witness TW's testimony that Ndayambaje transported attackers to Kabuye Hill in the white commune vehicle on 24 April 1994.6959 3042. With regard to Ndayambaje's reliance on Witness KWEPO's evidence as contradicting Witness QAQ's testimony that he was present at Kabuye Hill, the Appeals Chamber observes that Witness KWEPO merely gave hearsay evidence that Witness QAQ had been hidden by someone session), T. 12 November 2002 p. 55 (closed session). Witness QAQ stated that then, he "hid for three or four days], and [...] had to move to at least four places of residence" before going to Kabuye Hill, possibly placing his arrival at Kabuye Hill on 23 or 24 April 1994. See Witness QAQ, T. 11 November 2002 pp. 24, 25 (closed session), T. 12 November 2002 p. 50 (closed session). The Appeals Chamber notes that Witness QAQ also testified that indeed he spent a single night at three different people's houses and maybe two nights at the house of an old lady. See Witness QAQ, T. 12 November 2002 p. 51 (closed session). However, the Appeals Chamber observes that Witness QAQ was hesitating and did not give a categorical statement

regarding the number of nights he spent at the house of the old lady. See idem, p. 51 (closed session) ("I think I went there on two occasions.") (emphasis added), 58 ("I don't remember very well, but I think I spent two nights there [...]. Probably we could ask [...], but I don't know if she herself can remember the number of nights I spent at her place."). See also Witness QAQ, T. 11 November 2002 pp. 24, 25 (closed session). The Appeals Chamber observes that Witness QAQ's testimony about how many nights he spent where was unclear and approximate. See Witness QAQ, T. 12 November 2002 pp. 51, 55-58 (closed session). See also ibid., pp. 95, 104 (closed session) (French). 6955 Witness OAO, T. 11 November 2002 pp. 26, 30, 31 (closed session). 6956 Trial Judgement, para.

1426. Trial Judgement, para. 1290; Witness QAQ, T. 11 November 2002 pp. 26, 28, 31 (closed session), T. 12 November 2002 pp. 83-85 (closed session). 6958 Trial Judgement, para. 1431. 1053 Case No. ICTR-98-42-A 14 December 2015

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19311/H during the events and that he did not see him between May and July 1994.09 Given the limited probative value of this testimony, the Appeals Chamber considers that a reasonable trier of fact could have decided that it did not cast doubt on Witness QAQ's account that he was present during the relevant period at Kabuye Hill. As for Witness TW, the Appeals Chamber notes that his testimony does not show that Witness QAQ did not go to Kabuye Hill, but rather that he did not see Witness QAQ at Kabuye Hill and that he could not say whether Witness QAQ was there because there were many people.6961 Ndayambaje's argument that Witness TW's testimony contradicts Witness QAQ's account is therefore without merit.

3043. Finally, recalling that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony, the Appeals Chamber rejects Ndayambaje's unsubstantiated claim that the Trial Chamber erred in accepting Witness QAQ's testimony regarding Kabuye Hill, while rejecting his evidence related to Ndayambaje's Swearing-In Ceremony since this rejection was based on elements that were specific to this very aspect of his testimony. 6962 3044. In light of the foregoing, the Appeals Chamber finds that, although the Trial Chamber erred in stating that Witness QAQ saw Ndayambaje at Kabuye Hill, Ndayambaje has not demonstrated that a reasonable trier of fact could not have relied on Witness QAQ's evidence that he saw a white vehicle transporting attackers, which the other refugees recognised as Ndayambaje's vehicle, as corroborative of Witness TW's testimony on the attacks on 24 April 1994 at Kabuye Hill. (ii) Witness RT 3045. The Trial Chamber noted that Witness RT testified that, on the day after his arrival at Kabuye Hill, which would have fallen on 23 April 1994, he saw Ndayambaje "[arriving] at Kabuye Hill in a white Toyota commune vehicle" and "distributing what he thought to be grenades to the attackers and supervising their distribution."6963 The Trial Chamber concluded that Witness RT's eyewitness testimony on the distribution of grenades by

Ndayambaje on 23 April 1994 was clear and convincing and that Witnesses EV's and QAL's testimonies lent weight to his account, 6959 See infra, para. 3063. 960 Witness KWEPO, T. 27 August 2008 pp. 8, 9 (closed session) ("Q. Did you see [Witness QAQ] in the months o Jay, June and July in your region, that is, May, June, July '94? A. I didn't see him during those months, but I learnt o where he was."). 6961 See Witness TW, T. 12 February 2004 p. 15 (closed session) (French). 1963 Trial Judgement, para.

1432. The Trial Chamber noted that, while Witness RT did not actually see grenades ir Ndayambaje's hands, he stated that Ndayambaje must have been distributing grenades as many assailants subsequentl; threw grenades at the refugees and that the grenades could only have come from Ndayambaje. See idem. 1054 Case No. ICTR-98-42-A 14 December 2015

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19310/H providing circumstantial evidence that "Ndayambaje was generally involved in distributing weapons at Kabuye Hill. *6964 3046. Ndayambaje submits that the Trial Chamber erred in relying on Witness RT's testimony and in finding that his testimony evidenced the distribution of weapons at Kabuye Hill 6965 In particular, Ndayambaje argues that Witness RT never testified to seeing him at Kabuye Hill on 23 April 1994 as the witness testified about seeing him at Dahwe Hill.6966 3047. Ndayambaje also contends that the Trial Chamber erred in finding that Witness RT's testimony on the distribution of weapons on 23 April 1994 was corroborated by Witnesses EV and QAL 6967 Ndayambaje argues that Witness QAL's testimony about seeing him on a "Thursday" and Witness EV's testimony about seeing him on "20 April 1994" cannot corroborate Witness RT's account of a distribution that allegedly took place on "Saturday", 23 April 1994.6968 3048. Ndayambaje further submits that the Trial Chamber failed to provide a reasoned opinion in finding that Witness RT identified him despite the extremely difficult circumstances in which the identification was made 6969 The Appeals Chamber also understands Ndayambaje to argue that it was unreasonable on the part of the Trial Chamber to rely on Witness RT's account of his purported distribution of grenades on 23 April 1994 where the Trial Chamber had itself

recognised the "uncertainty" of the witness's account in this respect.970 Finally, Ndayambaje suggests that the Trial Chamber could not have found that he distributed weapons on 23 April 1994 on the basis of Witness RT's indirect evidence as it was not the only reasonable possible conclusion. 971 3049. The Prosecution responds that Witness RT was a consistent, reliable, and credible witness and that Ndayambaje's undeveloped challenges should be rejected.972 It contends that Ndayambaje's claim about the fact that Witness RT saw Ndayambaje on Dahwe Hill and not Kabuye Hill is irrelevant given that "Dahwe Hill is opposite Kabuye Hill and was one of the places 6964 Trial Judgement, paras. 1434, 1438. 6965 Ndayambaje Appeal Brief, paras. 492-497. See also Ndayambaje Reply Brief, para.

180. Ndayambaje Appeal Brief, paras. 492, 495-497. See also Ndayambaje Reply Brief, paras. 178, 180; AT. 21 April 2015 p.

27. Ndayambaje reiterates that a site visit was indispensable. See Ndayambaje Appeal Brief, para. 495; Ndayambaje Reply Brief, para.

111. The Appeals Chamber has addressed and rejected this claim in 6967 Ndayambaje Appeal Brief, paras. 245, 493-497. 6968 Ndayambaje Appeal Brief, paras. 493, 497, 503, 508. See also Ndayambaje Reply Brief, paras. 180, 189. 6969 Ndayambaje Notice of Appeal, para. 85; Ndayambaje Appeal Brief, paras. 243-245, 248, 249, 495. Ndayambaje argues that when a finding of guilt is based on identification made under difficult circumstances, such as in this case, a trial chamber should take into account factors that undermined the probative value of this evidence, which the Trial Chamber failed to do so, amounting to a failure to provide a reasoned opinion. See idem. 6970 Ndayambaje Appeal Brief, para. 494, referring to Trial Judgement, para. 1432. 6971 Ndayambaje Appeal Brief, para. 523. 6972 Prosecution Response Brief, paras. 2333, 2337. 1055 Case No. ICTR-98-42-A 14 December 2015

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19309/H where attackers disembarked and grouped before going to Kabuye Hill."6973 In the Prosecution's view, there was ample circumstantial evidence supporting Witness RT's testimony of Ndayambaje distributing weapons at Kabuye Hill on 23 April 1994 and Ndayambaje's unsubstantiated arguments regarding identification should be dismissed. 974 3050. Ndayambaje replies that the Trial Chamber never established that Dahwe Hill was one of the "places where attackers disembarked and grouped before going to Kabuye Hill. »6975 3051. In summarising Witness RT's testimony about the attacks on Kabuye Hill, the Trial Chamber noted that the witness testified that, on "Saturday", attackers were "gathered near Dahwe and Gahondo" and that "[s]ubsequently, Ndayambaje arrived" 6976 In the course of its discussion of the evidence, the Trial Chamber referred to Witness RT testifying to seeing Ndayambaje "aboard or arriving with vehicles transporting individuals to Kabuye Hill' 6977 and "arrive at Kabuye Hill", 6978 A review of Witness RT's evidence reflects that he testified that on "Saturday", he saw Ndayambaje and soldiers coming in a Toyota vehicle and that they stopped "on the road that crosses Dahwe hill.»6979 Given that the evidence reflects that Dahwe Hill was the place where attackers disembarked from the vehicles before launching attacks on Kabuye Hill where the refugees were gathered 980 and that Dahwe Hill was within sight of Kabuye Hill,981 the Appeals Chamber finds no merit in Ndayambaje's argument that Witness RT did not see him at Kabuye Hill.

3052. Turning to the issue of corroboration, a plain reading of the Trial Judgement shows that the Trial Chamber relied on Witness RT's evidence alone to find that Ndayambaje distributed weapons at Kabuye Hill on 23 April 1994.6982 The Trial Chamber merely relied on Witnesses EV's and QAL's evidence as circumstantial evidence that "Ndayambaje was gencrally involved in distributing weapons at Kabuye Hill", "lend[ing] weight to Witness RT's account of weapons 6973 Prosecution Response Brief, para.

2335. See also ibid., para. 2386; AT. 21 April 2015 pp. 53, S4. The Prosecution further submits that, in any event, Witness RT did not state that he saw Ndayambaje at Dahwe Hill but in the valley between Kabuye Hill and Dahwe Hill. See Prosecution Response Brief, para. 2338. 6974 Prosecution Response Brief, paras. 2336, 2340. 6975 Ndayambaje Reply Brief, para.

178. Ndayambaje adds that, contrary to Witness RT's testimony that he saw Ndayambaje in the commune vehicle on 23 April 1994, Witness RV never testified about Ndayambaje using the commune vehicle on that date. See idem. The Appeals Chamber notes that Ndayambaje does not provide any reference to support this contention and will therefore not entertain it further. 6976 Trial Judgement, para. 1279 6977 Trial Judgement, para. 1426. 6978 Trial Judgement, para. 1432. 6979 Witness RT, T. 11 March 2004 pp. 67, 68, 70, 71. 6980 Witness RT, T. 10 March 2004 p. 67, T. 11 March 2004 pp. 66, 67; Witness QAQ, T. 11 November 2002 p. 26 (closed session); Witness TP, T. 12 February 2004 pp. 70, 71. 6981 See Witness RT, T. 10 March 2004 p. 67 ("A. Someone in Dahwe and someone in Kabuye, they would be able to see each other."); Witness QAQ, T. 11 November 2002 pp. 26, 30 (closed session), T. 12 November 2002 pp. 84, 85 (closed session); Witness TP, T. 12 February 2004 pp. 70, 71; Witness SHICO, T. 23 June 2008 pp. 24, 25; Witness MAJIK, T. 17 June 2008 p. 56; Witness SABINE, T. 12 June 2008 p. 20. 6982 Trial Judgement, paras. 1434, 1438. 1056 Case No. ICTR-98-42-A 14 December 2015

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19308/H distribution by Ndayambaje" on 23 April 1994.6983 For the reasons developed below, the Appeals Chamber considers that Witness EV's testimony as misconstrued by the Trial Chamber could not reasonably provide corroboration of Witness RT's account. However, given the limited weight accorded to his testimony by the Trial Chamber regarding the distribution of weapons on 23 April 1994, the Appeals Chamber considers that this error does not affect the Trial Chamber's finding. Ndayambaje's contention that the Trial Chamber erred in finding that Witness QAL could corroborate Witness RT because his testimony did not pertain to 23 April 1994 but to Thursday, 21 April 1994 is also unpersuasive as corroboration can be found in circumstantial evidence as long as it concerns a sequence of linked facts, 984 which is the case here. In any event, the Appeals Chamber recalls that a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony. 6985 3053. Regarding Ndayambaje's contention related to his identification by Witness RT, the Appeals Chamber recalls that "where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a reasoned opinion'6986 and that "identifications made in difficult circumstances, such as darkness,

obstructed view, or traumatic events, require careful and cautious analysis by a trial chamber.»6987 3054. The Appeals Chamber notes that the Trial Chamber did not state that Witness RT's identification of Ndayambaje was made under difficult circumstances and did not specifically address in its deliberations the circumstances under which Witness RT identified Ndayambaje. 988 Ndayambaje points to two elements that, in his view, constitute "difficult circumstances": (i) Kabuye Hill was so far away from Dahwe Hill that it rendered identification impossible; and ii) Witness RT was being attacked and needed to hide.989 However, Ndayambaje ignores Witness RT's testimony that when he saw Ndayambaje distributing grenades, he was situated "maybe 80 to 100 steps" away at "a place where [he] could see clearly. »6990 In addition, although 6983 Trial Judgement, paras. 1434, 1438. 6984 Cf. Nizeyimana Appeal Judgement, para. 96; Gatete Appeal Judgement, para. 125; Kanyarukiga Appeal Judgement, paras. 177, 220; Ntawkulilyayo Appeal Judgement, para, 121; Nahimana et al. Appeal Judgement, para.

428. See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimung Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para. 42. 6986 Lukié and Lukit Appeal Judgement, para. 136; Renzaho Appeal Judgement, para. 527; Kupreskic et al. Appeal Judgement, para.

39. See also Kalimanzira Appeal Judgement, para. 96. 6987 See, e.g., Gatete Appeal Judgement, para. 193; Renzaho Appeal Judgement, para. 527; Kalimanzira Appeal Judgement, para.

96. See also Lukié and Lukié Appeal Judgement, para.

137. See Trial Judgement, paras. 1426, 1432, 1448. 6989 Ndayambaje Appeal Brief, para. 495. 6990 See Witness RT, T. 10 March 2004 p.

69. See also T. 11 March 2004 pp. 67, 68 ("Q. And from where you were, up to the point where the vehicle stopped, what would you say was the distance between those two places? A. The place was quite visible. There is nothing that prevented me from seeing. I would say the distance was about 100 metres. It's a 1057 Case No. ICTR-98-42-A 14 December 2015

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19307/H the record reflects that there was shooting at the refugees the morning Witness RT saw Ndayambaje, the witness explained that he was at a place where he could see the vehicle with the soldiers and Ndayambaje but that the attackers could not see him. 991 The Appeals Chamber is not convinced that the elements Ndayambaje points to demonstrate that the circumstances in which Witness RT identified him were such as to require further analysis from the Trial Chamber.

3055. As to Ndayambaje's argument that it was unreasonable on the part of the Trial Chamber to rely on Witness RT's account where it recognised its "uncertainty", the Appeals Chamber notes that the Trial Chamber did not state that this part of the witness's testimony was uncertain but merely observed that: The witness saw Ndayambaje distributing what he thought to be grenades to the attackers and supervising their distribution. While he did not actually see grenades in Ndayambaje's hands, Witness RT stated that the Accused must have been distributing grenades because many assailants subssed aly threw grenades at the refugees and the grenades could only have come from the 3056. Apart from generally claiming that the Trial Chamber's finding was unreasonable, Ndayambaje does not develop any argument to demonstrate that the Trial Chamber erred in accepting Witness RT's "clear and convincing" eyewitness account of the distribution of grenades and his inference that Ndayambaje must have distributed the grenades. Ndayambaje merely disagrees with the Trial Chamber's conclusion without showing any error. His contention is accordingly dismissed 3057. Finally, in the absence of substantiation, the Appeals Chamber dismisses Ndayambaje's contention regarding the existence of other reasonable inferences available from the evidence regarding Ndayambaje's involvement in the distribution of weapons on 23 April 1994 at Kabuye Hill. place that you could see if you are on Gahondo hill, you could see the place, and if you are in Dahwe it is even closer to you."), 71 (*I said so yesterday that Ndayambaje also came in the same vehicle. Moreover, he was at a place where he could be seen and I saw him."); Trial Judgement, para.

1279. In addition, the Appeals Chamber notes that the evidence Ndayambaje relies upon does not support his assertion that Kabuye Hill and Dahwe Hill were far away from each other. The Appeals Chamber is also of the view that Ndayambaje misinterpreted the testimony of the witnesses he refers to in support of his claim that they testified about the impossibility of being able to identify someone positioned on Dahwe Hill from Kabuye Hill. It appears clearly from a review of the relevant transcripts that these witnesses were testifying about what they could see from the place they were standing. See Witness SHICO, T. 23 June 2008 pp. 24, 25; Witness МАК, T. 17 June 2008 pp. 56, 57; Witness SABINE, T. 12 June 2008 pp. 19, 20; Witness GLANA, T. 11 June 2008 . 11 (closed session); Witness QAQ, T. 12 November 2002 pp. 84, 85 (closed session) 91 Witness RT, T. 11 March 2004 pp. 69-71. The Appeals Chamber also observes that Witness RT had know Ndayambaje prior to the events of 1994, "used to see him often, at least twice a week" and that he identified him in court, aspects that Ndayambaje does not challenge. See Trial Judgement, para.

1281. See also Witness RT, T. 10 March 2004 pp. 76, 77. 6992 Trial Judgement, para. 1432 (internal references omitted). 1058 Case No. ICTR-98-42-A 14 December 2015

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19306/H 3058. In light of the foregoing, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in its assessment of Witness RT's evidence relating to the attacks on Kabuye Hill. (iti) Witness TW 3059. When discussing the events at Kabuye Hill on 22 April 1994, the Trial Chamber noted that Witness TW testified that he saw Ndayambaje transporting armed attackers to Kabuye Hill "on three consecutive days", which, by the Trial Chamber's estimation, "would have fallen on 23, 24 and 26 April 1994"0993 In this part of the Trial Judgement, the Trial Chamber relied on Witness TW's evidence, along with that of Witnesses EV and RT, as circumstantial evidence pointing to "Ndayambaje's general involvement in the Kabuye Hill events" and supporting "the contention that he was also present on 22 April 1994.*6994 3060. With respect to the events at Kabuye Hill on 23 and 24 April 1994, the Trial Chamber noted Witness TW's testimony that he "saw Ndayambaje at Kabuye Hill on 24 April 1994 driving a white double-cabin Toyota Hilux carrying Hutu civilians armed with traditional weapons. »6995 The Trial Chamber concluded based on this testimony, along with the evidence of Witnesses EV, RT, QAQ, and FAG, that Ndayambaje transported attackers to Kabuye Hill and was present at Kabuye Hill during the attacks on 23 and 24 April 1994.6996 3061. Ndayambaje submits that

the Trial Chamber erred in finding that Witness TW saw him on Kabuye Hill on 23 April 1994 since the witness testified to seeing him for the first time on 24 April 1994, as reflected in the Trial Chamber's summary of the witness's evidence. 997 He argues that the Trial Chamber abused its discretion in explaining that, unlike Witnesses EV and RT, Witness TW did not mention that Ndayambaje distributed weapons by the fact that a multitude of refugees were present at Kabuye Hill and the hill was vast. 998 Ndayambaje further contends that the Trial Chamber did not take into account Witness TW's incentive to lie due to "obvious personal motives of vengeance and hatred. *6999 so to Namaic A Teal Frief, ra 181 498, 499, referring a Trial Judgement, paras, 1282-1287, 1421. 5998 Ndayambaje Appeal Brief, para. 500, referring to Trial Judgement, para. 1433. 6999 Ndayambaje Appeal Brief, para. 501. 1059 Case No. ICTR-98-42-A 14 December 2015

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19305/H 3062. The Prosecution responds that Ndayambaje fails to demonstrate any error in the Trial Chamber's assessment of Witness TW's evidence. 7000 3063. According to the Appeals Chamber, a careful review of Witness TW's testimony reflects that Witness TW testified that he saw Ndayambaje at Kabuye Hill for the first time on 24 April 1994.7001 The Trial Chamber therefore misstated his testimony in stating that Witness TW saw Ndayambaje on 23 April 1994 in the section related to the events on 22 April 1994.7002 This appears to be a typographical error as the Trial Chamber correctly referred to Witness TW testifying to seeing Ndayambaje on 24 April 1994, and not 23 April 1994, everywhere else in the Trial Judgement. 003 In any event, the Appeals Chamber finds that this error has not occasioned a miscarriage of justice as the Trial Chamber relied on Witness TW's correct account that he saw Ndayambaje on 24 April 1994 in its deliberations as to the events of 23 and 24 April 1994.7004 3064. The Trial Chamber expressly noted that, unlike Witnesses EV and RT, Witness TW did not mention that Ndayambaje distributed weapons at Kabuye Hill. It was of the view that "these witnesses may not have had the same opportunities to witness the events in question."7005 Ndayambaje's unsubstantiated contention that the Trial Chamber erred in this respect reflects mere disagreement with the Trial Chamber's conclusion and is rejected without further consideration.

3065. Likewise, the Trial Chamber expressly noted that "Witness TW acknowledged that before the 1994 events, he and his brother had been arrested, detained and beaten up on the orders of the Accused" and that "Ndayambaje had been involved in the forced closure of his bar."7006 It nonetheless concluded that the witness's denial that those events "may have influenced his testimony was vigorous and believable."7007 Ndayambaje's argument does not show that the Trial Chamber's determination was unreasonable.

3066. The Appeals Chamber concludes that Ndayambaje has failed to demonstrate that the Trial Chamber erred in assessing Witness TW's credibility as it relates to the events at Kabuye Hill on 23 and 24 April 1994. 7000 Prosecution Response Brief, paras. 2341-2343. 7001 See Witness TW, T. 10 February 2004 pp. 7, 8, 11, 12 and 44-46, 48, 51-54 (closed session), T. 11 February 2004 Booz Trial Judgement, para. 1421. 7003 See Trial Judgement, paras. 1426, 1448. 7004 The Appeals Chamber recalls that it reversed Ndayambaje's conviction for the events at Kabuye Hill on 22 April 1994 and that, accordingly, any issue related to a possible impact of this error on the events at Kabuye Hill on 22 April 1994 is moot. See supra, paras. 3031-3032. 7005 Trial Judgement, para.

1433. The Trial Chamber noted that "there were many thousands of refugees on Kabuye Hill, which covered an expansive area." See idem. 7006 Trial Judgement, para. 1449. 7007 Trial Judgement, para. 1449. 1060 Case No. ICTR-98-42-A 14 December 2015

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19304/H (iv) Witness TP 3067. The Trial Chamber found that Witness TP's account contained "a number of serious discrepancies that rendered her testimony unreliable, but only as it relates to 24 April 1994" and concluded that it would not rely on her evidence as it relates to that day. 7008 3068. Ndayambaje submits that Witness TP did not see any policeman, soldier, or vehicle on Kabuye Hill on 23 April 1994 and that, since she was not found credible by the Trial Chamber as to the "Sunday", she does not corroborate any witness on the transportation of attackers to Kabuye Hill by Ndayambaje on 24 April 1994.7009 3069. The Prosecution responds that Ndayambaje's argument that Witness TP did not give corroborating evidence as to Ndayambaje transporting attackers is correct but irrelevant. 010 3070. The Appeals Chamber observes that a plain reading of the Trial Judgement shows that the Trial Chamber did not rely on Witness TP's evidence for the transport of attackers to Kabuye Hill on 23 or 24 April 1994.701' Ndayambaje does not show that Witness TP's evidence, which the Trial Chamber did not rely upon, undermines the reasonableness of the Trial Chamber's findings for 23 and 24 April 1994. The Appeals Chamber therefore dismisses Ndayambaje's obscure argument about Witness TP's evidence without further consideration. (v) Witness QAL 3071. The Trial Chamber found that Witness QAL, who

testified that she witnessed Ndayambaje transporting guns and grenades in the direction of Kabuye Hill "one Thursday in April 1994", provided circumstantial evidence that "Ndayambaje was generally involved in distributing weapons at Kabuye Hill.»7012 3072. Ndayambaje submits that Prosecution and Defence evidence contradicts Witness QAL'S testimony, pointing to: (i) Defence Witness MACHO's evidence that Witness QAL arrived in Muganza Sector "on a Friday at 2 p.m." to find refuge in her parents' house; (ii) Witness RV's testimony that, on Thursday, 21 April 1994, he went to Mugombwa Church with Ndayambaje in the communal vehicle; and (iii) Nteziryayo's and Defence Witness AND-44's testimonies that it was not materially possible to transport unprotected grenades in the rear compartment of a vehicle and 7008 Trial Judgement, para. 1427. 7009 Ndayambaje Appeal Brief, para. 502, referring to Trial Judgement, paras. 1295, 1427. 7010 Prosecution Response Brief, para. 2346. 7011 See Trial Judgement, paras. 1426-1431. 7012 Trial Judgement, paras. 1434, 1438. 1061 Case No. ICTR-98-42-A 14 December 2015

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19303/H on rough roads without a risk of explosion. 013 Ndayambaje further argues that the Trial Chamber accepted Witness QAL's testimony on the sole basis that she was Hutu and that Ndayambaje officiated at her wedding and ignored the fact that the witness omitted to mention any transport of weapons in her prior statement to Tribunal investigators of 17 October 1997.7014 3073. The Prosecution responds that Witness QAL's testimony was credible and reliable. 015 It argues that Witness MACHO's testimony lacked credibility and reliability, that Witness RV's testimony was not incompatible with Witness QAL's account, and that Nteziryayo and Witness AND-44 did not state that it was impossible to transport grenades in the back of a pickup truck. 7016 The Prosecution also submits that, given the detailed, credible, and consistent nature of Witness QAL's evidence, the Trial Chamber was entitled to accept her testimony despite the inconsistency with her prior statement. 017 3074. The Appeals Chamber notes that the Trial Chamber did not discuss in the Trial Judgement Witness MACHO's testimony that Witness QAL arrived in Muganza Sector on a Friday,7018 although it relied on Witness QAL's testimony that she witnessed Ndayambaje driving in the direction of Kabuye Hill one Thursday in April 19947019 The Appeals Chamber observes that Witness QAL was not sure about the date and that it is only

under cross-examination that she referred to seeing Ndayambaje going to Kabuye Hill on a "Thursday" 7020 She was not cross-examined on the basis of Witness MACHO's evidence, which only arose when Witness MACHO testified four years after her, and thus never had an opportunity to clarify the matter. 021 In these circumstances, and considering that the Trial Chamber relied on Witness QAL's evidence solely as circumstantial evidence that Ndayambaje was generally involved in distributing weapons at Kabuye Hill, 7022 the Appeals Chamber finds that a reasonable trier of fact could have considered that Witness MACHO's evidence did not undermine the credibility of Witness AL's account and that any error as to whether Witness QAL saw Ndayambaje on "Thursday", 21 April 1994, or "Friday", 22 April 1994 would have no impact on any material issue. Against this 7013 Ndayambaje Notice of Appeal, para. 175; Ndayambaje Appeal Brief, paras. 504-506 7014 Ndayambaje Appeal Brief, paras. 503, 507. See also ibid., para. 576. 7015 Prosecution Response Brief, para. 2360. 7016 Prosecution Response Brief, paras. 2361, 2364, 2365. The Prosecution adds that, even if Witness MACHO'S testimony was true, it is compatible with Witness QAL's statement that she saw Ndayambaje transporting weapons to Kabuye Hill. See ibid., para. 2363. 7017 Prosecution Response Brief, para. 2366. 7018 Witness MACHO, T. 2 July 2008 pp. 45, 46 (closed session). 7019 Trial Judgement, paras. 1434, 1438; Witness QAL, T. 25 February 2004 p. 35. 7020 Witness OAL, T. 25 February 2004 pp. 8, 35. WilL was my 45 re when eXact she live and 23-60 paised bersen, pri A peal Cane hide .235 (closed session) 022 Trial Judgement, paras. 1434, 1438 1062 Case No. ICTR-98-42-A 14 December 2015

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19302/H background, the Appeals Chamber finds no error in the Trial Chamber's decision not to expressly discuss this aspect of Witness MACHO's evidence.

3075. Likewise, the Appeals Chamber is not persuaded that Witnesses RV's and QAL's evidence is mutually exclusive as Witness RV's testimony does not conclusively establish the whereabouts of Ndayambaje for the entire afternoon of 21 April 1994.7023 Accordingly, the Appeals Chamber finds that a reasonable trier of fact could have decided not to discuss this particular aspect of the evidence in the Trial Judgement and to consider that Witness RV's testimony did not undermine Witness QAL's account. The Appeals Chamber also finds no contradiction between Nteziryayo's and Witness AND-44's evidence and Witness QAL's account as neither Nteziryayo nor Witness AND-44 testified that transporting grenades in the back of a pickup truck would necessarily lead to an explosion but rather gave their personal opinion about the security measures that would generally have to be taken in order to avoid an explosion. 024 3076. Furthermore, contrary to Ndayambaje's contention, the Appeals Chamber notes that the Trial Chamber did not accept Witness QAL's evidence "on the sole basis" that she was Hutu and that Ndayambaje officiated at her wedding. Rather, after considering her testimony including this aspect, the Trial Chamber concluded that she would not have had any reason to lie.?025 Ndayambaje does not adduce any argument to show that the Trial Chamber erred in this regard 3077. The Appeals

Chamber observes that the Trial Chamber did not address in the Trial Judgement the fact that Witness QAL's prior statement of 17 October 1997 did not refer to the transport of weapons about which she testified at trial. During cross-examination, Witness QAL denied stating in her prior statement that she saw Ndayambaje transporting attackers, explaining that what she saw was weapons in Ndayambaje's vehicle. 026 Bearing in mind that the Trial Chamber relied on Witness QAL's testimony solely as circumstantial evidence to support the contention that "Ndayambaje was generally involved in distributing weapons at Kabuye Hill', 7027 the Appeals Chamber is not persuaded that the discrepancy between Witness QAL's testimony and her prior statement was such as to undermine the credibility of her evidence or require express consideration by the Trial Chamber in the Trial Judgement.

3078. Based on the above, the Appeals Chamber dismisses Ndayambaje's challenges to the Trial Chamber's assessment of Witness QAL's evidence related to the attacks on Kabuye Hill. 7023 See Witness RV, T. 18 February 2004 pp. 18, 19 (closed session). See also Trial Judgement, para. 1070. 7024 See Nteziryayo, T. 2 July 2007 pp. 59-61; Witness AND-44, T. 19 April 2007 pp. 19-21, 24. 7025 Trial Judgement, paras. 1434, 1435, 1437. 7026 Witness QAL, T. 25 February 2004 pp. 54, 55 (closed session), 59. See also Exhibit D172 (Witness QAL's Statement, dated 17 October 1997). 7027 Trial Judgement, paras. 1434, 1438. 1063 Case No. ICTR-98-42-A 14 December 2015

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19301/H (vi) Witnesses RV and FAU 3079. The Trial Chamber noted that Witness RV testified to seeing Ndayambaje at the Muganza commune office on 23 April 1994 with a communal policeman, taking ammunition and a gun from the weapons store and leaving in the direction of Kabuye Hill 028 It also found that Witness FAU testified that he travelled with Ndayambaje to the Muganza commune office, that Brigadier Pierre took a gun there, and that he accompanied Ndayambaje and two policemen to Kabuye Hill. 7029 The Trial Chamber determined that their testimonies partly corroborated each other and that the contradictions between their testimonies did not cast doubt on their eyewitness accounts that Ndayambaje was involved in this distribution of weapons at the Muganza commune office on 23 April 1994.7030 The Trial Chamber concluded that the Prosecution had proven beyond reasonable doubt that "Ndayambaje distributed weapons at [...] the Muganza commune office" 7031 3080. Ndayambaje submits that the Trial Chamber erred in giving substantial weight to the testimonies of Witnesses FAU and RV, notably because neither of them testified that he "distributed" weapons. 032 He also points out that both witnesses had an incentive to lie since they were detained and accused in trials for genocide-related crimes at the time of their testimonies. 7033 Ndayambaje also asserts that Witness FAU referred to

three Kalashnikovs in cross-examination, while he had initially only mentioned one pistol during examination-in-chief, and that Witness RV testified about a single old gun whereas he had mentioned ten guns in his prior statement. 034 3081. In addition, Ndayambaje contends that Witnesses FAU's and RV's testimonies contradicted each other as to: (i) the time of the event;7035 (ii) the number and type of weapons that were taken;7036 (ili) the identity of the persons who opened the store and distributed the weapons; 7037 7028 Trial Judgement, para. 1439. 7029 Trial Judgement, para. 1440. 7030 Trial Judgement, paras. 1439, 1441-1443. 7031 Trial Judgement, para.

1444. See also ibid., para. 5772. 7032 Ndayambaje Appeal Brief, para.

515. Ndayambaje also submits that "Witness FAU never mentioned the date on which the event allegedly took place" and that "[a]s it did in paragraphs 1034 to 1037, the Chamber had to consider this aspect with regard to the Indictment which was itself vague as to the date of the alleged weapons distribution". See ibid., para. 512, referring to Trial Judgement, paras. 1034-1037. The Appeals Chamber recalls that it has already addressed and rejected Ndayambaje's arguments with respect to the lack of notice concerning Kabuye Hill and, to the extent Ndayambaje is developing a new argument, dismisses it as unclear. See supra, paras. 2762-2764. 7033 Ndayambaje Appeal Brief, paras. 509-511, 520, referring to Trial Judgement, paras. 1226, 1439, 1440. 7034 Ndayambaje Appeal Brief, para.

514. Ndayambaje also avers that Witness RV testified that the weapons were taken at 4.00 p.m. during examination-in-chief, and at 2.00 p.m. on cross-examination. See ibid., para. 513. 7035 Ndayambaje submits that Witness FAU testified that the weapons were taken in the morning and that, according to Witness RV, it happened in the afternoon. See Ndayambaje Appeal Brief, para. 513. 7036 Ndayambaje Appeal Brief, para. 514. 7037 Ndayambaje submits that, according to Witness FAU's testimony, the weapons store was opened by Brigadier Pierre who distributed the Kalashnikovs to policemen, whereas Witness RV testified that he opened it himself. See Ndayambaje Appeal Brief, para. 515. 1064 Case No. ICTR-98-42-A 14 December 2015

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19300/H (iv) the vehicle allegedly used by Ndayambaje,7038 and (v) Ndayambaje's whereabouts after the distribution of weapons. 039 Ndayambaje also asserts that the Trial Chamber did not take into account the fact that Witnesses FAU and RV contradicted Witnesses EV and QBZ who placed Ndayambaje elsewhere on Saturday, 23 April 1994.040 3082. The Prosecution responds that the Trial Chamber treated Witnesses RV and FAU with appropriate caution and made no errors in its assessment. 041 It submits that Ndayambaje is "splitting hairs" when pointing out that Witnesses RV and FAU did not testify that Ndayambaje personally took weapons and distributed them as both testified that he was "the driving force behind bringing weapons and attackers to Kabuye Hill."7042 It contends that Ndayambaje's unsubstantiated claim regarding their status as detained witnesses awaiting trial should be summarily dismissed. 043 3083. The Prosecution further argues that Ndayambaje does not explain how the Trial Chamber erred in: (i) accepting Witnesses RV's and FAU's evidence despite the fact that they placed the distribution of weapons at different times of the day; (ii) assessing Witness RV's evidence; and (iii) finding that the slight contradiction about the time when Ndayambaje left the commune office on 23 April 1994 in Witnesses FAU's and RV's evidence did not cast doubt on their testimonies. 044 It adds

that Witnesses QBZ and EV did not contradict Witnesses RV and FAU. 7045 3084. The Appeals Chamber notes that, in support of its finding that "Ndayambaje distributed weapons" at the Muganza commune office, the Trial Chamber relied on Witnesses RV's and FAU's evidence that Ndayambaje took the initiative of going to the commune office to take weapons and distribute them and that, although he did not personally proceed with the actual physical distribution 7038 Ndayambaje submits that Witness RV mentioned a khaki-coloured vehicle belonging to the Health Centre, that no other witness mentioned, while Witness FAU spoke about a white Projet Agricole de Muganza ("PAMU") vehicle. See Ndayambaje Appeal Brief, paras. 516, 521. 7039 Ndayambaje submits that, while Witness FAU testified that Ndayambaje went to Kabuye around 11.00 a.m. and to Butare around 1.00 p.m., driving the PAMU vehicle, and that Charles joined them in Kabuye Hill driving the commune vehicle, Witness RV testified that he saw Ndayambaje around 1.00 p.m. on his way to Kibayi in the khaki-coloured vehicle belonging to the Health Centre and around 2.00 p.m., heading for Kabuye Hill together with Witness FAU, in the vehicle driven by Charles. See Ndayambaje Appeal Brief, para. 517. 7040 Ndayambaje submits that: (i) Witness EV placed Ndayambaje on Saturday, 23 April 1994 in Kabuye from 10.00 a.m. to 5.00. p.m.; and (ii) Witness QBZ placed Ndayambaje on Saturday, 23 April 1994 in Kabuye Hill "from morning to evening". See Ndayambaje Appeal Brief, para.

518. Ndayambaje contends that Witnesses FAU's testimony is also contradicted by Defense Witnesses GABON and KEPIR who placed Ndayambaje at the Muganza commune office in the afternoon after an attack that took place there. See idem. The Appeals Chamber recalls that the Trial Chamber rejected the alibi evidence provided by Witnesses GABON and KEPIR as to Ndayambaje's whereabouts on 23 and 24 April 1994 and that it has affirmed this finding above in Section IX.C. See supra, paras. 2919-2929. 7041 Prosecution Response Brief, paras. 2368, 2369. 7042 Prosecution Response Brief, para. 2373. 7043 Prosecution Response Brief, para. 2368. 7044 Prosecution Response Brief, paras. 2370-2372, 2375. 7045 Prosecution Response Brief, paras. 2376-2384. The Prosecution also argues that Witness RV described the colour of the vehicle as "white tending towards khaki". See ibid., para. 2374. 1065 Case No. ICTR-98-42-A 14 December 2015

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19299/H of weapons, he was involved in all steps of its material realization.** In this context, the Appeals Chamber finds no merit in Ndayambaje's emphasis that the witnesses did not testify that he personally distributed weapons at the Muganza commune office; a fact that the Trial Chamber duly considered?047 3085. The Trial Judgement also reflects express consideration that Witnesses RV and FAU may have had incentives to lie because of their status as detained witnesses convicted or awaiting trial in the assessment of their evidence pertaining to the distribution of weapons at Muganza Commune. 048 Ndayambaje does not demonstrate any error in this respect.

3086. Turning to the alleged inconsistencies in the evidence of Witnesses RV and FAU regarding the number and types of weapons, the Appeals Chamber notes that the Trial Chamber expressly recalled Witness FAU's examination-in-chief and cross-examination in this respect and did not find that his testimony was inconsistent but rather that it "was clarified during cross-examination". 7049 Ndayambaje does not advance any argument to show that the Trial Chamber erred in this assessment. 7050 Ndayambaje also ignores that Witness RV explained in subsequent written statements that his prior statement had not been recorded correctly regarding the number of weapons that were taken from the commune office and that he had asked for a formal correction of this statement. 051 3087. Furthermore, the Appeals Chamber observes that the Trial Chamber expressly considered the inconsistencies that Ndayambaje points out between Witnesses FAU's and RV's evidence regarding the time of the day of the distribution of weapons, the type and number of weapons that were taken, and the identity of the person who proceeded with the removal and distribution of weapons and concluded that they did not cast doubt on their eyewitness evidence that Ndayambaje 7046 See Trial Judgement, paras. 1304-1306, 1308, 1309, 1439-1443. 7047 Trial Judgement, paras. 1439, 1443. 7048 Trial Judgement, paras. 1439, 1440. 7049 Trial

Judgement, paras. 1440, 1441. See also ibid., para. 1309. 7050 The Appeals Chamber also notes that, in examination-in-chief, Witness FAU testified that Pierre took a "gun" from to Celestin, or perhaps the interpreter did not give a proper translation of what I said. What I told the interpreter in my statement was that the communal police had ten guns in[ t]heir possession, aside from the commune weapons store."); Exhibit D178 (Witness RV's statement, dated 7 and 8 March 2001), p. K0169405 (Registry pagination) ("on line 9 on the distribution of arms, I wish to make a substantial change to the words on the distribution of weapons, since what is recorded does not appear to represent what I said during the taking of the statement [...]. [DJelete the words described and substitute them with the following new words [...] Les fusils de la Commune étaient en mains des policiers communaux:"). Witness RV also confirmed during cross-examination that there must have been an error of interpretation. See Witness RV, T. 18 February 2004 pp. 33, 34 (closed session). 1066 Case No. ICTR-98-42-A 14 December 2015

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19298/H was involved in the distribution of weapons at the Muganza commune office on 23 April 1994.7052 Ndayambaje does not advance any argument to show that this conclusion was unreasonable.

3088. By contrast, the Trial Chamber did not explicitly discuss the inconsistencies within Witnesses FAU's and RV's testimonies underscored by Ndayambaje concerning the vehicle he used and his whereabouts after the distribution of weapons at the commune office. The Trial Chamber nonetheless expressly noted these aspects of their evidence in the course of its analysis of the evidence pertaining to the distribution of weapons. 053 Ndayambaje does not explain why it was unreasonable for the Trial Chamber not to discuss these inconsistencies expressly and fails to advance any argument to demonstrate how these minor inconsistencies undermine the credibility of Witnesses FAU's and RV's accounts of Ndayambaje's involvement in the distribution of weapons.

3089. With respect to Ndayambaje's contentions regarding the contradictions between Witnesses RV's and FAU's testimonies, on one hand, and Witnesses EV's and QBZ's testimonies, on the other hand, the Appeals Chamber does not consider that Witness QBZ's account about Ndayambaje's whereabouts on a "Saturday" in April 19947054 contradicts Witnesses RV's and FAU's accounts in light of the Trial Chamber's finding that the event Witness QBZ testified about "occurred about one week after the death of the President, i.e. around 13 April 1994"; a finding that Ndayambaje does not challenge.?0SS As for Witness EV, the Appeals Chamber notes that, given that the witness could only provide estimates and did not testify to have constantly seen Ndayambaje, his testimony that on 23 April 1994 he saw Ndayambaje arriving at Kabuye Hill at about 10.00 a.m. and leaving at approximately 3.00 or 4.00 p.m. 056 is not incompatible with Witnesses RV's and FAU's testimonies recalled by the Trial Chamber that they saw Ndayambaje at the Muganza commune office in the late morning or around 2.00 p.m., before he headed for Kabuye Hill. 7057 3090. Accordingly, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in finding that Ndayambaje was involved in the distribution of weapons at the Muganza commune office on 23 April 1994 based on Witnesses FAU's and RV's evidence. 7052 Trial Judgement, paras. 1442, 1443. 7053 Trial Judgement, paras. 1303, 1304, 1308, 1309. 7057 Trial Judgement, paras. 1308, 1309, 1439, 1442. 1067 Case No. ICTR-98-42-A 14 December 2015 11.

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19297/H (vii) Witness EV 3091. The Trial Chamber found that Witness EV testified that he saw Ndayambaje arriving in a convoy of vehicles on the fourth day of his stay at Kabuye Hill, "which would have fallen on 23 April 1994", and that he saw him there again on 24 April 1994.7058 The Trial Chamber relied on Witness EV's evidence as it interpreted it: (i) together with the evidence of Witnesses RT, TW, QAQ, and FAG to find that Ndayambaje transported attackers to and was present at Kabuye Hill on 23 and 24 April 1994,7059 and (ii) as circumstantial evidence that Ndayambaje was involved in the distribution of weapons at Kabuye Hill on 23 April 1994.7060 3092. Ndayambaje submits that the Trial Chamber's misconstruction of the timeline of events recounted by Witness EV led to the erroneous finding that Witness EV saw him at Kabuye Hill on 23 and 24 April 1994 in the circumstances he described since the witness was in fact testifying about 24 and 25 April 19947061 He also argues that the Trial Chamber erred in finding that Ndayambaje used the Muganza commune vehicle to transport assailants and that there is "an obvious problem with the identification made by Witness BV.*7062 3093. As mentioned above, the Prosecution submits that Witness EV's evidence should not have been relied upon.?063 It argues that, "even without EV's evidence, there was considerable Prosecution evidence

establishing that Ndayambaje transported attackers, distributed weapons and was present during the attacks against Tutsis at Kabuye on 23 and 24 April.»7064 The Prosecution also responds that the timing of the witness was not clear and that, whichever day Witness EV testified about, his testimony did not cast doubt on the other witnesses' evidence regarding the use of the communal vehicle. 7065 3094. Ndayambaje replies that his convictions in relation to 23 April 1994 should be quashed as Witness EV is the only witness relied upon by the Trial Chamber to convict him for crimes committed on this day. 066 7058 Trial Judgement, paras. 1426, 1448. 7059 Trial Judgement, paras. 1426-1431, 1448, 1449, 1452. 7060 Trial Judgement, paras. 1432-1438. 7061 Ndayambaje Appeal Brief, para. 487. 7062 Ndayambaje Appeal Brief, paras. 488-491. The Appeals Chamber notes that Ndayambaje also submits that Witnesses EV, RV, RT, FAU, and FAG gave contradictory evidence as they placed within the same time frame Ndayambaje in four different vehicles going into different directions. See ibid., para.

521. Ndayambaje, however, fails to pose aton perfose it, pos:29, 2291, 230,2301,2306,2313, 2320, 232 therefore dismisses. 7064 Prosecution Response Brief, para. 2387. 7065 Prosecution Response Brief, paras. 2381-2387. 7066 Ndayambaje Reply Brief, para. 176. 1068 Case No. ICTR-98-42-A 14 December 2015

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19296/H 3095. The Appeals Chamber recalls that the Trial Chamber misconstrued the timeline provided by Witness EV in his testimony.?067 As a result of this error, the Trial Chamber erroneously relied on aspects of Witness EV's testimony that pertained to 24 April 1994 in support of its findings concerning events on 23 April 1994, and on aspects of the witness's testimony that pertained to 25 April 1994 in support of its findings on 24 April 1994.

3096. However, the Appeals Chamber is not convinced that the Trial Chamber's error occasioned a miscarriage of justice given the Trial Chamber's reliance on other direct evidence in support of its findings about the events of 23 and 24 April 1994. Contrary to Ndayambaje's submission, Witness EV was not the only witness the Trial Chamber relied upon to establish that Ndayambaje was present and transported attackers on 23 April 1994. The Trial Judgement reflects that the Trial Chamber primarily relied on Witness RT's direct testimony in this respect, which it found clear and convincing 7068 For the distribution of weapons, the Trial Chamber relied on the direct evidence of Witnesses RT, RV, and FAU, as further corroborated by Witness QAL's circumstantial evidence.?069 Likewise, the Trial Chamber's finding on Ndayambaje's presence and transport of attackers to Kabuye Hill on 24 April 1994 was primarily based on the direct evidence of Witness TW, as corroborated by Witness QAQ's testimony that he saw a white vehicle transporting attackers, which the other refugees recognised as Ndayambaje's vehicle. 070 The Appeals Chamber has found no error in the Trial Chamber's reliance on this evidence.

3097. In light of the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber's error in assessing Witness's EV testimony occasioned a miscarriage of justice since the Trial Chamber's findings based on Witness EV's testimony were supported by other credible evidence. For this reason, the Appeals Chamber finds it unnecessary to consider Ndayambaje's remaining arguments relating to the assessment of the evidence of Witness EV concerning 23 and 24 April 1994. (b) Assessment of Defence Evidence 3098. Ndayambaje submits that the Trial Chamber erred in failing to consider and discuss in the Trial Judgement the relevant testimonies of his Defence Witnesses ALIZA, GLANA, МАЛК, SHICO, and JEVAN related to the events at Kabuye Hill on 23 and 24 April 1994, thereby failing in its duty to provide a reasoned opinion.?°71 Ndayambaje argues that Witnesses GLANA's, 7067 See supra, paras. 3028, 3029. 7068 Trial Judgement, para. 1438. 7069 Trial Judgement, paras. 1438, 1443. 7070 See Trial Judgement, paras. 1426, 1448. See also supra, paras. 3040, 3041, 3063. 7071 Ndayambaje Notice of Appeal, paras. 89, 90, 93, 94, 153, 154, 157, 158, 167-169; Ndayambaje Appeal Brief, paras. 253-257, 259, 524-526, 529. Ndayambaje states that Witness ALIZA was the only Defence witness to be 1069 Case No. ICTR-98-42-A 14 December 2015

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19295/H МАЛК's, and SHICO's evidence that he was not involved in the attacks at Kabuye Hill was "specific and reliable" as they were present among the refugees gathered on Kabuye Hill from 20 to 25 April 1994.7072 He asserts that their testimonies corroborated Witness ALIZA's evidence and contradicted the Prosecution witnesses' testimonies, particularly as regards the timeline, his presence, and his involvement in the events at Kabuye Hill. 073 With respect to Witness JEVAN, Ndayambaje highlights that his testimony that the green MRND vehicle was sold prior to 1994 contradicted Witness EV's testimony. 074 He adds that the testimonies of these five witnesses were not challenged by the Prosecution and that the Trial Chamber did not find contradictions or implausibility in their evidence or establish that they had particular ties with him or any interest in protecting him.?075 In Ndayambaje's view, this disregarded evidence had "the potential of casting reasonable doubt on the events of Kabuye". 7076 3099. The Prosecution responds that the evidence pointed out by Ndayambaje was incapable of raising a reasonable doubt in its case. 7077 It argues that Witness ALIZA's evidence was properly considered by the Trial Chamber and that, in any event, he was not a credible witness as he had an incentive to lie for Ndayambaje?078 It further submits that: (i) a review of Witnesses

GLANA's, MAJIK's, and SHICO's testimonies shows that they were neither reliable nor credible; 7079 (ii) Witnesses GLANA's, MAJIK's, and SHICO's testimonies do not support the contention that Ndayambaje was not at Kabuye Hill,7080 and (iji) the reason why the Trial Chamber rejected considered and assessed by the Trial Chamber in relation to the events at Kabuye Hill but solely for the alibi and for 22 April 1994. See Ndayambaje Appeal Brief, paras. 256, 474, 524; Ndayambaje Reply Brief, para.

193. Ndayambaje emphasises that the Trial Chamber did not mention Witnesses GLANA, MAJIK, SHICO, and JEVAN in the list it made of the witnesses Ndayambaje relied upon in support of his arguments regarding Kabuye Hill. See Ndayambaje Notice of Appeal, paras. 90, 154, referring to Trial Judgement, para.

1252. At the appeals hearing, Ndayambaje claimed that the Trial Chamber also overlooked the testimonies of Defence Witnesses KANUC and Stefaan Marysse related to the events at Kabuye Hill. See AT. 21 April 2015 p.

28. The Appeals Chamber observes that, Ndayambaje not only did not raise this allegation in his written appeal submissions but also failed to substantiate and provide any reference to support his claim that the evidence of these witnesses was relevant to the Trial Chamber's findings on the events at Kabuye Hill and should have been addressed in the Trial Chamber's reasoning. Accordingly, the Appeals Chamber declines to consider this argument and dismisses it without further consideration. 7072 Ndayambaje Notice of Appeal, paras. 91, 155, 168; Ndayambaje Appeal Brief, paras. 255, 257, 476, 524. Ndayambaje Reply Brief, para. 195. 7073 Ndayambaje Notice of Appeal, paras. 91, 92, 155, 156, 169; Ndayambaje Appeal Brief, paras. 257, 526. Ndayambaje refers to Witnesses EV, RT, TP, TW, FAU, QAQ, and QBZ. See Ndayambaje Appeal Brief, para. 525. 7074 Ndayambaje Appeal Brief, para. 525 7075 Ndayambaje Appeal Brief, paras. 257, 524, 526. 7076 Ndayambaje Notice of Appeal, para. 169; Ndayambaje Appeal Brief, para. 526. 7077 Prosecution Response Brief, paras. 2153, 2395, 2417, 2423; AT. 21 April 2015 p. 55. 7078 Prosecution Response Brief, paras. 2153, 2390-2394, 2417, referring to Witness ALIZA, T. 4 June 2008 pp. 31, 33, 34 (closed session), 57, T. 5 June 2008 pp. 33, 37, 38 (closed session), 57, 61, 62, T. 9 June 2008 p. 13. 7079 Prosecution Response Brief, paras. 2395, 2399-2409, 2411,

2412. The Prosecution argues that: (i) the content of Witness GLANA's account of her experience at Kabuye Hill makes it unreliable and not credible and shows that she was not in a position to be able to identify the assailants, even if she pretended to; (ii) Witness GLANA never gave satisfactory explanation as to why she chose to flee to Zaire, "the very place where many génocidaires went", and "over-stated her evidence", claiming that no members of the authorities were present at Kabuye Hill, contrary to the evidence that showed that authorities directed the attacks; and iii) Witness SHICO overstated her evidence and "made over-reaching assertions that were not consistent with her limited ability to observe". See idem. 7080 Prosecution Response Brief, paras. 2395, 2413. 1070 Case No. ICTR-98-42-A 14 December 2015

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19294/H Witness ALIZA's testimony, namely that he had a different experience on the hill from other witnesses and that the fact that he did not see or hear Ndayambaje does not mean that the latter was not there, applies equally to Witnesses GLANA's, MAJK's, and SHICO's evidence. 081 The Prosecution also argues that Witness JEVAN's evidence about the MRND Muganza commune vehicle has no impact on the Trial Chamber's findings. 7082 3100. The Appeals Chamber recalls that a trial chamber need not refer to every piece of evidence provided that there is no indication that the trial chamber completely disregarded any particular piece of evidence; such disregard is shown where evidence that is clearly relevant to the findings is not addressed by the trial chamber's reasoning. 083 3101. Contrary to Ndayambaje's contention, the Trial Judgement reflects consideration of Witness ALIZA's evidence in relation to the events at Kabuye Hill on 23 and 24 April 1994 Not only did the Trial Chamber summarise Witness ALIZA's evidence in this regard, but it also referred to it in its deliberations related to the events at Kabuye Hill on 23 and 24 April 1994.?084 Although the Trial Chamber did not explicitly discuss Witness ALIZA's relevant testimony that he did not see Ndayambaje or hear of his presence at Kabuye Hill on "Saturday afternoon", it is clear that the Trial Chamber's finding that the

witness's statement that he did not see or hear about his presence on 22 April 1994 "[did] not mean that [Ndayambaje] was not present at all on that day" was meant to apply equally to the witness's testimony about Saturday, 23 April 1994.7085 Notably, the Trial Chamber also observed that the witness conceded that, when the attack was launched, he could not see everything that was happening or every person on the hill.?086 Ndayambaje's argument regarding the assessment of Witness ALIZA's testimony about the attacks on Kabuye Hill of 23 April 1994 is consequently dismissed. 7081 Prosecution Response Brief, paras. 2396, 2397. The Prosecution submits that the particular circumstances of the Kabuye Hill massacres make it understandable for the witnesses not to have noticed the presence of Ndayambaje. See ibid., para.

2398. See also AT. 21 April 2015 p. 55. 7082 Prosecution Response Brief, paras. 2153, 2327, 2328, 2418. 7083 See Kvocka et al. Appeal Judgement, para.

23. See also Dordevié Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para. 127; Kalimanzira Appeal Judgement, para.

195. See Trial Judgement, paras. 1324, 1325, 1448. The Appeals Chamber further observes that Witness ALIZA's testimony that he did not see Ndayambaje during the interception of refugees or at Kabuye Hill on 22 April 1994 was expressly addressed in the Trial Judgement in relation to the events on the 20 and 22 April 1994 and that the Trial Chamber concluded that his testimony did not cast a doubt on the testimony of the Prosecution witnesses. See ibid., Bar Trial Judgement, para, 1415. Witness ALIZA estified thal, on 24 April 1994, he returned to Kabuye Fill to look for family members, but that because he saw armed civilians killing women and children who had survived, he fled and hid at a sorghum farm. See ibid., para. 1326. 7086 See Trial Judgement, para. 1325, referring to Witness ALIZA, T. 5 June 2008 p. 40 (closed session), T. 9 June 2008 1071 Case No. ICTR-98-42-A 14 December 2015

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19293/H 3102. While Ndayambaje is correct in asserting that the Trial Chamber did not refer to Witness MAJIK's testimony in the portion of its judgement relating to Kabuye Hill,7087 the Trial Judgement reflects express consideration of this witness's evidence in the section addressing the massacres at Mugombwa Church. 088 Given the limited relevance of Witness MAJIK's testimony to the events that took place at Kabuye Hill on 23 and 24 April 1994 - the witness testifying that she remained at home on 23 April 1994 and only returned to Kabuye Hill on Sunday, 24 April 1994, when there were no more refugees there7089 - the Appeals Chamber considers that the Trial Chamber was under no obligation to expressly discuss this aspect of Witness MAJIK's evidence when reaching its findings on the allegation of Ndayambaje's involvement in the Kabuye Hill massacres of 23 and 24 April 1994.

3103. The Trial Chamber did also not refer to the evidence of Witnesses GLANA and SHICO in relation to the attacks at Kabuye Hill. 7090 Although the Trial Chamber referred to Witness SHICO's testimony elsewhere in the Trial Judgement,7091 Witness GLANA's testimony is not mentioned at all in the Trial Judgement. As pointed out by Ndayambaje, Witnesses GLANA and SHICO testified that, together with other refugees, they had sought refuge at Kabuye Hill, where they were on Saturday, 23 April 1994.7092 Both testified that they did not see Ndayambaje or his vehicle on that day or hear about his presence from other refugees. 093 The Trial Chamber omitted to note in the Trial Judgement that Ndayambaje relied on these aspects of Witnesses GLANA's and SHICO's testimonies in his closing submissions. 094 3104. Given the direct relevance of this evidence and the absence of any indication in the Trial Judgement that the Trial Chamber assessed and weighed it, the Appeals Chamber finds that the 7087 See Trial Judgement, paras. 1248-1456. 7088 Trial Judgement, Section 3.6.4. See also ibid., paras. 1088-1092. 7089 Witness MAJIK, T. 18 June 2008 p.

4. See also Ndayambaje Closing Brief, paras. 470, 471. 7000 See Trial Judgement, paras. 1248-1456. 7091 See Trial Judgement, paras. 1178-1180. 7092 Witness GLANA, T. 11 June 2008 pp. 42-44; Witness SHICO, T. 23 June 2008 pp. 31-33, 47. Witness GLANA stated that he left Kabuye Hill on Sunday, 24 April 1994 early in the morning to return home. See Witness GLANA, T. 11 June 2008 p.

44. Witness SHICO testified that she left Kabuye Hill on Saturday when it started raining and went back to her house where she arrived in the morning. See Witness SHICO, T. 23 June 2008 p.

34. In light of the foregoing and to the extent that Ndayambaje submits that the Trial Chamber failed to consider Witnesses GLANA's and SHICO's testimony for the events at Kabuye Hill on 24 April 1994, the Appeals Chamber dismisses Ndayambaje's arguments as their evidence cannot be seen as clearly relevant to the events at Kabuye Hill on that particular day. Witness GLANA, T. 11 June 2008 pp. 42, 74; Witness SHICO, T. 23 June 2008 pp. 32, 33. See also Ndayambaje Closing Brief, paras. 484, 501, 503, 507. Ndayambaje's submissions also seek to demonstrate that Witnesses GLANA's and SHICO's evidence raises a reasonable doubt as to the features and the timeline of the attacks at Kabuye Hill. However, the Appeals Chamber notes that, apart from very general considerations without reference, Ndayambaje only refers to the events of Friday, 22 April 1994. See Ndayambaje Notice of Appeal, paras. 91, 155; Ndayambaje Appeal Brief, paras. 257, 476, 526. The Appeals Chamber therefore finds that Ndayambaje fails to substantiate his claim and dismisses his argument in this respect as to the events of 23 and 24 April 1994. 7094 Trial Judgement, para. 1252 ("In support of its submissions, the Ndayambaje Defence relies on the testimony of Ndayambaje Defence Witnesses ALIZA, TOVIA, KEPIR, GABON, MARVA, BIDI, Father Tiziano, SABINE, 1072 Case No. ICTR-98-42-A 14 December 2015

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19292/H Trial Chamber erred by failing to consider the evidence of Witnesses GLANA and SHICO with respect to the events at Kabuye Hill on 23 April 1994. However, Ndayambaje does not demonstrate that this error invalidates the Trial Chamber's conclusions concerning his role in the attacks at Kabuye Hill. The Appeals Chamber notes that, although Witnesses GLANA and SHICO testified that they did not see or hear about the presence of Ndayambaje on 23 April 1994, their testimonies also suggest that they could not reliably establish that Ndayambaje was not there. In particular, their testimonies reveal that they were not in a position to identify any of the assailants on 23 April 1994.7095 Moreover, Witness SHICO's testimony reflects that she could not observe everything that was happening because she was taking care of her children and shared information only with people from the same locality as her.?096 As for Witness GLANA, her testimony shows that, as there was gunfire, she went into hiding from 4.00 p.m. beside a banana tree and laid down to avoid being hit by a bullet.97 Recalling the Trial Chamber's finding that "there were many thousands of refugees on Kabuye Hill, which covered an expansive area", 7098 the Appeals Chamber is of the view that the fact that Witnesses GLANA and SHICO did not see Ndayambaje or hear about his presence is of very limited probative value and would not have precluded a reasonable trier of fact from finding that Ndayambaje was present at Kabuye Hill on 23 April 1994 as testified by a credible Prosecution witness and corroborated by circumstantial evidence.

3105. Finally, the Appeals Chamber observes that Ndayambaje fails to provide any reference to the relevant parts of testimonies or the Trial Judgement to support his allegation that Witness JEVAN's evidence contradicts that of Witness EV about the use of the MRND vehicle. 099 In any case, the Appeals Chamber recalls that the Trial Chamber erred in its assessment of Witness EV's testimony and that it has concluded above that the Trial Chamber's findings nonetheless remain reasonable without Witness EV's evidence.

3106. For these reasons, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the evidence of Witnesses GLANA and SHICO relevant to the question of Ndayambaje's presence at Kabuye Hill on 23 April 1994. However, the Appeals Chamber finds that Ndayambaje Nteziryayo Defence Witness AND-5 and Ndayambaje."); Ndayambaje Closing Brief, paras. 483-488, 501-507. See also Ndayambaje Closing Arguments, T. 30 April 2009 pp. 43, 44. 7095 See Witness GLANA, T. 11 June 2008 pp. 41 ("Q. Did you, with your very eyes, see the people who had opened fire on you, those who had guns? A. No, but people were saving that it was soldiers that were firing. And people said that these - those who were shooting were dressed in military uniform. But I did not see these persons because I was very, very frightened."), 75; Witness SHICO, T. 23 June 2008 p. 33 ("Q. [...] did you see the people that were opening fire on Kabuye hill? A. [...] From where I was, I did not see the people that were opening fire, but I was seeing people as they fell. [...] I did not personally see the persons that were opening fire."). 7096 Witness SHICO, T. 23 June 2008 pp. 50, 51. 7097 Witness GLANA, T. 11 June 2008 pp. 39, 41, 73. 7098 Trial Judgement, para. 1433. 7099 See Ndayambaje Appeal Brief, para. 525, referring to Exhibit D672 (Photo depicting Ndayambaje and other persons close to a vehicle with the mention "M.R.N.D. Commune Muganza"). 1073 Case No. ICTR-98-42-A 14 December 2015

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19291/H has failed to demonstrate that this error invalidates the Trial Chamber's conclusions regarding his responsibility in the attacks on Kabuye Hill of 23 April 1994. The Appeals Chamber dismisses as without merit Ndayambaje's remaining contentions about the assessment of the Defence evidence.

3. Additional Evidence Admitted on Appeal 3107. On the basis of the trial record alone, the Appeals Chamber has found that the Trial Chamber erred in holding Ndayambaje responsible for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994 and reversed his convictions on this basis. 100 Consequently, the Appeals Chamber finds it unnecessary to examine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to Ndayambaje's guilt in this respect. 101 3108. By contrast, the Appeals Chamber has found that, on the basis of the trial record alone, the • Trial Chamber did not err in finding Ndayambaje responsible for aiding and abetting the killings perpetrated during attacks on Kabuye Hill on 23 and 24 April 1994 by transporting attackers to Kabuye Hill, distributing weapons that were later used in the massacres, and being present during the attacks. In accordance with the relevant standard, the Appeals Chamber will therefore determine whether, in light of the trial evidence and the additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to this finding of guilt.

3109. The Appeals Chamber recalls that it admitted as additional evidence on appeal: (i) a confidential witness statement dated 30 January 2013 relevant to the assessment of the credibility of Prosecution Witness EV; 7102 and (ii) a prior statement given confidentially to Tribunal investigators by Witness Claver Habimana ("Habimana") on 9 June 2009 and part of his testimony in the Ntawukulilyayo case relevant to the assessment of the credibility of Prosecution Witness RT. 103 3110. The Appeals Chamber further recalls that it has found that the Trial Chamber's error in assessing Witness EV's testimony on the events of 23 and 24 April 1994 at Kabuye Hill have not occasioned a miscarriage of justice, given the Trial Chamber's reliance on other direct evidence in 7100 See supra, Section IX.F.1. 7101 The Appeals Chamber also recalls that Ndayambaje was not convicted in relation to the interception at Ngiryi Bridge and forced movement of the Tutsi refugees to Kabuye Hill on 20 April 1994. See supra, Section IX.F.1. 7102 9 April 2015 Appeal Decision, pp. 1, 4, referring to Élie Ndayambaje's Motion for Admission of Witness Grégoire Hategekimana's Statement as Additional Evidence, 1 May 2013 (originally filed in French, English translation filed on 10 July 2013) (confidential), Annex A (Statement dated 30 January 2013). 7103 12 May 2015 Appeal Decision, paras. 25, 90, 91, fn. 50,

referring to Élie Ndayambaje's Motion on Violation of Disclosure Obligations by the Prosecutor and for Admission of Additional Evidence, 29 November 2012 (originally filed in French, English translation filed on 7 February 2013), Annex B, Statement of Witness Claver Habimana of 9 June 2009 (confidential) ("Habimana's Statement"), The Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR- 05-82-T, Witness Habimana, T. 6 October 2009 pp. 7, 11-17, 27 and i-ix (confidential) ("Habimana's Testimony") (collectively "Habimana's Materials"). 1074 Case No. ICTR-98-42-A 14 December 2015

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19290/H support of its findings about these events. 104 In these circumstances and given that the 30 January 2013 witness statement admitted as additional evidence on appeal concerns solely the credibility of Witness EV, the Appeals Chamber finds it unnecessary to examine it in light of the trial evidence to determine whether it is itself convinced beyond reasonable doubt as to Ndayambaje's guilt regarding these events.

3111. Turning to the additional evidence admitted on appeal relevant to the credibility of Witness RT, the Appeals Chamber recalls that, when admitting Habimana's Materials, it stated: Habimana's Materials reflect that Witness RT allegedly arrived at Witness Habimana's house approximately a week after the death of President Habyarimana and stayed there until 16 April 1994, according to Witness Habimana's estimate, whereupon he walked with Witness RT to the border of Burundi and assisted him to cross the river separating Rwanda from Burundi. The Appeals Chamber notes that this evidence is inconsistent with Witness RT's testimony at trial that he was present at Ngiryi Bridge and Kabuye Hill between 20 and 24 April 1994. The Appeals Chamber finds that, had Habimana's Materials been available at trial, they could have impacted the Trial Chamber's assessment of the credibility of Witness RT's testimony. 7105 3112. Ndayambaje submits that Habimana's Materials: (i) show that Witness RT was no longer in Rwanda on the dates, which according to the witness's testimony, Witness RT saw him at Ngiryi Bridge and Kabuye Hill between 20 and 24 April 1994; and (ii) establish that Witness RT lied at trial and falsely incriminated him. 106 He also argues that Habimana's Materials call into question the overall assessment of the credibility of the Defence evidence, which, in his view, was

rejected for the most part because of the substantial weight granted by the Trial Chamber to the testimony of Witness RT. 107 Ndayambaje contends that all of the Trial Chamber's findings relying on the evidence of Witness RT should be overturned and that the remainder of the Prosecution evidence is not sufficient to sustain the findings of guilt beyond reasonable doubt. 108 3113. The Prosecution submits that the evidence contained in Habimana's Materials is not credible and could not have been a decisive factor at trial, and that Ndayambaje's convictions for the events 7104 See supra, Section IX.F.2(a)(vii). 7105 12 May 2015 Appeal Decision, para. 60 (internal reference omitted). 7106 Written Submissions Subsequent to the "Decision on Ndayambaje's First, Second, Third and Fourth Motions for Relief for Rule 68 Violations and to Present Additional Evidence" of 12 May 2015, 26 May 2015 (originally filed in French, English translation filed on 3 July 2015) (confidential) ("Ndayambaje Submissions on Additional Evidence"), paras. 6-8, 10-13. The Appeals Chamber recalls that it allowed Ndayambaje and the Prosecution, if they deem it necessary, to file written submissions discussing the possible impact of Habimana's Materials on the Trial Chamber's findings. See 12 May 2015 Appeal Decision, para. 91. 7107 Ndayambaje Submissions on Additional Evidence, para. 14. 7108 Ndayambaje

Submissions on Additional Evidence, paras. 14, 20, 25, 27-29. Ndayambaje also submits that, since Habimana's Materials should not have been taken into account to discredit the Defence witnesses who also testified in relation to the events at Mugombwa Church, Habimana's Materials also invalidate the Trial Chamber's findings related to Mugombwa Church. See ibid., paras. 14, 29. The Appeals Chamber finds that this claim is without merit as the Trial Chamber did not rely on Witness RT's evidence to reject any of the Defence evidence relating to Mugombwa Church. See supra, Section IX.E. 1075 Case No. ICTR-98-42-A 14 December 2015

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19289/H at Kabuye Hill would in any event stand without Witness RT's evidence based on other evidence on the record. 109 3114. The Appeals Chamber finds Witness RT's testimony pertaining to the interception of Tutsi refugees trying to flee to Burundi at Ngiryi Bridge, his arrival at Kabuye Hill on 22 April 1994, the attacks on the Tutsis who had sought refuge there, and Ndayambaje's distribution of grenades on 23 April 1994 detailed and coherent. 110 His evidence is first-hand and his identification of Ndayambaje is compelling. 'll Witness RT's explanations given in cross-examination concerning alleged inconsistencies about how many times and where he saw Ndayambaje during the events are clear and convincing. 112 3115. Habimana's Materials reflect that Witness RT allegedly arrived at Habimana's house approximately a week after the death of President Habyarimana and stayed there until 16 April 1994, whereupon he walked with Witness RT to the border of Burundi and assisted him to cross the river separating Rwanda from Burundi?113 This evidence directly contradicts Witness RT's testimony that he was present at Kabuye Hill on 23 April 1994, where he saw Ndayambaje distributing grenades, and left for Burundi on 25 April 1994.?114 3116. However, upon careful review of his evidence and the totality of the evidence in the trial record, the Appeals Chamber does not find Habimana's

evidence that Witness RT came to hide at his place as early as 13 April 1994 credible. The Appeals Chamber notes that Habimana's Statement that Witness RT told Habimana that "[Witness RT] could not spend the night at [Witness RT's] home in Remera as the killings had started there"7l15 is inconsistent with Habimana's Testimony that Witness RT came to hide at Habimana's place because "[Witness RT] had observed that there were disturbances", "tension between Hutus and Tutsis", and "unlawful gatherings everywhere" ?116 It is also not disputed that the killings in Muganza Commune started on 7109 Prosecution's Submission on Evidence of Claver Nahimana (alias Habimana) and Request for A[d]mission of Rebuttal Evidence, 26 May 2015 (confidential) ("Prosecution Submissions on Additional Evidence"), paras. 1, 2, 25, 26. The Appeals Chamber observes that the Prosecution claims that the name of the witness who testified as Claver Habimana in the Ntawukulilyayo trial is, in fact, Claver "Nahimana". See ibid., paras. 1, 3. The Appeals Chamber finds it unnecessary to determine the issue in light of its conclusions on the credibility of the witness. For the sake of clarity, the Appeals Chamber will refer to the relevant individual as Claver "Habimana" 7110 Witness RT, T. 10 March 2004 pp. 47-72, 76, 77, T. 11 March 2004 pp. 7-9, 21-26, 32-76, 79-90, 103, 104 and 11- 20. 28-31.92. 93. 105

(closed session) 111 Witness RT. T. 10 March 2004 pp. 68, 69, 76, 77 and 98-100 (closed session), T. 11 March 2004 pp. 70-72, 83. 7112 Witness RT, T. 11 March 2004 pp. 85-89. 7113 Habimana's Testimony, pp. 7, 11-17, 27 and i-ix (extracted); Habimana's Statement, pp. 3456/A-3453/A (Registry pagination). Witness RT, T. 11 March 2004 pp. 86 and 93 (closed session). 7115 Habimana's Statement p. 3454/A (Registry pagination). 7116 Habimana's Testimony, p. 11. 1076 Case No. ICTR-98-42-A 14 December 2015

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19288/H 19 or 20 April 1994, and not a weck after the death of the President."'l? As noted by the Prosecution, Defence and Prosecution evidence consistently shows that people in Muganza Commune started fleeing around 20 April 1994,7118 which is consistent with Witness RT's account. 119 Moreover, while Habimana stated that he accepted to help Witness RT because they were friends and because he knew "that a human being's life is very precious", 7120 there is evidence on the record that Habimana was one of the community leaders involved in the genocide. 121 3117. Considering Witness RT's detailed and convincing account of the events at Kabuye Hill together with the inconsistencies in the Habimana's Materials, the Appeals Chamber finds that the additional evidence admitted on appeal does not undermine the credibility of Witness RT's account about Ndayambaje's involvement in a distribution of grenades at Kabuye Hill on 23 April 1994. The Appeals Chamber makes this determination in light of the totality of the evidence in the trial record, including the evidence pointed out by Ndayambaje at trial and on appeal regarding the circumstances in which Witness RT identified him at Kabuye Hill on 23 April 19947122 as well as the evidence of Ndayambaje and Witnesses ALIZA, ANGES, BIDI, GABON, GLANA, KEPIR, МАЛК, MARVA, SABINE, SHICO, and Stan concerning the events at Kabuye Hill

and/or Ndayambaje's alibi highlighted by Ndayambaje in his closing brief and referred to by the Trial Chamber. 123 3118. In light of the trial evidence and the additional evidence admitted on appeal, the Appeals Chamber is itself convinced beyond reasonable doubt of Ndayambaje's guilt concerning the killing of Tutsis perpetrated at Kabuye Hill following the distribution of grenades on 23 April 1994. 7117 In this respect, the Appeals Chamber notes that Ndayambaje testified at trial that, during the period before 18 April 1994, "there was no unrest [in Muganza Commune] for people to seek refuge in churches or other buildings". See Ndayambaje, T. 26 November 2008 p.

11. See also Ndayambaje, T. 2 December 2008 p. 29. 7118 See Prosecution Submissions on Additional Evidence, para. 19, fn. 32, referring to Witness FAG, T. 1 March 2004 p. 13 (closed session), Witness QAL, T. 25 February 2004 p. 36, Witness QAQ, T. 11 November 2002 pp. 23, 24 (closed session), Witness TP, T. 11 February 2004 p. 8, Witness TW, T. 10 February 2004 p. 7, Witness BOZAN, Г. 16 September 2008 pp. 8, 9, Witness GLANA, T. 10 June 2008 p. 72, Witness JAMES, T. 2 June 2008 p. 25 Witness KEPIR, T. 10 September 2008 p. 38, Witness KWEPO, T. 28 August 2008, p. 21 (closed session) Witness MATIC, T. 18 June 2008 p. 57 (closed session), Witness SHICO, T. 23 June 2008 pp. 19, 20 (closed session); Tiziano Pegoraro, T. 8 September 2008 p. 62, Witness ALIZA, T. 4 June 2008 p. 35 (closed session). 7119 Witness RT, T. 10 March 2004 pp. 47, 48, T. 11 March 2004 pp. 7, 8 and 11, 12 (closed session). 7120 Habimana's Testimony, p. 12. 7121 See Witness FAG, T. 1 March 2004 p. 21 (closed session). The Appeals Chamber notes that, while Witness FAG did not refer to Habimana by his last name, his testimony clearly reflects that he was referring to him. Compare idem with Habimana's Statement, p. 3456/A (Registry pagination). The Appeals Chamber further observes that, although the Trial Chamber applied caution to Witness FAG's testimony in light of the fact that witness was still awaiting a

decision by a Gacaca court at the time of his testimony, it relied on several aspects of his testimony for the events at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill as well as for Ndayambaje's Swearing-In Ceremony. See Trial Judgement, paras. 1226, 1233, 1234, 1236, 1237, 1244, 1245, 1409, 1410, 1425, 1428-1431, 4590, 4610, 4621-4623, 4627, 4629. The Appeals Chamber finds Witness FAG's testimony about the implication of Habimana in the genocide credible and reliable. 7122 See, e.g., Witness RT, T. 11 March 2004 pp. 58-78, 84-89 and 100-105 (closed session); Ndayambaje Closing Brief, paras. 336-343, 349, 447-451; supra, Section IX.F.2(a)(ii). 1077 Case No. ICTR-98-42-A 14 December 2015

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19287/H 4. Conclusion 3119. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in finding that Ndayambaje was present at Kabuye Hill on 22 April 1994. The Appeals Chamber grants this part of Ground 18 of Ndayambaje's appeal and, accordingly, reverses his convictions for aiding and abetting genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol in relation to the attacks on Kabuye Hill of 22 April 1994. The Appeals Chamber will examine the impact of this finding, if any, in Section XII below.

3120. However, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in finding him responsible for aiding and abetting the killings perpetrated during attacks on Kabuye Hill on 23 and 24 April 1994 by transporting attackers to Kabuye Hill, distributing weapons that were later used in the massacres, and being present during the attacks. Accordingly, the Appeals Chamber dismisses the relevant part of Ground 9 as well as Grounds 10 and 11 and the remaining parts of Ground 18 of Ndayambaje's appeal. 7123 See Ndayambaje Closing Brief, paras. 458-518, 523-622; Trial Judgement, paras. 1319-1327, 1333-1347, 1352- 1385, 1389-1398, 1430, 1435, 1445-1447. See also supra, Sections IX.C, IX.F.2(b). 1078 Case No. ICTR-98-42-A 14 December 2015

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19286/H G. Ndayambaje's Swearing-In Ceremony (Ground 19) 3121. The Trial Chamber found that, during Ndayambaje's public swearing-in ceremony as the bourgmestre of Muganza Commune on 22 June 1994 held in the woods near the Muganza commune office, "Nteziryayo and Ndayambaje told the population to continue with their "work' and urged them to 'sweep the dirt outside'" in reference to the killing of Tutsis and instructed that those hiding Tutsis who refused to hand them over should be killed. 124 It also found it established beyond reasonable doubt that, after the ceremony, searches for Tutsis took place and killings followed. 125 The Trial Chamber convicted Ndayambaje pursuant to Article 6(1) of the Statute for committing direct and public incitement to commit genocide on the basis of the statements he made at his swearing-in ceremony. 7126 3122. Ndayambaje submits that the Trial Chamber erred in the assessment of Prosecution and Defence evidence and made imprecise and unsupported findings. 127 The Appeals Chamber will address these contentions in turn.

1. Assessment of Prosecution Evidence 3123. In reaching its findings regarding Ndayambaje's Swearing-In Ceremony, the Trial Chamber considered, inter alia, the evidence of Prosecution Witnesses FAG, FAL, FAU, QAF, QAL, RAQ, QAR, RV, TO, and TP.7128 3124. Ndayambaje contends that the Trial Chamber erred in: (i) failing to exercise sufficient caution with respect to Prosecution witnesses generally; (ii) the assessment of the evidence of Prosecution Witnesses FAL, FAG, QAF, RV, FAU, TO, TP, and QAL; and (iii) determining that all the witnesses were testifying about the same event. 129 7124 See Trial Judgement, paras. 4616, 4642, 4645, 5948, 6026, 6027. 7125 Trial Judgement, paras. 4645, 5948, 6026. 7126 Trial Judgement, paras. 6029, 6038, 6186. The Appeals Chamber recalls that, although the Trial Chamber found that there was a causal connection between Ndayambaje's words at his swearing-in ceremony and the abduction and killing of Tutsi women and girls from Mugombwa Sector, it did not ultimately convict Ndayambaje on this basis. See supra, fn.

6351. See generally Ndayambaje Notice of Appeal, paras. 182-193; Ndayambaje Appeal Brief, paras. 532-611; Ndayambaje Reply Brief, paras. 199-246. 7128 See Trial Judgement, paras. 4589-4632, 4642-4645. 7129 Ndayambaje further "prays the Appeals Chamber to assume jurisdiction over the motions and requests for certification of appeal which were otherwise denied on grounds of judicial economy." See Ndayambaje Appeal Brief, para. 581, referring to Trial Judgement, paras. 4311-4313, 6426. The Prosecution objects to the relief Ndayambaje now seeks, as he failed to raise it in his notice of appeal. See Prosecution Response Brief, para.

2471. In the absence of any identification of errors or of the necessary references, the Appeals Chamber dismisses this unsubstantiated and unsupported contention. In addition, Ndayambaje, like Nteziryayo, argues that the Trial Chamber erred in relying on the testimonies of Witnesses QAQ and QAR "for the purposes of fictitious corrobotation", despite finding elsewhere in the Trial Judgement that they did not attend the swearing-in ceremony and that certain aspects of their evidence were implausible. See Ndayambaje Appeal Brief, para. 578, referring to Trial Judgement, paras. 4595, 4596, 4603, 4604, 1079 Case No. ICTR-98-42-A 14 December 2015

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19285/H (a) Insufficient Caution 3125. Ndayambaje submits that despite acknowledging that Witnesses FAG, FAL, QAF, RV, and TO had an incentive to implicate him, the Trial Chamber failed to exercise sufficient caution when assessing their evidence. 130 He also contends that the Trial Chamber erred in failing to consider that similar caution should have been exercised with respect to Witness FAU's testimony, which required corroboration as the witness was detained and awaiting sentencing and therefore had an incentive to lie. 131 3126. Ndayambaje also argues that the Trial Chamber failed to consider that Witnesses FAG, FAL, FAU, and RV were detained together, purportedly often discussing the events at Muganza Commune?132 Ndayambaje submits that, because these witnesses and Witness QAF took part in Gacaca proceedings while in prison, they influenced each other's evidence which, consequently, should have been rejected 133 Ndayambaje further contends that the Trial Chamber failed to consider sufficiently the evidence of Defence Witness GABON that he and Witness RV were mistreated and that pressure was put on them to testify against Ndayambaje, and argues that Witness RV's evidence should be rejected on this basis. 134 3127. The Prosecution responds that the Trial Chamber considered the challenges raised by Ndayambaje and submits that he does not demonstrate any error in its

assessment. 135 It also argues that Ndayambaje misrepresents the evidence regarding the collective participation of these witnesses in Gacaca proceedings as well as the purported influence their participation had on their testimonies. 136 It contends that Ndayambaje does not substantiate his arguments regarding Witness RV's potential motivation to implicate him.?137 4607, 4608. See also Ndayambaje Notice of Appeal, paras. 185, 189; Ndayambaje Reply Brief, para.

233. Given that the Trial Judgement reflects that the Trial Chamber declined to rely on the accounts of Witnesses QAQ and QAR about Ndayambaje's Swearing-In Ceremony, the Appeals Chamber dismisses these arguments without further consideration. See Trial Judgement, paras. 4602-4608. See also supra, Section VII.B. 1(a). 7130 Ndayambaje Appeal Brief, paras. 534, 535, 539, 543, 550, 552, 555, 580, referring to Trial Judgement, para.

4630. See also Ndayambaje Reply Brief, paras. 202, 225. 7131 Ndayambaje Appeal Brief, paras. 543, 580. 7132 Ndayambaje Appeal Brief, para. 580. 7133 Ndayambaje Appeal Brief, para.

552. See also Ndayambaje Reply Brief, para. 218. 7134 Ndayambaje Appeal Brief, paras. 554, 590. Ndayambaje, without precise reference, "repeats his submissions in his motion to reject detainee witnesses" when challenging Witness RV's credibility. See ibid., para.

554. The Appeals Chamber recalls that merely referring the Appeals Chamber to the arguments set out at trial is insufficient as an argument on appeal. The Appeals Chamber therefore declines to consider this part of Ndayambaje's submissions further. See, e.g., Mugenzi and Mugiraneza Appeal Judgement, para. 34; Nchamihigo Appeal Judgement, para. 369; Haragija and Morina Appeal Judgement, para. 26. 7135 Prosecution Response Brief, paras. 2428, 2434. 7136 Prosecution Response Brief, paras. 2450-2452. 7137 Prosecution Response Brief, para. 2453. 1080 Case No. ICTR-98-42-A 14 December 2015

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19284/H 3128. As discussed previously, the Appeals Chamber observes that the Trial Judgement reflects express consideration of the admitted involvement of Witnesses FAG, FAL, QAF, and RV in the genocide as well as the fact that Witness RV was detained and Witnesses FAG and FAL. were awaiting sentencing decisions when they testified. 138 The Trial Chamber further recognised that the impugned witnesses "may have had incentives to implicate either Ndayambaje or Nteziryayo in order to secure favourable or lenient treatment or to apportion blame to the authorities" and that because Witness TO was imprisoned during Ndayambaje's tenure as bourgmestre, he may have "a motive to seek revenge against Ndayambaje" 7139 Similarly, the Appeals Chamber has considered and dismissed similar arguments that the Trial Chamber failed to consider sufficiently Witness FAU's status as a detained witness when analysing the evidence related to Ndayambaje's Swearing-In Ceremony, as a holistic reading of the Trial Judgement reflects that it did. 140 3129. In addition to its comprehensive discussion of the circumstances raising concerns about the impugned witnesses' motives to implicate the co-Accused, the Trial Chamber's analysis of the evidence of these detained witnesses concerning the ceremony also reflects that it took into account various factors relevant to a cautious assessment of their credibility,

including the consideration of discrepancies and inconsistencies in their evidence. 141 Moreover, it reflects the reliance on these witnesses' testimonies regarding the content and meaning of the utterances made during the ceremony as to which the Trial Chamber found broad corroboration. 142 Against this background, the Appeals Chamber rejects Ndayambaje's contention that the Trial Chamber failed to apply sufficient caution.

3130. Regarding the purported impact of the witnesses' detention and participation in Gacaca proceedings, the Appeals Chamber observes that nothing in the transcripts cited by Ndayambaje demonstrates that through discussing events in Muganza Commune while in custody, Witnesses FAG, FAL, FAU, QAF, and RV influenced each other's evidence. 143 With respect to purported coercion Witness RV experienced in detention, the Appeals Chamber notes that, while Witness GABON's testimony indicates that both he and Witness RV were mistreated in custody, it 7138 See supra, Section VII.B.1(b), para. 2326, fn.

5373. Contrary to Ndayambaje's contention that Witness QAF was awaiting judgement at the time of his testimony, the Appeals Chamber observes that, at the time of his testimony, Witness QAF had been released pursuant to a presidential decree. See Ndayambaje Appeal Brief, para. 539; Trial Judgement, paras. 4630, 4663. 7139 See supra, Section VII.B.1(b), para. 2326, fns. 5374, 5375. 7140 See supra, Section VII.B.1(b), para. 2325, fns. 5371, 5372. 7141 See Trial Judgement, paras. 4589-4593, 4596, 4610-4617. 7142 See Trial Judgement, paras. 4622-4628. 7143 See Witness FAL, T. 9 February 2004 pp. 49-52, 79, 80 (closed session); Witness RV, T. 17 February 2004 pp. 33-35, T. 18 February 2004 pp. 58-66, T. 19 February 2004 pp. 43, 44, 68, 69 (closed session); Witness QAF, T. 6 February 2004 pp. 32, 33 (closed session); Witness FAG, T. 1 March 2004 pp. 46, 47, T. 2 March 2004 pp. 9, 10 (closed session); Witness FAU, T. 8 March 2004 pp. 85-87, T. 10 March 2004 pp. 31-36 (closed session). 1081 Case No. ICTR-98-42-A 14 December 2015

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19283/H was Witness GABON who was asked to accuse Ndayambaje. '44 Ndayambaje fails to demonstrate that the Trial Chamber erred in its assessment of Witness RV's evidence in light of the testimony of Witness GABON.

3131. For the foregoing reasons, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber failed to exercise sufficient caution when assessing evidence from these witnesses concerning Ndayambaje's Swearing-In Ceremony. (b) Witness FAL 3132. When evaluating the content of the speeches made during the swearing-in ceremony, the Trial Chamber recalled that Witness FAL, consistent with Witness FAG, testified that "both Nteziryayo and Ndayambaje used parables concerning the need to clean the house of dirt and place it outside."7145 It further observed that Witness FAL, like Witnesses FAG and TO, testified that Ndayambaje explained the metaphor to mean that surviving Tutsis needed to be killed and that Witness FAL gave evidence that Nteziryayo talked about killing the Tutsis. 146 3133. Ndayambaje submits that the Trial Chamber failed to consider that Witness FAL contradicted himself as to the time when he arrived at the ceremony, specifically whether he arrived before or after its start 147 He further submits that the witness's testimony that there were 5,000 armed participants who protested against Nteziryayo's criticism of the outgoing bourgmestre and that Ndayambaje climbed on the table and Sebukeye spoke at the ceremony was contradicted in numerous respects by other witnesses, which made the witness's attendance at the swearing-in ceremony improbable.

48 In particular, Ndayambaje highlights that: (i) Witness FAG did not see Witness FAL at the meeting, recounted that there were only 1,000 unarmed attendees, and did not recall Ndayambaje climbing on the table or any other attendees taking the floor; 149 and (ii) Witness QAF testified that none of the attendees carried weapons. 1S Ndayambaje also highlights Defence evidence, which in his view was erroneously discredited without sufficient reasoning, that the participants were not armed, that Ndayambaje did not climb on the table, that 7144 See Witness GABON, T. 2 September 2008 pp. 26-28 (closed session). 7145 Trial Judgement, para.

4622. See also ibid., para. 4345. 7146 Trial Judgement, paras. 4625, 4627. See also ibid., paras. 4344, 4345. The Trial Chamber also noted aspects of Witness FAL's evidence when observing the "consistent, albeit often general, evidence of the Prosecution witnesses" that killings occurred after the meeting. See ibid., para. 4632. 7147 Ndayambaje Appeal Brief, paras. 533. 7148 Ndayambaje Appeal Brief, paras. 533, 534. See also Ndayambaje Notice of Appeal, para. 185; Ndayambaje Reply Brief, para. 201. 7149 Ndayambaje Appeal Brief, para. 536. 7150 Ndayambaje Appeal Brief, para.

541. Ndayambaje adds that Witness QAF testified that nobody in attendance asked questions. See idem. 1082 Case No. ICTR-98-42-A 14 December 2015

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19282/H Sebukeye did not attend the ceremony, and that the participants did not protest against the replacement of the outgoing bourgmestre. 151 3134. The Prosecution responds that the Trial Chamber was aware that Witness FAL was the only witness to recount certain features of the swearing-in ceremony and that Ndayambaje misrepresents other aspects of the witness's testimony. 152 3135. The Appeals Chamber observes that the Trial Chamber noted that Witness FAL testified that he arrived after the start of the meeting but then clarified that he actually arrived half an hour before it started. 153 Ndayambaje does not demonstrate how this clarification by Witness FAL undermined the credibility of his testimony or would have required express consideration by the Trial Chamber.

3136. The Appeals Chamber further observes that Ndayambaje's contention that Witness FAG did not see Witness FAL at the swearing-in ceremony is not supported by the reference he provides. 154 In any event, the Appeals Chamber fails to see the purported significance of this aspect of Witness FAG's evidence given the Trial Chamber's findings about the large number of attendees, discussed in more detail below. As regards discrepancies between Witness FAL's evidence that the attendees at the meeting were armed and other evidence to the contrary, the Trial Chamber noted that Witnesses FAL, TP, RV, and QAL testified that the population brought traditional arms, whereas Witnesses FAG and QAF as well Nteziryayo and Defence Witnesses GABON, KEPIR, AND-11, and AND-73 testified that the population was not armed. 155 The Trial Chamber observed that the evidence showed that between 1,000 and 5,000 people were present and considered "it possible that while some people may have come bearing machetes and other instruments which may double as traditional weapons, others did not, which may account for the discrepancy in the witnesses' evidence."?156 It did not find any discrepancy as to whether the population was armed "significant.»7157 Ndayambaje does not demonstrate any error in this analysis.

3137. The Trial Chamber also expressly referred to the testimonies of Witness FAL that more than 5,000 people were present and Witness FAG that there were about 1,000 people at the meeting when noting that the evidence showed "that between 1,000 and 5,000 people were present" 7158 This reflects that the Trial Chamber did not consider that the variance as to the number of people attending rendered Witnesses FAL's and FAG's testimonies incompatible. Ndayambaje does not 7151 Ndayambaje Appeal Brief, para. 585. 7152 Prosecution Response Brief, paras. 2430-2432. 7153 Trial Judgement, para. 4341. 7154 See Ndayambaje Appeal Brief, para. 536, referring to Trial Judgement, para. 4330. 7155 Trial Judgement, para.

4610. See also ibid., para. 4596. 7156 Trial Judgement, para. 4611. 7157 Trial Judgement, para. 4611 7158 See Trial Judgement, para. 4611, fn. 12275. 1083 Case No. ICTR-98-42-A 14 December 2015

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19281/H show any error in this respect, particularly because these witnesses were simply providing estimates.? 159 3138. Furthermore, the Appeals Chamber finds that Ndayambaje fails to identify material differences in the testimonies of Witnesses FAL and FAG as to whether Ndayambaje climbed on a table during the ceremony. The Trial Chamber recounted Witness FAL's evidence that Nteziryayo told Ndayambaje to climb on the table before swearing Ndayambaje in as bourgmestre and that the swearing-in took place "at the beginning of the meeting and was very quick."?160 The Trial Chamber also recalled Witness FAG's testimony that he did not see Ndayambaje climb on a chair or table and that "[the witness did not personally see the swearing-in of the bourgmestre" ?161 Ndayambaje's contentions ignore that Witness FAG's evidence does not demonstrate that he would have been present when Witness FAL heard Nteziryayo instruct Ndayambaje to climb on the table. 162 3139. While Ndayambaje and Nteziryayo testified that Ndayambaje did not climb on the table, 7163 Defence Witness KEPIR merely testified that he did not notice Ndayambaje climb on the table, 164 and several Defence witnesses, including Witness KEPIR, recounted that the dignitaries were seated in front of the table during the swearing-in ceremony?165 The Trial Chamber did not ignore this evidence as it noted all of it 166 Considering the lack of relevance of this alleged discrepancy to any of the material facts on the basis of which Ndayambaje was found responsible, the Appeals Chamber sees no error in the Trial Chamber not expressly considering it in the Trial Judgement.

3140. Turning to Ndayambaje's argument that only Witness FAL testified that Sebukeye spoke at the ceremony and that the participants protested against Nteziryayo's criticism of the outgoing bourgmestre, having reviewed the relevant transcripts, the Appeals Chamber observes that Witness FAL merely testified that Sebukeye was present at the ceremony and at some later time 7159 See Witness FAL, T. 9 February 2004 p. 76 (closed session) ("Q. But can you give us an approximate figure, 1,000, 2,000, 10,000? A. More than 5,000."); Witness FAG, T. 3 March p. 22 ("Q. Could we say more than 100 persons, 1,000 persons? A. Let us say 1,000; 1,000 persons."). See also Trial Judgement, paras. 4341, 4611, referring, inter alia, to Witness FAL, T. 9 February 2004 pp. 76, 77 (closed session). The Trial Chamber also noted that Witness RV estimated that 1,000 people were present and that Witness QAF was not able to estimate how many people were present but that there were many participants. See ibid., paras. 4358, 4370, 4611, fn. 12275. 7160 Trial Judgement, para.

4343. In this regard, the Appeals Chamber observes that neither Witness FAL's testimony nor the Trial Chamber's summary of it definitively indicates that Ndayambaje did climb on the table after being instructed by Nteziryayo to do so. See idem; Witness FAL, T. 9 February 2004 pp. 38 (English) and 45 (French). 7161 Trial Judgement, para. 4330. 7162 Trial Judgement, paras. 4330, 4343. 7163 See Trial Judgement, paras. 4524, 4581. 7164 See Trial Judgement, para. 4503. 7165 See Trial Judgement, paras. 4454, 4503, 4555. 7166 See Trial Judgement, paras. 4454, 4503, 4524, 4555, 4581. 1084 Case No. ICTR-98-42-A 14 December 2015

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19280/H said that the orders given there had to be implemented. 167 The Appeals Chamber fails to see why the fact that other witnesses, including Defence witnesses, did not overhear this conversation is material to the assessment of Ndayambaje's conduct during the ceremony. The Appeals Chamber notes that Ndayambaje himself testified that he did not know whether Sebukeye attended the swearing-in ceremony, 168 and other Defence witnesses relied upon by Ndayambaje stated that they did not see Sebukeye at the ceremony. 169 3141. The Appeals Chamber further observes that the Trial Chamber noted that, like Witness FAL, Witness TO testified that Nteziryayo criticised the outgoing bourgmestre. 7170 The Trial Chamber also expressly noted that, apart from these two witnesses, no other witness confirmed that Nteziryayo criticised the outgoing bourgmestre. 17| The Appeals Chamber considers that the Trial Chamber was not required to provide a more detailed analysis of Defence evidence on this issue and finds that Ndayambaje has not demonstrated that Witness FAL's account of the ceremony was incompatible with other evidence.

3142. The Appeals Chamber therefore finds that Ndayambaje has not demonstrated that the Trial Chamber erred in the assessment of Witness FAL's evidence regarding his swearing-in ceremony. (c) Witness FAG 3143. As noted above, the Trial Chamber observed that Witness FAG, like Witness FAL, testified "that both Nteziryayo and Ndayambaje used parables concerning the need to clean the house of dirt and place it outside»7172 and, consistent with Witnesses FAL and TO, testified that Ndayambaje explained the metaphor to mean that surviving Tutsis needed to be killed. 173 The Trial Chamber also noted aspects of Witness FAG's evidence when observing the "consistent, albeit often general, evidence of the Prosecution witnesses" that killings occurred after the meeting. 174 3144. Ndayambaje submits that the Trial Chamber erred in accepting Witness FAG's testimony regarding the swearing-in ceremony.?175 He argues that Witness FAG was recalled to explain his 7167 See Trial Judgement, para. 4350, referring to Witness FAL, T. 9 February 2004 pp. 48 (closed session), 63. See also Witness FAL, T. 9 February 2004 p. 77 (closed session). 7168 See Trial Judgement, para. 4525. 7169 See Trial Judgement, paras. 4463, 4508, 4561, 4569. The Appeals Chamber observes that, although the summary of Witness BOZAN's evidence by the Trial Chamber indicates that the witness stated that Sebukeye did not attend the swearing-in ceremony, a review of the testimony cited shows that he merely indicated he did not see him in attendance. See ibid., para. 4463, referring to Witness BOZAN, T. 16 September 2008 p. 40. 7170 See Trial Judgement, para. 4377, referring to Witness TO, T. 4 March 2002 pp. 13, 14. 7174 Trial Judgement, para. 4632. 7175 Ndayambaje Appeal Brief, para.

538. See also Ndayambaje Notice of Appeal, para. 185. 1085 Case No. ICTR-98-42-A 14 December 2015

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19279/H previous silence on crimes which he had hidden from the Trial Chamber and that the latter incorrectly assessed these omissions, which discredited the witness. 176 He also stresses that the witness did not mention Ndayambaje making a speech in his prior statements of 1999 and 2000. 177 3145. In addition, Ndayambaje appears to argue that, since Witness FAG conceded that he was not present for the swearing-in part of the ceremony, the witness could not have heard Nteziryayo or Ndayambaje speak.?178 The Appeals Chamber further understands Ndayambaje to argue that, because the witness testified that Nteziryayo repeated Ndayambaje's speech, he reversed the order of the speakers, placing the speeches long after Ndayambaje took the oath. 179 3146. Ndayambaje also contends that Witness FAG intentionally placed the murder of a woman named Josepha after the swearing-in ceremony in order to implicate him and highlights that the witness, when recalled, testified that the murder took place in May 1994, before the swearing-in ceremony. 180 Ndayambaje also points to the testimony of Defence Witness KANUC, which, he alleges, contradicted Witness FAG's testimony that Josepha's murder was a consequence of the ceremony and shows that Witness FAG is patently unreliable. 181 3147. The Prosecution responds that the Trial Chamber was aware of the omissions from Witness FAG's prior statements

and the witness's explanation for them, which Ndayambaje ignores 182 It submits that Ndayambaje misrepresents Witness FAG's account of the ceremony and his testimony about the timing of the murder following it. 183 It adds that the Trial Chamber acted reasonably in assessing Witness KANUC's evidence. 184 3148. The Appeals Chamber notes that the Trial Chamber expressly referred to the fact that, upon recall, Witness FAG admitted to having participated in more killings than the ones he had testified about during his initial appearance before the Tribunal 185 and the witness's explanation for not mentioning those other killings previously when summarising his evidence on Ndayambaje's Swearing-In Ceremony. 186 It also noted that Witness FAG did not mention Ndayambaje taking the 7176 Ndayambaje Appeal Brief, para. 535. 7177 Ndayambaje Appeal Brief, para.

538. See also Ndayambaje Reply Brief, para. 208. 7178 Ndayambaje Appeal Brief, para. 537. 7179 Ndayambaje Appeal Brief, para. 537. 7180 Ndayambaje Appeal Brief, para.

538. See also Ndayambaje Reply Brief, para. 206. 7181 Ndayambaje Appeal Brief, para.

567. See also Ndayambaje Notice of Appeal, para. 189. 7182 Prosecution Response Brief, para. 2438. 7183 Prosecution Response Brief, paras. 2436, 2437. 7184 Prosecution Response Brief, paras. 2437, 2460. See Trial Judgement, paras. 4333, 4334, referring to Witness FAG, T. 1 March 2004 p. 34, T. 6 September 2004 Pis. 8-10, 12-14 (closed session), T. 6 September 2004 p. 10 (closed session) (French). See also ibid., para.

4332. See Trial Judgement, paras. 4334, 4335. The Trial Chamber noted that, when asked about previously denying having participated in other killings, Witness FAG explained that he did not mention these killings but would have admitted having participated in them if asked about them. The Trial Chamber also noted Witness FAG's explanation 1086 Case No. ICTR-98-42-A 14 December 2015

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19278/H floor in his confession to Rwandan authorities of 18 November 1999 and his statement of 23 February 2000 to Tribunal investigators 187 as well as the witness's explanations for these omissions. 188 Ndayambaje does not develop any argument to challenge the reasonableness of the witness's explanations or show that no reasonable trier of fact could have accepted Witness FAG's testimony about the swearing-in ceremony, particularly where it was corroborated, despite these omissions. 189 3149. The Trial Chamber noted Witness FAG's testimony that he "did not personally see the swearing-in of the bourgmestre". ?19 It also noted that the witness nevertheless expressly mentioned that he "heard both Nteziryayo and Ndayambaje address the crowd in parables". 7191 Given the evidence that the incendiary remarks were made both during and after the swearing-in part of the ceremony,7192 Ndayambaje's suggestion that Witness FAG's evidence demonstrates that he must not have heard what Ndayambaje and Nteziryayo said is not persuasive.

3150. The Appeals Chamber is similarly not persuaded by Ndayambaje's suggestion that, by claiming that Nteziryayo repeated what was said by Ndayambaje, Witness FAG reversed the order of speakers. The Appeals Chamber observes that Witness FAG specified that he did not pay attention to the order in which the speakers spoke. 193 In any event, the Trial Chamber noted that the evidence was equivocal as to whether Nteziryayo or Ndayambaje took the floor first and found the variances insignificant. 194 Ndayambaje does not demonstrate any error in this respect.

3151. Regarding the timing of the murder of Josepha, the Appeals Chamber observes that, in summarising Witness FAG's evidence, the Trial Chamber expressly noted that the appointment ceremony for Ndayambaje as bourgmestre occurred between May and June 19947195 and that the witness estimated that Josepha, who was killed after the statements made at the ceremony, died in May 19947196 The Trial Chamber acknowledged that Witness FAG was equivocal as to the timing that he made a distinction between the events in which he participated and could be punished for and those that did not concern him personally and for which he could not be punished. See idem 187 See Trial Judgement, para. 4331, referring to Exhibit D188 (Witness FAG's Confession, dated 18 November 1999) (confidential), Witness FAG's 2000 Statement. Ndayambaje also relies upon the French translation of Witness FAG's 1999 Statement and 2000 Statement. See Ndayambaje Appeal Brief, para.

538. See Trial Judgement, para.

4331. The Trial Chamber noted that Witness FAG explained that "it was difficult to remember everything when giving statements" and that "it was hard to always repeat the same things." It also noted that, when asked about his failure to mention Ndayambaje taking the floor in his statement of 23 February 2000 to Tribunal investigators, the witness explained that he was questioned about Nteziryayo, not Ndayambaje, and therefore did not talk about Ndayambaje with the investigators. See idem. 7189 See Trial Judgement, paras. 4622, 4627. 7190 See Trial Judgement, para. 4330. 7191 See Trial Judgement, para. 4327. 7192 See Trial Judgement, paras. 4327, 4328, 4342-4345, 4356-4363, 4376-4378, 4382, 4390-4393, 4421-4427. 7193 See Trial Judgement, para. 4326. 7194 See Trial Judgement, paras. 4610, 4611. See also ibid., paras. 4597, 4598. 7195 See Trial Judgement, paras. 4322, 4323. 7196 See Trial Judgement, para. 4333, referring to Witness FAG, T. 6 September 2004 pp. 8, 9 (closed session). 1087 Case No. ICTR-98-42-A 14 December 2015

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19277/H of the swearing-in ceremony, but Ndayambaje fails to demonstrate that the witness was equivocal as to whether the killing of Josepha occurred after it or that Witness FAG's evidence in this regard was aimed at maliciously implicating him. 197 3152. The Trial Chamber relied on Witness FAG's evidence that Josepha's death occurred after the swearing-in ceremony when observing "the consistent, albeit often general, evidence of the Prosecution witnesses to the effect that after the meeting, killings occurred" 7198 Despite relying on this aspect of Witness FAG's testimony, the Trial Chamber did not address in the Trial Judgement Witness KANUC's evidence of seeing Josepha dead prior to Ndayambaje's swearing-in as bourgmestre or any aspects of Witness KANUC's evidence.?199 Given the direct relevance of this evidence, to which Ndayambaje expressly referred in his closing submissions, 7200 and the absence of any indication in the Trial Judgement that the Trial Chamber assessed and weighed it, the Appeals Chamber finds that the Trial Chamber erred in failing to consider this evidence.

3153. The Appeals Chamber, however, finds that the Trial Chamber's failure to consider Witness KANUC's evidence does not invalidate any of the Trial Chamber's findings pertaining to the swearing-in ceremony. Indeed, the Appeals Chamber observes that the Trial Chamber relied on the evidence of several other witnesses concerning the killings that followed the swearing-in ceremony to conclude that killings occurred and, more importantly, that Ndayambaje was not held responsible on the basis of any resulting killing. 201 Having reviewed Witness KANUC's testimony, which incidentally was equivocal as to the date of another killing, 202 the Appeals Chamber also does not consider that the Trial Chamber abused its discretion when finding that Witness FAG testified about Ndayambaje's Swearing-In Ceremony or relying on aspects of his evidence concerning the utterances made during it. 203 3154. In light of the above, the Appeals Chamber finds that Ndayambaje has not demonstrated any error in the assessment of Witness FAG's evidence that would invalidate the Trial Chamber's findings relating to Ndayambaje's Swearing-In Ceremony. See also Witness FAG, T. 6 September 2004 p. 9 (closed session) ("Q. Witness FAG, you say the event took place is May 1994; is that correct? A. Yes, that is correct. Q. So, Witness FAG, can one say that this event, the death o Joseph[a], did not take place at the end of June 1994? A. As a matter of fact, when I said May, I was estimating. I think that the event took place at that time, but it was a mere reckoning.") (emphasis added). 7197 See Trial Judgement, para.

4590. See also ibid., paras. 4322, 4333. 7198 See Trial Judgement, para. 4632, referring to Witness FAG, T. 1 March 2004 pp. 33, 34, T. 3 March 2004 p. 25. 7199 See Witness KANUC, T. 9 June 2008 pp. 54, 58-64. The Appeals Chamber observes that the transcript refers to "Yozefa". However, both Witnesses FAG and KANUC identify this person as having the same father. Compare Witness FAG, T. 1 March 2004 p. 34 with Witness KANUC, T. 9 June 2008 p. 54. 7200 Ndayambaje Closing Brief, paras. 820, 821. 7201 See Trial Judgement, para. 4629. 7202 See Witness KANUC, T. 10 June 2008 p. 56 (closed session). 7203 See supra, para. 3149. 1088 Case No. ICTR-98-42-A 14 December 2015

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19276/H (d) Witness QAF 3155. The Trial Chamber noted that, consistent with Witness RV, Witness QAF testified that "only Ndayambaje recounted the fable of sweeping dirt", which meant that surviving Tutsis needed to be killed. 204 The Trial Chamber also considered Witness QAF's evidence that "Nteziryayo congratulated the population for their work", which meant "to kill", and urged them to continue. 205 3156. Ndayambaje submits that Witness QAF did not attend the swearing-in ceremony and that the Trial Chamber erred in relying on his evidence. 206 Specifically, he argues that, contrary to the Trial Chamber's assertion, Witness QAF testified that he attended a security meeting in May 1994, two weeks after the killings in April 1994.7207 Ndayambaje argues that, because Witness QAF arrived late, missed the swearing-in part of the meeting, and did not notice Ndayambaje wearing "a scarf with national colours", he also could not have heard Nteziryayo's remarks. 208 3157. The Prosecution responds that Ndayambaje fails to demonstrate an error in the Trial Chamber's assessment of Witness QAF's testimony. 209 3158. Ndayambaje replies that "[since the wearing of a scarf was the tradition during the swearing in of a bourgmestre, if [Ndayambaje] was not wearing one it means that it was another meeting. "7210 3159. The Appeals Chamber notes that, contrary to Ndayambaje's claim, Witness QAF did

not specify that the "public safety" meeting"' he testified about took place two weeks after the killings started in April 1994, but stated that, after the start of the war in his area in April 1994, "the war stopped for about two weeks, and that it was during that lull of two weeks that the meeting took place" which was "well after the outbreak of the war of April 1994" 7212 The witness also indicated 7204 See Trial Judgement, para.

4623. See also ibid., para. 4363. 7205 See Trial Judgement, paras. 4624, 4626. See also ibid., paras. 4360, 4361. The Trial Chamber also noted aspects of Witness QAF's evidence when observing the "consistent, albeit often general, evidence of Prosecution witnesses" that killings occurred after the meeting. See ibid., para. 4632. 720% Ndayambaje Appeal Brief, para.

542. See also Ndayambaje Notice of Appeal, para. 185. 7207 Ndayambaje Appeal Brief, para. 540. 7208 Ndayambaje Appeal Brief, para. 540. 7209 Prosecution Response Brief, para. 2440. 7210 See also Ndayambaje Reply Brief, para. 209, referring to Ndayambaje, T. 8 November 2008 pp. 42, 43. 7211 Witness QAF, T. 5 February 2004 pp. 65, 85, T. 9 February 2004 p. 8, referred to in Trial Judgement, para. 4591. 7212 See Witness QAF, T. 6 February 2004 p.

11. See also ibid., p. 12 (French); Trial Judgement, para.

4354. The Appeals Chamber observes that the English version of the transcript erroneously refers to "June" as the month when the "war started" whereas the French version refers to "avril". See Witness QAF, T. 6 February 2004 p. 11; ibid., p. 12 (French). A review of Witness QAF's testimony reveals that the reference to "June" in the English version of the transcript must have been an error since the witness, as reflected in both English and French transcripts, later referred to "April" as the reference for the "outbreak of war". 1089 Case No. ICTR-98-42-A 14 December 2015

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19275/H that he had poor recollection of the date of the meeting. 213 Ndayambaje's argument is therefore without merit.

3160. The Appeals Chamber is also not persuaded by Ndayambaje's contention that the late arrival of Witness QAF to the meeting and the fact that he was not present for the swearing-in part of the ceremony demonstrate that he could not have heard Nteziryayo's remarks. In this respect, the Appeals Chamber recalls that Ndayambaje has not demonstrated that missing the swearing-in part of the ceremony precluded another witness from hearing him and Nteziryayo make incendiary remarks during the gathering. 214 Likewise, the Appeals Chamber does not consider that Witness QAF's failure to notice Ndayambaje wearing a scarf with national colours shows that he did not attend Ndayambaje's Swearing-In Ceremony, given that, as noted by the Trial Chamber, the witness simply stated that he "did not pay any attention as to whether Ndayambaje wore any distinct emblem."7215 3161. Accordingly, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in the assessment of Witness QAF's evidence concerning his swearing-in ceremony. (e) Witness RV 3162. As recalled above, the Trial Chamber noted that Witness RV, like Witness QAF, testified that "only Ndayambaje recounted the fable of sweeping dirt", understood by the witness to mean that surviving Tutsis needed to be killed. 216 3163. Ndayambaje argues that Witness RV's testimony is "peppered with major

contradictions and inconsistencies."7217 Specifically, he points to the witness's evidence that, despite claiming that Ndayambaje spoke after Nteziryayo, he also testified that he left the ceremony during Nteziryayo's speech.218 Ndayambaje suggests that the witness's explanation that Nteziryayo spoke twice, once before and once after Ndayambaje, is unbelievable, as is his evidence that he could remember the content of Nteziryayo's speech. 219 7213 See Witness QAF, T. 6 February 2004 p. 11 ("Now as concerns the date, I do not have a recollection of what happened."). See supra, para. 3138. 7215 See Trial Judgement, para, 4358, referring to Witness QAF, T. 5 February 2004 p. 66, T. 6 February 2004 p. 5, T. 9 February 2004 pp. 15, 16, 21-23, 28. 7216 See Trial Judgement, paras. 4623, 4628. See also ibid., para. 4372. 7217 Ndayambaje Appeal Brief, para.

550. See also Ndayambaje Notice of Appeal, para. 185. 7218 Ndayambaje Appeal Brief, para. 551. 7219 Ndayambaje Appeal Brief, para.

551. See also Ndayambaje Reply Brief, paras. 209, 217. 1090 Case No. ICTR-98-42-A 14 December 2015

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19274/H 3164. Ndayambaje also argues that the Trial Chamber's refusal to rely on Witness RV's evidence relating to Nteziryayo's involvement in events at Kirarambogo due to ambiguity within it should equally apply to the ambiguity surrounding Witness RV's testimony as to his continuous presence at the swearing-in ceremony and ability to recall the "inflammatory speeches" Ndayambaje allegedly made.7220 3165. The Prosecution responds that the Trial Chamber was aware of and reasonably assessed the inconsistencies in Witness RV's account of the swearing-in ceremony. 7221 3166. The Appeals Chamber observes that, when summarising Witness RV's testimony, the Trial Chamber recalled that Witness RV testified that "[hje could not recall what Nteziryayo said or if he was present for the entirety of Nteziryayo's speech", that "Nteziryayo spoke twice because he spoke again after Ndayambaje's speech",7222 and that "Ndayambaje was probably the last to speak"' ?223 The Trial Chamber further observed that the witness was cross-examined on this alleged inconsistency and noted that Witness RV explained that "he heard Ndayambaje", that the events "occurred a long time ago", and that he left while Nteziryayo was speaking on the second occasion after Ndayambaje spoke.22 Ndayambaje simply points to this evidence without demonstrating why it was material to the Trial Chamber's assessment of the witness's testimony. Considering that the Trial Chamber noted Witness FAL's testimony that Nteziryayo addressed the public both before and after Ndayambaje was installed and took the oath,22s the Appeals Chamber finds that a reasonable trier of fact could have accepted Witness RV's evidence concerning the ceremony.

3167. Ndayambaje's argument that the Trial Chamber failed to take a consistent approach to the assessment of different parts of Witness RV's evidence likewise lacks merit. The Appeals Chamber recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony?226 When assessing the evidence regarding the events at Kirarambogo and Nteziryayo's involvement in them, the Trial Chamber noted that Witness RV could not remember the exact date of a particular meeting in May 1994, which Nteziryayo purportedly chaired. 227 It observed that the witness "was a figure of authority at the time the meeting was alleged to have taken place", "affirmed that he convened and organised the meeting at issue", and concluded "that 7220 Ndayambaje Appeal Brief, para. 553, referring to Trial Judgement, paras. 3668, 4373. 7221 Prosecution Response Brief, para.

2449. Trial Judgement, para. 4371, referring to Witness RV, T. 17 February 2004 pp. 5, 7 (closed session), T. 18 February 2004 pp. 43, 44 (closed session). 1223 Trial Judgement, para. 4372, referring to Witness RV, T. 18 February 2004 p. 43 (closed session). 1224 Trial Judgement, para. 4373, referring to Witness RV, T. 18 February 2004 pp. 44, 45 (closed session). 7225 See Witness FAL, T. 9 February 2004 pp. 37, 38, 55, 57-60, 64 and 77, 78, 81 (closed session), referred to in Trial Judgement, paras. 4342-4345. See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 1091 Case No. ICTR-98-42-A 14 December 2015

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19273/H the ambiguity of his testimony as to the date of the meeting undermines his credibility."7228 The Trial Chamber rejected his evidence in light of the credibility problems arising from this particular part of his testimony, in light of his status as an accomplice witness, and due to the absence of corroborating evidence. 22 In this context, the Appeals Chamber fails to see how the rejection of Witness RV's evidence in that instance required the Trial Chamber to reject his credible and corroborated evidence concerning Ndayambaje's remarks during the swearing-in ceremony. 230 3168. Consequently, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in its assessment of Witness RV's evidence concerning his swearing-in ceremony. (f) Witness FAU 3169. The Trial Chamber noted that Witness FAU provided hearsay corroboration to the evidence of Witnesses FAL and FAG "that both Nteziryayo and Ndayambaje used parables concerning the need to clean the house of dirt and place it outside" 1231 The Trial Chamber also considered that Witness FAU's evidence corroborated other evidence as to the meaning of this metaphor, observing that "he testified that the killers told him that those protecting Tutsis who refused to hand them over would be killed.*7232 3170. Ndayambaje submits that contradictions between Witness FAU's prior statements to Tribunal

investigators and his testimony called for the rejection of his evidence. 233 Specifically, Ndayambaje observes that, while Witness FAU testified that he did not attend the ceremony, his prior statement of 22 February 2001 reflects that he did and details that "he sat close to Nteziryayo and heard what he said."7234 Ndayambaje further notes that the witness's statement of 9 October 1999 reveals that the meeting could have taken place prior to the attacks on Mugombwa Church and Kabuye Hill, which occurred from 20 to 24 April 1994.7235 Ndayambaje highlights that, elsewhere in the Trial Judgement, the Trial Chamber found Witness FAU not 7227 See Trial Judgement, para.

3668. See Trial Judgement, para. 3668. 7229 See Trial Judgement, para.

3669. See also ibid., paras. 3665-3668. 7230 See Trial Judgement, paras, 4622-4628. 723l See Trial Judgement, para.

4622. See also ibid., paras. 4398, 4400, 4401. 7232 See Trial Judgement, para.

4624. See also ibid., para. 4398. record. See ibid., para. 545, fn.

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19272/H credible because of the "confusion" between his prior statements and his testimony at trial as well as his status as an accomplice witness. 236 3171. Ndayambaje further contends that the Trial Chamber rejected Defence Witness KWEPO's "entire testimony without any explanation" even though his evidence that Witness FAU rejoined the Rwandan Army in May 1994 and did not return to Muganza Commune contradicts Witness FAU's account that he was in Muganza Commune at the time of the swearing-in ceremony. 237 3172. The Prosecution responds that certain aspects of Witness FAU's testimony were corroborated and that the Trial Chamber was aware of and reasonably assessed the discrepancies between Witness FAU's prior statements and his testimony, 238 The Prosecution adds that, contrary to Ndayambaje's submissions, the Trial Chamber provided reasons for rejecting Witness KWEPO's evidence. 239 3173. The Appeals Chamber observes that the Trial Chamber expressly noted in the section of the Trial Judgement addressing Ndayambaje's Swearing-In Ceremony that, when it was put to Witness FAU that his prior statement of February 2001 outlined that he sat close to Nteziryayo and heard what he was saying, the witness explained that "he knew Nteziryayo's words because those returning from the meeting told him so", 7240 Elsewhere in the Trial Judgement, the Trial Chamber also expressly noted Witness

FAU's explanation when confronted with his prior statement to the Rwandan Prosecutor that he saw Nteziryayo at the meeting that this was a recording error as he did not attend the mecting. 241 Ndayambaje does not challenge the reasonableness of the witness's explanations or advance arguments to demonstrate why the Trial Chamber was prevented from relying on Witness FAU's evidence despite these contradictions.

3174. The Appeals Chamber also notes that, contrary to Ndayambaje's contention, Witness FAU's statement of October 1999 to Tribunal investigators indicates that the witness said that the mecting occurred after the events at Mugombwa Church and Kabuye Hill not before them. 242 Ndayambaje's submission in this respect is therefore without merit. 236 Ndayambaje Appeal Brief, para. 545, referring to Trial Judgement, paras. 5226-5230 237 Ndayambaje Appeal Brief, para. 548 (emphasis omitted). See also Ndayambaje Notice of Appeal, para. 189. 7238 Prosecution Response Brief, paras. 2442, 2444. 7239 Prosecution Response Brief, para. 2447. 7240 See Trial Judgement, para. 4404. 7241 See Trial Judgement, para. 4671. f 29 December 1999. See Witness FAU, T. 10 March 2004 pp. 25-27. The Appeals Chamber considers this erroneor eference to be inconsequential as, in any event, Witness FAU did not agree with counsel's suggestion that his pric 1093 Case No. ICTR-98-42-A 14 December 2015

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19271/H 3175. The Appeals Chamber is also not persuaded by Ndayambaje's contention that the Trial Chamber's rejection of Witness FAU's testimony concerning alleged training and distribution of weapons to militiamen by Ndayambaje reflected an overall denunciation of this witness's evidence. In dismissing this part of Witness FAU's evidence, the Trial Chamber noted his status as a detained witness, highlighted discrepancies between his previous statements and testimony, and rejected his explanations for the discrepancies.243 It also considered that his testimony contained internal discrepancies with respect to the allegation, including concerning its key aspect. 244 In light of these circumstances as well as the fact that Witness FAU was the sole witness that could be relied upon in relation to that allegation, 245 the Trial Chamber found that it was not proven beyond reasonable doubt. 246 Bearing in mind that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony, 247 the Appeals Chamber does not consider that the Trial Chamber's rejection of an isolated aspect of Witness FAU's testimony rendered its decision to rely on his hearsay evidence about the content of the speeches made by Ndayambaje and Nteziryayo during the swearing-in ceremony unreasonable, particularly as it was corroborated by direct evidence.

3176. With respect to the evidence of Witness KWEPO, the Appeals Chamber observes that the Trial Chamber noted that Witness FAU's testimony as to the timeline of the events following the swearing-in ceremony appeared confused? 248 It nevertheless accepted his testimony regarding a particular abduction and explicitly rejected Witness KWEPO's testimony as to Witness FAU's whereabouts at that time.?249 Ndayambaje does not demonstrate that the Trial Chamber rejected Witness KWEPO's evidence without providing a reasoned opinion.

3177. The Appeals Chamber therefore dismisses Ndayambaje's submissions concerning the Trial Chamber's assessment of Witness FAU's evidence related to his swearing-in ceremony. (g) Witness TO 3178. The Trial Chamber noted that Witness TO, in contrast with Witnesses FAG and FAL, testified that only Nteziryayo told the metaphor concerning sweeping dirt and found that statement of December 1999 indicated that the ceremony took place before the attacks on Mugombwa Church and Kabuye Hill. See ibid., p. 27. 7243 See Trial Judgement, paras. 5227, 5228. 7244 Trial Judgement, para. 5229. 7245 The Trial Chamber determined that it would be unduly prejudicial to the Defence for it to consider the evidence of Witness TO with respect to these allegations. See Trial Judgement, para. 5223. 7246 See Trial Judgement, paras. 5229, 5230. 7248 See Trial Judgement, para. 4620. 7249 See Trial Judgement, para. 4620. 1094 Case No. ICTR-98-42-A 14 December 2015

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19270/H Witness TP corroborated Witness TO's evidence on this issue.?250 However, it considered that, consistent with Witnesses FAG and FAL, Witness TO testified that Ndayambaje explained the metaphor to mean that surviving Tutsis needed to be killed. 251 The Trial Chamber also noted aspects of Witness TO's evidence when observing the "consistent, albeit often general, evidence of the Prosecution witnesses" that killings occurred after the meeting. 252 3179. Ndayambaje argues that the Trial Chamber failed to exercise sufficient caution with respect to Witness TO, highlighting that Defence Witness SABINE testified that Witness TO was sentenced and imprisoned for a murder he committed in 1994, a fact Witness TO denied. 253 Ndayambaje contends that the Trial Chamber failed to consider this factor and prevented him from exhaustively exploring it 254 3180. Ndayambaje further contends that Witness TO's credibility was "obliterated" because several aspects of his testimony were not supported by any other witness or were contradicted by other evidence. 255 In particular, Ndayambaje points to the fact that Witness TO "invented" the practice of shooting bows and arrows during the swearing-in ceremony and stories about long ears and tails of Inkotanyi, as well as testified about consuming alcohol during a certain event, which led to his recall before the Tribunal on 21 June 2004.7256

Ndayambaje argues that Defence evidence contradicting Witness TO's testimony concerning the practice of shooting bows and arrows was erroneously rejected. 257 Ndayambaje also notes that the witness's statement of 11 June 1997 placed the meeting in May 1994.7258 3181. In addition, Ndayambaje submits that the Trial Chamber ought to have considered the evidence of Witness SABINE which, in his view, discredited Witness TO's evidence that the murders of Witness TO's cousins took place the day after Ndayambaje's Swearing-In Ceremony. 259 Specifically, Ndayambaje argues that Witness SABINE, who was found guilty and had served his sentence for these murders, testified that they occurred following the events at Kabuye Hill in April 1994, not after the swearing-in ceremony in June 19947260 7250 See Trial Judgement, para.

4623. See also ibid., para. 4378. 7251 See Trial Judgement, para.

4627. See also ibid., para. 4382. 7252 Trial Judgement, para. 4632. 7253 Ndayambaje Appeal Brief, para. 559. 7254 Ndayambaje Appeal Brief, para.

559. See also Ndayambaje Reply Brief, para. 223. 7255 Ndayambaje Appeal Brief, para.

561. See also Ndayambaje Notice of Appeal, para. 185 7256 Ndayambaje Appeal Brief, para.

561. See also ibid., para. 556. 7257 Ndayambaje Appeal Brief, para. 585. 7258 Ndayambaje Appeal Brief, para. 557. 7259 Ndayambaje Appeal Brief, paras. 558, 560. 7260 Ndayambaje Appeal Brief, paras. 558, 560, referring to Trial Judgement, para. 4384, Witness SABINE, T. 12 June 2008 pp. 33-38 (closed session). Ndayambaje argues that Witness TO lied about the timing of these murders to deliberately incriminate him. See idem. 1095 Case No. ICTR-98-42-A 14 December 2015

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19269/H 3182. Finally, Ndayambaje points out that Witness TO mentioned another meeting two weeks after the swearing-in ceremony. 261 In his view, the Trial Chamber "confused the two meetings mentioned by Witness TO, who, alone, referred to a second meeting which [Ndayambaje] allegedly chaired at the same place as the swearing-in ceremony, two weeks after."7262 Ndayambaje further highlights that Defence Witness Stan testified that there were no other meetings in Muganza Commune after 22 June 1994, contradicting Witness TO's evidence. 263 3183. The Prosecution responds that the Trial Chamber was aware of the elements relied upon by Ndayambaje to impugn the testimony of Witness 1O and that Ndayambaje fails to demonstrate an error in the Trial Chamber's consideration of them. 264 It argues that the Trial Chamber provided reasons for rejecting Witness SABINE's evidence, which Ndayambaje misrepresents. 265 3184. The Appeals Chamber notes that, while a review of the transcripts cited by Ndayambaje reflects that Witness SABINE testified that, in 2007, a Gacaca court tried and convicted Witness TO for murders he committed in 1994, Witness TO's testimony, as cited by Ndayambaje, does not reflect that Witness TO denied his participation in crimes. 266 In any event, the Appeals Chamber does not consider that the Trial Chamber was required to take into account Witness SABINE's claim given

that it did not find him either reliable or credible?267 The Trial Chamber made it clear that it treated the evidence of Witness TO with caution in view of his imprisonment during Ndayambaje's previous tenure as bourgmestre, which may have provided the witness with a motive to seek revenge against Ndayambaje 268 Furthermore, having reviewed the portion of Witness TO's testimony cited by Ndayambaje, the Appeals Chamber does not find that the Trial Chamber unfairly curtailed Ndayambaje's ability to examine Witness TO about the witness's conduct as the Presiding Judge, after extensive questioning of the witness by counsel, stopped him from asking the witness questions concerning the conduct of other persons. 269 3185. Turning to the contradictory aspects of Witness TO's account of the swearing-in ceremony, the Appeals Chamber observes that the Trial Chamber set forth Witness TO's evidence that, prior to 7261 Ndayambaje Appeal Brief, para. 561. 7262 Ndayambaje Appeal Brief, para. 562, referring to Trial Judgement, para.

4384. Ndayambaje Appeal Brief, para. 599 7264 Prosecution Response Brief, para. 2455. 1265 Prosecution Response Brief, para. 2456. 7266 See Witness SABINE, T. 12 June 2008 pp. 55-58 (closed session); Witness TO, T. 5 March 2002 pp. 88-90. See also Witness SABINE, T. 12 June 2008 pp. 58-61 (closed session) (French); Witness TO, T. 5 March 2002 Pi See Tria easement, para.

4722. The Appeals Chamber further notes that Witness TO's alleged trial for the impugned crimes would have taken place in 2007 according to Witness SABINE, i.e. after Witness TO's 2002 testimony in the present proceedings. Thus, there is no basis to assert that, at the time of his testimony, Witness TO had an interest in implicating Ndayambaje in order to receive consideration in Rwanda. 7268 See Trial Judgement, para.

4630. See Witness TO, T. 5 March 2002 pp. 89-91. 1096 Case No. ICTR-98-42-A 14 December 2015

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19268/H the ceremony, the population practiced shooting bows and arrows. 270 The Trial Chamber also noted that Witness FAL recounted a bow-and-arrow shooting exercise near the venue of the meeting, albeit not on the same day as the meeting, and the evidence of Defence witnesses that they did not see any archery practice or did not take part in it. 272 Ndayambaje largely repeats arguments made at trial 273 without showing that no reasonable trier of fact could have found that Witness TO was nonetheless testifying about the swearing-in ceremony.

3186. The Appeals Chamber is similarly not persuaded that Witness TO's evidence was incredible based on one element of his testimony concerning how the Inkotanyi were portrayed in Rwanda at the time?274 In addition, Ndayambaje, who simply refers to Witness TO's testimony upon recall, fails to explain how the basis of the witness's recall, which concerned his demeanour when testifying about an event other than the swearing-in ceremony,27s or his testimony regarding consumption of alcoholic beverages at Nteziryayo's parents' house in 1990, undermined the witness's credibility and prevented the Trial Chamber from relying on his evidence concerning the content of Nteziryayo's and Ndayambaje's remarks during the ceremony. 7276 3187. As regards the date of the meeting, the Appeals Chamber observes that Ndayambaje merely highlights that Witness TO's prior statement indicated that the swearing-in ceremony occurred in May 1994, which was expressly noted by the Trial Chamber,27 without demonstrating that no reasonable trier of fact could have found that the witness was nonetheless testifying about Ndayambaje's Swearing-In Ceremony, which it found to have occurred on 22 June 1994.7278 3188. The Appeals Chamber further notes that, contrary to Ndayambaje's submission, the Trial Chamber assessed the part of Witness SABINE's testimony upon which Ndayambaje relies when evaluating evidence

regarding the abductions of Tutsi women and girls in June 1994 in 7270 See Trial Judgement, para. 4383. 7271 See Trial Judgement, para. 4340. 7272 See Trial Judgement, paras. 4554, 4582. 7273 See Ndayambaje Closing Brief, para. 649. 7274 The Appeals Chamber observes that the Trial Chamber recalled Witness TO's understanding of "Inkotany"" as Tutsis who had been driven from the country and were considered enemies and cited the pages of his testimony that also contained his recollection as to how they were portrayed. See Trial Judgement, para. 4383, fn. 11834, referring, inter alia, to Witness TO, T. 6 March 2002 pp. 15, 16. Notably, like Witness TO, Witness FAL also recounted that the terms "Inkotany and Tutsi were used interchangeably and that they were considered the enemy. See Witness FAL, T. 9 February 2004 pp. 58, 59. See also Trial Judgement, paras. 4344, 4625. 1275 See 6 May 2004 Decision on Motion to Recall Witness TO, paras. 9, 10, p. 4. 7276 See Ndayambaje Appeal Brief, para.

561. See also Witness TO, T. 21 June 2004 pp. 5-12. 7277 See Trial Judgement, para. 4375, referring to Witness TO, T. 5 March 2002 pp. 28-30, 38, 43, T. 6 March 2002 pp. 28-30, 58, 59. The Trial Chamber also noted the witness's explanation for the variance, namely that he "was not in a position to provide exact dates, since this was of little concern to him" and that the witness later estimated that the meeting occurred in June 1994. See idem. See also Witness TO, T. 5 March 2002 p. 28 ("It is true that so far as the dates are concerned, I am not in a position to give you the exact dates. I have given approximate dates".). 7278 See Trial Judgement, paras. 4374, 4375. 1097 Case No. ICTR-98-42-A 14 December 2015

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19267/H anothér part of the Trial Judgement279 The Trial Chamber found that Winess SABINE was neither reliable nor credible. 280 Consequently, the Appeals Chamber finds that the Trial Chamber was not required to expressly discuss his evidence in its consideration of the allegation pertaining to the swearing-in ceremony.

3189. Turning to the meeting two weeks after the swearing-in ceremony recounted by Witness TO, the Appeals Chamber considers that Ndayambaje's contention that the Trial Chamber confused the swearing-in ceremony with this other meeting is based on an erroneous reading of the transcript.281 Moreover, the Trial Chamber excluded Witness TO's evidence about the meeting following the ceremony due to insufficient notice of the allegations related to this meeting, noting that, in any event, the evidence was not sufficient to prove these allegations beyond reasonable doubt. 282 Ndayambaje merely highlights Witness Stan's testimony that there were no other public meetings in Muganza Commune after Ndayambaje's Swearing-In Ceremony, which was expressly noted by the Trial Chamber, 283 without explaining how it was material to the Trial Chamber's consideration of Witness TO's evidence concerning the witness's presence at the swearing-in ceremony and the content of the speeches made during it.

3190. For these reasons, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in the assessment of Winess TO's evidence pertaining to his swearing-in ceremony. (h) Witness TP 3191. As noted above, the Trial Chamber considered that Witness TP's evidence corroborated Witness TO's evidence that only Nteziryayo used the metaphor concerning sweeping dirt. 284 The Trial Chamber further considered Witness TP's testimony that Nteziryayo and Ndayambaje thanked the population for their "work", which meant "to kill", and urged them to continue.?285 7279 See Trial Judgement, para.

4722. See ibid., paras. 4702, 4703. 7280 See Trial Judgement, para. 4722. 7281 The Appeals Chamber observes that Witness TO testified that, after the meeting chaired by Prefect Nteziryayo during which Ndayambaje was reappointed bourgmestre, the population did not comply with the instructions that were issued during the meeting, save for some scoundrels and certain bandits, who engaged in flushing out women and children and in looting. See Witness TO, T. 4 March 2002 pp. 10, 11, 26 and 31 (French) ("Après la réunion dirigée par le préfet, Élie Ndayambaje a aussi pris la parole... Après le discours du préfet, Élie Ndayambaje a également pris la parole. Il n'a pas dit grand-chose à la population, à part lui assurer sa collaboration, et après, la population est rentrée. Mais la population ne s'est pas impliquée dans les massacres pour appliquer les instructions reçues au cours de la réunion, à part quelques voyous et certains bandits qui se sont mis à débusquer les femmes et les enfants, et à commettre le pillage."). See also Trial Judgement, para. 4384, referring to Witness TO, T. 4 March 2002 pp. 26, 27, T. 6 March 2002 pp. 46, 60, 61. See Trial Judgement, para. 5223. 7283 See Trial Judgement, para. 4487. 7284 See Trial Judgement, paras. 4623, 4627. See also ibid., para. 4391. 7285 See Trial Judgement, para.

4626. See also ibid., paras. 4390, 4391. 1098 Case No. ICTR-98-42-A 14 December 2015

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19266/H Finally, the Trial Chamber also noted aspects of Witness TP's evidence when observing the "consistent, albeit often general, evidence of the Prosecution witnesses" that killings occurred after the meeting. 7286 3192. Ndayambaje submits that Witness TP's testimony "was peppered with inconsistencies and contradictions" 7287 arguing that while the Trial Chamber restated many of them - including the place of the meeting, the content of the speeches, and the order of the speakers - it erroneously described them as minor?288 He also argues that the Trial Chamber misstated Witness TP's evidence which, in Ndayambaje's view, reflects that she testified about attending Nteziryayo's swearing-in ceremony and not his. 7289 3193. Ndayambaje further observes that the witness placed Prefect Nteziryayo's swearing-in ceremony not in the small eucalyptus woods where Ndayambaje's Swearing-In Ceremony took place, and argues that the Trial Chamber erred in characterising this discrepancy about the location as minor?290 Ndayambaje adds that the Trial Chamber erroneously relied on the English interpretation of Witness Stan's French testimony to corroborate Witness TP's evidence regarding the location of the ceremony. 291 In his view, the Trial Chamber incorrectly suggested that Witness Stan, like Witness TP, placed the swearing-in ceremony near the football pitch, whereas Witness Stan instead

placed it in the small woods close to the road leading from the commune office to Bishya. 29 3194. Finally, Ndayambaje argues that Witness TP deliberately placed the abduction of her son and abduction and killing of the son of her brother-in-law after the swearing-in ceremony to implicate him. 293 He contends that the Trial Chamber disregarded the contradictory evidence of Witness KANUC, who pleaded guilty and served his sentence for the impugned murder and testified that the killing occurred after the events in Kabuye in April 1994 instead of after his swearing-in ceremony 294 7286 Trial Judgement, para. 4632. 7287 Ndayambaje Appeal Brief, para. 568. 7288 See Ndayambaje Appeal Brief, para. 566, referring to Trial Judgement, paras. 4388-4391, 4611, 4623. 7289 Ndayambaje Appeal Brief, para. 563, referring to Trial Judgement, para.

4592. See also Ndayambaje Notice of Appeal, para, 185. Ndayambaje Appeal Brief, paras. 564, 565. 7291 Ndayambaje Appeal Brief, para.

564. See also Ndayambaje Reply Brief, para. 227. 7292 Ndayambaje Appeal Brief, para. 594, referring to Trial Judgement, para. 4613. 7293 Ndayambaje Appeal Brief, paras. 567, 568. 7294 Ndayambaje Appeal Brief, para. 567, referring to Trial Judgement, para. 4394, Witness KANUC, T. 10 June 2008 pp. 4, 12 (closed session), Exhibit P201A (Gacaca Court Document Titled "Urwego Rw'igihugu Rushinzwe Inkiko Gacaca. Inyandiko Y'urubanza Rw'ibyaha Byo Mu Rwego Rwa Kabiri, dated 7 September 2006). See also Ndayambaje Notice of Appeal, paras. 189, 190. Ndayambaje acknowledges that he was not held responsible for this murder. See Ndayambaje Appeal Brief, para. 567. 1099 Case No. ICTR-98-42-A 14 December 2015

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19265/H 3195. The Prosecution responds that it was within the Trial Chamber's discretion to accept Witness TP's testimony despite its various inconsistencies.?29S It submits that the Trial Chamber's reliance on the erroneous English interpretation of Witness Stan's French testimony was not significant since the Trial Chamber also took into account other elements when considering the location of the meeting mentioned by Witness TP.?2% It further argues that Ndayambaje does not demonstrate that the Trial Chamber erred in disregarding Witness KANUC's testimony. 297 3196. The Appeals Chamber finds that Ndayambaje simply disagrees with the Trial Chamber's assessment of purported inconsistencies in Witness TP's evidence about the location of the meeting, the content of the speeches, and the order of the speakers, without identifying how the Trial Chamber abused its discretion. Moreover, a review of the relevant parts of Witness TP's testimony does not support Ndayambaje's argument that the witness testified about Nteziryayo's swearing-in ceremony, not his. 7298 When asked about how she found out about the meeting, Witness TP stated that when she "went to the meeting and [she] witnessed the swearing in of the bourgmestre, [...] the préfet was introduced to [them]."729º Accordingly, the Trial Chamber did not misstate the witness's evidence when noting that the testimony of Witness TP showed that during the course of the meeting she attended, Ndayambaje was reappointed bourgmestre.

3197. The Appeals Chamber is also not persuaded that the Trial Chamber erred in relying on Witness TP's testimony about her attendance at Ndayambaje's Swearing-In Ceremony because she placed it elsewhere than the eucalyptus woods. The Trial Chamber noted that Witness TP testified that the meeting took place outside the commune office, in the courtyard, and observed that this contrasted with other evidence that it took place in the woods near the commune office. 300 However, the Trial Chamber further recounted that Witness Stan described the venue as woodland area near the Muganza commune office, just before the football pitch, which was on the opposite side of the Muganza commune office from the woods.?301 The Trial Chamber, in view of "the relative proximity of the woods where the meeting actually took place vis-à-vis the commune office 7295 Prosecution Response Brief, paras. 2457, 2459. 72% Prosecution Response Brief, para. 2458. 7297 Prosecution Response Brief, para. 2460. 7298 See Trial Judgement, para. 4592, referring to Witness TP, T. 12 February 2004 pp. 38, 39. See also Ndayambaje Appeal Brief, paras. 563, 564, referring to Trial Judgement, para, 4388, Witness TP, T. 12 February 2004 pp. 39, 40. See Witness TP, T. 12 February 2004 p.

38. The Appeals Chamber notes that Witness TP, in response to a suggestion by Nteziryayo that she earlier stated that "the purpose of the meeting was for the installation", responded that "filt was for the installation of Préfet Alphonse". However, the description of the purported installation she provided accorded with her earlier testimony that Nteziryayo was being introduced at the meeting rather than installed as a new prefect. See ibid., p. 40 ("Q. Who had to install him, Élie Ndayambaje? Was it Élie Ndayambaje? A. I don't know. I'm describing to you what we saw when we arrived at the meeting venue. The Accused took the floor and he said he was going to introduce to us Alphonse, who was the new préfet. Perhaps the new préfet had been introduced at the level of the whole préfecture and now it was time for him to be introduced to us in our secteur or commune."). 7300 See Trial Judgement, paras. 4388, 4613. 7301 See Trial Judgement, para. 4613, referring to Witness Stan, T. 18 September 2008 p. 50. 1100 Case No. ICTR-98-42-A 14 December 2015

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19264/H and the football field, where Witness TP and [Witness] Stan respectively testified the meeting took place, variously described as between 30 and 100 metres", did not "consider the discrepancies in these witnesses' testimony significant."7302 Ndayambaje is correct in asserting that the relevant excerpt of the French transcript of Witness Stan's testimony, unlike the English transcript relied upon by the Trial Chamber, does not contain a mention of a football pitch?303 However, the Appeals Chamber fails to see the purported relevance of this variance given the Trial Chamber's finding that the discrepancy as to the venue of the meeting was not significant. Ndayambaje's contention simply reflects disagreement with the Trial Chamber's conclusion without demonstrating that it erred.

3198. As to Witness TP's testimony regarding the events after the meeting, the Trial Chamber recounted that Witness TP testified that her brother-in-law's children were killed on the day of Ndayambaje's Swearing-In Ceremony, and that she witnessed the killing of her own son who was taken the night after. 304 The Trial Chamber, while accepting the witness's account of these events, noted that she did not identify who the killers were or how Nteziryayo or Ndayambaje were otherwise implicated in the events.305 The Trial Chamber concluded that the Prosecution had not proven beyond reasonable doubt that either Nteziryayo or Ndayambaje were responsible, directly or indirectly, for the impugned killings given the absence of evidence that they were present or in some other ways responsible for the taking of the children. 306 The Appeals Chamber, to the extent that Ndayambaje argues that Witness KANUC's evidence demonstrates that Witness TP was trying to implicate him, and recalling that it is not necessary for a trial chamber to refer to the testimony of every witness or every piece of evidence on the trial record, 307 does not consider that the Trial Chamber was under an obligation to discuss expressly the contradictory evidence of Witness KANUC. 7302 Trial Judgement, para. 4613. 7303 Compare Witness Stan, T. 18 September 2008 p. 50 ("Q. Is it possible to be much clearer regarding the

location of the area and venue of the swearing-in ceremony of Mr. Ndayambaje, Witness. A. The ceremony took place in a woodland where reforestation was being done below. And just before you go into the football pitch of Muganza and away from Bishya just before your entrance, there was to your right a reforestation area, a woodland. That is where the meeting took place.") with ibid., p. 51 (French) ("Q. Est-ce qu'il vous est possible d'être un peu plus précis quant à la localisation exacte de l'endroit où s'est déroulée cette cérémonie d'investiture, Monsieur le Témoin? R. La cérémonie s'est déroulée dans un reboisement — ce qu'on appelle reboisement. Un peu en bas, avant d'entrer à l'intérieur même du terrain de la commune Muganza, quand on vient de Bishya, avant d'entrer, il y avait un reboisement, à droite. C'est là que s'est tenue la réunion."). See Trial Judgement, para.

4394. See also ibid., para. 4643. 7305 See Trial Judgement, para. 4643. 7306 See Trial Judgement, para. 4644. 7307 See Kvocka et al. Appeal Judgement, para.

23. See also Karemera and Ngirumpatse Appeal Judgement, para. 648; Dordevié Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para. 127. 1101 Case No. ICTR-98-42-A 14 December 2015

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19263/H 3199. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in the assessment of Witness TP's evidence related to his swearing-in ceremony. (1) Witness LAL 3200. The Trial Chamber noted that Witness QAL provided corroborative hearsay evidence that Ndayambaje told the population to clean up and put the dirt out, which the witness understood to mean that good and bad people should be separated and people who were undesirable should be killed?308 The Trial Chamber also noted that Witness QAL corroborated Witness QAF's evidence that Nteziryayo questioned people about whether they carried out the instructions given to them and asked those who were married to Tutsis and had children to kill all the Tutsis. 7309 3201. Ndayambaje argues that elements of Witness QAL's evidence about the swearing-in ceremony - that the participants were armed, that Nteziryayo spoke after Ndayambaje, and that Nteziryayo asked the attendees to raise and show their spears, clubs, and machetes - are unsupported by any other witness or only find corroboration from Witness TP. 310 In his view, the Trial Chamber erroneously minimised these materially inconsistent aspects of Witness QAL's evidence, undermining the credibility of her evidence about her attendance at the ceremony. 7311 Ndayambaje also points to the evidence of Witness RV as

well as Nteziryayo and Ndayambaje that Nteziryayo spoke first, arguing that this evidence was rejected without reason. 312 3202. Ndayambaje also contends that the Trial Chamber erred in finding that Witnesses TP, QAR, and QAQ corroborated Witness QAL's evidence, as the Trial Chamber found that their accounts of attending the swearing-in ceremony were implausible.?313 7308 See Trial Judgement, paras. 4623, 4628. See also ibid., para. 4426. 7309 See Trial Judgement, para.

4624. See also ibid., para. 4427. 7310 Ndayambaje Appeal Brief, paras. 572, 573. See also Ndayambaje Notice of Appeal, para.

185. Ndayambaje adds that Witnesses TP and QAL testified that speakers did not use microphones. The Appeals Chamber observes, however, that Ndayambaje's contention in this regard is not supported by the reference he provides since the Trial Chamber noted that the witnesses instead testified that the speakers did not use megaphones. See Ndayambaje Appeal Brief, para. 573, referring to Trial Judgement, paras. 4425, 4389. This contention is therefore dismissed. Ndayambaje Appeal Brief, paras. 570, 573. Ndayambaje also argues that the Trial Chamber erred in finding that "Witness QAL gave detailed and credible evidence about the swearing-in ceremony, including such details as who she went to the meeting with" because it did not hear evidence about who accompanied the witness to the meeting. See Ndayambaje Appeal Brief, para. 571 (emphasis omitted), referring to Trial Judgement, para.

4600. The Appeals Chamber notes, however, that in citing the relevant portion of Witness QAL's testimony, the Trial Chamber noted that the witness went to the meeting with three other people, including her brother-in-law. See Trial Judgement, para. 4600, fn. 12236, referring to Witness QAL, T. 25 February 2004 pp. 19 and 24, 39 (closed session). See also ibid., para.

4425. The Appeals Chamber therefore dismisses Ndayambaje's contention in this regard. 7312 Ndayambaje Appeal Brief, para. 585. 7313 Ndayambaje Appeal Brief, para. 574. 1102 Case No. ICTR-98-42-A 14 December 2015

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19262/H 3203. Ndayambaje further argues that the Trial Chamber erred in the assessment of Witness QAL's evidence in light of Defence Witness MACHO's testimony that he was with Witness QAL the entire day of the ceremony and contradicted her evidence that she attended it. 314 Ndayambaje contends that the Trial Chamber "arbitrarily preferred" Witness QAL's testimony "because she was Hutu and. [Ndayambaje] had officiated at her wedding", even though Witness MACHO did not have ties to Ndayambaje or an interest in defending him. 315 He further submits that by rejecting Witness MACHO's contradictory evidence because Ndayambaje did not cross-examine Witness QAL on the possibility that she was not at the ceremony reflected the Trial Chamber's bias and a reversal of the burden of proof. 316 3204. Finally, Ndayambaje contends that the Trial Chamber could not have believed Witness QAL's evidence that she attended the swearing-in ceremony because she testified that her daughter was abducted the day of the ceremony and her husband the following day but placed these events in May, rather than June 19947317 Ndayambaje also argues that Witness GABON undermined Witness QAL's evidence, testifying that the murder of Witness QAL's husband occurred in April 1994 and "contradictling] the abduction and ransom paid for Witness QAL's daughter."7318 Ndayambaje adds that Witness MACHO further contradicted

Witness QAL's evidence about the abduction and murder and was rejected by the Trial Chamber without reason. 7319 3205. The Prosecution responds that Ndayambaje merely disagrees with the Trial Chamber's assessment of Witness QAL's account of the swearing-in ceremony without advancing arguments that demonstrate an error in this regard. 320 It submits that Ndayambaje similarly does not demonstrate an error in the Trial Chamber's rejection of Witness MACHO's evidence, arguing that it was within the Trial Chamber's discretion to consider the failure of the Defence to challenge certain aspects of the evidence of the Prosecution witnesses. 7321 The Prosecution further submits that the Trial Chamber was correct to disbelieve Witness GABON, 7322 7314 Ndayambaje Appeal Brief, para.

576. See also Ndayambaje Notice of Appeal, para. 189. 7315 Ndayambaje Appeal Brief, para.

576. See also ibid., para. 591. 7316 Ndayambaje Appeal Brief, para.

577. Ndayambaje adds that the Trial Chamber had the power to recall the witness to request clarification. See idem. 7317 Ndayambaje Appeal Brief, paras. 569, 575. Ndayambaje also argues that Witness QAL's evidence is implausible as she testified to making a complaint about the murder to a criminal investigation officer which, Ndayambaje claims, is "a gesture she should not have logically made, had the murder been committed on the instructions of the commune authorities." See ibid., para. 575, referring to Witness QAL, T. 25 February 2004 pp. 49, 50. The Appeals Chamber considers that Ndayambaje's contention is speculative and does not demonstrate any error in the Trial Chamber's analysis of Witness QAL's evidence. The Appeals Chamber therefore dismisses it without further consideration. Ndayambaje Appeal Brief, para. 589. 7319 Ndayambaje Appeal Brief, para. 576. 7320 Prosecution Response Brief, paras. 2462-2464, 2466. 7321 Prosecution Response Brief, para. 2469. 7322 Prosecution Response Brief, para. 2467. 1103 Case No. ICTR-98-42-A 14 December 2015

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19261/H 3206. The Appeals Chamber notes that it has previously addressed and rejected Ndayambaje's argument that the Trial Chamber erroneously assessed contrasting evidence as to whether those attending the swearing-in ceremony were armed.?323 As to the order in which Nteziryayo and Ndayambaje spoke, the Trial Chamber noted that Witness QAL's evidence that Nteziryayo spoke after Ndayambaje contrasted with other Prosecution evidence?324 However, it considered that this discrepancy did "not go to the root of the witness' account of the meeting" and that the witness's clarity on this issue could have been "affected by the passage of time."7325 The Trial Chamber further noted that Witness TP, like Witness QAL, testified that Nteziryayo took the floor after Ndayambaje, in contrast with evidence of the other witnesses and concluded that it did not regard as significant the discrepancy as to the order of the speakers.?326 Ndayambaje simply disagrees with this analysis without demonstrating any error in the Trial Chamber's reasoning.

3207. The Appeals Chamber also considers that Ndayambaje's contention about Witness QAL's testimony that Nteziryayo asked the attendees to raise and show their spears, clubs, and machetes is based on an erroneous reading of the Trial Judgement, which reflects that Nteziryayo merely asked the participants with different weapons to raise their hands?327 Given the Trial Chamber's finding that between 1,000 and 5,000 people attended the meeting,7328 Ndayambaje does not demonstrate that this aspect of Witness QAL's evidence was material to the Trial Chamber's assessment of the evidence about the ceremony, or that it was incompatible with other accounts given the large number of participants and varying vantage points of witnesses.

3208. Furthermore, the Appeals Chamber finds no merit in Ndayambaje's contention that the Trial Chamber improperly relied on the evidence of Witnesses TP, QAR, and QAQ to corroborate Witness QAL's account as it found the former witnesses' testimonies about the ceremony implausible.?329 First, the Appeals Chamber observes that the Trial Chamber reached no such finding with respect to Witness TP and, in fact, accepted that the witness was testifying about Ndayambaje's Swearing-In Ceremony.7330 Similarly, while the Trial Chamber observed similarities in the evidence of Witnesses QAR, QAQ, and QAL,7331 the Trial Chamber found that Witness QAR did not attend the ceremony and, after expressing doubts about whether Witness QAQ attended this ceremony, concluded that any probative weight to be accorded to the testimony of Witness AQ 7323 See supra, para. 3136. 7324 See Trial Judgement, para. 4597. 7325 Trial Judgement, para. 4598. 7326 Trial Judgement, paras. 4610, 4611. 7327 See also Trial Judgement, para.

4427. See also Witness QAL, T. 25 February 2004 p. 12. 7328 Trial Judgement, para. 4611. 7329 Ndayambaje Appeal Brief, para. 574, referring to Trial Judgement, paras. 4595, 4596, 4602-4608. 7330 Trial Judgement, para. 4592. 7331 See Trial Judgement, paras. 4594, 4595. 1104 Case No. ICTR-98-42-A 14 December 2015

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19260/H was minimal. 332 None of the findings made by the Trial Chamber to the extent that it expressly relied on Witness QAL's testimony reflects that it did so in light of the corroborative aspects of the evidence of Witnesses QAR and QAQ.7333 Indeed, the Trial Chamber specifically stated that it would only consider the evidence of Witnesses FAG, FAL, FAU, QAF, QAL, RV, TO, and TP when evaluating the Prosecution's evidence concerning the swearing-in ceremony. 7334 3209. Concerning the evidence of Witness MACHO, the Trial Chamber noted that it contradicted Witness QAL's evidence of attending the swearing-in ceremony, as Witness MACHO testified that they spent that day together at his godmother's house. 335 The Trial Chamber observed that Witness QAL was not cross-examined on the basis of this evidence, which only arose when Witness MACHO testified four years after Witness QAL.7336 It further considered that Witness QAL gave detailed and credible evidence about the swearing-in ceremony, including such details as with whom she went to the meeting, and that aspects of it were consistent with the testimonies of the other Prosecution witnesses whose presence at the meeting was not contested. 337 3210. The Appeals Chamber recalls that, when faced with competing versions of the same event, it is the prerogative of the trial chamber to decide which version it considers more

credible.?338 The Appeals Chamber will defer to a trial chamber's findings on such issues, including its resolution of disparities among different witnesses' accounts, and will only find an error of fact if it determines that no reasonable trier of fact could have made the impugned findings. 339 Ndayambaje does not demonstrate that the Trial Chamber abused its discretion in accepting the evidence of Witness QAL over that of Witness MACHO. Notably, the Trial Chamber found that Witness QAL's evidence about the timing and the location of the meeting, Ndayambaje's attire, the presence of Witness Stan, the population being armed, the use of proverbs and the call to kill Tutsis during the ceremony was broadly corroborated 7340 Ndayambaje also does not show that the Trial Chamber placed undue emphasis on the fact that Witness QAL was a Hutu and had been married by 7332 See Trial Judgement, paras. 4602, 4603, 4608. See also ibid., paras. 4604-4607. 7333 See Trial Judgement, paras. 4596-4598, 4609, 4623-4625, 4628, 4629. 7334 See Trial Judgement, para.

4621. See also ibid., para.

4632. See Trial Judgement, para. 4599. 7336 See Trial Judgement, para. 4599 7337 See Trial Judgement, para.

4600. Ndayambaje also argues that some aspects of Witness QAL's testimony were inconsistent with the testimony of other Prosecution witnesses and that the Trial Chamber erroneously implied that Ndayambaje conceded that all Prosecution witnesses were present at the swearing-in ceremony. See Ndayambaje Appeal Brief, para.

570. The Appeals Chamber considers, however, that Ndayambaje fails to identify any error as the Trial Chamber assessed various inconsistencies between Witness QAL's account of the meeting and that of other Prosecution witnesses. See Trial Judgement, paras. 4597-4599. Moreover, the Trial Chamber's reasoning does not reflect that Ndayambaje conceded that all Prosecution witnesses were present at the meeting but merely reflects that Witness QAL's testimony was consistent with that of certain witnesses whose presence at the swearing-in ceremony was not contested. See ibid., para. 4600. 7338 See, e.g., Nizeyimana Appeal Judgement, para. 254; Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para, 29. See Ndahimana Appeal Judgement, para.

46. See also Setako Appeal Judgement, para. 31. 1105 Case No. ICTR-98-42-A 14 December 2015

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19259/H Ndayambaje, 7341 or that it was required to credit Witness MACHO's evidence because she had no incentive to provide exculpatory evidence for Ndayambaje. The Appeals Chamber also fails to see how the Trial Chamber's observation that Witness QAL was not cross-examined on the possibility that she was not at the ceremony evinces bias or a reversal of the burden of proof, particularly given its detailed consideration of inconsistencies and contradictions with other evidence. 342 3211. With respect to the date of abduction of Witness QAL's daughter and murder of her husband after the swearing-in ceremony, the Appeals Chamber observes that the Trial Chamber noted that Witness QAL, as well as Witnesses FAG, FAL, QAF, and TP, testified that after the ceremony further attacks against Tutsis occurred. 343 However, when noting the consistent, albeit often general, evidence of the Prosecution witnesses to the effect that after the meeting, killings occurred, the Trial Chamber did not rely on Witness QAL.734 The Trial Chamber also expressly noted that Witness QAL did not remember the date of the meeting but recalled that it was held shortly before the RPF invasion of Muganza Commune at the end of June or beginning of July 1994 and that at the time Ndayambaje was bourgmestre of Muganza Commune, 345 While Ndayambaje is correct that the witness testified that her husband died in May

1994, she also specifically testified that her husband was killed the day following the meeting and that her daughter was abducted on the same day as the meeting, when Ndayambaje was introduced as bourgmestre of Muganza Commune. 7346 Given the Trial Chamber's acknowledgement that Witness QAL did not remember the day of the meeting 7347 and its limited reliance on the witness's evidence regarding the abduction of her daughter and murder of her husband, the Appeals Chamber does not consider that the fact that the witness indicated that the murder of her husband took place in May 1994 precluded the Trial Chamber from considering that this witness testified about the swearing-in ceremony.

3212. Similarly, the Appeals Chamber finds no merit in Ndayambaje's argument that the testimony of Witness GABON that Witness QAL's husband was killed at the end of April 1994 and that Witness GABON did not hear about the abduction of Witness AL's daughter undermined Witness QAL's testimony about the swearing-in ceremony 7348 The Appeals Chamber observes that, whereas Witness GABON's evidence about the killing of Witness QAL's husband and abduction of 7340 See Trial Judgement, paras. 4595, 4596, 4609, 4610, 4623, 4625, 4628, 4629. 7341 See also supra, para. 3076. 7342 See Trial Judgement, paras. 4597, 4610, 4611. 7343 See Trial Judgement, para. 4629. 7341 See Trial Judgement, para. 4632. 7345 See Trial Judgement, paras. 4422, 4595. See also Witness QAL, T. 25 February 2004 pp. 12, 13, and 25, 41, 42 (close sessies @AL, T. 25 February pp. 23-25, 41, 42, 48 (closed session), See also Trial Judgement, para. 4431. 7347 See Trial Judgement, para. 4595. 7348 See Trial Judgement, para. 4495. 1106 Case No. ICTR-98-42-A 14 December 2015

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19258/H her daughter was hearsay, Witness QAL was an eyewitness to the events. 349 Of greater significance, the Trial Chamber considered Witness GABON's testimony "unrealistic" and not "plausible", discrediting his alibi evidence in relation to Ndayambaje's involvement in another event. 7350 The Appeals Chamber therefore considers that a reasonable trier of fact could have relied on Witness QAL's evidence notwithstanding Witness GABON's testimony.

3213. Finally, since the Trial Chamber rejected Witness MACHO's testimony concerning Witness QAL's whereabouts during the swearing-in ceremony, 351 the Appeals Chamber considers that it was under no obligation to provide further justification for rejecting this witness's inextricably linked evidence about the abduction of Witness QAL's daughter on the same day. 7352 Because the Trial Chamber did not rely on Witness QAL's evidence about the murder of her husband,7353 the Appeals Chamber finds that it was not necessary for the Trial Chamber to assess the differences in the evidence of Witnesses QAL and MACHO in this regard.

3214. The Appeals Chamber therefore finds that Ndayambaje has not demonstrated that the Trial Chamber erred in the assessment of Witness QAL's evidence on his swearing-in ceremony. (i) Date 3215. Ndayambaje submits that no Prosecution witness specified the date of his swearing-in ceremony to be 22 June 1994.7354 In his view, other reasonable inferences were therefore open regarding the meeting recounted by the Prosecution witnesses.7355 3216. The Prosecution responds that the Trial Chamber considered that Prosecution witnesses did not indicate 22 June 1994 as the date of the swearing-in ceremony. 7356 3217. The Appeals Chamber observes that the Trial Chamber found that the Prosecution evidence established beyond reasonable doubt that Ndayambaje's swearing-in as the bourgmestre of Muganza Commune occurred "on 22 June 1994" 7357 The Appeals Chamber notes that, earlier in its deliberations, the Trial Chamber recalled that Witnesses FAG, RV, and TO testified that 7349 Compare Witness GABON, T. 2 September 2008 pp. 18-21 (closed session) with Witness QAL, T. 25 February 2004 pp. 23, 48 (closed session). 7350 See Trial Judgement, paras. 1220, 1223, 1389,1417, 1446. 7351 See supra, paras. 3209, 3210. 7352 See Trial Judgement, para. 4587. 7353 The Appeals Chamber is of the view that, while the Trial Chamber referred to the aspect of Witness QAL's evidence regarding the killing of her husband, the Trial Chamber did not rely on this evidence to demonstrate that KilliNg embed Afe the Bre, pay. So, are Tria u Trial lager 46 wis Sid, 42, 432, 4354, 4369, 4375, 4386, 4590, 4591. See also ibid., para. 608. 7355 Ndayambaje Appeal Brief, para. 582. 7356 Prosecution Response Brief, para. 2472. 7357 Trial Judgement, para. 4645. 1107 Case No. ICTR-98-42-A 14 December 2015

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19257/H Ndayambaje's Swearing-In Ceremony took place "on various dates in June 1994*7358 and that Witnesses FAL, QAF, and TP testified about a meeting at Muganza Commune "on or around 22 June 1994" 735 It also noted that Witness QAL testified to attending a meeting near the Muganza commune office "around May or June 1994" but could not remember its precise date. 7360 3218. The Appeals Chamber sees no error in the Trial Chamber's summary of the evidence of Witnesses FAG, RV, and TO concerning the timing of the ceremony and Witness QAL's estimate as to the timing of the meeting described. 361 However, as determined previously, the evidence of Witnesses FAL, QAF, and TP, as relied upon by the Trial Chamber cannot reasonably be interpreted as supporting the conclusion that the meeting occurred specifically "on or around 22 June 1994" 7362 Accordingly, the Appeals Chamber considers that all of the Prosecution evidence, as suggested by Ndayambaje, is ambiguous as to the precise date of the swearing-in ceremony whereas the Trial Judgement indicates otherwise. 363 3219. Nevertheless, Ndayambaje does not demonstrate that the Trial Chamber erred in concluding that all the Prosecution witnesses it relied upon were testifying about his swearing-in ceremony in Muganza Commune, which the parties do not dispute occurred on 22 June 1994. The Trial Chamber considered the discrepancies in the

Prosecution evidence as to the precise date of the meeting and determined that they were minor and understandable in light of the time that had elapsed between the event and the witnesses' appearances in court. 364 It determined that all the witnesses were discussing the same event given the consistent descriptions of the fundamental features of it 7365 Ndayambaje only suggests that other reasonable inferences were available without demonstrating any error in the Trial Chamber's ultimate conclusion that all relevant witnesses were referring to his swearing-in ceremony.

3220. The Appeals Chamber therefore concludes that Ndayambaje has not shown that the Trial Chamber erred in determining that the relevant witnesses were testifying about his swearing-in ceremony on 22 June 1994. 7358 Trial Judgement, para. 4590. 7359 Trial Judgement, para. 4591. 7360 Trial Judgement, paras. 4594, 4595. See also ibid., para. 4422. as 2l shot 5, to heRe easion of iang ho he did that emme at the dat of ine neenin ole it 7362 See supra Section, VII.B.1(d), para. 2351. 7363 Trial Judgement, para. 4591. 7364 Trial Judgement, para.

4592. See also ibid., para. 4595. 7365 Trial Judgement, paras. 4592, 4593, 4595. 1108 Case No. ICTR-98-42-A 14 December 2015

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19256/H 2. Assessment of Defence Evidence 3221. When considering evidence in relation to Ndayambaje's Swearing-In Ceremony, the Trial Chamber compared the relevant Prosecution and Defence evidence concerning Nteziryayo's and Ndayambaje's speeches.36 Specifically, it observed that the relevant Defence witnesses, in contrast to the Prosecution witnesses, testified that Nteziryayo's speech concerned security and that Ndayambaje did not use proverbs, including inflammatory metaphors, and that he denounced wrong-doers 7367 The Trial Chamber noted, however, that all of the witnesses called by Ndayambaje had close ties with him 368 and that Nteziryayo Defence Witnesses AND-11 and AND-73 were well-acquainted with Nteziryayo.?369 The Trial Chamber found that, "notwithstanding the largely consistent nature of the testimony of these witnesses", their credibility was "diminished by the potential motivations and personal ties of each of the Defence witnesses with Ndayambaje and Nteziryayo."7370 The Trial Chamber also noted that Nteziryayo and Ndayambaje "may have a motive in seeking to reduce their personal responsibility for the alleged incitement". 7371 3222. Ndayambaje submits that the Trial Chamber erred in discrediting the Defence evidence that Nteziryayo and Ndayambaje did not use inciting proverbs during the swearing-in ceremony and that no violence against Tutsis followed it 372 In

particular, he argues that the Trial Chamber erred in rejecting evidence from Defence witnesses who had professional or personal ties with him.?373 Ndayambaje also argues that the Trial Chamber erred in finding that the credibility of Defence Witnesses AND-11 and AND-73, who had no connection to him, was diminished only because they knew Nteziryayo. 7374 Moreover, Ndayambaje contends that the Trial Chamber improperly rejected 7366 Trial Judgement, paras. 4633, 4634. 7367 Trial Judgement, paras. 4633, 4634. 7368 Trial Judgement, para.

4636. In particular, the Trial Chamber recalled that Witnesses Stan and KEPIR were friends of Ndayambaje and that Witnesses GABON and BOZAN had professional ties with him, noting that the evidence of these Defence witnesses with respect to Ndayambaje must be reviewed bearing these personal ties in mind. See ibid., para. 4637 369 Trial Judgement, para. 4638 7370 Trial Judgement, para. 4639. 737 See Trial Judgement, para. 4636. 7372 Ndayambaje Appeal Brief, para.

585. See also Ndayambaje Notice of Appeal, para. 186; Ndayambaje Appeal Brief, paras. 588, 605, 607; AT. 21 April 2015 pp. 28, 30. Ndayambaje adds that no reasonable trier of fact would have made findings to "excuse" and "justify the incompatibilities, contradictions and inconsistencies" in the Prosecution evidence concerning the content of the speeches made at the swearing-in ceremony, while rejecting the entire contradictory Defence evidence. See Ndayambaje Appeal Brief, para.

607. See also Ndayambaje Notice of Appeal, paras. 184, 188. Ndayambaje's contentions as they relate to the Prosecution evidence, as well as specific Defence evidence contradicting it, have been previously addressed. See supra, Section IX.G.1. Ndayambaje adds that the Trial Chamber erred in disregarding evidence of Nsabimana concerning the swearing-in ceremony. See Ndayambaje Notice of Appeal, para.

187. The Appeals Chamber notes, however, that Ndayambaje did not provide any supporting references in his notice of appeal and failed to reiterate or develop this argument in his appeal brief. Accordingly, the Appeals Chamber dismisses this unsubstantiated allegation without further consideration. 7373 Ndayambaje Appeal Brief, paras. 587, 588, 591, 597, 600. See also Ndayambaje Notice of Appeal, para. 186. 7374 Ndayambaje Appeal Brief, para. 592, referring to Trial Judgement, para.

4639. Ndayambaje adds that in so doing the Trial Chamber applied "a banal credibility test" and abused its discretion. See ibid., para. 593. 1109 Case No. ICTR-98-42-A 14 December 2015

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19255/H his testimony as well as that of Nteziryayo for the sole reason that they had an interest in minimising their responsibility. 7375 3223. In addition, Ndayambaje argues that the Trial Chamber rejected the testimony of his Witness Évariste-Emmanuel Siborurema that no inciting speeches were made during the ceremony without providing a reasoned opinion. 376 He further contends that the Trial Chamber erred in its assessment of Witness Stan's evidence concerning the content of the speeches made during the ceremony, basing its rejection of his evidence on an erroneous English interpretation of his French testimony. 7377 According to him, the Trial Chamber also misread Witness Stan's 1995 interview with a Belgian judge which, in his view, is consistent with his testimony that the expression "dusting behind the fireplace" was not used by him but was a suggestion put to him by the judge who conducted the interview.7378 3224. Finally, Ndayambaje submits that the Trial Chamber erred in discounting differences between Prosecution and Defence evidence concerning the presence of Muvunyi, Kalimanzira, and Nyiramasuhuko at the ceremony and erred in not rejecting contradictory Prosecution evidence. 379 He similarly argues that the Trial Chamber erred in discrediting testimonies of Defence witnesses that the swearing-in ceremony took place in the afternoon, 380 in contrast with

Prosecution witnesses who all testified that it took place before noon?38l In his view, by relying on the fact that Prosecution witnesses did not have the opportunity to refute Defence evidence as to the timing of the event when discrediting Defence evidence, the Trial Chamber reversed the burden of proof or disregarded the presumption of innocence. 382 3225. The Prosecution responds that the Trial Chamber reasonably assessed the Defence evidence relevant to the swearing-in ceremony and was entitled to consider Ndayambaje's and Nteziryayo's incentives to deny criminal conduct. 383 It further argues that the Trial Chamber was correct in disbelieving Witness Siborurema and that, despite the errors in the English interpretation of 7375 Ndayambaje Appeal Brief, para.

602. See also Ndayambaje Reply Brief, para. 243. 7376 Ndayambaje Appeal Brief, para. 604, referring to Trial Judgement, paras. 4511-4514. 7377 Ndayambaje Appeal Brief, para. 595, referring to Trial Judgement, paras. 4485, 4640. 7378 Ndayambaje Appeal Brief, para. 596 (French), referring to Witness Stan, T. 23 September 2008 pp. 44-47 (French); Exhibit P204A (French original of Frère Constant Julius Goetschalckx's Statement to Judge Damien Vandermeersch, dated 24 November 1995) ("Witness Stan's Statement"). See also Ndayambaje Appeal Brief, para. 599. 7379 Ndayambaje Appeal Brief, para. 585. 7380 Ndayambaje Appeal Brief, para. 585, referring to Trial Judgement, paras. 4453, 4492, 4493, 4537. In particular, Ndayambaje highlights the evidence of Witnesses AND-30 and AND-31 who, according to him, did not have ties to him or interest in protecting him. See ibid., para. 586, referring to Trial Judgement, para. 4369, Nsabimana, T. 27 February 2007 pp. 50, 51. 7381 Ndayambaje Appeal Brief, para. 586, referring to Trial Judgement, para. 4593. 7382 Ndayambaje Appeal Brief, para. 583, referring to Trial Judgement, paras. 162, 163, 4615. See also Ndayambaje Notice of Appeal, para. 183. 7383 Prosecution Response Brief, paras. 2476-2482. See also ibid., para. 2474. 1110 Case No. ICTR-98-42-A 14 December 2015

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19254/H Witness Stan's testimony, it was also correct in not crediting his evidence. 7384 In addition, the Prosecution submits that Ndayambaje does not demonstrate any errors in the Trial Chamber's assessment of conflicting Prosecution and Defence evidence as to the timing of the ceremony. 7385 3226. The Appeals Chamber recalls that the existence of ties between an accused and a witness is a factor which may be considered in assessing the witness's credibility, 7386 and concludes that the Trial Chamber did not err in considering these circumstances or placed improper emphasis on them when rejecting Defence evidence. 387 The Appeals Chamber likewise considers that a reasonable trier of fact could have considered Ndayambaje's and Nteziryayo's incentive to provide exculpatory evidence in the context of all the relevant evidence. 388 Bearing in mind that, when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible,389 the Appeals Chamber is not persuaded that no reasonable trier of fact could have noted weaknesses in the credibility of Defence witnesses as well as rejected such evidence in light of the virtually unanimous, credible Prosecution evidence that inciting speeches were made during Ndayambaje's Swearing-In Ceremony, 7390 3227. As to Ndayambaje's contention concerning the evidence of

Witness Siborurema,739l the Appeals Chamber observes that the Trial Chamber set forth the witness's evidence and cited to it when evaluating Defence evidence about the contents of the speeches made at the swearing-in ceremony. 7392 As nothing in the evidence referred to by the Trial Chamber reflects that the witness had personal ties with Ndayambaje or Nteziryayo, 7393 the Trial Chamber must have considered that, as part of "the Defence evidence on the whole", his evidence was also "not sufficiently credible as to raise a reasonable doubt about the nature of the utterances made by Ndayambaje and Nteziryayo at Ndayambaje's swearing-in ceremony."7394 In light of the clear indication that Witness Siborurema's evidence was considered by the Trial Chamber and the repetitive nature of his evidence, the Appeals Chamber rejects Ndayambaje's allegation that the Trial Chamber ignored 7384 Prosecution Response Brief, paras. 2480, 2482, 2483. 7385 Prosecution Response Brief, para.

2475. See, e.g., Kanyarukiga Appeal Judgement, para. 121; Karera Appeal Judgement, para. 137; Bikindi Appeal Judgement, para. 117. 7387 Ndayambaje does not dispute that such professional and personal connections existed and points to no specific erro n the Trial Chamber's reflection of the evidence concerning his relationships with Defence witnesses. See Ndayambaj Appeal Brief, paras. 588, 591, 597, 600. Cf. Musema Appeal Judgement, para.

50. See, e.g., Nizeyimana Appeal Judgement, para. 254; Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para.

29. See Trial Judgement, paras. 4622-4632, 4636-4639. 7391 Ndayambaje Appeal Brief, para. 482, referring to Évariste-Emmanuel Siborurema, T. 25 August 2008 pp. 52-60 (closed session). 1392 See Trial Judgement, para. 4633. 7393 See Trial Judgement, paras. 4511, 4637-4640. 7394 See Trial Judgement, para. 4641. 1111 Case No. ICTR-98-42-A 14 December 2015

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19253/H this relevant evidence or was required to provide any further detail for its rejection given the consistent, credible Prosecution evidence that inciting remarks were made during the ceremony.

3228. With respect to the assessment of Witness Stan's evidence, the Trial Chamber noted that an carlier statement given by the witness to a Belgian judge in 1995 contained references to Ndayambaje talking about "restoring order in the house" and "the dust behind the fireplace". 7395 The Trial Chamber noted Witness Stan's explanations that he only recalled statements concerning "putting order in ... Muganza commune" and that the Belgian judge must have added the expression concerning the dust behind the fireplace, thereby putting words in Witness Stan's mouth. 7396 The Trial Chamber considered that the discrepancies between the statement and his testimony as well as his explanations for them, which it did not find credible, cast doubt on Witness Stan's testimony as to the contents of the speeches at Ndayambaje's Swearing-In Ceremony. 7397 3229. Contrary to Ndayambaje's submissions, the Appeals Chamber finds no material discrepancy between the French and English transcripts of Witness Stan's testimony as both reflect that he • testified that he did not remember using the expression "the dust behind the fireplace" when speaking with the Belgian judge and that these words appeared in his statement because of the nature of the questioning by the Belgian judge?398 The same is true for the French and English versions of Witness Stan's Statement, which both reflect that the judge asked the witness whether Ndayambaje talked about dusting behind the fireplace and that the witness answered that he did not know whether Ndayambaje used this expression. 7399 7395 Trial Judgement, para. 4640. 7396 See Trial Judgement, para.

4640. See also ibid., para. 4485; Witness Stan, T. 23 September 2008 pp. 40-43. 7397 Trial Judgement, para. 4640. 7398 Compare Witness Stan, T. 23 September 2008 p. 43 ("Q. Now, Witness, in reference to 'putting the house in order', you have stated that, 'I do not know if he used that term, 'the dust behind the fireplace'? Do you remember saying this to the investigative judge? A. I see that this sentence is written in this statement, but I do not remember having said it in these terms to the investigative judge. I know that these words were not used in the speech delivered by Mr. Élie Ndayambaje. [...] Q. So do you think that the judge was mistaken in including these words in your statement? A. I believe that the investigative judge, Vandermeersch, wanted me - was putting words in my mouth, making me say things that I had not said and which I had not declared. He was not neutral in his stance or in his position.") with ibid., p. 47 (French) ("@. Monsieur le Témoin, s'agissant de mettre de l'ordre dans la maison, vous avez déclaré: 'Je ne sais pas s'il a utilisé pour cela le terme de «poussière derrière le poêle'. Ceci, vous souvenez-vous l'avoir dit au juge d'instruction? R. Je vois que cette phrase est écrite dans ce rapport. Je ne me souviens pas de l'avoir dit dans ces termes au juge d'instruction. Je sais que ces termes n'ont pas été utilisés dans le discours de Monsieur

Ndayambaje. [...] @. Donc, pensez-vous qu'il s'agit là d'une erreur du juge lorsqu'il a enregistré votre déclaration? R. Je crois que le juge d'instruction Vandermeersch a voulu me faire dire des choses que je n'avais pas voulu dire, que je n'avais pas déclaré. Ce n'était pas tout à fait neutre dans sa position."). 7399 Compare Witness Stan's Statement, p. 11 ("Vous me demandez si à un moment donné il a parlé de nettoyer la poussière derrière le poêle. Il a entre autre dit de restituer les biens à ceux qui étaient restés derrière, soit les survivants. Il a parlé de mettre de l'ordre dans la maison. Je ne sais pas s'il a utilisé pour cela le terme de poussière derrière le polêfle.") with Exhibit P204B (English translation of Frère Constant Julius Goetschalckx's Statement to Judge Damien Vandermeersch, dated 24 November 1995), p. 10 ("You asked me whether at one point he talked about dusting behind the pan. He, among other things, talked about returning the property of those who had remained behind, namely, the survivors. He talked about putting the house in order. I do not know whether he used the expression dusting 1112 Case No. ICTR-98-42-A 14 December 2015

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19252/H 3230. However, the Appeals Chamber considers that the Trial Chamber erred in finding that there was a discrepancy between Witness Stan's testimony and prior statement as to whether Ndayambaje had used the expression "the dust behind the fireplace". Consistent with Witness Stan's testimony, his prior statement reflects that he was unaware of Ndayambaje using this expression. Contrary to the Trial Chamber's determination, no discrepancy exists in this regard. The Trial Chamber was nonetheless correct in finding a discrepancy between Witness Stan's Statement referring to Ndayambaje talking about "restoring order in the house" and his testimony that he had not said this during this interview and only recalled Ndayambaje talking about "putting order in ... Muganza commune"?400 The Appeals Chamber considers that Ndayambaje does not demonstrate that no reasonable trier of fact could have found that this discrepancy, and Witness Stan's explanation for it, cast doubt on the witness's subsequent testimony about the contents of the speeches at the swearing-in ceremony?401 In these circumstances, the Appeals Chamber finds that the Trial Chamber's error in relying on a discrepancy within Witness Stan's evidence that did not exist has not occasioned a miscarriage of justice.

3231. Turning to Ndayambaje's challenge to the Trial Chamber's assessment of contradictory evidence as to the presence of various officials, the Appeals Chamber observes that the Trial Chamber expressly considered that Defence evidence diverged from some Prosecution evidence as to the presence of Muvunyi, Kalimanzira, and Nyiramasuhuko during the ceremony. 7402 The Trial Chamber determined it unnecessary to make findings as to the presence of Muvunyi and Kalimanzira and found that any discrepancy as to their presence was not significant.?403 Ndayambaje fails to demonstrate why no reasonable trier of fact could have assessed the evidence in this manner.

3232. The Appeals Chamber further notes that the Trial Chamber considered that Witness RV may have been mistaken as to Nyiramasuhuko's presence during the swearing-in ceremony, noting that Ndayambaje, Nteziryayo, and other Defence witnesses contradicted this aspect of his evidence. 404 However, the Trial Chamber observed that Witness RV's evidence was consistent with Defence evidence as to the presence of certain other dignitaries, and highlighted that all Defence witnesses testified to the presence of another female minister, who Witness RV did not identify. 7405 In this context, the Trial Chamber rejected Witness RV's evidence as to Nyiramasuhuko's presence but behind the pan."). The Appeals Chamber observes that the English translation of Witness Stan's Statement erroneously refers to dusting behind the "pan" rather than "fireplace". See also Witness Stan, T. 23 September 2008 pp. 41-43. 7400 See Trial Judgement, para. 4640, referring to Witness Stan, T. 23 September 2008 pp. 42, 43. 7401 Trial Judgement, para. 4640. 7402 See Trial Judgement, paras. 4610-4612. 7403 Trial Judgement, para. 4611. 7404 Trial Judgement, para. 4612. 7405 Trial Judgement, para. 4612. 1113 Case No. ICTR-98-42-A 14 December 2015

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19251/H found that this did "not weaken the credibility of [his] testimony with respect to more significant aspects of the swearing-in ceremony."7406 Once again, Ndayambaje simply highlights his disagreement with this finding, ignoring that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness's testimony.?407 3233. Regarding Ndayambaje's challenges to the Trial Chamber's assessment of Prosecution and Defence evidence about the timing of the swearing-in ceremony, the Appeals Chamber observes that the Trial Chamber acknowledged that "in contrast to all the Prosecution evidence, the Defence witnesses testified that the swearing-in ceremony took place in the afternoon of 22 June 1994, because Nteziryayo was occupied with the swearing-in ceremony for the new bourgmestre of Ndora commune" and that Witness RV also corroborated the latter aspect of the Defence evidence. 408 The Trial Chamber, noting that the Prosecution witnesses testified between 2001 and 2004, while Defence witnesses testified between 2007 and 2008, observed that it was never put to the Prosecution witnesses that they may be mistaken as to the timing of the swearing-in ceremony and that they never had the opportunity to refute the testimony of the Defence witnesses that it occurred in the afternoon. 409 The Trial Chamber concluded, however, that it did not consider

this discrepancy to be important given that the Prosecution and the Defence witnesses were consistent on the significant features of the meeting, including that it was the swearing-in ceremony of Ndayambaje, that it took place on or around 22 June 1994, and that it was held in the woods near the Muganza commune office as well as that Ndayambaje and Nteziryayo spoke at the mecting.?410 The Trial Chamber determined that the witnesses testified to the same event, namely Ndayambaje's Swearing-In Ceremony on 22 June 1994.?411 The Appeals Chamber considers that Ndayambaje, who largely repeats the arguments he advanced at trial, 412 fails to demonstrate any error in the Trial Chamber's analysis as to the differences in the timing of the event and its determination that it was insignificant in light of the totality of the evidence.

3234. Likewise, the Appeals Chamber is not persuaded that, by noting that Prosecution witnesses did not have the opportunity to respond to Defence evidence as to the timing of the swearing-in ceremony, the Trial Chamber reversed the burden of proof or disregarded the presumption of innocence. The Appeals Chamber notes that the Prosecution evidence reflects estimates as to the 7406 Trial Judgement, para.

4612. See, e.g., Nizeyimana Appeal Judgement, para. 108; Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103. 7408 Trial Judgement, para. 4614 (internal reference omitted). 7409 Trial Judgement, para. 4615. 7410 Trial Judgement, para. 4616. 7411 Trial Judgement, para.

4617. Since Defence evidence regarding the timing of the swearing-in ceremony was not rejected due to ties between Defence witnesses and Ndayambaje, the Appeals Chamber dismisses Ndayambaje's contention regarding Witnesses AND-30 and AND-31 without further consideration. 7412 See Ndayambaje Closing Brief, paras. 639-648. 1114 Case No. ICTR-98-42-A 14 December 2015

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19250/H timing of the ceremony 413 The Appeals Chamber considers that the fact that the Trial Chamber observed that the Prosecution witnesses were not challenged as to the timing implies that the differences between Prosecution and Defence evidence on this point might have reasonably resulted from a failure to question the Prosecution witnesses on the issue. The Appeals Chamber finds no error in the Trial Chamber's determination that the variance in timing was insignificant and its reliance instead on the similar features of the meeting to determine that all witnesses were referring to the one that included Ndayambaje's swearing-in as the bourgmestre of Muganza Commune.

3235. Based on the foregoing, the Appeals Chamber rejects Ndayambaje's challenges to the Trial Chamber's assessment of the Defence evidence relating to his swearing-in ceremony.

3. Imprecise and Unsupported Findings 3236. Ndayambaje argues that the Trial Chamber failed to determine beyond reasonable doubt who between him and Nteziryayo made inciting speeches during his swearing-in ceremony. 7414 In particular, he contends that the Prosecution evidence does not specify which speaker encouraged the crowd to "sweep out the dirt." 415 He further argues that the Trial Chamber erred in finding that he possessed the requisite genocidal intent to "commit the crime of genocide."7416 3237. The Prosecution responds that it was not unreasonable for the Trial Chamber not to attribute specific utterances to Ndayambaje and Nteziryayo, if it was satisfied that the requisite elements of the offence were met.?417 It further submits that Ndayambaje's unsubstantiated claim regarding the lack of genocidal intent should be summarily dismissed. 418 3238. The Appeals Chamber observes that, in the "Factual Findings" section of the Trial Judgement, the Trial Chamber made the following findings: Accordingly, the Chamber finds it established beyond a reasonable doubt that on the occasion of Ndayambaje's swearing in ceremony on 22 June 1994, an event attended by the general population, Nteziryayo and Ndayambaje told the population to continue with their "work" and urged them to "sweep the dirt outside". [... 17419 [.] [...] the Prosecution has established beyond a reasonable doubt

that at Ndayambaje's swearing-in as the bourgmestre of Muganza commune on 22 June 1994, an event attended by the general population, Ndayambaje and Nteziryayo urged the population to "sweep the dirt" and instructed that those hiding Tutsis who refused to hand them over should be killed. Further, the Chamber 7413 See Trial Judgement, para. 4593, fn. 12217. 7414 Ndayambaje Appeal Brief, para. 608, referring to Trial Judgement, para.

4645. See also Ndayambaje Notice of Appeal, paras. 182, 192; AT. 21 April 2015 p.

29. Ndayambaje Appeal Brief, para.

608. See also Ndayambaje Reply Brief, para. 245; AT. 21 April 2015 p. 29. 7416 Ndayambaje Appeal Brief, para. 606. 7417 Prosecution Response Brief, para. 2485; AT. 21 April 2015 pp. 56, 57. 7418 Prosecution Response Brief, para. 2480. 7419 Trial Judgement, para. 4642 (emphasis added). 1115 Case No. ICTR-98-42-A 14 December 2015

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19249/H finds it established beyond a reasonable doubt that after Ndayambaje's swearing-in ceremony searches for Tutsis took place and killings followed. [...]7420 The Appeals Chamber further notes that, prior to reaching this conclusion, the Trial Chamber extensively considered the consistency of Prosecution evidence as to the content of the speeches given at the swearing-in ceremony and whether Ndayambaje, Nteziryayo, or both made inciting statements.

42) In particular, the Trial Chamber observed that Witnesses FAG and FAL testified that Ndayambaje and Nteziryayo used metaphors concerning the need to clean the house of dirt and place it outside, 422 and that Witness FAU gave corroborative evidence to this effect. 423 It also noted contrasting evidence from Witnesses TO and TP that only Nteziryayo used the metaphor concerning sweeping dirt, 424 while Witnesses RV and QAF testified that only Ndayambaje used this metaphor and that Witness QAL provided hearsay corroboration of the evidence of Witnesses RV and QAF. 425 3239. In addition, the Trial Chamber recounted that, according to Witnesses FAG, FAL, and TO, Ndayambaje explained the metaphor to mean that surviving Tutsis needed to be killed, 426 that Witness TP had a similar understanding of the metaphor (as uttered by Nteziryayo),7427 and that Witnesses RV and QAF understood the speech of Ndayambaje in the same way. 428 The Trial Chamber also considered evidence concerning Nteziryayo and Ndayambaje thanking the population for their "work" or urging them to continue their "work", which meant "to kill" 7429 3240. The Appeals Chamber also observes that when finding Ndayambaje guilty of direct and public incitement to commit genocide, the only crime for which he was convicted on the basis of his remarks at the ceremony, 430 the Trial Chamber recalled that "Nteziryayo and Ndayambaje told the population to continue with their "work' and urged them to 'sweep the dirt outside'" 7431 It also 7420 Trial Judgement, para. 4645 (emphasis added). 7421 Trial Judgement, paras. 4622-4628 7422 See Trial Judgement, para.

4622. See also ibid., paras. 4327, 4328, 4345. 7423 See Trial Judgement, para.

4622. See also ibid., paras. 4398, 4400, 4401. 7424 See Trial Judgement, para.

4623. See also ibid., paras. 4378, 4391. 7425 See Trial Judgement, para.

4623. See also ibid., paras. 4363, 4372, 4426. 7426 See Trial Judgement, para.

4627. See also ibid., paras. 4327, 4328, 4345, 4378, 4382. 7427 See Trial Judgement, para.

4627. See also ibid., paras. 4391, 4393. 7428 See Trial Judgement, para.

4628. See also ibid., paras. 4363, 4372. 7429 See Trial Judgement, para. 4626. 7430 The Appeals Chamber notes that Ndayambaje argues that the Trial Chamber erred in finding that his remarks at his swearing-in ceremony had a substantial effect on killings that ensued. See Ndayambaje Appeal Brief, paras. 655, 656. The Prosecution responds that there was a sufficient connection between Ndayambaje's conduct at the ceremony and the ensuing killings. See Prosecution Response Brief, para.

2515. While the Trial Chamber noted that killings occurred after the swearing-in ceremony, the Appeals Chamber observes that whether his words had a substantial effect on the ensuing killings is not an element of the inchoate crime of direct and public incitement to commit genocide of which he is convicted. See, e.g., Trial Judgement, paras. 4645, 6026, 6027. As noted above, Ndayambaje was ultimately not convicted for instigating the killings of the Tutsi women and girls abducted from Mugombwa Sector after the ceremony. See supra, fn.

6415. Accordingly, the Appeals Chamber dismisses this contention without further consideration. 7431 Trial Judgement, para. 6026 (emphasis added). 1116 Case No. ICTR-98-42-A 14 December 2015

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19248/H recalled that "the audience understood the words of both Accused, namely "to work' and 'sweeping dirt', to mean they needed to kill Tutsis."7432 3241. Considering the conclusions in the factual and legal findings sections of the Trial Judgement as well as the relevant evidence, it is apparent that the Trial Chamber accepted evidence reflecting that both Ndayambaje and Nteziryayo made inciting speeches by employing the metaphor concerning sweeping the "dirt" and using the term "work" during the ceremony. The Appeals Chamber recalls that trial chambers enjoy broad discretion in choosing which witness testimony to prefer 433 and that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative. 434 Ndayambaje does not demonstrate that the Trial Chamber abused its discretion in accepting evidence demonstrating that Ndayambaje and Nteziryayo made inciting speeches that included remarks to sweep the "dirt" and to "work".

3242. As to Ndayambaje's argument that the Trial Chamber erred in finding that he possessed the requisite intent to "commit genocide", the Appeals Chamber observes that the Trial Chamber concluded that, "[i]n light of the substance of these statements, the context in which they were made, and the evidence as a whole, the [Trial] Chamber has no doubt that [...] Ndayambaje possessed genocidal intent when [he] addressed the population."435 Ndayambaje only advances his contention by repeating references to arguments that have already been considered and rejected above. 436 3243. Consequently, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in making imprecise and unsupported findings concerning who made inciting speeches during his swearing-in ceremony.

4. Conclusion 3244. For the foregoing reasons, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in finding him responsible for committing direct and public incitement to commit genocide through his utterances at his swearing-in ceremony on 22 June 1994 and, accordingly, dismisses Ground 19 of Ndayambaje's appeal. 7432 Trial Judgement, para. 6027 (emphasis added). See also ibid., para. 6029. 7433 Nizeyimana Appeal Judgement, para. 254; Muvunyi Appeal Judgement of 1 April 2011, para.

44. See also Muhimana Appeal Judgement, para. 58. 7434 See Nzabonimana Appeal Judgement, para. 184; Ntabakuze Appeal Judgement, para.

150. See also Ntawukulilyayo Appeal Judgement, para. 24; Munyakazi Appeal Judgement, para.

103. Trial Judgement, para.

6028. See also ibid., para. 5956. 7436 See Ndayambaje Appeal Brief, para. 606; supra, Section IX.G.2. 1117 Case No. ICTR-98-42-A 14 December 2015

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19247/H H. Abduction of Tutsi Women and Girls in Mugombwa (Ground 20) 3245. Based primarily on the evidence of Prosecution Witness QAR, as corroborated by Prosecution Witnesses FAU and QAF, the Trial Chamber found that, after Ndayambaje's Swearing-In Ceremony on 22 June 1994, a group of Tutsi women and girls from Mugombwa Sector, Muganza Commune, including one named Nambaje, were abducted by assailants from Saga. 7437 It determined that the assailants came to search for the girls because they had attended the ceremony "where they were told to search for and throw out dirt" ?438 The Trial Chamber further found that, during the abduction, Ndayambaje came to the Virgin Mary Statue in Mugombwa Sector and made it clear to the abductors that they "were free to do what they wanted with the girls" 439 The Trial Chamber found that the abducted women and girls were subsequently taken to a brick factory at Gasenyi, a valley between Mugombwa and Kibayi, where they were killed. *40 3246. The Trial Chamber found that there was a causal connection between Ndayambaje's words at his swearing-in ceremony and the abduction and killing of the Tutsi women and girls, including one named Nambaje, and that, by prompting the assailants to perpetrate these crimes, Ndayambaje. instigated genocide?441 The Trial Chamber also held that, by his words at the Virgin Mary Statue during the abduction, Ndayambaje

instigated the killing of the abducted women and girls, including Nambaje 442 The Trial Judgement reflects that the Trial Chamber ultimately convicted Ndayambaje of genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for instigating the killing of the Tutsi women and girls, including Nambaje, based on his words at the Virgin Mary Statue after the swearing-in ceremony. 443 7437 Trial Judgement, paras. 4708, 4717, 5949. 7438 Trial Judgement, para.

5953. See also ibid., para. 4717. 7439 Trial Judgement, paras. 4746, 5949, 6030. 7440 Trial Judgement, paras. 4723, 4746, 5949. 7441 Trial Judgement, paras. 5953-5956. 7442 Trial Judgement, paras. 5957-5959, 6031. 7443 Trial Judgement, paras. 5959, 5976 ("Ndayambaje also instigated the killing of Tutsis after his swearing-in ceremony on 22 June 1994."), 5977, 6064 ("The Chamber has found Ndayambaje guilty of genocide for [...] instigating the killing of Tutsis after his swearing-in ceremony".), 6066, 6107 ("Ndayambaje [...] instigated the killing of Tutsis after his swearing-in ceremony."), 6108, 6125, 6175 ("Ndayambaje [...] instigated the killing of Tutsis after his swearing-in ceremony on 22 June 1994."), 6176, 6186 (emphasis added). The Trial Chamber determined that, because Ndayambaje's words at the Virgin Mary Statue were only addressed to the abductors and not to the general public, Ndayambaje could not be held responsible for direct and public incitement to commit genocide in relation to this event. See ibid., paras. 6030, 6032, 6033. As discussed above, the Trial Chamber nonetheless convicted Ndayambaje of committing direct and public incitement to commit genocide on the basis of his words at his swearing-in ceremony. See ibid., paras. 6026-6029; supra, Section IX.G. In these circumstances, Ndayambaje's arguments under Ground 20 of his appeal related to the link between the swearing-in ceremony and the abduction have been addressed only to the extent that they related to Ndayambaje's ultimate conviction for instigating killings through his words at the Virgin 1118 Case No. ICTR-98-42-A 14 December 2015

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19246/H 3247. Ndayambaje submits that the Trial Chamber erred in fact and in law in its findings relating to the abduction of Tutsi women and girls from Mugombwa Sector. 44 In particular, Ndayambaje contends that the Trial Chamber erred in: (i) its assessment of the Prosecution evidence; (ii) its assessment of the Defence evidence; and (iti) finding that all elements of the crimes of genocide and extermination as a crime against humanity were met in relation to this event. The Appeals Chamber will address these contentions in turn.

1. Assessment of Prosecution Evidence 3248. Ndayambaje submits that the Trial Chamber erred in: (i) finding that Witnesses FAU and QAF corroborated Witness QAR's account of the abduction and killings that followed his alleged utterances at the Virgin Mary Statue; and ii) its assessment of the credibility of Witnesses QAR and FAU. 7445 (a) Absence of Corroboration 3249. The Trial Chamber determined that Witness QAR's account of the abduction of Tutsi women and girls in Mugombwa Sector was credible and compelling and, on this basis, found that the Prosecution had proven beyond reasonable doubt that Ndayambaje came to the Virgin Mary Statue during the abduction, that he made it clear that the abductors were free to do what they wanted with the girls, and that the abducted women and girls were subsequently killed at Gasenyi. 7446 3250. The Trial Chamber found that Witness QAR's account of the abduction of Tutsi women and girls in Mugombwa by assailants from Saga was corroborated by Witnesses FAU and QAF regarding the timing and reason for the abduction 447 Specifically, the Trial Chamber found that Witness QAF gave a credible testimony that the abduction took place on the day after Ndayambaje's Swearing-In Ceremony, which corroborated Witness QAR's testimony that the abduction occurred in June 1994.448 Based on Witness FAU's evidence that the assailants who came to his house to

abduct Nambaje told him that they had attended a meeting the purpose of which was to swear in Ndayambaje, it considered "Witness FAU's hearsay testimony to corroborate 7411 The Appeals Chamber notes that Ndayambaje's contention under Ground 20 of his appeal that the abduction of the Tutsi women and girls was not pleaded in the Indictment has been considered and rejected above in Section IX.A.4. See Ndayambaje Appeal Brief, para. 674. 7445 Ndayambaje Notice of Appeal, paras. 194, 196, 198, 199, 201; Ndayambaje Appeal Brief, paras. 202, 209-215, 218, 619-623, 625, 630, 647-654, 668, 669, 672. See also Ndayambaje Reply Brief, para. 249; AT. 21 April 2015 pp. 30, 31. 7446 Trial Judgement, para. 4746. 7447 Trial Judgement, paras. 4715, 4717. 7448 Trial Judgement, para. 4712. 1119 Case No. ICTR-98-42-A 14 December 2015

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19245/H Witnesses QAR and QAF with regard to the date of the abduction."449 The Trial Chamber concluded that, "Injotwithstanding the evidence brought by the Ndayambaje Defence, and the specific date provided by Witness QAR, [...] the detailed evidence proffered by Prosecution Witnesses QAF and FAU affirms that the abduction took place after Ndayambaje's swearing-in ceremony on 22 June 1994."7450 It further found that Witness QAR's account was corroborated by Witnesses QAF and FAU on the fact that some of the abducted were adolescent girls and that the abducted women and girls were taken from homes, and by Witness QAF regarding the identity of the attackers. 7451 3251. Ndayambaje contends that the Trial Chamber erred in fact and in law in finding that Witness QAR's evidence was corroborated by that of Witnesses FAU and QAF, whose contradictory testimonies related to different events and did not mention the presence of Ndayambaje. In particular, Ndayambaje argues that "[i]f Witness QAR was referring to a meeting other than the swearing-in ceremony, the abduction she was a victim of would no longer be the consequence of the swearing-in ceremony" and her evidence "would no longer" corroborate that of Witnesses FAU and QAF as to the date of the abduction. 453 3252. Ndayambaje further submits that the Trial Chamber "erroneously fused together in its findings two distinct factual

events, namely the abduction of the Mugombwa Tutsi girls and women and the abduction and murder of a certain Nambaje from Baziro secteur."7454 He points out that Witness QAF testified that the abduction of the group of Mugombwa women and girls by attackers from Saga on the morning following the swearing-in ceremony took place at the Virgin Mary Statue, whereas Witness FAU testified that the abduction of Nambaje took place in Baziro Sector on the day of the ceremony and was conducted by attackers from Baziro and did not refer to the presence of Ndayambaje?45S In his view, the Trial Chamber erred in "mixing up" these two events, which occurred neither on the same date or place, nor concerned the same actors. 456 3253. The Prosecution responds that Ndayambaje fails to demonstrate that the Trial Chamber erred in finding that Witness QAF directly corroborated Witness QAR's testimony that the women and girls were killed and that Witness FAU provided corroboration that the killings occurred after 7449 Trial Judgement, para. 4715. 7450 Trial Judgement, para. 4717. 7451 Trial Judgement, paras. 4723, 4724, 4726, 4727, 4730, fn. 12535. 7452 Ndayambaje Appeal Brief, paras. 619-621. See also AT. 21 April 2015 pp. 30, 31. 20 Nayamble Noial Bi Appeal, par, 19. Se do abid, Fame: 2, 207 days at Appeal Bit, paras. 647, 7455 Ndayambaje Appeal Brief, paras. 620, 647. 7456 Ndayambaje Appeal Brief, para.

670. See also ibid., paras. 647, 663, 665; AT. 21 April 2015 p. 30. 1120 Case No. ICTR-98-42-A 14 December 2015

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19244/H the swearing-in ceremony 457 The Prosecution submits that the killing of Nambaje and the killing of the Mugombwa women and girls were not unrelated incidents but were part of the same "pattern of killings" as both were consequences of the speeches given at the ceremony,?458 As such, it argues, the testimonies of Witnesses QAF and FAU were not contradictory but both supported the Trial Chamber's finding that Tutsis were searched for and killed following the ceremony. 459 3254. Ndayambaje replies that Witnesses QAF and FAU cannot be said to have provided corroborative evidence as they contradicted each other on material aspects, which clearly indicates that their accounts concerned different events. 7460 3255. The Appeals Chamber observes that, contrary to what Ndayambaje's speculative argument about the meeting that Witness QAR attended suggests, the Trial Chamber did not find that the mecting in Muganza Commune about which Witness QAR testified was Ndayambaje's Swearing-In Ceremony?461 It did not conclude that the abduction of the Mugombwa Tutsi women and girls followed the ceremony based on Witness QAR's testimony, but based on Witnesses FAU's and QAF's testimonies. 462 Ndayambaje does not substantiate his claim that Witness QAF's evidence was contradictory or related to a different event and does not develop any argument to show that the Trial Chamber's reliance on this part of Witness QAF's evidence was erroneous in any other respect. 463 Ndayambaje's allegation of error pertaining to the Trial Chamber's reliance on Witness QAF's evidence as relevant to the timing of the abduction and corroborative of Witness QAR's evidence regarding the incident is therefore without merit.

3256. As to Ndayambaje's arguments regarding the Trial Chamber's reliance on Witness FAU's testimony as corroborative of Witness QAR's evidence on the abduction, the Appeals Chamber observes that, after reaching its finding on Ndayambaje's involvement in the abduction of the women and girls subsequently killed at Gasenyi, the Trial Chamber specifically referred to 7457 Prosecution Response Brief, para.

2493. See also ibid., para. 2491; AT. 21 April 2015 p. 58. 7458 Prosecution Response Brief, paras. 2492, 2512. 7459 Prosecution Response Brief, paras. 2492, 2512. During the appeals hearing, the Prosecution argued that, while the killers of Nambaje were at the swearing-in ceremony, it was "not know[n] whether [the killers of the victims at the Virgin Mary Statue] were there." See AT. 21 April 2015 p.

60. Ndayambaje Reply Brief, para.

250. Ndayambaje also argues that it does not make sense for the Prosecution to concede that Witnesses QAR and FAU testified about two distinct incidents while, at the same time, argue that they are linked in the absence of any evidence to this effect. See ibid., paras. 247, 267-270. 7461 Trial Judgement, para. 4710 ("Furthermore, the Chamber observes that Witness QAR may well have been mistaken while placing the purported meeting in mid-June 1994 due to the various meetings she attended at the Muganza commune office before, during and after the war. Furthermore, the Chamber recalls its previous finding that Witness QAR did not attend Ndayambaje's swearing-in ceremony, given that she was a Tutsi".) (internal reference omitted). 7462 Trial Judgement, paras. 4712, 4713, 4715, 4717. 7463 See Ndayambaje Appeal Brief, para.

621. The Appeals Chamber recalls that it has addressed and dismissed Ndayambaje's submissions related to Witness QAF's evidence relating to Ndayambaje's Swearing-In Ceremony in Section IX.G.1(d) above. 1121 Case No. ICTR-98-42-A| 14 December 2015

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19243/H Witness FAU's evidence of the abduction and killing of a woman named Nambaje and the young girl she was looking after by three assailants who said that they had just attended a meeting for the swearing-in of Ndayambaje. 464 The Trial Chamber noted that Witness FAU testified that Nambaje and the young girl were killed after their abduction in the home of a man named Kinyagiro. 465 3257. When discussing the timing and reason for the abduction of the group of Tutsi women and girls from Mugombwa by assailants from Saga in the "Factual Findings" section of the Trial Judgement, 466 the Trial Chamber stated that "Witness FAU testified that the abductions took place in late May or early June 1994, and gave hearsay evidence that this followed a meeting at the Muganza commune office", 7467 the purpose of which was to swear-in Ndayambaje, and considered "Witness FAU's hearsay testimony to corroborate that of Witnesses QAR and QAF with regard to the date of the abduction."7468 The Trial Chamber further concluded that: the detailed evidence proffered by Prosecution Witnesses QAF and FAU affirms that the abduction took place after Ndayambaje's swearing-in ceremony of 22 June 1994. On the basis of Witness FAU's hearsay evidence that the assailants came to search for the girls because they were told to search for and throw out dirt, the Chamber also accepts that searches were carried

out with a view to locating Tutsis. 7469, When discussing "Ndayambaje's Alleged Presence During the Abductions", 7470 the Trial Chamber referred to Witness FAU as one of the witnesses who "testified to having witnessed various stages of the abduction"7471 and stated that "Witness FAU's testimony that Nambaje was taken from a house by the attackers" corroborated Witness QAR's testimony that the women and girls were taken from their homes. 7472 3258. In the "Legal Findings" section of the Trial Judgement, the Trial Chamber found that: a group of Tutsi women and girls from Mugombwa secteur, Muganza commune, were abducted by assailants from Saga after Ndayambaje's swearing-in ceremony of 22 June 1994 including one Nambaje who was abducted from a home. During the abduction, Ndayambaje came to the Statue of the Virgin Mary and made it clear that the abductors were free to do what they wanted with the girls, and the abducted women and girls were subsequently taken to a brick factory at Gasenyi where they were killed [...].7473 7464 Trial Judgement, paras. 4713, 4715, 4717, 4730. 7465 Trial Judgement, para. 4730. 7466 See Trial Judgement, para. 4708, Section 3.6.44.4.1. 7467 Trial Judgement, para. 4713 (emphasis added). 7468 Trial Judgement, para: 4715 (emphasis added). 7469 Trial Judgement, para. 4717 (emphasis added). 7470 See Trial Judgement, heading Section 3.6.44.4.2 at p. 1139

(emphasis added). 7471 Trial Judgement, para. 4720 (emphasis added). 472 Trial Judgement, para. 4727, fn. 12553, referring to Witness FAU, T. 9 March 2004 p. 22 (closed session) See also ibid., para. 4723 ("Witness QAR's eyewitness testimony of the abduction is corroborated by both Prosecution ind Defence witnesses with respect to [...] [the fact that the girls] were abducted from houses in Mugombwa" (emphasis added), fn. 12535, referring to Witness FAU, T. 8 March 2004 p. 89 (closed session), T. 9 March 2004 p. 21 (closed session). 7473 Trial Judgement, para. 5949 (emphasis added). See also ibid., para. 5953. 1122 Case No. ICTR-98-42-A 14 December 2015

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19242/H When further discussing Ndayambaje's responsibility in relation to his utterances at the Virgin Mary Statue specifically, the Trial Chamber declared it proven that "Ndayambaje committed the actus reus of instigating the killing of the abducted Tutsi girls and one Nambaje"7474 and that he "knew he was assisting in the deaths of the abducted girls and Nambaje."7475 3259. In the view of the Appeals Chamber, the Trial Chamber's findings show that it ultimately considered that Nambaje, about whom Witness FAU testified, was part of the group of Tutsi women and girls abducted from Mugombwa Sector by assailants from Saga and killed at Gasenyi following Ndayambaje's utterances at the Virgin Mary Statue.

3260. However, as Ndayambaje points out and as the Trial Chamber correctly noted in other parts of the Trial Judgement, 476 Witness FAU testified that Nambaje was abducted from his home which was located in Baziro Sector, that the assailants were Casien Ngona, Nyambindi and Rutabana from Baziro Sector, and that Nambaje was taken to the home of a Tutsi named Kinyagiro where she was killed. 477 The abduction Witness FAU testified about did not concern women from Mugombwa Sector, was not led by assailants from Saga, did not involve a stop at the Virgin Mary Statue or Ndayambaje, and did not end with killings in a brick factory at Gasenyi.

3261. As acknowledged by the Prosecution, 478 it is apparent that Witnesses QAR and FAU testified about two different incidents of abductions involving different perpetrators and victims. In these circumstances, the Appeals Chamber finds that the Trial Chamber erred in considering that Nambaje was part of the group of victims abducted from Mugombwa Sector and killed at Gasenyi following Ndayambaje's words at the Virgin Mary Statue and, consequently, in convicting Ndayambaje for instigating her killing through his words at the Virgin Mary Statue. 479 3262. As to the question whether Witness FAU could nonetheless be relied upon as corroborating aspects of Witness QAR's evidence, the Appeals Chamber recalls that the Trial Chamber relied upon his evidence as corroborative of Witness QAR's regarding: (i) the timing of the abduction of the group of Tutsi women and girls, namely in June 1994;7480 (ii) the fact that the women and girls were taken from their homes,7481 and iii) the fact that the group of abductees included adolescent 7474 Trial Judgement, para. 5957 (emphasis added). 7475 Trial Judgement, para. 5958 (emphasis added). 7476 Trial Judgement, paras, 4668, 4730; Ndayambaje Appeal Brief, paras. 620, 647, 649. 7477 See Witness FAU, T. 9 March 2004 pp. 21, 22 (closed session). 7478 Prosecution Response Brief, para.

2512. See also ibid., para. 2493; AT. 21 April 2015 p. 60. 1479 The Appeals Chamber recalls that the Trial Judgement reflects that Ndayambaje was ultimately not convicted is relation to the abductions discussed in this section on the basis of his utterances at his swearing-in ceremony. See supra fns. 6351, 6415, 7443. 7480 See Trial Judgement, paras. 4711, 4713, 4717. 7481 Trial Judgement, para. 4727. 1123 Case No. ICTR-98-42-A 14 December 2015

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19241/H girls. 482 Because Witness FAU testified to a different event, the Appeals Chamber finds that the Trial Chamber erred in relying on his evidence as corroborating these aspects of the different abduction about which Witness QAR testified.

3263. However, because the Trial Judgement does not reflect that Witness FAU's evidence was material to the Trial Chamber's finding that Witness QAR's account of the abduction of Tutsi women and girls - which was in part corroborated by Witness QAF - was credible and proved beyond reasonable doubt Ndayambaje's involvement in the abduction, 483 the Appeals Chamber finds that the Trial Chamber's erroneous reliance on Witness FAU's evidence as corroborative of Witness QAR's evidence does not invalidate the Trial Chamber's finding in this respect and has not occasioned a miscarriage of justice. (b) Credibility of Prosecution Witnesses 3264. Ndayambaje submits that the Trial Chamber erred in its assessment of the credibility of Witnesses QAR and FAU.?48 However, because the Appeals Chamber has concluded above that the Trial Chamber erred in finding Ndayambaje responsible for the abduction recounted by Witness FAU and in relying on his testimony as corroborating Witness QAR's evidence, it finds it unnecessary to address Ndayambaje's submissions concerning Witness FAU's credibility. Consequently, the Appeals Chamber will only examine Ndayambaje's arguments related to the Trial Chamber's assessment of Witness QAR's evidence.

3265. Ndayambaje submits that the Trial Chamber erred in relying on Witness QAR's testimony pertaining to the abduction of Tutsi women and girls from Mugombwa. 485 Ndayambaje argues that Witness QAR could not be found credible given that her testimony that she did not attend his swearing-in ceremony was not found plausible and that her testimony is implausible in many other respects. 486 He also avers that it was unreasonable on the part of the Trial Chamber to explain that Witness QAR's specific reference to 18 June 1994 as the date of her abduction may have been the result of a distorted view of the timing due to the passage of time.?487 Ndayambaje emphasises in 7482 Trial Judgement, para. 4726. 7483 Trial Judgement, para. 4746. 7484 Ndayambaje Notice of Appeal, paras. 194, 196, 198, 199, 201; Ndayambaje Appeal Brief, paras. 202, 209-215, 218. 619-623, 625-630, 647-654, 668, 669, 672. See also Ndayambaje Reply Brief, para. 249; AT. 21 April 2015 pp. 30, 31. Ndayambaje submits that the Trial Chamber erred in finding Witness FAU credible and in relying on his contradictory evidence in relation to the date of the abduction and murder of Nambaje. See Ndayambaje Notice of Appeal, para. 196; Ndayambaje Appeal Brief, paras. 202, 621, 628, 629, 650, 651, 672, referring, inter alia, to Trial Judgement, para, dayan baje Notice of Appeal, paras, 194, 198, 199, 201; Ndayambaje Appeal Brief, paras. 615-630, 668, 669. See also Ndayambaje Reply Brief, para. 255. 7486 Ndayambaje Appeal Brief, paras. 214, 616, referring to Trial Judgement, paras. 4602, 4603. 7487 Ndayambaje Appeal Brief, para. 618. 1124 Case No. ICTR-98-42-A 14 December 2015

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19240/H this respect that the Trial Chamber had considered that an ambiguity in a witness's testimony as to the date of another event undermined the witness's credibility. 7488 3266. Ndayambaje further contends that the Trial Chamber erred in accepting Witness QAR's testimony despite the numerous and material inconsistencies and contradictions within her evidence.?489 He points in particular to the fact that Witness QAR: (i) said in her 1995 statement that she was an eyewitness to the massacre of four abducted young girls, while she testified at trial that she was part of the group of abducted women and that this group was composed of eight victims; (ii) contradicted her 1995 statement by testifying that the abducted women were not killed at the Virgin Mary Statue but transported to Gasenyi where they were killed; (iii) was inconsistent during her testimony regarding whether she was also one of the victims and transported to Gasenyi; (iv) stated that the assailants were led by the conseiller of Saga in her 1994 statement, while she testified at trial that they were led by one man named Masima; and (v) failed to mention the swearing-in ceremony and the abduction in her statement of May 19977490 Ndayambaje argues that Witness QAR's explanation that the investigators recorded her statement poorly is not credible given the nature and materiality of the contradictions and omissions

49' In Ndayambaje's view, the Trial Chamber erred in ignoring or considering as insignificant the inconsistencies and contradictions within Witness QAR's evidence and failed to provide a reasoned opinion for accepting Witness QAR's contradicted and doubtful testimony about the abduction. 492 3267. The Appeals Chamber also understands Ndayambaje to submit that the Trial Chamber erred in accepting Witness QAR's account on his presence and words spoken at the Virgin Mary Statue during the abduction because it was uncorroborated. 7493 3268. The Prosecution responds that Ndayambaje fails to demonstrate that the Trial Chamber erred in relying on Witness QAR's consistent evidence. 494 It argues that a trial chamber can reject parts of a witness's evidence and accept others, that it was reasonable for the Trial Chamber to find that the abduction Witness QAR recounted must have occurred after the swearing-in ceremony in 7488 Ndayambaje Appeal Brief, para. 618, referring to Trial Judgement, para. 3668. 7489 Ndayambaje Appeal Brief, paras. 622-630, referring to Witness QAR's 1995 Statement, Witness QAR's May 1997 Statement, Witness QAR's October 1997 Statement. 7490 Ndayambaje Appeal Brief, paras. 212, 213, 616, 622, 625, 626. See also Ndayambaje Reply Brief, paras. 248-254. In support of his argument regarding whether the witness was one of the victims, Ndayambaje quotes portions

of Witness QAR's testimony about the abduction, in which the witness excluded herself from the narrative and referred to "those ladies and young girls" or "the women and girls", comparing them with Witness QAR's testimony on the Mugombwa Church massacre, where she explicitly included herself into the narrative. See Ndayambaje Appeal Brief, 7491 Ndayambaje Appeal Brief, para. 623. 7492 Ndayambaje Appeal Brief, para.

668. See also ibid., paras. 638, 640. Ndayambaje argues that, according to the interpretence hi the our sale than ber, he a rete ain no elity raise by Wine . Ras a stimony ought to have been 7493 Ndayambaje Notice of Appeal, para. 194; Ndayambaje Appeal Brief, paras. 612, 615, 620. 1125 Case No. ICTR-98-42-A 14 December 2015

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19239/H light of Witnesses QAF's and FAU's evidence, and that the inconsistencies within her evidence highlighted by Ndayambaje do not exist or are not material. 495 3269. Ndayambaje replies that, contrary to the Prosecution's assertions, Witness QAR repeatedly changed her testimony with respect to her presence at the events?49 He argues that the fact that she failed to mention being one of the victims in her prior statements cannot be considered as non-material. 7497 3270. The Appeals Chamber observes that the Trial Chamber expressly considered that Witness QAR testified that the abduction took place in the days following a meeting at Mugombwa commune office which Ndayambaje and Nteziryayo attended?498 However, the Trial Chamber found that "it [was] not evident that the meeting about which Witness QAR testified [was] Ndayambaje's swearing-in ceremony" 749% explaining that it was not "plausible" that she attended the meeting in question given that she was a Tutsi and relying on the several inconsistencies between her account and the testimony of other witnesses in this regard. 500 Ndayambaje does not develop any argument to explain why a reasonable trier of fact could not have accepted Witness QAR's corroborated and detailed testimony about the abduction at Mugombwa, while concluding that she did not personally attend his swearing-in ceremony. His contention in this respect is accordingly rejected. The Appeals Chamber also dismisses Ndayambaje's undeveloped submission that Witness QAR's testimony was implausible in many other respects.

3271. The Trial Chamber recalled in the course of its deliberations that Witness QAR testified that the meeting that preceded the abduction about which she spoke took place on 18 June 1994.7501 It considered that Witness QAR "may well have been mistaken while placing the purported meeting in mid-June 1994 due to the various meetings she attended at the Muganza commune office before, during and after the war" and "may have had a distorted view of the timing of the events in question 7494 Prosecution Response Brief, para. 2491. 1495 Prosecution Response Brief, paras. 2488-2491, 2496-2499. The Prosecution submits that Witness QAR was clear at trial that she was detained with the other women and girls kept at the Virgin Mary Statue and that she was not taken to Gasenyi but went home because when her name was read out, another woman who had the same first name was taken. It argues that the English transcript of her testimony does not reflect that she testified that she went to "Mugasenyi" and that, even if the witness in fact testified that "On nous a conduites à un endroit qu'on appelle 'Mu Gasenyi"" as reflected in the French transcript, this can be easily explained as a "slip of the tongue". See ibid., para. 2489 (emphasis in original), referring to Witness QAR, T. 19 November 2001 p. 65 (French). The Prosecution also points out that Ndayambaje failed to cross-examine Witness QAR

on the fact that she omitted to mention in her prior statements that she was part of the group of abducted women. It further contends that Witness QAR did not mention her own victimisation because she did not find it important, as illustrated by the fact that she only mentioned it in response to the question why she could be certain about the date of the incident. See ibid., para. 2498. 496 Ndayambaje Reply Brief, paras. 248-253. 7497 Ndayambaje Reply Brief, para. 254. 7498 Trial Judgement, para. 4710. 7499 Trial Judgement, para. 4710. 7500 Trial Judgement, paras. 4602, 4603, 4710. 1126 Case No. ICTR-98-42-A 14 December 2015

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19238/H given the passage of the time", finding her to be "credible in all other respects" 7502 Ndayambaje does not show that this determination was unreasonable. He merely refers to the assessment of the credibility of the account of another witness about a different meeting that has no connection with this particular instance and is, as such, irrelevant. 7503 3272. The Appeals Chamber further observes that, prior to concluding that Witness QAR provided credible evidence with respect to the abduction of the Tutsi women and girls in Mugombwa Sector, the Trial Chamber addressed a number of the alleged inconsistencies and contradictions within Witness QAR's evidence pointed out by Ndayambaje as well as the witness's explanations for them.7504 3273. In particular, the Trial Chamber discussed the alleged inconsistencies between Witness QAR's testimony at trial and her prior statements regarding the number of abducted women and girls, whether they were immediately killed, and where they were killed. 505 The Trial Chamber accepted the witness's explanation that her statements were not recorded correctly and found that these inconsistencies were minor and did not go to the root of her account. 506 Having reviewed the relevant excerpts of Witness QAR's prior statements and testimony, the Appeals Chamber finds that the Trial Chamber's conclusion was not unreasonable.

3274. The Trial Chamber did not expressly discuss the purported inconsistencies in Witness QAR's evidence relating to whether she was part of the group of abducted women, whether she was transported to Gasenyi, her failure to mention the ceremony and the abduction in her May 1997 statement as well as who was leading the assailants. The Appeals Chamber notes that Ndayambaje did not draw the Trial Chamber's attention to these inconsistencies, notwithstanding his position on appeal that they are so material that Witness QAR's evidence is unbelievable. 507 3275. Moreover, concerning Witness QAR's evidence as to whether or not she was part of the group of abducted women, the Appeals Chamber considers that the witness's reference to the group of abducted women and girls as "they", "them", or "these women and girls" in her 1995 and 7501 Trial Judgement, para. 4710. 7502 Trial Judgement, paras. 4710, 4711. 7503 Ndayambaje Appeal Brief, para. 618, referring to Trial Judgement, para. 3668 (discussing Witness RV's testimony to the effect that he took part in three meetings in Kirarambogo between April and June 1994). 7504 Trial Judgement, paras. 4660, 4661, 4733, 4734, 4746. 7505 Trial Judgement, paras. 4733, 4734. 7506 Trial Judgement, paras. 4733, 4734. 7507 The Appeals Chamber observes that the only arguments that Ndayambaje raised in his closing submissions were that Witness QAR falsely testified that she was part of the abducted women and that her testimony was inconsistent about whether the girls and women were killed "on the spot" or brought to and killed at Gasenyi. See Ndayambaje Closing Brief, pp. 781-783; Ndayambaje Closing Arguments, T. 30 April 2009 pp. 29, 30. 1127 Case No. ICTR-98-42-A 14 December 2015

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19237/H October 1997 statements and at times in her testimony?s08 is reasonably explained by the fact that she was addressing the issue or answering questions put to her which specifically related to the fate of the women and girls who were abducted and killed?50 When specifically being asked how she could remember the date of the abduction, Witness QAR unambiguously testified that she was part of the group of abducted women but did not share the fate of others as she was released.?510 The Appeals Chamber therefore sees no contradiction in Witness QAR's evidence on this issue. It is also not persuaded that, given the witness's emphasis on the fact that the abducted women and girls were killed and the circumstances of her presence at the Virgin Mary Statue, Witness QAR's failure to mention that she was one of the abducted women in her prior statements is material and required discussion by the Trial Chamber.

3276. With respect to whether Witness QAR contradicted herself in stating that she was brought to Gasenyi with the other women and girls, the Tribunal's language section clarified that the French transcript of Witness QAR's testimony given in Kinyarwanda does not accurately reflect the witness's testimony. 7511 Witness QAR did not testify as reflected in the French transcript that she was transported to Gasenyi with the group of abducted women and girls but, instead, consistently stated that she was not taken to Gasenyi. 7512 Ndayambajc's argument in this respect - which relies on the French transcript of the witness' testimony - is therefore rejected.

3277. As to the alleged inconsistency regarding the identity of the leader of the assailants, the Appeals Chamber observes that it is indicated in Witness QAR's 1995 Statement that the group of assailants was led by "the conseillers of Saga", whereas she refuted this in court and testified that the leader was not a conseiller but a man named Masima.?513 As noted by the Trial Chamber, Witness QAR explained that her 1995 statement had not been correctly recorded. 514 The Appeals Chamber reiterates that it is within the discretion of a trial chamber to evaluate inconsistencies in 7508 Witness QAR's 1995 Statement, p. K0181455 (Registry pagination); Witness QAR's October 1997 Statement, p. K0052277 (Registry pagination); Witness QAR, T. 19 November 2001 pp. 57, 58, 60, 61; T. 21 November 2001 Bin Witness QAR's 1995 Statement, P. KO181455 (Registry pagination); Witness QAR's October 1997 Statement, p. K0052277 (Registry pagination); Witness QAR, T. 19 November 2001 pp. 57, 58; T. 21 November 2001 pp. 96-102, 107. 7510 Witness QAR, T. 19 November 2001 pp. 57, 58, T. 21 November 2001 pp. 96-99, 102, 107. 7511 Compare Witness QAR, T. 19 November 2001 p. 65 (French) ("On nous a conduites à un endroit qu'on appelle 'Mu Gasenyi"') with audio recording of Witness QAR's testimony of 19 November 2001, at 02:27:22-02:28:18 ("Ni ahantu bita Mu Gasenyi hari amatanura. Niho babajyanye"). See

also Witness QAR, T. 19 November 2001 p. 58 ("They took them to a place called Mugasenyi"). The Appeals Chamber notes that, according to the Tribunal's language section, the English translation of Witness QAR's testimony in Kinyarwanda is correct. 7512 See Witness QAR, T. 21 November 2001 p. 101 ("Q. You, yourself, madam, were you taken to Gasenyi? A. No, I wasn't taken there."). See also Witness QAR, T. 19 November 2001 p. 58, T. 21 November 2001 pp. 97, 102; Witness QAR's 1995 Statement, p. K0181455 (Registry pagination); Witness QAR's October 1997 Statement, . K005227 (Registry pagination) 513 Witness OAR's 1995 Statement, p. K0181455 (Registry pagination); Witness QAR, T. 21 November 2001 pp. 97 199 Trial Judgement, para. 4734, referring to Witness QAR, T. 21 November 2001 pp. 111-113. 1128 Case No. ICTR-98-42-A 14 December 2015

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19236/H the evidence, to consider whether the evidence taken as a whole is reliable and credible, 515 without explaining its decision in every detail,7516 and that the fact that a trial chamber does not address or mention alleged discrepancies does not necessarily mean that it did not consider them.517 In this instance, Ndayambaje does not demonstrate the unreasonableness of Witness QAR's explanation or that the inconsistency in her evidence as regards the identity of the leader of the assailants was such that it required express consideration and undermines the Trial Chamber's finding on Witness QAR's credibility.

3278. Likewise, the Appeals Chamber finds no merit in Ndayambaje's argument that Witness QAR did not mention Ndayambaje's Swearing-In Ceremony or the abduction in her May 1997 Statement given that it is evident from the reading of the statement that it was made in response to queries concerning the Mugombwa Church massacre specifically.?518 3279. Finally, the Appeals Chamber recalls that corroboration is not a requirement and that a trial chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony. 519 In the absence of a demonstration that it was unreasonable for the Trial Chamber to rely on Witness QAR's uncorroborated testimony about Ndayambaje's presence and utterances at the Virgin Mary Statue, the Appeals Chamber rejects Ndayambaje's allegation of error in this respect.

3280. The Appeals Chamber therefore finds that Ndayambaje's arguments addressed above do not demonstrate that the Trial Chamber erred in its assessment of the credibility of Witness QAR's account of the abduction.

2. Assessment of Defence Evidence 3281. Ndayambaje submits that the Trial Chamber erred in rejecting without valid reason the evidence of Defence Witnesses JAMES, BOZAN, MUZIK, ANGES, and Stan as well as his own testimony that he was not involved in the abduction of the women and girls from Mugombwa.?520 7515 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 467; Hategekimana Appeal Judgement, para. 82; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para.

207. See, e.g., Nizeyimana Appeal Judgement, para. 223; Rukundo Appeal Judgement, para. 81; Karera Appeal Tudgement, para. 174; Kvocka et al. Appeal Judgement, para.

23. See, e.g., Ntawukulilyayo Appeal Judgement, para. 152; Nchamihigo Appeal Judgement, para. 165; Krajisnik Appeal Judgement, para. 139; Musema Appeal Judgement, paras. 18-20. See Witness QAR's May 1997 Statement. 7519 See Bagosora and Nsengiyumva Appeal Judgement, para.

251. See also Karemera and Ngirumpatse Appeal Judgement, para. 462; Bizimungu Appeal Judgement, para. 241; Hategekimana Appeal Judgement, para. 150; Nchamihigo Appeal Judgement, para.

42. See also Ndayambaje Reply Brief, paras. 256-265. The Appeals Chamber notes that Ndayambaje further referred to brief without developing any specific argument relating to the assessment of this witness's evidence regarding the 1129 Case No. ICTR-98-42-A 14 December 2015

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19235/H (a) Witnesses JAMES and BOZAN 3282. The Appeals Chamber notes that the Trial Chamber accepted Witness JAMES's evidence insofar as it corroborated Witness QAR's account of the abduction of the Tutsi women and girls, the number of abducted women and girls, the identity of the leader of the group of assailants, and their gathering at the Virgin Mary Statue 21 The Trial Chamber similarly accepted Witness BOZAN's evidence insofar as it corroborated Witness QAR's account as to the identity of the leader of the group of assailants, the sequence of events, including the stop at the statue, and the fact that the abducted women and girls were taken to Gasenyi to be killed. 7522 3283. The Trial Chamber noted that Witnesses JAMES and BOZAN directly contradicted Witness QAR since both testified that Witness QAR was not part of the group of the abducted women and girls and that Ndayambaje did not come to the Virgin Mary Statue?523 It found that, because Witness JAMES was working on that day and stayed at the statue for less than five minutes, he was not in a position to testify that Witness QAR did not leave the house where she was staying at all on the day of the abduction and his testimony did not "preclude" Witness QAR's or Ndayambaje's presence at the statue after he left. 524 It further recalled its previous finding that Witness JAMES was not credible in respect of Witness QAR's

whereabouts during the Mugombwa Church massacre and Ndayambaje's Swearing-In Ceremony 7525 Moreover, the Trial Chamber determined that Witness BOZAN, like Witness JAMES, was not in a position to testify that Witness QAR or Ndayambaje were not present at the statue during the abduction as the witness only stayed there about five minutes. 7526 It also found that Witness BOZAN's testimony was not credible based on his failure to take steps to protect the abducted women and girls or arrest the assailants, even though he knew them, and based on his implication in the Mugombwa Church massacre. 527 The Trial Chamber concluded: In summary, the presence of Witnesses BOZAN and JAMES in the vicinity of the Statue of the Virgin Mary on the day of the abduction, for a short overlapping period of time, does not preclud abduction, the Appeals Chamber will not examine the Trial Chamber's findings regarding this particular witness's evidence. See Ndayambaje Appeal Brief, paras. 642-644. The Appeals Chamber will also not discuss Ndayambaje's challenges to the assessment of the evidence of Witnesses SABINE and KWEPO that he developed under Ground 20 of relating to the Trial Chamber's assessment of this evidence. See supra, Section IX.H.1(a). 7522 Trial Judgement, paras. 4724, 4728, 4729, 4741. 7523 Trial Judgement, paras. 4735, 4736, 4742, 4745. 7524 Trial Judgement, paras. 4737-4739. 7525 Trial Judgement, para. 4740. 7526 Trial Judgement, para.

4742. The Trial Chamber noted that Witness BOZAN testified that he returned to the Virgin Mary Statue only one hour and 15 minutes to one hour and 25 minutes later. See ibid., para. 4743. 7527 Trial Judgement, para. 4744. 1130 Case No. ICTR-98-42-A 14 December 2015

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19234/H either Witness QAR's or Ndayambaje's presence at the site. Their evidence, although consistent, is not conclusive.

3284. Ndayambaje submits that the Trial Chamber erred in rejecting the testimonies of Witnesses JAMES and BOZAN contradicting Witness QAR's evidence regarding her presence as well as that of Ndayambaje at the Virgin Mary Statue even though it found their evidence consistent.7529 With respect to Witness JAMES, Ndayambaje submits that the Trial Chamber's finding that the witness was not in a position to testify that Witness QAR did not leave the house at all on the day of the abduction because he was working on that day is "not justified" given that Witness JAMES "worked just by the entrance of Witness QAR's house" 1530 He also asserts that, contrary to the Trial Chamber's finding, Exhibit D655 - a sketch and photographs of the relevant premises - shows that Witness QAR could not have arrived at the Virgin Mary Statue or come back home after the incident without being seen by Witness JAMES?53' He adds that, given Witness JAMES's vantage point at the time, the witness would necessarily have seen Ndayambaje's vehicle pass in front of his place of work and seen him at the statue if he had been there. 532 3285. With respect to Witness BOZAN, Ndayambaje submits that the Trial Chamber erred in finding that the witness was not credible on the grounds that he was implicated in the Mugombwa Church massacre and that he failed to take any steps to protect the abducted women or arrest

the assailants afterwards, even though it acknowledged that the witness had made considerable efforts to rescue the abducted girls and alert the commune authorities 533 Ndayambaje contends that no evidence suggested that Witness BOZAN had either the power or the means to arrest the armed attackers who came from another commune and that the Trial Chamber wrongly ignored that the witness reported the incident to the then bourgmestre of Muganza Commune, which also indicated 7528 Trial Judgement, para. 4745. 7529 Ndayambaje Appeal Brief, paras. 633, 637, 638, 641. Ndayambaje further argues that the Trial Chamber should have applied the same reasoning applied by the Appeals Chamber in the Kalimanzira case and by the Trial Chamber in this case with respect to Witness BCZ's evidence on meetings at the Hotel Ihuliro and that the Trial Chamber impermissibly shifted the burden of proof when assessing Witnesses JAMES's and BOZAN's evidence. See Ndayambaje Notice of Appeal, para. 203, referring to Trial Judgement, para. 4745; Ndayambaje Appeal Brief, para. 641, referring to Kalimanzira Appeal Judgement, para. 185, Trial Judgement, paras. 3103-3106, 4745. In the absence of any explanation as to the pertinence of the assessment of the evidence of other witnesses concerning other incidents in the Kalimanzira case and the other parts of the Trial Judgement and as to how the Trial Chamber allegedly reversed the burden of proof, the Appeals Chamber dismisses these contentions without further consideration. 7530 Ndayambaje Appeal Brief, para. 634, referring to Trial Judgement, para. 4737. 7531 Ndayambaje Appeal Brief, para.

636. See also Ndayambaje Appeal Brief, para. 635; Ndayambaje Reply Brief, Ba dayambaje Appeal Brief, para, 636. See also Ndayambaje Reply Brief, para, 256. Nidayambaje argues that a site visit by the Trial Chamber would have removed this ambiguity. See ibid. 7533 Ndayambaje Appeal Brief, para. 639, referring to Trial Judgement, paras. 4741-4744, fn.

558. See also ibid., para. 229, fn. 276; Ndayambaje Reply Brief, para. 257. 1131 Case No. ICTR-98-42-A 14 December 2015

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19233/H that the abduction took place well before Ndayambaje's Swearing-In Ceremony as bourgmestre of Muganza.7534 3286. The Prosecution responds that Ndayambaje's submissions regarding Witness JAMES should be rejected as he fails to demonstrate that the Trial Chamber erred in finding that the witness was not credible and that his arguments as to the witness's ability to observe the incident from his place of work are "unsupported and unreferenced speculations" 7535 The Prosecution further responds that, while Ndayambaje is correct that the Trial Chamber erred in finding that Witness BOZAN was implicated in the Mugombwa Church massacre, he does not show that the Trial Chamber erred in finding that the witness was neither reliable nor credible.?$36 3287. The Appeals Chamber observes that, contrary to the Prosecution's assertion, the Trial Judgement is unclear as to whether the Trial Chamber rejected the evidence of Witnesses JAMES and BOZAN relating to the abduction because it found that they were not credible. Although the Trial Chamber referred to their lack of credibility, its ultimate finding regarding the assessment of their evidence quoted above, and the fact that it relied on certain parts of their evidence as corroborative of that of Witness QAR, suggest that the Trial Chamber concluded that their evidence was not incompatible with Witness QAR's account.

3288. That being said, the Appeals Chamber finds that Ndayambaje does not demonstrate why the Trial Chamber was unreasonable in finding that Witness JAMES could not have accounted for Witness QAR's whereabouts during the whole day and for all events at the Virgin Mary Statue, including on Ndayambaje's presence there. Ndayambaje fails to appreciate that the Trial Chamber carefully considered Witness JAMES's testimony that he was working on that day and the short time that he was present at the statue together with evidence of the proximity of his workplace to the relevant locations. 7537 His arguments regarding Witness JAMES's place of work and the layout of the site are therefore rejected.

3289. Concerning the assessment of Witness BOZAN's evidence, the Appeals Chamber notes that, as held above, the Trial Chamber erred in stating that the witness was "implicated in the massacres at Mugombwa and was said that have had a machete when he went there" as the Trial Chamber did not make such findings anywhere in the Trial Judgement and that they are not supported by the evidence on the record. 538 However, the Appeals Chamber considers that this mistake has no 7534 Ndayambaje Appeal Brief, para.

640. See also Ndayambaje Reply Brief, para. 263. 7535 Prosecution Response Brief, paras. 2500-2502. See also AT. 2i April 2015 p. 59. 7536 Prosecution Response Brief, para. 2503. 7537 See Trial Judgement, paras. 4737, 4739; Witness JAMES, T. 2 June 2008 pp. 50-51 (closed session). 7538 Trial Judgement, para.

4744. See also supra, para.

3014. The Trial Chamber confused Witness BOZAN's name with that of another person bearing the same first name. See supra, para. 3015. 1132 Case No. ICTR-98-42-A 14 December 2015

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19232/H bearing on the Trial Chamber's findings pertaining to the abduction because the Trial Chamber found that Witness BOZAN's evidence of his presence at the Virgin Mary Statue for a short period of time was not necessarily inconsistent with evidence of Witness QAR's and Ndayambaje's presence at the statue.?539 Ndayambaje does not demonstrate that the Trial Chamber erred in this respect.

3290. The Trial Judgement also reflects that the Trial Chamber did consider Witness BOZAN's evidence that the abduction took place in mid-May 1994 when Ndayambaje was not bourgmestre of Muganza Commune but preferred the detailed evidence of Witness QAF concerning this event. 540 Recalling that, when faced with competing versions of the same event, it is the prerogative of the trier of fact to decide which version it considers more credible, 541 the Appeals Chamber dismisses Ndayambaje's contention that the Trial Chamber erred in not preferring Witness BOZAN's account of when the incident occurred.

3291. For these reasons, the Appeals finds that Ndayambaje has not demonstrated that the Trial Chamber erred in relying on Witness QAR's evidence despite Witnesses JAMES's and BOZAN's evidence. (b) Witness MUZIK 3292. The Trial Chamber found that Witness MUZIK's account of the abduction was not credible because he was not present during the abduction but accepted his testimony to the extent that it corroborated Witness QAR's evidence that the abducted women and girls were killed at Gasenyi. 7542 3293. Ndayambaje argues that the Trial Chamber erred in finding that Witness MUZIK was not credible because he was not present during the abduction and could not save the girls despite relying on other aspects of his testimony that corroborated that of Witness QAR.7543 He also submits that the Trial Chamber erroneously ignored that Witness MUZIK's testimony that he 7539 Trial Judgement, para. 4745. 7540 Trial Judgement, paras. 4716, 4717, fn. 12529. 7541 See, e.g., Nizeyimana Appeal Judgement, para, 254; Ndahimana Appeal Judgement, para. 46; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para.

29. Trial Judgement, paras. 4725, 4729, 4731 1133 Case No. ICTR-98-42-A 14 December 2015 84

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19231/H reported the incident to the then bourgmestre of Muganza Commune, who was not Ndayambaje, confirmed that the abduction occurred well before Ndayambaje's Swearing-In Ceremony. 7544 3294. The Prosecution responds that the Trial Chamber was correct to find that Witness MUZIK's testimony was not credible. 545 3295. The Appeals Chamber notes that, although the Trial Chamber referred to Witness MUZIK's inability to prevent the death of the two Tutsi girls he had in custody, the Trial Judgement reflects that the Trial Chamber rejected Witness MUZIK's testimony on their abduction because he was not present during the incident and that his evidence was therefore "questionable", which the Appeals Chamber understands to mean that the evidence lacked probative value. 546 Ndayambaje does not demonstrate the unreasonableness of this finding.

3296. A review of the Trial Judgement also shows that the Trial Chamber considered Witness MUZIK's evidence that the abduction took place in mid-May 1994 when Ndayambaje was not bourgmestre of Muganza Commune but preferred the detailed evidence of Witness QAF in this regard?547 Ndayambaje does not show that the Trial Chamber erred in the exercise of its discretion in the assessment of the evidence in reaching its conclusion.

3297. Accordingly, the Appeals Chamber finds no error in the Trial Chamber's assessment of Witness MUZIK's testimony relevant to the abduction in Mugombwa. (c) Witnesses ANGES, Stan, and Ndayambaje 3298. The Trial Chamber noted that Ndayambaje gave hearsay testimony about the attack and that Witnesses ANGES and Stan corroborated Witness QAR's testimony that the group of abductees included adolescent girls and that the women and girls were taken to Gasenyi, where they were killed. 548 3299. Ndayambaje submits that Witnesses ANGES's and Stan's testimonies that they were aware of the abduction of women and girls in mid-May 1994, but did not see or hear about his involvement contradict "the possibility that this event was the consequence of the swearing-in ceremony. "7549 Ndayambaje submits that the Trial Chamber also failed to take into account his own 7544 Ndayambaje Appeal Brief, para.

643. See also Ndayambaje Reply Brief, para. 263. 7545 Prosecution Response Brief, paras. 2505, 2506. 7546 Trial Judgement, paras. 4684, 4731. 7547 Trial Judgement, paras. 4716, 4717, fin. 12529. 7548 Trial Judgement, paras. 4720, 4726, 4729. 7549 Ndayambaje Appeal Brief, para.

645. Case No. ICTR-98-42-A 1134 14 December 2015

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19230/H evidence that he was not involved in the abduction, about which he learned in mid-May 1994, prior to his swearing-in ceremony. 7550 3300. The Prosecution responds that Ndayambaje's reliance on the evidence of Witnesses ANGES and Stan as well as on his own testimony is "unwarranted, since the Trial Chamber rejected the testimony of all three" ?5S1 3301. The Appeals Chamber notes that the Trial Chamber summarised the evidence of Witnesses ANGES and Stan to which Ndayambaje points and referred to it in its deliberations on the abduction, 552 which shows that it did not ignore this evidence. Similarly, the Trial Chamber referred to Ndayambaje's testimony. 7553 Ndayambaje's suggestion that the Trial Chamber failed to consider this evidence is therefore without merit. To the extent that Ndayambaje also intended to challenge the Trial Chamber's assessment of the evidence, the Appeals Chamber dismisses Ndayambaje's claim in the absence of a demonstration of how the Trial Chamber abused its discretion in assessing this evidence.

3302. Accordingly, the Appeals Chamber rejects Ndayambaje's contention regarding the assessment of his testimony as well as the testimonies of Witnesses ANGES and Stan related to the abduction of the Tutsi women and girls in Mugombwa.

3. Criminal Responsibility 3303. Having regard to the events that preceded the abductions, and the situation in Rwanda generally, and considering that the assailants asked Ndayambaje what they should do with the abducted Tutsi women and girls at the Virgin Mary Statue, the Trial Chamber found that Ndayambaje must have known of the assailants' genocidal intent. 7554 It also found that the killings of the abducted women and girls "taken by themselves or collectively [with the killing of Tutsis at Mugombwa Church and Kabuye Hill] occurred on a large scale."7555 As noted above, the Trial Chamber concluded that Ndayambaje was responsible of instigating genocide, persecution and extermination as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il in relation to the killings of the abducted women and girls. 556 7550 Ndayambaje Appeal Brief, para. 646 7551 Prosecution Response Brief, para. 2508 (internal references omitted). 7552 Trial Judgement, paras. 4696-4699, 4720, 4726, 4729. 7553 Trial Judgement, para. 4707. 7554 Trial Judgement, paras. 5958, 6065. 7555 Trial Judgement, para.

6065. See also ibid., para. 6064. 7556 Trial Judgement, paras. 5955-5959, 6064, 6066, 6107, 6108, 6125, 6175, 6176, 6186. 1135 Case No. ICTR-98-42-A 14 December 2015

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19229/H 3304. Ndayambaje submits that there is no evidence establishing that the assailants from Saga received instructions at his swearing-in ceremony or attended the event, or evidence supporting the inference that they possessed genocidal intent?557 He claims that, consequently, he could not know of their genocidal intent?558 In his view, it was deliberate on the part of the Trial Chamber to maintain confusion between the group of assailants from Baziro which were found to have acted pursuant to the instructions received at the ceremony and the group of assailants from Saga. 559 3305. The Appeals Chamber also understands Ndayambaje to contend that the Trial Chamber erred in convicting him of extermination in relation to the abduction because the abduction of eight identifiable women and girls in Mugombwa and of Nambaje in Baziro does not satisfy the large scale requirement that characterises the crime of extermination. 7560 3306. The Prosecution responds that Ndayambaje's claim that the evidence did not establish that the attackers had genocidal intent is unsubstantiated and should therefore be dismissed. 561 It also contends that Ndayambaje overlooks that the killings of Nambaje and the child she was taking care of and the eight women and girls abducted from Mugombwa were part of a larger pattern of killings following the swearing-in ceremony.?562 It adds that the victims

of the post-swearing-in wave of violence were also linked to the previous mass killings committed at Mugombwa Church and Kabuye Hill and that it would be artificial to consider these killings of victims targeted because of their Tutsi ethnicity in isolation. 7563 3307. Ndayambaje replies in relation to the crime of extermination that it "is not sufficient for the actions in question to be within the context of 'a larger pattern'" and that the "killing of ten people, even under these circumstances, did not meet the criterion of a "substantial contribution to extermination'" required for a conviction for extermination.?564 7557 Ndayambaje Appeal Brief, para. 664. 7558 Ndayambaje Appeal Brief, para. 664. 7559 Ndayambaje Appeal Brief, para.

665. See also AT. 21 April 2015 p. 30. 7560 Ndayambaje Appeal Brief, paras. 666, 667, referring to Mpambara Trial Judgement, paras. 9-11, Zigiranyirazo Trial Judgement, para.

438. Ndayambaje also refers to the fact that the girls were abducted by a group of identifiable attackers, coming from a commune other than Ndayambaje's and whose intentions Ndayambaje neither shared nor knew, and that Witness QAR, whom Ndayambaje and everyone knew to be a Tutsi, was released. See ibid., para.

666. The Appeals Chamber understands Ndayambaje's reference to the number of victims as relating to the large scale requirement of the crime of extermination as a crime against humanity, but fails to see how the fact that the group was composed of "perfectly identifiable" girls and abducted by a group of "identifiable" attackers demonstrates that the elements of the crime of extermination were not met. 7561 Prosecution Response Brief, para. 2513. 7562 Prosecution Response Brief, para. 2514, referring to Lukié and Lukié Appeal Judgement, para. 538. 7563 Prosecution Response Brief, para. 2514. 7564 Ndayambaje Reply Brief, para. 271, referring, inter alia, to Bagosora and Nsengiyumva Appeal Judgement, para. 396. 1136 Case No. ICTR-98-42-A 14 December 2015

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19228/H 3308. The Appeals Chamber notes that the Trial Chamber found that the individuals responsible for the killing of the abducted Tutsi women and girls had genocidal intent based on "the widespread killing of Tutsis throughout Rwanda as well as the fact that the assailants who abducted Nambaje came to a house claiming to look for Tutsis" 7565 The Appeals Chamber recalls its finding that the Trial Chamber erred in considering the abduction of Nambaje and the abduction of the Tutsi women and girls as one event and in convicting Ndayambaje for the abduction of Nambaje. 566 In this context, the Appeals Chamber finds that the Trial Chamber could not reasonably rely on the circumstances of the abduction of Nambaje to infer the mens rea of those who abducted and killed the Tutsi women and girls from Mugombwa Sector. However, Ndayambaje does not demonstrate that no reasonable trier of fact could have concluded that the assailants possessed genocidal intent based on "the widespread killing of Tutsis throughout Rwanda" at the relevant time and the fact that the abducted women and girls were targeted because they were Tutsis?567 As Ndayambaje does not show that the Trial Chamber erred in finding that the assailants had genocidal intent, his argument that he could not know of their genocidal intent because they had no such intent is similarly rejected.

3309. With respect to the crime of extermination, the Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale?568 "Large scale" does not suggest a strict numerical approach with a minimum number of victims.?569 The assessment of "large scale" is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. 7570 Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity. ?571 3310. It is unclear whether the individual killing of the eight abducted Tutsi women and girls Witness QAR testified about could be considered to meet the "large scale" requirement. 512 In any event, the Appeals Chamber finds that the Trial Chamber did not err in finding that, taken collectively with the killings perpetrated at Mugombwa Church and Kabuye Hill for which 7565 Trial Judgement, para.

5954. See supra, Section IX.H.1(a). 7567 Trial Judgement, paras. 4708, 5954. The Appeals Chamber finds no merit in Ndayambaje's argument that Witness QAR, known to be a Tutsi, was nonetheless released. 7568 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 660; Lukié and Lukié Appeal Judgement, para. 536; Bagosora and Nsengiyumva Appeal Judgement, para. 394; Ntakirutimana Appeal Judgement, para.

516. The Appeals Chamber notes that Ndayambaje failed to raise the alleged error pertaining to the crime of extermination in his notice of appeal. However, since the Prosecution did not object on this basis and responded to Ndayambaje's submission, the Appeals Chamber will exercise its discretion to consider Ndayambaje's arguments developed in his appeal brief. See, e.g., Lukic and Lukic Appeal Judgement, para. 537; Rukundo Appeal Judgement, para. 185; Ntakirutimana Appeal Judgement, para.

516. See also Bagosora and Nsengiyumva Appeal Judgement, fn.

924. Lukié and Lukié Appeal Judgement, para. 538 and references cited therein. 7571 Lukié and Lukié Appeal Judgement, para. 538 and references cited therein. 1137 Case No. ICTR-98-42-A 14 December 2015

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19227/H Ndayambaje was also convicted, the killing of the group of abducted women and girls "occurred on a large scale". The Appeals Chamber observes that the killing of the abducted women and girls was perpetrated in the same commune as the Mugombwa Church massacre and not far from the Kabuye Hill attacks, 7573 that Ndayambaje similarly encouraged by his presence or his words the assailants to perpetrate the crimes, 514 and that the victims were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis 575 The instant situation therefore differs from the situation addressed in the Bagosora and Nsengiyumva Appeal Judgement which Ndayambaje relies upon in support of his contention that the "large scale" requirement was not met regarding the killings of the abducted women and girls.?576 3311. In the circumstances of this case, the Appeals Chamber finds no error in the Trial Chamber's collective consideration of the events on the basis of which Ndayambaje was convicted to find him guilty of extermination as a crime against humanity for the killings of the group of abducted Tutsi women and girls?577 The Appeals Chamber dismisses Ndayambaje's argument in this respect.

4. Conclusion 3312. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in considering that Nambaje was part of the same group of abducted women and girls Witness QAR testified about and, consequently, in convicting Ndayambaje for instigating her killing through his words at the Virgin Mary Statue. However, the Appeals Chamber concludes that Ndayambaje has not demonstrated that the Trial Chamber erred in finding him responsible for genocide, extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for instigating the killing of the Tutsi women and girls from Mugombwa Sector based on his utterances at the Virgin Mary Statue in June 1994. 1572 Cf. Lukié and Lukié Appeal Judgement, para. 537. cap sitialso supra, para, 2125. Na yan at For i cigathe the ties amale i in a cose sup to se tien X Clamber erred in convicting 1138 Case No. ICTR-98-42-A 14 December 2015

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19226/H 3313. Accordingly, the Appeals Chamber grants in part Ground 20 of Ndayambaje's appeal and reverses Ndayambaje's convictions for instigating the killing of Nambaje. It will discuss the impact of this finding, if any, in Section XII below. The Appeals Chamber dismisses the remainder of Ground 20 of Ndayambaje's appeal. 1139 Case No. ICTR-98-42-A 14 December 2015

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19225/H X. APPEAL OF THE PROSECUTION 3314. The Trial Chamber found that Nsabimana's Swearing-In Ceremony held on 19 April 1994 was attended by President Sindikubwabo, Prime Minister Kambanda, Nyiramasuhuko, Kanyabashi, and a number of ministers from the Interim Government. 578 It held that the speeches given at this ceremony by Prime Minister Kambanda and President Sindikubwabo were inflammatory and contained coded language that was understood by the attendees and the public as a call to identify and kill Tutsis and their accomplices?579 The Trial Chamber determined that Kambanda's and Sindikubwabo's Speeches contributed to triggering the subsequent widespread killings and large-scale massacres in Butare Prefecture that constituted genocide, 580 thereby advocating and inciting genocide and contributing to these genocidal killings.?581 3315. The Trial Chamber determined that Kanyabashi's presence at the ceremony and his failure to dissociate himself from the statements made by Kambanda and Sindikubwabo constituted tacit approval of their inflammatory statements and the directives and instructions to the population contained therein. 582 It also found that Kanyabashi gave his own speech ("Kanyabashi's Speech") following those of Kambanda and Sindikubwabo, which supported their message and contained a commitment to execute the directives and instructions they announced.?583 The

Trial Chamber, however, did not find that Kanyabashi's Speech was inflammatory or that it substantially contributed to the genocide that followed?584 It concluded that, although Kanyabashi stated his support and commitment for the preceding speeches, his conduct did not rise to the level of directly inciting genocide and that the Prosecution had not adduced sufficient evidence to support that Kanyabashi substantially contributed to any incitement made by Kambanda, Sindikubwabo, or other speakers at the ceremony.?585 Accordingly, the Trial Chamber acquitted Kanyabashi of genocide and of direct and public incitement to commit genocide in relation to the speech he made at Nsabimana's Swearing-In Ceremony. 7586 3316. The Prosecution advances two grounds of appeal challenging Kanyabashi's acquittals on the charges of genocide and direct and public incitement to commit genocide based on Kanyabashi's 7578 Trial Judgement, para. 865. 7579 Trial Judgement, paras. 890, 898, 911, 925. See also ibid., paras. 5671, 5676, 5738, 5990. 7581 Trial Judgement, paras. 5753, 5992. 7582 Trial Judgement, paras. 918, 926, 5712, 5739. 7583 Trial Judgement, paras. 910, 911, 918, 926, 5713, 5740, 5992. See also ibid., paras. 917 ("the words used by Canyabashi when he concluded his speech [....] constituted an unambiguous commitment to support the objectives o he Interim Government as set forth in the speeches of Sindikubabwo and Kambanda."), 5752 ("Kanyabashi gave hi own speech in which he supported their message and committed to carrying out their instructions.") 7584 Trial Judgement, para. 5753. 7585 Trial Judgement, para. 5993. 7586 See Trial Judgement, paras. 5753, 5994. 1140 Case No. ICTR-98-42-A 14 December 2015

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19224/H Speech at Nsabimana's Swearing-In Ceremony 7587 It argues that the Trial Chamber erred in failing to find that Kanyabashi's express support to Kambanda's and Sindikubwabo's inflammatory speeches and his promise to carry out their directives to kill Tutsis made him criminally liable for the resulting genocide and also constituted direct and public incitement to commit genocide. 588 The Prosecution submits that the Trial Chamber erred in acquitting Kanyabashi of the crime of genocide that he committed or, in the alternative, instigated or aided and abetted, by delivering his speech on 19 April 1994 and in not finding him responsible for committing or aiding and abetting direct and public incitement to commit genocide through his speech. 589 The Prosecution therefore requests that, for his speech at Nsabimana's Swearing-In Ceremony, the Appeals Chamber: (i) convict Kanyabashi of committing or, in the alternative, instigating or aiding and abetting genocide;759 (ii) convict Kanyabashi of committing or, in the alternative, aiding and abetting direct and public incitement to commit genocide, 591 and accordingly (ili) impose a life sentence on Kanyabashi or, in the alternative, substantially increase his sentence. 7592 3317. Kanyabashi responds that the Prosecution fails to demonstrate that the Trial Chamber erred by acquitting him of genocide and direct and public incitement

to commit genocide for his speech at Nsabimana's Swearing-In Ceremony and that there is no ground to increase his sentence.7593 In addition, Kanyabashi raises seven supplementary grounds of appeal challenging the Trial Chamber's findings concerning Nsabimana's Swearing-In Ceremony on which the Prosecution relies in support of its submissions. ?594 7587 Prosecution Notice of Appeal, paras. 2-5; Prosecution Appeal Brief, paras. 1-44. See also AT. 22 April 2015 i Prosecution Appeal Brief, para. 2 7589 Prosecution Notice of Appeal, paras. 3, 5; Prosecution Appeal Brief, paras. 9-40 7590 Prosecution Notice of Appeal, para. 3; Prosecution Appeal Brief, paras. 2, 9, 19, 23, 27, 42. 7591 Prosecution Notice of Appeal, para. 5; Prosecution Appeal Brief, paras. 2, 9, 32, 40, 43. 7592 Prosecution Notice of Appeal, para. 5; Prosecution Appeal Brief, paras. 9, 41, 44. 7593 Kanyabashi Response Brief, paras. 120, 121, 138, 141, 143, 155, 164, 165, 168. Kanyabashi adds that entering a new conviction on appeal would violate his fundamental right to appeal and that, in any event, an increase of his current sentence of 35 years would not be in the interests of justice. See ibid., paras. 166, 167. 1594 Kanyabashi Response Brief, paras. 6, 15-118, referring, inter alia, to Practice Direction on Formal Requirements on Appeal, para. 5 ("if an Appellant relies on a particular ground to reverse an

acquittal, the Respondent may support the acquittal on additional grounds"). Specifically, Kanyabashi submits that the Trial Chamber erred in: (i) in denying his request to call Fidèle Mpiranya to replace François-Xavier Munyarugerero as an expert witness to analyse the speeches delivered at Nsabimana's Swearing-In Ceremony; (ii) failing to find that the fact that he expressed support for Kambanda's speech through his speech exceeded the scope of the Indictment and could therefore not serve as a basis for entering a conviction against him; (iii) concluding that he spoke after having heard Kambanda's and Sindikubwabo's inflammatory statements; (iv) concluding that Kambanda's and Sindikubwabo's Speeches shared common themes and that Kambanda's Speech was inflammatory; (v) finding that his speech constituted an unambiguous commitment to support the objectives of the Interim Government as set forth in Kambanda's and Sindikubwabo's Speeches; (vi) limiting its acceptance of the defence of duress he raised at trial to the count of conspiracy to commit genocide; and (vii) finding that Kambanda's and Sindikubwabo's Speeches triggered the massacres in Butare Prefecture. See idem. See also AT. 22 April 2015 pp. 9-22. 1141 Case No. ICTR-98-42-A 14 December 2015

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19223/H 3318. The Appeals Chamber will first address the Prosecution's submissions relating to Kanyabashi's responsibility for genocide before turning to its submissions concerning Kanyabashi's responsibility for direct and public incitement to commit genocide. 1142 Case No. ICTR-98-42-A 14 December 2015 ти

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19222/H A. Crime of Genocide (Ground 1) 3319. As noted above, the Prosecution submits that the Trial Chamber erred in not convicting Kanyabashi of committing or, in the alternative, instigating or aiding and abetting genocide through his speech at Nsabimana's Swearing-In Ceremony. 7595 1. Committing Responsibility 3320. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that Kanyabashi's Speech was not inflammatory and consequently not a trigger for the genocide that followed in Butare Prefecture as well as in failing to find that Kanyabashi was responsible for committing genocide 596 In support of its contentions, the Prosecution argues that a plain reading of Kanyabashi's Speech shows that, rather than dissociating himself from Kambanda's and Sindikubwabo's inflammatory statements, he approved and embraced as his own their genocidal instructions. 7597 It contends that Kanyabashi's influential position and leadership role in the community gave weight to his endorsement and that, considered in context, his speech was as inflammatory and as much a trigger for the ensuing genocide as Kambanda's and Sindikubwabo's Speeches. 7598 As such, the Prosecution argues that Kanyabashi's call to support and implement instructions to commit genocide was as much an integral part of the genocide as the carrying out of the killings by the physical perpetrators

and, therefore, constitutes the actus reus of committing genocide. 59º It further submits that the Trial Chamber's findings provide a basis for the conclusion that Kanyabashi acted with genocidal intent when he pronounced his speech at the ceremony. 7600 The Prosecution therefore requests the Appeals Chamber to enter a conviction against Kanyabashi for committing genocide under Count 2 of the Kanyabashi Indictment for the mass killings that were triggered in Butare. 601 • 3321. Kanyabashi responds that the Prosecution does not demonstrate any error in the Trial Judgement justifying a reversal of his acquittal for committing genocide on the basis of the speech he delivered at Nsabimana's Swearing-In Ceremony. 7602 He contends that the conclusion that he is responsible for committing genocide through this speech is not the only reasonable one from the 7595 Prosecution Notice of Appeal, para. 3; Prosecution Appeal Brief, paras. 2, 9, 19, 23, 27, 42. 7596 Prosecution Appeal Brief, paras. 10, 15, 19. See also AT. 22 April 2015 pp. 3, 8, 9. 7597 Prosecution Appeal Brief, paras. 10, 13. 7598 Prosecution Appeal Brief, paras. 10, 12, 14, 15. The Prosecution contends that Kanyabashi's Speech should not have been viewed in isolation as all three speeches were part of the same event and "were elements of one composite unified call to violence." See ibid., para.

14. See also Prosecution Reply Brief, paras. 42-44. 7599 Prosecution Appeal Brief, paras. 10, 11, 16, referring to Munyakazi Appeal Judgement, para. 135, Seromba Appeal Judgement, paras. 161, 171, Gacumbitsi Appeal Judgement, para.

60. See also Prosecution Reply Brief, paras. 67-70; AT. 22 April 2015 p. 8. 7600 Prosecution Appeal Brief, paras. 17, 18. 7601 Prosecution Notice of Appeal, para. 3; Prosecution Appeal Brief, paras. 19, 42. 1143 Case No. ICTR-98-42-A 14 December 2015

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19221/H evidence and that it is not demonstrated beyond reasonable doubt that his speech had any impact on the subsequent killings and massacres. 603 Kanyabashi further submits that the jurisprudence quoted by the Prosecution cannot lead to his conviction because it concerns accused who were intimately linked with the crimes committed whereas the evidence in this case is not even sufficient to support a conviction for aiding and abetting genocide. 604 3322. The Appeals Chamber has held in relation to genocide that "committing" under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.?605 The question is whether an accused's conduct was "as much an integral part of the [crimes] as were the killings which it enabled.»7606 In the cases where the Appeals Chamber has concluded that an accused's role constituted an integral part of the crimes, the accused were present at the crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators.7607 3323. Even if the Appeals Chamber were to overturn the Trial Chamber's findings that „Kanyabashi's Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that

Kanyabashi's approval of Kambanda's and Sindikubwabo's Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi's overall conduct as that of "committing" genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute "direct participation in the actus reus" of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. Consequently, the Appeals Chamber finds it unnecessary to discuss the Prosecution's submissions concerning Kanyabashi's genocidal intent. 7602 Kanyabashi Response Brief, paras. 126, 138. See also AT. 22 April 2015 pp. 20-22. 7603 Kanyabashi Response Brief, paras. 126, 128, 131. 7604 Kanyabashi Response Brief, para. 130. 7605 Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, sara. 161; Gacumbitsi Appeal Judgement, para. 60 606 Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement ara. 161; Gacumbitsi Appeal Judgement, para.

60. See also Nzabonimana Appeal Judgement, para. 477. 607 See Munyakazi Appeal Judgement, paras. 135, 136: Seromba Appeal Judgement, paras. 171, 172; Gacumbitsi Appeal Judgement, paras. 60, 61. See also Nzabonimana Appeal Judgement, para. 477; Kalimanzira Appeal Judgement, paras. 219, 220. 1144 Case No. ICTR-98-42-A 14 December 2015

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19220/H 3324. The Appeals Chamber therefore dismisses this aspect of the Prosecution's appeal.

2. Instigating Responsibility 3325. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that Kanyabashi's conduct did not substantially contribute to the massacres in Butare Prefecture that followed Nsabimana's Swearing-In Ceremony as well as in failing to conclude, on the basis of its own factual findings, that Kanyabashi's Speech amounted to instigating genocide.?608 The Prosecution contends that "[the prompting here was Kanyabashi's public commitment that he and the population would carry out the instructions to massacre Tutsis" and that "[t]he substantial contribution his prompting made to the commission of genocide flowed from the weight of his authority, as the elder of the Butare bourgmestres, and the influence and respect he commanded among the people."7609 It further contends that Kanyabashi was, at a minimum, aware of the substantial likelihood that massacres would be committed following his speech. 610 The Prosecution therefore requests that the Appeals Chamber enter a conviction against Kanyabashi for instigating genocide under Count 2 of the Kanyabashi Indictment. 7611 3326. Kanyabashi responds that the Prosecution does not demonstrate that the Trial Chamber erred by acquitting him of instigating genocide for his speech at Nsabimana's Swearing-In Ceremony. 7612 In Kanyabashi's view, there is no basis to conclude that the three

speeches were elements of one composite unified call to violence and that it is not the only reasonable conclusion from the evidence?613 Kanyabashi submits that the jurisprudence quoted by the Prosecution shows that it needed to establish a link between his speech and the killings that followed and that such a connection was not established in this case.?614 3327. The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence?61S It is not necessary to prove that the accused was present when the 7608 Prosecution Appeal Brief, paras. 20, 23. See also AT. 22 April 2015 p. 8. 7609 Prosecution Appeal Brief, para. 21 (internal references omitted), referring to Trial Judgement, paras. 795, 932, 6255. See also Prosecution Reply Brief, paras. 46, 47, 56-58. 7610 Prosecution Appeal Brief, para. 22. 7611 Prosecution Notice of Appeal, para. 3; Prosecution Appeal Brief, paras. 23, 42. 7612 Kanyabashi Response Brief, paras. 139, 141. 7613 Kanyabashi Response Brief, paras. 128, 139. Kanyabashi also submits that he was acquitted of conspiracy to 7614 Kanyabashi Response Brief, para. 139, referring to Seromba Appeal Judgement, para. 45. 7615 See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, para. 480; Kordié and Cerkez Appeal Judgement, para. 27. 1145 Case No. ICTR-98-42-A 14 December 2015

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19219/H instigated crime was committed?616 or that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime. 617 3328. The Trial Chamber found that Kanyabashi's Speech was not inflammatory and did not substantially contribute to the genocide in Butare Prefecture that followed the ceremony?618 The Trial Chamber did not further discuss Kanyabashi's alleged responsibility for instigating genocide in relation to his speech. The Appeals Chamber is not persuaded by the Prosecution's contention that Kanyabashi's conduct as found by the Trial Chamber satisfies the actus reus of instigating. As noted above, the Trial Chamber determined that Kambanda's and Sindikubwabo's Speeches were inflammatory and constituted a call to the public to identify and kill Tutsis and their accomplices, and that Kanyabashi gave a speech following those of Kambanda and Sindikubwabo, in which he supported their message and committed to execute their directives and instructions. The Appeals Chamber considers that Kanyabashi's commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill

Tutsis. 7619 In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi's Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,7620 the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.

3329. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in not finding that Kanyabashi's Speech prompted the people in Butare Prefecture to kill Tutsis and that Kanyabashi was therefore liable for instigating genocide. The Appeals Chamber therefore dismisses this part of the Prosecution's appeal.

3. Aiding and Abetting Responsibility 3330. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that Kanyabashi's Speech did not substantially contribute to the subsequent massacres and, contrary to 7616 Nahimana et al. Appeal Judgement, para.

660. See also Boskoski and Tarculovski Appeal Judgement, para. 125, fn. 347. 7617 See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordic and Cerkez Appeal Judgement, para. 27. 7618 Trial Judgement, para. 5753. 619 The Black's Law Dictionary defines the verb "prompt" as "to incite, especially to immediate action". See Black's Law Dictionary, 9" edition, 2009. In the Oxford Dictionary the verb "prompt" is defined as "to incite to action: to move or induce (a person, etc.) to or to do something". See Oxford English Dictionary, 2015. 7620 See also infra, para. 3333. 1146 Case No. ICTR-98-42-A 14 December 2015

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19218/H its own factual findings, in failing to conclude that his speech constituted aiding and abetting genocide. 621 It contends that Kanyabashi's contribution to the ensuing massacres was rendered substantial when he committed to Kambanda's and Sindikubwabo's instructions to massacre Tutsis, embraced these instructions as his own, and lent moral support through his influential position. 622 The Prosecution further argues that Kanyabashi's endorsement of and promise to execute the Interim Government's genocidal instructions while knowing that mass killings were taking place in neighbouring prefectures signaled, at a minimum, that he knew of the likelihood that genocide would be committed following the speeches and that his conduct would assist in its commission. 623 The Prosecution therefore requests that the Appeals Chamber enter a conviction against Kanyabashi for aiding and abetting genocide under Count 2 of the Kanyabashi Indictment. 624 3331. Kanyabashi responds that the Prosecution does not demonstrate that the Trial Chamber erred in finding that his speech did not substantially contribute to the killings that followed in Butare Prefecture. 625 He reiterates that the conclusion that the three speeches were elements of one composite unified call to violence is not the only reasonable conclusion from the evidence. 626 Kanyabashi further restates that his speech did not

substantially contribute to the killings that followed Nsabimana's Swearing-In Ceremony since no link was established between his speech and the principal perpetrators of the killings.?627 3332. The Appeals Chamber recalls that the actus reus of aiding and abetting "consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime."7628 It is also well-established "that proof of a causal relationship, in the sense of a conditio sine qua non, between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition to the commission of the crime, is not required" as long as "the support of the aider and abettor has a substantial effect upon the perpetration of the crime."7629 Whether a particular contribution qualifies as "substantial" is a . 7621 Prosecution Appeal Brief, paras. 24, 27. See also AT. 22 April 2015 p. 8. 7622 Prosecution Appeal Brief, para. 25. 7623 Prosecution Appeal Brief, para. 26. 7624 Prosecution Notice of Appeal, para. 3; Prosecution Appeal Brief, para.

27. Kanyabashi Response Brief, paras. 142, 143. Kanyabashi contends that the Prosecution does not rely on any evidence to state that Kanyabashi was an influential figure in all Butare Prefecture. See ibid., paras. 127, 142. 7626 Kanyabashi Response Brief, paras. 128, 142. Kanyabashi also submits that he was acquitted of conspiracy to commit genocide and that the Prosecution did not appeal this conclusion. See ibid., para. 128. 7627 Kanyabashi Response Brief, paras. 126, 130, 132-137, 142, 143. Regarding the mens rea, Kanyabashi argues that the Prosecution only relies on the evidence of Prosecution Expert Witness Guichaoua which goes beyond the weight that can be given to an expert witness's testimony. See ibid., paras. 128, 142, 144. 7628 Sainovié et al. Appeal Judgement, para.

1649. See also Popovié et al. Appeal Judgement, para. 1758; Blaskié Appeal Judgement, para.

46. Braanin Appeal Judgement, para.

348. See also Simié Appeal Judgement, para. 85; Blaskic Appeal Judgement, paras. 46, 48; Kayishema and Ruzindana Appeal Judgement, para. 201. 1147 Case No. ICTR-98-42-A 14 December 2015

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19217/H fact-based inquiry. 630 Moreover, the actus reus may occur before, during, or after the principal crime has been perpetrated and the location at which the actus reus takes place may be removed from the location of the principal crime?631 The Appeals Chamber further recalls that it is not necessary for the principal perpetrator to be aware of the aider and abettor's contribution.

3333. The Appeals Chamber is not persuaded that the Trial Chamber erred in finding that Kanyabashi's Speech did not substantially contribute to the genocide in Butare Prefecture that followed Nsabimana's Swearing-In Ceremony. 633 The Appeals Chamber notes that, although the Trial Chamber appears to have primarily relied on its finding that Kanyabashi's Speech was not inflammatory to reach its conclusion, it also relied on "the evidence in its totality" 7634 The Prosecution fails to demonstrate that the evidence on the record shows otherwise and eliminates all reasonable doubt that Kanyabashi's Speech substantially contributed to the subsequent massacres in Butare Prefecture. Indeed, the Appeals Chamber observes that, while the Trial Chamber found that Kambanda's and Sindikubwabo's Speeches contributed to the genocide in Butare Prefecture, 7635 the Prosecution does not point to any evidence to support the conclusion that Kanyabashi's Speech did 636 In particular, the Prosecution does not point to any evidence showing or suggesting that Kanyabashi's supportive message and commitment to execute Kambanda's and Sindikubwabo's instructions encouraged or provided moral support to the attendees or the people of Butare Prefecture to kill Tutsis. The Prosecution also does not rely on any evidence connecting Kanyabashi's Speech in any way to the genocidal acts that occurred in the prefecture after the swearing-in ceremony, including the massacres expressly cited by the Trial Chamber. 637 In light of this and bearing in mind the Trial Chamber's finding that Kanyabashi's Speech was not of the same 7630 Lukic and Lukié Appeal Judgement, para. 438; Kalimanzira Appeal Judgement, para. 86; Blagojevié and Jokic Appeal Judgement, para.

134. See Nahimana et al. Appeal Judgement, para. 482; Ntagerura et al. Appeal Judgement, para. 372; Simic Appeal Judgement, para. 85; Blaskié Appeal Judgement, para. 48. 7632 Kalimanzira Appeal Judgement, para. 87; Tadic Appeal Judgement, para. 229. 7633 Trial Judgement, para. 5753. 7634 Trial Judgement, para. 5753. 7635 Trial Judgement, paras. 932, 5673, 5741, 5753. See also ibid., paras. 933, 5742, 5746. The Appeals Chamber observes that, as part of his supplementary grounds of appeal, Kanyabashi challenges the Trial Chamber's finding that Kambanda's and Sindikubwabo's Speeches triggered the genocide in Butare Prefecture that occurred after the swearing-in ceremony. See Kanyabashi Response Brief, paras. 109-118. The Appeals Chamber considers it unnecessary to discuss this issue in light of its conclusions on the merits of the Prosecution's appeal. 7636 The Appeals Chamber observes that neither the Trial Chamber nor the Prosecution cited evidence showing or suggesting that Kanyabashi's Speech was one of the factors that triggered the ensuing genocide. The Trial Chamber's conclusion that Kambanda's and Sindikubwabo's Speeches triggered the genocide was primarily based on the evidence on the impact of Sindikubwabo's Speech and the evidence that widespread killings of Tutsis did not occur in Butare Prefecture prior to 19 April 1994 and that there was "overwhelming evidence that

massacres in most of the Butare communes started in the wake of the events of 19 April 1994." See Trial Judgement, paras. 853-856, 927, 930, 932, 933. The Trial Chamber also cited Expert Witnesses Des Forges's and Reyntjens's testimonies that they also considered that both Kambanda's and Sindikubwabo's Speeches were factors that triggered the genocide in Butare Prefecture. See ibid., paras. 640, 643-645 (Alison Des Forges), 786 (Filip Reyntjens). See also ibid., paras. 668, 692-694 (André Guichaoua) See Trial Judgement, para. 5753, referring to, e.g., ibid., Sections 4.2.2.3.3 (Mugombwa Church), 4.2.2.3.4 (Kabuye Hill), 4.2.2.3.6 (Kabakobwa Hill). 1148 Case No. ICTR-98-42-A 14 December 2015 TuL

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19216/H nature as those of Kambanda and Sindikubwabo, the Appeals Chamber finds no error in the Trial Chamber's finding that Kanyabashi's Speech did not substantially contribute to the killings in Butare Prefecture that followed Nsabimana's Swearing-In Ceremony.

3334. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in finding that Kanyabashi's Speech did not substantially contribute to the genocide that followed Nsabimana's Swearing-In Ceremony and, consequently, in not holding him criminally responsible for aiding and abetting genocide on this basis. Consequently, the Appeals Chamber finds it unnecessary to discuss the Prosecution's submissions concerning Kanyabashi's mens rea and dismisses this remaining part of Ground 1 of the Prosecution's appeal. 1149 Case No. ICTR-98-42-A 14 December 2015

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19215/H B. Crime of Direct and Public Incitement to Commit Genocide (Ground 2) 3335. As noted above, the Prosecution submits that the Trial Chamber erred in not convicting Kanyabashi of committing or, in the alternative, aiding and abetting direct and public incitement to commit genocide through his speech at Nsabimana's Swearing-In Ceremony. 7638 1. Committing Responsibility 3336. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that Kanyabashi's Speech did not directly incite genocide and, consequently, in failing to convict him of committing direct and public incitement to commit genocide 7639 The Prosecution contends that, by unambiguously committing himself and the people under his authority to execute genocidal instructions, Kanyabashi embraced these instructions as his own and called on the population to kill Tutsis. 640 It further submits that the Trial Chamber's findings of Kanyabashi's genocidal intent in relation to the megaphone incidents in May and June 1994 as well as the fact that he knew that genocide was raging throughout Rwanda when he gave his speech and that he knew that the instructions he promised to carry out were instructions for genocide support the conclusion that Kanyabashi acted with the required mens rea for direct and public incitement to commit genocide?641 The Prosecution therefore requests that the Appeals

Chamber enter a conviction against Kanyabashi for committing direct and public incitement to commit genocide under Count 4 of the Kanyabashi Indictment. 642 3337. Kanyabashi responds that the Prosecution does not explain the alleged error of law committed by the Trial Chamber and why his guilt is the only reasonable conclusion from the evidence. 7643 He argues that the Trial Chamber did not err in its application of the jurisprudential criteria in finding that his speech did not constitute direct incitement to commit genocide. 644 7638 Prosecution Notice of Appeal, para. 5; Prosecution Appeal Brief, paras. 2, 9, 32, 40, 43. 7639 Prosecution Notice of Appeal, para. 4; Prosecution Appeal Brief, paras. 28, 32. See also AT. 22 April 2015 p. 3. 7640 Prosecution Appeal Brief, paras. 29, 30. See also Prosecution Reply Brief, paras. 48-53; AT. 22 April 2015 p.

7. At the appeals hearing, the Prosecution pointed out that whether an incitement is direct depends on the meaning of the words and their specific context and argued that Kanyabashi did not only promise to implement the Interim Government's objective to carry out genocide but also used genocidal language that ultimately meant that the Tutsis had to be killed. See AT. 22 April 2015, pp. 5, 7. 7641 Prosecution Appeal Brief, para. 31, referring to ibid., paras. 17, 18. See also AT. 22 April 2015 pp. 3, 7. 7642 Prosecution Appeal Brief, para. 32. 1643 Kanyabashi Response Brief, paras. 145, 146. See also ibid., paras. 147-153. 7644 Kanyabashi Response Brief, paras. 145, 146. See also ibid., paras. 147-153. Kanyabashi also contends that there is no evidence that members of the population were present at the ceremony, that he knew that his speech was being recorded to be broadcast subsequently, and that he contributed to the drafting of Kambanda's and Sindikubwabo's Speeches. He argues that he did not have the required mens rea and that his speech was not made publicly. See ibid., paras. 154, 155, 157; AT. 22 April 2015 pp. 20, 21. 1150 Case No. ICTR-98-42-A 14 December 2015

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19214/H 3338. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide pursuant to Article 2(3)(c) of the Statute if he directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea), 645 Direct incitement to commit genocide requires the speech to be a direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more than a vague or indirect suggestion.? 646 3339. The Trial Chamber determined that Kambanda's and Sindikubwabo's Speeches were inflammatory and constituted a call to the public to kill Tutsis and their accomplices.?647 It also found that Kanyabashi addressed the audience after Kambanda and Sindikubwabo, that his own speech was not inflammatory but that it supported their speeches, and that his address contained a commitment to execute the directives and instructions announced by them? 648 The Trial Chamber found that this conduct did not rise to the level of directly inciting genocide. 649 3340. The Appeals Chamber is not convinced by the Prosecution's contention that, by embracing as his own Kambanda's and Sindikubwabo's Speeches, Kanyabashi's Speech amounted to a call to kill Tutsis. The Appeals Chamber finds that a reasonable trier of fact could have found that Kanyabashi's support and

own commitment to Kambanda's and Sindikubwabo's Speeches did not rise to the level of directly appealing to the people in Butare Prefecture to carry out Kambanda's and Sindikubwabo's genocidal instructions. 650 Accordingly, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in finding that Kanyabashi's Speech did not rise to the level of direct incitement to commit genocide and dismisses this part of the Prosecution's appeal without further consideration.

2. Aiding and Abetting Responsibility 3341. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that Kanyabashi's Speech did not substantially contribute to Kambanda's and Sindikubwabo's inciting speeches and, consequently, in failing to convict Kanyabashi of aiding and abetting direct and 7645 Nzabonimana Appeal Judgement, paras. 121, 231, 381; Bikindi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 155; Nahimana et al. Appeal Judgement, para. 677. 7646 Nahimana et al. Appeal Judgement, para. 692. 7647 Trial Judgement, paras. 890, 898, 911, 925, 5671, 5676, 5690, 5712, 5722, 5738, 5990. 7648 Trial Judgement, paras. 910, 911, 917, 918, 926, 5713, 5740, 5752, 5992, 5993. 7649 Trial Judgement, para. 5993. 7650 See supra, para.

3328. The Appeals Chamber finds no merit in the Prosecution's contention raised at the appeals hearing that Kanyabashi's Speech amounted to a call to kill Tutsis because he used genocidal language. The Appeals Chamber observes that the Trial Chamber expressly considered Kanyabashi's reference to the "enemy of Rwanda" and to the issue of security in his speech but concluded that Kanyabashi's Speech did not amount to an inflammatory speech. The Prosecution merely disagrees with the Trial Chamber's assessment without showing any error therein. See AT. 22 April 2015 pp. 5, 7; Trial Judgement, paras. 911, 5753. 1151 Case No. ICTR-98-42-A 14 December 2015

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19213/H public incitement to commit genocide?651 The Prosecution contends that Kambanda's and Sindikubwabo's Speeches amounted to direct and public incitement to commit genocide and that, by reiterating and reinforcing their message and calling for their instructions to be put into action immediately thereafter, Kanyabashi substantially contributed to their inciting acts. 652 It argues that "all three speeches comprised a single composite event", complemented one another, and were mutually reinforcing and "brought home the same message: Tutsis must be killed."7653 The Prosecution also asserts that the fact that Kanyabashi spoke after Kambanda and Sindikubwabo does not mean that he could not have aided and abetted their speeches since the actus reus of aiding and abetting may occur after the principal crime has been perpetrated. 7654 The Prosecution therefore requests that the Appeals Chamber enter a conviction against Kanyabashi for aiding and abetting direct and public incitement to commit genocide under Count 4 of the Kanyabashi Indictment. 655 3342. Kanyabashi responds that the Prosecution does not demonstrate that the Trial Chamber erred in finding that there was insufficient evidence to support the conclusion that he substantially contributed to any incitement by Kambanda and Sindikubwabo, or other speakers at the ceremony?656 He contends that the Trial Chamber had to be

convinced beyond reasonable doubt that he knew that his speech contributed to the commission of the crime of direct and public incitement to commit genocide by Kambanda and Sindikubwabo?657 Kanyabashi argues that if he spoke last as argued by the Prosecution, the crimes of direct and public incitement committed by Kambanda and Sindikubwabo were already completed. 658 He submits that, because the crime of direct and public incitement is completed as soon as the discourse in question is uttered or published even though the effects of incitement may extend in time, the Prosecution should have demonstrated that he had previously discussed with Kambanda or Sindikubwabo or that his speech contributed to or influenced their speeches, which it failed to do. 7659 In Kanyabashi's view, in the absence of any evidence that he or his speech had any impact on Kambanda's and Sindikubwabo's Speeches, it cannot be established that he substantially contributed to their speeches. 660 7651 Prosecution Notice of Appeal, paras. 4, 5; Prosecution Appeal Brief, paras. 33, 40. 7652 Prosecution Appeal Brief, paras. 34-36. 7653 Prosecution Appeal Brief, paras. 36, 39. 7654 Prosecution Appeal Brief, paras. 36-39. 7655 Prosecution Appeal Brief, para. 40. 7656 Kanyabashi Response Brief, para. 156. 7657 Kanyabashi Response Brief, para, 161. In relation to Kambanda's and Sindikubwabo's Speeches, Kanyabashi challenges that the speeches were made publicly and submits, accordingly, that their speeches cannot constitute "public" incitement to commit genocide as required by the jurisprudence. See ibid., para.

157. See also AT. 22 April 2015 pp. 20, 21. 7658 Kanyabashi Response Brief, para. 161. 7659 Kanyabashi Response Brief, paras. 161-163. Kanyabashi contends that there is no evidence that he contributed to the drafting of Kambanda's and Sindikubwabo's Speeches. See AT. 22 April 2015 p. 21. 7660 Kanyabashi Response Brief, paras. 161-163. 1152 Case No. ICTR-98-42-A 14 December 2015

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19212/H 3343. The Appeals Chamber reiterates that the actus reus of aiding and abetting "consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime" 1661 The actus reus need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated. 662 3344. The Trial Chamber found that "the Prosecution [had not] adduced sufficient evidence to support that Kanyabashi substantially contributed to any incitement made by Kambanda, Sindikubwabo, or other speakers at this event." 663 The Appeals Chamber sees no error in the Trial Chamber's determination. Even if Kambanda's and Sindikubwabo's conduct at Nsabimana's Swearing-In Ceremony were found to constitute direct and public incitement to commit genocide, 7664 nothing in the Trial Chamber's findings or in the evidence relied upon by the Prosecution sustains the conclusion that Kanyabashi's Speech substantially contributed to the perpetration of the crime of direct and public incitement to commit genocide committed by Kambanda and Sindikubwabo.

3345. As an inchoate crime, 665 direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time,7666 and is punishable even if no act of genocide has resulted therefrom. 667 Accordingly, in order for Kanyabashi to be found responsible for aiding and abetting direct and public incitement to commit genocide, it would have to be established that he substantially contributed to Kambanda's and Sindikubwabo's inciting speeches themselves and not, as the Prosecution suggests, to the effects of their incitements by "reiterating] and reinforcing] their message". 668 The Appeals Chamber recalls that the Trial Chamber determined that Kanyabashi spoke after Kambanda and Sindikubabwo delivered their speeches. 669 The Prosecution points to no evidence or findings demonstrating that Kanyabashi's conduct provided substantial assistance to 7661 Sainovié et al. Appeal Judgement, para.

1649. See also Popovié et al. Appeal Judgement, para. 1758; Blaskié Appeal Judgement, para.

46. See Nahimana et al. Appeal Judgement, para. 482; Ntagerura et al. Appeal Judgement, para. 372; Simié Appeal Judgement, para. 85; Blaskié Appeal Judgement, para. 48. 7663 Trial Judgement, para. 5993. 7664 The first issue raised by the Prosecution is whether Kambanda's and Sindikubwabo's conduct at Nsabimana's Swearing-In Ceremony constituted direct and public incitement to commit genocide. The Trial Chamber did not make specific legal findings in this respect. Nevertheless, in light of its conclusions on the merits of the Prosecution's appeal, the Appeals Chamber finds it unnecessary to decide this issue and to address Kanyabashi's arguments relating to the "public" nature of the speeches delivered at the ceremony. See Prosecution Appeal Brief, para. 34; Prosecution Reply Brief, paras. 54, 55; Kanyabashi Response Brief, para. 157; AT. 22 April 2015 pp. 7, 8, 20, 24. 7665 Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678. 7666 Nahimana et al. Appeal Judgement, para. 723. 7667 Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678. 7668 See Prosecution Appeal Brief, para. 35. 7669 Trial Judgement, para.

910. See also ibid., paras. 5752, 5992. The Appeals Chamber observes that, as part of his supplementary grounds of appeal, Kanyabashi challenges the Trial Chamber's finding that he spoke after Kambanda 1153 Case No. ICTR-98-42-A 14 December 2015

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19211/H Sindikubwabo or Kambanda in the commission of their direct and public incitement to commit genocide, either before, during, or after their respective speeches.

3346. In these circumstances, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in finding that there was insufficient evidence to support the conclusion that Kanyabashi substantially contributed to any incitement made by Kambanda or Sindikubwabo during Nsabimana's Swearing-In Ceremony. The Appeals Chamber consequently dismisses this remaining part of Ground 2 of the Prosecution's appeal. d Sindikubwabo. See Kanyabashi Response Brief, paras. 29-52. The Appeals Chamber finds it unnecessary to discu e issue in light of its conclusion on the merits of the Prosecution's appe 1154 Case No. ICTR-98-42-A 14 December 2015

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19210/H C. Conclusion 3347. Based on the foregoing, the Appeals Chamber finds that the Prosecution has not demonstrated that the Trial Chamber erred in law or in fact in acquitting Kanyabashi of genocide and direct and public incitement to commit genocide in relation to the speech he gave at Nsabimana's Swearing-In Ceremony. Accordingly, the Appeals Chamber dismisses the Prosecution's appeal in its entirety. In these circumstances, the Appeals Chamber finds that Kanyabashi's supplementary grounds have become moot and need not be addressed. 1155 Case No. ICTR-98-42-A 14 December 2015

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19209/H XI. SENTENCING APPEALS 3348. The Trial Chamber sentenced Nyiramasuhuko, Ntahobali, and Ndayambaje to life imprisonment and imposed sentences of 25, 30, and 35 years of imprisonment on Nsabimana, Nteziryayo, and Kanyabashi, respectively?670 Each convicted person challenges the Trial Chamber's sentencing determinations. 671 3349. Before turning to the parties' contentions, the Appeals Chamber recalls that trial chambers are vested with broad discretion in determining an appropriate sentence due to their obligation to individualise penalties to fit the circumstances of the convicted person and the gravity of the crime?672 As a rule, the Appeals Chamber will not substitute its own sentence for that imposed by the Trial Chamber unless the appealing party demonstrates that the Trial Chamber committed a discernible error in exercising its discretion, or failed to follow the applicable law. 673 7670 Trial Judgement, para. 6271. 7671 The Appeals Chamber observes that Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, and Ndayambaje failed to raise in their notice of appeal some of the allegations of error they developed in their appeal brief in contravention with the relevant formal requirements applicable on appeal. The Appeals Chamber refers to: (i) Nyiramasuhuko's allegations of error concerning her aggravating circumstances and the imposition of a life sentence; (ii)

Ntahobali's allegation of error concerning double-counting; (iii) Nsabimana's allegation of error concerning the double-counting of the vulnerability of the victims; (iv) Nteziryayo's allegation of error regarding the principle of parity; and (v) Ndayambaje's allegations of error in relation to his aggravating factors. See Nyiramasuhuko Appeal Brief, paras. 1299, 1314; Ntahobali Appeal Brief, para. 988-990; Nsabimana Appeal Brief, paras. 529-531; Nteziryayo Appeal Brief. paras. 293-297; Ndayambaje Appeal Brief, paras. 684-687. Considering the nature of the allegations and the fact that the Prosecution did not object to these allegations on this basis and responded to the appellant's submissions, the Appeals Chamber will exercise its discretion to consider these allegations of error. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 676; Ntabakuze Appeal Judgement, para. 264; Ntawukulilyayo Appeal Judgement, para. 232. 7673 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 676; Nabakuze Appeal Judgement, para. 264; Setako Appeal Judgement, para. 277. 1156 Case No. ICTR-98-42-A 14 December 2015

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19208/H A. Nyiramasuhuko's Sentencing Appeal (Ground 32) 3350. The Trial Chamber sentenced Nyiramasuhuko to a single term of life imprisonment for her convictions for conspiracy to commit genocide, genocide, extermination, rape, and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons, and outrages upon personal dignity as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 7674 3351. Nyiramasuhuko submits that the Trial Chamber erred in: (i) its consideration of the aggravating circumstances; (ii) failing to consider certain mitigating circumstances; and (iii) sentencing her to life imprisonment. 675 She requests that her sentence be reduced. 676 1. Aggravating Circumstances 3352. The Trial Chamber determined that the vast number of victims was far in excess of the threshold for extermination as a crime against humanity and considered this as an aggravating circumstance in determining Nyiramasuhuko's sentence. 67 It further considered as an aggravating circumstance "the catastrophic number of victims across Butare préfecture who perished and suffered as a result of Nyiramasuhuko's participation in the conspiracy to commit genocide."7678 It also found as an additional aggravating circumstance the numerous victims of rapes and killings at the Butare Prefecture Office, many

of whom were particularly vulnerable. 679 3353. The Trial Chamber further took into account Nyiramasuhuko's abuse of her position of authority as an aggravating circumstance?680 Specifically, it held that Nyiramasuhuko's position as Minister for Family and Women's Affairs made her a person of high authority and influence who was respected throughout Rwanda and in particular in Butare Prefecture from where she came. 681 It found that, on a number of occasions, instead of preserving peaceful co-existence between communities and the welfare of the family, she used her influence over Interahamwe to commit crimes such as rape and murder. 682 3354. Nyiramasuhuko submits that the Trial Chamber impermissibly double-counted the large number of victims at the Butare Prefecture Office as an aggravating circumstance as it had already 7674 Trial Judgement, paras. 6186, 6271. 7675 Nyiramasuhuko Appeal Brief, paras. 1298-1305, 1307-1314. 7676 Nyiramasuhuko Notice of Appeal, para. 12.1; Nyiramasuhuko Appeal Brief, paras. 1298, 1315. 7671 Trial Judgement, para. 6206. 7678 Trial Judgement, para. 6208. 7679 Trial Judgement, para. 6208. 7680 Trial Judgement, para. 6207 7681 Trial Judgement, para. 6207 7682 Trial Judgement, para. 6207. 1157 Case No. ICTR-98-42-A 14 December 2015

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19207/H considered this when assessing the gravity of the offences. 683 Stressing that aggravating factors must be proven beyond reasonable doubt, she contends that the Trial Chamber erred in considering the number of victims killed in relation to attacks at the prefectoral office, because its finding in this regard was "doubtful" 7684 She also argues that it was inappropriate for the Trial Chamber to consider the number of victims "across Butare Prefecture" that resulted from her participation in a conspiracy to commit genocide as an aggravating factor as the Trial Chamber could only consider the number of victims of the specific crimes for which she was convicted. 685 Finally, Nyiramasuhuko contends that the Trial Chamber erred in considering her abuse of authority as an aggravating factor, as this was an element of the crimes for which she was convicted pursuant to Articles 6(1) and 6(3) of the Statute.? 686 3355. The Prosecution responds that the Trial Chamber properly considered the aggravating circumstances in determining Nyiramasuhuko's sentence. 687 3356. The Appeals Chamber dismisses as unfounded Nyiramasuhuko's contention that the Trial Chamber improperly double-counted the number of victims at the Butare Prefecture Office in determining her sentence. Although factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into

account as separate aggravating circumstances, 7688 the Appeals Chamber considers that the Trial Chamber's reference to the fact that "hundreds of Tutsis were abducted, raped and killed" at the prefectoral office in its consideration of the gravity of the offences was used to punctuate "the seriousness and atrocity of crimes repetitively perpetrated" at the prefectoral office as opposed to reflecting that the Trial Chamber considered the number of victims in determining the gravity of the offences. 689 3357. As for Nyiramasuhuko's submission that the Trial Chamber's finding as to the number of victims killed during attacks at the prefectoral office is "doubtful", the Appeals Chamber recalls that it has previously determined that the record is insufficient to affirm that hundreds of Tutsi refugees were abducted and killed during the attacks in which Ntahobali participated.7690 7683 Nyiramasuhuko Appeal Brief, para. 1299. 7684 Nyiramasuhuko Appeal Brief, para. 1303, referring, inter alia, to Trial Judgement, para.

2779. Nyiramasuhuko further argues that it was improper for the Trial Chamber to consider "the magnitude of the crimes committed" as this was inherent in her convictions for genocide and extermination as a crime against humanity. See ibid., para. 1302. 7685 Nyiramasuhuko Appeal Brief, para. 1301. 7686 Nyiramasuhuko Appeal Brief, para. 1300. 7687 Prosecution Response Brief, paras. 726-728. See also AT. 14 April 2015 pp. 57, 58. 7688 See, e.g., Gatete Appeal Judgement, para. 275; Milosevié Appeal Judgement, para. 306; Semanza Appeal Judgement, para. 338. 7689 See Trial Judgement, para. 6205. 7690 See supra, Section V.I.2(f). 1158 Case No. ICTR-98-42-A 14 December 2015

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19206/H This conclusion equally applies to Nyiramasuhuko. Notwithstanding this conclusion, the Appeals Chamber finds that Nyiramasuhuko fails to demonstrate that the Trial Chamber's error in its determination of the number of refugees abducted and killed during the attacks in which she participated would have prevented a reasonable trier of fact from considering "the numerous victims of rapes and killings at the Butare préfecture office in particular, many of whom were particularly vulnerable" as an aggravating circumstance. 692 3358. Nyiramasuhuko's contention that the Trial Chamber erred in considering the number of victims across Butare Prefecture in general as an aggravating factor is equally without merit. The Appeals Chamber recalls that the Trial Chamber convicted Nyiramasuhuko of conspiracy to commit genocide against the Tutsi population throughout Butare Prefecture between 9 April 1994 and 14 July 1994 and expressly found that in doing so she took part in Cabinet meetings and Interim Government decisions that "triggered the onslaught of massacres in Butare préfecture" 7693 Accordingly, it was within the discretion of the Trial Chamber to consider the number of victims in Butare Prefecture in general as an aggravating circumstance.

3359. With respect to the Trial Chamber's consideration of Nyiramasuhuko's abuse of her authority as an aggravating factor, the Appeals Chamber recalls that the Trial Chamber convicted 7691 The Appeals Chamber recalls that the Trial Chamber's determination that Ntahobali and Nyiramasuhuko participated in attacks that led to the abduction and killing of "hundreds of Tutsi refugees" principally relies on the Trial Chamber's conclusion that "the pickup was nearly full on at least seven occasions" during the attacks from mid-May to June 1994. See supra, para.

1884. However, the Appeals Chamber recalls that Nyiramasuhuko was only convicted for killings on the basis of her conduct during the Mid-May Attack and the Night of Three Attacks. See supra, Sections IV.F.1(a), IV.F.1(c). Accordingly, the Appeals Chamber considers that no reasonable trier of fact could have determined the number of victims abducted and killed based on the seven occasions the pickup truck left the prefectoral office, as it included the Last Half of May Attacks and the First Half of June Attacks for which Nyiramasuhuko was not convicted. Consequently, no basis exists to attribute criminal responsibility to Nyiramasuhuko for ordering killings during these attacks. As regards the remaining occasion when the pickup left the prefectoral office during the attacks for which Nyiramasuhuko was convicted for killings - namely the Mid-May Attack and the Night of Three Attacks - the Appeals Chamber recalls that it has previously considered that the record is insufficient to attribute responsibility for the killings of hundreds of Tutsi refugees abducted from the Butare Prefectoral Office for the Mid-May Attack. See supra, paras. 1886, 1887. Moreover, having considered the record with respect to the Night of Three Attacks, the Appeals Chamber finds that, while the evidence relied upon by the Trial Chamber paints a nearly categorical picture of numerous persons being loaded

onto the vehicle accompanying Nyiramasuhuko that night, it is insufficient to affirm that hundreds of Tutsi refugees were abducted and killed during the the Night of Three Attacks. See Trial Judgement, paras. 2253, 2278, 2285, 2287, 2289, 2303, 2307, 2308, 2331, 2332. See also ibid., paras, 2703, 2704, 2710-2712, 2714, 2732, 2736, 2738. The Appeals Chamber is of the view that, even when considering the Mid-May Attack and the Night of Three Attacks together, the record remains insufficient to affirm that hundreds of Tutsi refugees were abducted and killed during these attacks. 7692 Trial Judgement, para. 6208 (internal reference omitted). The Appeals Chamber also dismisses Nyiramasuhuko's contention that the Trial Chamber erred in considering "the magnitude of the crimes committed" as this was inherent in her convictions for genocide and extermination as a crime against humanity. The Appeals Chamber recalls that there is no minimum number of victims required for a conviction of genocide and that a particularly large number of victims can be an aggravating circumstance in relation to the sentence for extermination as a crime against humanity where the extent of the killings exceeds that required for extermination. See Ndahimana Appeal Judgement, para. 231; Ndindabahizi Appeal Judgement, para.

135. See also Nzabonimana Appeal Judgement, para.

465. Consequently, Nyiramasuhuko's position lacks merit in light of the Trial Chamber's conclusion that the killings exceeded the threshold required to establish extermination as a crime against humanity. See Trial Judgement, para. 6206. 7693 See Trial Judgement, paras. 5669-5678, 5727, 6186. 1159 Case No. ICTR-98-42-A 14 December 2015

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19205/H her pursuant to Article 6(1) of the Statute for ordering the killings of Tutsis taking refuge at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks. 694 It also found her responsible as a superior under Article 6(3) of the Statute for these killings, which the Trial Chamber stated it would consider in sentencing. 695 This is consistent with the jurisprudence that when, for the same count and the same set of facts, the accused's responsibility is pleaded pursuant to both provisions and the accused could be found liable for both, the Trial Chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating factor in sentencing. 69 In the present case, the Appeals Chamber, Judge Liu dissenting, finds no error in the Trial Chamber's conclusion that Nyiramasuhuko "used her influence over Interahamwe to commit crimes such as [...] murder" and that this supported the conclusion that her "abuse of general authority" constituted an aggravating factor.?697 In the view of the Appeals Chamber, Judge Liu dissenting, Nyiramasuhuko does not demonstrate that the Trial Chamber impermissibly double-counted an element of the crime as an aggravating factor.

3360. The Trial Chamber also convicted Nyiramasuhuko as a superior pursuant to Article 6(3) of the Statute for the rapes committed by Interahamwe following her orders during the Night of Three Attacks and one of the First Half of June Attacks at the Butare Prefecture Office. 698 The Appeals Chamber recalls that a superior position in itself does not constitute an aggravating factor but that it is the abuse of such a position which may be considered as an aggravating factor. 699 Given that Nyiramasuhuko was found to have ordered rapes but was only convicted pursuant to Article 6(3) of the Statute - which does not require proof of ordering - Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in concluding that her "abuse of general authority" constituted an aggravating factor by relying, in part, on the finding that Nyiramasuhuko "used her influence over Interahamwe to commit crimes such as rape" 7700 For the same reasons, she fails to demonstrate that the Trial Chamber impermissibly double-counted an element of the offence as an aggravating factor. 7694 See supra, Sections IV.F.1(a), IV.F.1(c). 7695 Trial Judgement, paras. 5886, 5970, 6052. See also supra, Sections IV.F.1(a), IV.F.1(c). 7696 Setako Appeal Judgement, para. 266; Renzaho Appeal Judgement, para. 564; Nahimana et al. Appeal Judgement, para.

487. Trial Judgement, para. 6207 1698 See supra, Sections IV.F.1(b), IV.F.1(c), IV.F.4 POT Trial Judgement, para. 6207. 1160 Case No. ICTR-98-42-A 14 December 2015

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19204/H 3361. The Appeals Chamber, Judge Liu dissenting with respect to Nyiramasuhuko's abuse of her authority as an aggravating factor, therefore dismisses Nyiramasuhuko's submissions concerning the aggravating circumstances considered by the Trial Chamber in determining her sentence. Mitigating Circumstances 3362. In discussing Nyiramasuhuko's mitigating circumstances, the Trial Chamber stated that it had "considered [her] background and individual circumstances". 7701 It noted her service as a government minister and "long service in the Ministry of Health" but considered that these were "of a very limited weight, given the gravity of the crimes committed by [her!" 7702 3363. Nyiramasuhuko argues that the Trial Chamber erred by failing to consider the following factors which she raised in mitigation at trial: (i) her age; (ii) the inhumane conditions of solitary confinement she faced as the only woman detained at the Tribunal's detention facility; and (iii) incidences of discrimination against her in prison, including physical violence. 703 3364. The Prosecution responds that Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in its assessment of mitigating circumstances. 704 3365. The Appeals Chamber recalls that under Rule 86(C) of the Rules, the parties shall address matters of sentencing in their closing arguments. It was thus Nyiramasuhuko's prerogative

to identify any mitigating circumstances she wished to have considered by the Trial Chamber and she cannot raise them for the first time on appeal. 705 Nyiramasuhuko did not identify her age as a mitigating circumstance to be considered by the Trial Chamber in her closing brief and only referred to the fact that she was "around 60" in her closing arguments without indicating that it was a relevant mitigating factor to be considered in sentencing770 Accordingly, the Appeals Chamber 7701 Trial Judgement, para. 6209. 7702 Trial Judgement, para.

6209. Nyiramasuhuko Notice of Appeal, para. 12.2; Nyiramasuhuko Appeal Brief, paras. 1307-1313. See also AT. 15 April 2015, pp. 9, 10. Nyiramasuhuko further contends that "[the Trial Chamber erred in not taking into consideration the unreasonable delay of 14 years of detention on remand" she raised as a violation of her rights under Rule 20(4)(c) of the Rules at trial, which she argues "must be remedied, at least by a reduction of the sentence". See Nyiramasuhuko Appeal Brief, para. 1306 (internal references omitted). See also AT. 15 April 2015 pp. 9-11. The Appeals Chamber notes that Nyiramasuhuko raised this contention as a relevant sentencing consideration at trial. However, as Nyiramasuhuko's arguments were dismissed, the Trial Chamber was not required to consider this contention as a mitigating circumstance. See Setako Appeal Judgement, para. 297. 7704 Prosecution Response Brief, paras. 726, 729-732. See also AT. 14 April 2015 pp. 58, 59. 7705 See, e.g., Nzabonimana Appeal Judgement, para. 459; Kanyarukiga Appeal Judgement, para. 274; Bikindi Appeal Judgement, para. 165; Kamuhanda Appeal Judgement, para. 354. 7706 Nyiramasuhuko Closing Arguments, T. 22 April 2009 p. 53 ("Imperfectly [sic] aware of the sentencing grill [sic] which are normally handed out by the ICTR, I've been here for quite some time and able to know them. This lady, who is around 60, is devoted to her country - has devoted her life to the cause of women."). The Appeals Chamber notes that Nyiramasuhuko did not make any submission in relation to sentencing in her closing brief. 1161 Case No. ICTR-98-42-A 14 December 2015

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19203/H finds that the Trial Chamber did not err in not considering this circumstance in mitigation and dismisses Nyiramasuhuko's contention in this respect.

3366. Likewise, while Nyiramasuhuko referred to her situation in detention "as a condition of isolation" in her oral closing arguments, she does not demonstrate that it was erroneous for the Trial Chamber not to have considered it as a mitigating factor. 707 Nyiramasuhuko's vague statement does not clearly suggest that the nature of her detention as the only woman within the Tribunal's detention facility was inhumane or violated human rights standards - arguments only made clear on appeal - nor does it demonstrate that such alleged violations had been established by the preponderance of the evidence.?708 Nyiramasuhuko similarly did not raise the alleged instances of discrimination and physical violence she encountered while in detention as mitigating factors in her closing submissions.709 Consequently, Nyiramasuhuko does not demonstrate that the Trial Chamber erred in not considering her conditions of detention and the alleged incidences of discrimination against her in prison in determining her sentence.

3367. In light of the above, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in failing to consider mitigating circumstances in determining her sentence.

3. Life Sentence 3368. Nyiramasuhuko argues that the Trial Chamber erred in sentencing her to imprisonment for the remainder of her life because the Tribunal has signed detention agreements with States that have no domestic provisions for conditional release, thereby potentially imposing upon her a life sentence without the possibility of reduction, which constitutes inhumane treatment. 710 7707 See Nyiramasuhuko Closing Arguments, T. 22 April 2009 p. 53 ("I would like to add that the life condition of Mrs. Nyiramasuhuko is very difficult and it will be more difficult if she is the first and the only woman accused and convicted of genocide in history. And here the life condition of the only woman, can be described as a condition of isolation, when she's almost always alone. This is a burden which can be borne by very few people, and should not be borne, Your Honour and I would like you to take this, too, into account."). 7708 The Appeals Chamber recalls that an accused bears the burden of establishing mitigating factors by a preponderance of the evidence. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 694; Rukundo Appeal Judgement, para. 255; Muhimana Appeal Judgement, para. 231; Kajelijeli Appeal Judgement, para.

294. The Appeals Chamber further recalls that it found that, as the only woman in the Tribunal's custody, Nyiramasuhuko's conditions of detention differed from those of the other detainees. However, it considered that Nyiramasuhuko has failed to substantiate her claim on appeal that the prejudice resulting from the prolongation of her detention on remand was greater than that suffered by her co-Accused. Accordingly, the Appeals Chamber rejected Nyiramasuhuko's contention that she was adversely affected by the undue delay in the present proceedings due to her status as the only female detainee in the Tribunal's custody. See also supra, para. 389. 7709 See Nyiramasuhuko Closing Arguments, T. 22 April 2009 p. 53. 7710 Nyiramasuhuko Appeal Brief, para. 1314. 1162 Case No. ICTR-98-42-A 14 December 2015

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19202/H 3369. The Prosecution responds that Nyiramasuhuko's assertion "that her life sentence may be inhumane treatment is totally without merit and must fail.»7711 3370. Nyiramasuhuko's argument that the Trial Chamber erred in sentencing her to life imprisonment because she may be transferred to a State that does not contain domestic legal provisions permitting conditional release is speculative.?712 In addition, the selection of the State in which Nyiramasuhuko will serve her sentence was not within the discretion of the Trial Chamber when it rendered the Trial Judgement. 713 As trial chambers are vested with the discretion to sentence convicted persons to imprisonment for the remainder of their lives under Rule 101(A) of the Rules; the Appeals Chamber finds that Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this respect.

4. Conclusion 3371. The Appeals Chamber, Judge Liu dissenting with respect to Nyiramasuhuko's abuse of her authority as an aggravating factor, finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in its assessment of the relevant aggravating and mitigating circumstances or in imposing a sentence of life imprisonment. Accordingly, the Appeals Chamber dismisses Ground 32 of Nyiramasuhuko's appeal. 1711 Prosecution Response Brief, para.

732. See also AT. 14 April 2015 p. 57. 7712 In this respect, Nyiramasuhuko merely refers to States "including Mali" without pointing to anything in Malian lomestic legal provisions to support her contention. See Nyiramasuhuko Appeal Brief, para. 1314 713 See Rule 103(A) of the Rules 1163 Case No. ICTR-98-42-A 14 December 2015

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19201/H B. Ntahobali's Sentencing Appeal (Ground 5) 3372. The Trial Chamber sentenced Ntahobali to a single term of life imprisonment for his convictions for genocide, extermination, rape, and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons and outrages upon personal dignity as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 714 3373. Ntahobali submits that his sentence should be reduced because the Trial Chamber erred in: (i) assessing the gravity of the offences; (ii) its consideration of certain aggravating circumstances; (iii) failing to consider or accord sufficient weight to certain mitigating circumstances; (iv) imposing a higher sentence than that imposed in similar cases; and (v) sentencing him to life imprisonment in violation of his fundamental human rights.71S 1. Gravity of the Offences 3374. The Trial Chamber determined that the rapes and killings of Tutsis at the Hotel Ihuliro roadblock and at the Butare Prefecture Office, the killings of Tutsis at the IRST, the killing of the Rwamukwaya family, and the killing of Tutsis abducted from the EER were crimes "of the utmost gravity" 7716 It noted that these crimes were not isolated instances, but occurred in various parts of Butare Prefecture over a significant period of time?' It further considered "the

seriousness and atrocity of crimes repetitively perpetrated at the Butare préfecture office, where hundreds of Tutsis were abducted, raped and killed.*7718 3375. Ntahobali submits that the Trial Chamber erred in considering the crimes as having "occurred in various parts of Butare préfecture" because he was "convicted only of crimes committed in Butare town itself' 7719 He further argues that the Trial Chamber erred in taking into account "rapes" perpetrated at the Hotel Ihuliro roadblock in assessing the gravity of the offences because he was found guilty of having perpetrated only one rape at this location. 720 3376. The Prosecution responds that Ntahobali's contention that the Trial Chamber wrongly considered more than one rape at the roadblock was raised for the first time in his appeal brief and 7714 Trial Judgement, paras. 6186, 6271. 7715 Ntahobali Notice of Appeal, paras. 347-357; Ntahobali Appeal Brief, paras. 985-1012. 7716 Trial Judgement, paras. 6216, 6217. 7717 Trial Judgement, para. 6217. 7718 Trial Judgement, para. 6217 7719 Ntahobali Appeal Brief, para. 985, quoting Trial Judgement, para.

6217. Ntahobali argues in particular that "[the Trial Chamber exaggerated the geographical scope of the crimes [...] and attributed to them a higher level of gravity nd, in the process, erroneously considered a piece of evidence". See iden 720 Ntahobali Appeal Brief, para. 986 (emphasis omitted), referring to Trial Judgement, paras. 6077-6082, 6216 1164 Case No. ICTR-98-42-A 14 December 2015

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19200/H should be summarily dismissed. 2' It also discounts as misleading Ntahobali's remaining argument on the basis that the Butare Prefecture includes Butare Town and further contends that the Trial Chamber determined that Tutsis were abducted and then killed in various locations. 7722 3377. Ntahobali replies that the interests of justice require that his argument concerning the rapes at the Hotel Ihuliro roadblock be considered. 7723 3378. The Appeals Chamber fails to see the relevance of Ntahobali's contention that the Trial Chamber erred in finding that he committed crimes "in various parts" of Butare Prefecture while these crimes only occurred in Butare Town, since Ntahobali was convicted of crimes that occurred at several sites within Butare Prefecture.

3379. As to the Trial Chamber's consideration of the "rapes" perpetrated at the Hotel Ihuliro roadblock, Ntahobali does not dispute that he failed to raise this alleged error in his notice of appeal.

3380. The Appeals Chamber recalls that an application to vary the grounds of appeal must be done by way of a motion 724 It further recalls that it has prevented Nteziryayo from raising specific challenges in relation to the Trial Chamber's determination of his sentence due to the failure to properly raise them in his notice of appeal as they concerned a distinct legal error. 725 The Appeals Chamber considers that the current situation is materially similar in that Ntahobali's contention in his appeal brief impermissibly expands the scope of his appeal and the Prosecution objects on this basis. In this context, and given that all the co-Appellants shall be treated equally,7726 the Appeals Chamber, Judge Agius and Judge Liu dissenting, considers that the interests of justice do not require consideration of this argument. 727 3381. For these reasons, the Appeals Chamber, Judge Agius and Judge Liu dissenting, dismisses Ntahobali's challenges pertaining to the determination of the gravity of his offences.

2. Aggravating Circumstances 3382. The Trial Chamber considered as aggravating circumstances in determining Ntahobali's sentence: (i) the vast number of victims, far in excess of the threshold for extermination as a crime against humanity; (ii) the premeditated nature of the atrocities perpetrated by Ntahobali at the 7721 Prosecution Response Brief, para. 1225. 7722 Prosecution Response Brief, para. 1224. 1723 Ntahobali Reply Brief, para. 403 772A Practice Direction on Formal Requirements on Appeal, para. 2 7725 8 May 2013 Appeal Decision, paras. 70, 72(vi), 74 7726 See Article 20(1) of the Statute. 1165 Case No. ICTR-98-42-A 14 December 2015

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19199/H Butare Prefecture Office, which it determined was shown by the repetitive nature of the attacks; and (iii) Ntahobali's superior responsibility in relation to the Hotel Ihuliro roadblock, the Butare Prefecture Office, and the EER. 728 3383. Ntahobali argues that the Trial Chamber engaged in impermissible double-counting by considering the number of victims and the repetitive nature of the crimes perpetrated at the prefectoral office in determining the gravity of the offences and the aggravating circumstances. 7729 He also contends that the Trial Chamber erred in considering as an aggravating circumstance the premeditated nature of the crimes at the prefectoral office because, in his view, premeditation was not proven beyond a reasonable doubt. 730 Ntahobali further argues that the Trial Chamber erred in considering the number of victims as being far in excess of the threshold for extermination as a crime against humanity because an element of a crime cannot be considered as an aggravating circumstance. 731 3384. The Prosecution responds that Ntahobali's argument concerning double-counting the number of victims "is undeveloped and must be summarily dismissed.»7732 It submits that premeditation does not depend on the length of time the crimes persisted but rather on whether Ntahobali planned these acts in advance, a fact which the Trial Chamber found established. 733 The

Prosecution also argues that the Trial Chamber's finding that the number of victims exceeds the threshold for extermination as a crime against humanity is in accordance with the jurisprudence and was proven beyond reasonable doubt based on the evidence. 734 3385. With regard to Ntahobali's contention that the Trial Chamber improperly considered the number of victims in the gravity of the offences and again as an aggravating factor, the Appeals Chamber reiterates that factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances. 7735 The Appeals Chamber notes that the Trial Chamber referred to the fact that "hundreds of Tutsis were abducted, raped and killed" at the Butare Prefecture Office in its consideration of the gravity of the offences. 7736 7727 See Gatete Appeal Judgement, para. 279. 7728 Trial Judgement, paras. 6218-6220. 7729 Ntahobali Appeal Brief, paras. 988-990. 7730 Ntahobali Notice of Appeal, para. 350; Ntahobali Appeal Brief, para.

991. See also Ntahobali Reply Brief, para.

404. Ntahobali argues that premeditation was never addressed in the Trial Judgement and the language used by the Trial Chamber indicates that it was speculative. See Ntahobali Appeal Brief, para. 991, referring to Trial Judgement, para tahobali Notice of Appeal, paras. 347, 348; Ntahobali Appeal Brief, para. 992. 7732 Prosecution Response Brief, para. 1226. 7733 Prosecution Response Brief, para. 1227. 7734 Prosecution Response Brief, para. 1226, referring, inter alia, to Ndindabahizi Appeal Judgement, para. 135. 7735 See, e.g., Gatete Appeal Judgement, para. 275; Milosevió Appeal Judgement, para. 306; Semanza Appea Judgement, para. 338. 7736 See Trial Judgement, para. 6217. 1166 Case No. ICTR-98-42-A 14 December 2015

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19198/H However, the Appeals Chamber considers that the Trial Chamber employed this language to punctuate "the seriousness and atrocity of crimes repetitively perpetrated" at the prefectoral office and did not consider the number of victims in determining the gravity of the offences. 737 3386. Indeed, the Appeals Chamber observes that, in finding that "the vast number of victims" during the course of all attacks and massacres constituted an aggravating factor, the Trial Chamber did not limit its finding to the number of victims at the prefectoral office alone. 738 The Appeals Chamber considers that it was the overall number of victims of Ntahobali's crimes that was assessed as an aggravating circumstance and that, as such, it was not the same factor that was taken into account when assessing the gravity of the offence. 739 Ntahobali's contention that the Trial Chamber erred in double-counting the number of victims is therefore ill-founded.

3387. Ntahobali's contention that the Trial Chamber engaged in double-counting with respect to the repetitive nature of the crimes at the prefectoral office similarly lacks merit. The Appeals Chamber notes that the Trial Chamber did not consider this as an aggravating circumstance in and of itself, but rather relied on this factor as support for its finding that Ntahobali's actions at the prefectoral office were premeditated. 740 3388. As to Ntahobali's argument that premeditation had not been established beyond reasonable doubt, the Appeals Chamber observes that the Trial Chamber concluded that the attacks at the prefectoral office were "methodical"74) and that, between mid-May and mid-June 1994, Ntahobali with others came to the prefectoral office on various occasions to abduct Tutsis, who were then physically assaulted, raped, and killed. 742 In these circumstances, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber erred in concluding that the repetitive attacks were premeditated and dismisses his argument in this respect.

3389. The Appeals Chamber recalls that where an aggravating factor for the purposes of sentencing is at the same time an element of the offence, it cannot also constitute an aggravating factor for the purposes of sentencing, 743 It also reiterates that a particularly large number of victims can be an aggravating circumstance in relation to the sentence for extermination as a crime against 7737 See Trial Judgement, para. 6217. 7738 See Trial Judgement, para. 6218. 7739 See Ntabakuze Appeal Judgement, para. 273. 7740 See Trial Judgement, para. 6219 (noting that the repetitive atrocities perpetrated by Niahobali at the prefectoral office demonstrated premeditation and stating that "[s]uch premeditation amounts to an aggravating factor."). 7741 Trial Judgement, para. 5683. 7742 Trial Judgement, paras. 5867-5875. 7743 See, e.g., Ndindabahizi Appeal Judgement, para. 137; Blaskic Appeal Judgement, para. 693; Vasiljevic Appeal Judgement, paras. 172, 173. 1167 Case No. ICTR-98-42-A 14 December 2015

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19197/H humanity where the extent of the killings exceeds that required for extermination.?4* In the present case, the Trial Chamber found that Ntahobali, inter alia, ordered the killing of about 200 Tutsis at the IRST. 45 The Appeals Chamber, Judge Liu dissenting, has also affirmed Ntahobali's convictions for ordering the killing of Tutsis abducted and killed during the Mid-May Attack. 746 Consequently, the Appeals Chamber considers that Ntahobali does not show that the Trial Chamber erred in considering the number of victims as an aggravating circumstance in light of its finding that the number of victims exceeded that required for extermination. 747 3390. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's arguments concerning the aggravating circumstances considered by the Trial Chamber in determining his sentence.

3. Mitigating Circumstances 3391. The Trial Chamber determined that four mitigating circumstances weighed in Ntahobali's favour. 748 It accorded the following three mitigating circumstances "very limited weight": (i) his young age during the events; (ii) the fact that he is the father of three young children; and iii) his good character before the events. 749 The Trial Chamber gave greater weight to the fact that Ntahobali voluntarily surrendered himself to the Tribunal. 750 However, the Trial Chamber considered that, despite the weight accorded to these mitigating circumstances, "they pale[d] in comparison to the sheer gravity of Ntahobali's crimes, even before aggravating circumstances [were] taken into account.*7751 3392. Ntahobali submits that the Trial Chamber erred in according limited weight to the mitigating circumstances such as his age at the time of the events and arrest, his family circumstances, and his good conduct in detention, which indicate the possibility of rehabilitation. 752 He also contends that 744 Nzabonimana Appeal Judgement, para. 465; Ndahimana Appeal Judgement, para. 231; Ndindabahizi Appeal Judgement, para. 135. 7745 Trial Judgement, paras. 1480, 5782, 6053. 7746 See supra, Sections V.I.3(a), V.I.3(c). 7747 Trial Judgement, para.

6218. In so finding, the Appeals Chamber, Judge Khan dissenting, recalls that Ntahobali was not convicted in relation to the killings perpetrated during the Night of Three Attacks and the First Half of June Attacks. See supra, Sections V.I.1(a)(iii), V.I.1(c). It also has considered its prior conclusion that the Trial Chamber's apparen attribution of responsibility to Ntahobali for the killings of hundreds of Tutsi refugees abducted from the Butare Prefectoral Office is not sustained by the record. See supra, Section V.I.2(f). 7748 Trial Judgement, para. 6221. 7749 Trial Judgement, para. 6221. 7750 Trial Judgement, para. 6221. 7751 Trial Judgement, para. 6222. 7752 Ntahobali Notice of Appeal, paras. 353, 356; Ntahobali Appeal Brief, para. 994-996, referring to Erdemovié Sentencing Judgement, para.

16. Ntahobali argues that a reasonable trier of fact would not have imposed a sentence of life imprisonment because the consequences of imposing such a sentence on a detainee who is only 27 years old far utweigh those borne by a detainee receiving such a sentence at the age of 50 or 60. He further contends that his ag is family circumstances, and his good conduct indicate that he can be rehabilitated into society and warrant th possibility of being released. 1168 Case No. ICTR-98-42-A 14 December 2015

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19196/H the Trial Chamber abused its discretion by not considering that he "did not hold a position of authority in Rwanda and was not one of the architects of the genocide" 7753 3393. The Prosecution responds that the Trial Chamber did not err in weighing Ntahobali's mitigating circumstances. 7754 3394. The Appeals Chamber recalls that, while a trial chamber has the obligation to consider any mitigating circumstances when determining the appropriate sentence, it enjoys a considerable degree of discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to itS Accordingly, the existence of mitigating circumstances does not automatically imply a reduction of sentence or preclude the imposition of life imprisonment where the gravity of the offence so requires. 756 3395. The Appeals Chamber notes that the Trial Chamber expressly took into account Ntahobali's young age during the events, the fact that he was the father of three children, and his good character before the events.757 In light of a trial chamber's discretion in determining the weight, if any, to be accorded to mitigating circumstances, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber erred in failing to give sufficient weight to these mitigating circumstances and dismisses his arguments in this respect.

3396. The Appeals Chamber further observes that Ntahobali argues for the first time on appeal that the fact that he did not hold any position of de jure authority in Rwanda warranted mitigation.758 Recalling that it is the accused's prerogative to identify any mitigating circumstances he wished to have considered by the Trial Chamber and cannot raise them for the first time on appeal,7759 the Appeals Chamber considers that Ntahobali has waived his right to have this circumstance considered on appeal. 7753 Ntahobali Notice of Appeal, para. 352; Ntahobali Appeal Brief, para. 997, referring to Simba Trial Judgement, paras. 435, 436, Kayishema and Ruzindana Appeal Judgement, paras. 349, 352. Ntahobali submits that "the principle of gradation of hierarchy in sentencing requires that the longest sentences be reserved for the most serious offences" and that "[offenders receiving the most severe sentences also tend to be senior authorities". See Ntahobali Appeal Brief, para. 997, quoting Nahimana et al. Appeal Judgement, para. 1060, Nchamihigo Trial Judgement, para, 388, and eferring to Tadié Appeal Judgement, para. 55 Prosecution Response Brief, paras. 1229-1231 7735 See, e.g., Nizeyimana Appeal Judgement, para. 445; Ndahimana Appeal Judgement, para. 223; Ntabakuze Appeal Judgement, para. 280; Bikindi Appeal Judgement, para. 158. 7756 See, e.g., Nizeyimana Appeal Judgement, para. 445;

Ntabakuze Appeal Judgement, para. 280; Niyitegeka Appeal Judgement, para. 267. 7757 See Trial Judgement, para. 6221. 7758 See Ntahobali Closing Brief, paras. 776-780; Ntahobali Closing Arguments, T. 23 April 2009 pp. 53-58. 7759 See, e.g., Nzabonimana Appeal Judgement, para. 459; Kanyarukiga Appeal Judgement, para. 274; Bikindi Appeal Judgement, para. 165; Kamuhanda Appeal Judgement, para. 354. 1169 Case No. ICTR-98-42-A 14 December 2015

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19195/H 3397. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contentions related to the Trial Chamber's consideration of the mitigating circumstances relevant to the determination of his sentence.

4. Comparability of Sentences 3398. Ntahobali argues that his sentence is excessive because it is disproportionate to those rendered in similar cases concerning the same offences.760 In support of his argument, Ntahobali refers to the cases of Yussuf Munyakazi, Obed Ruzindana, and Gérard Ntakirutimana in which the accused received sentences of 25 years of imprisonment. 761 3399. The Prosecution responds that Ntahobali fails to demonstrate that the Trial Chamber committed a discernible error or abused its discretion in determining his sentence. 762 3400. The Appeals Chamber recalls that comparison between cases is of limited assistance in challenging a sentence given the broad discretion afforded to trial chambers in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes. 763 As repeatedly held, any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual, 7764 and often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results for every individual.7765 Aside from referring to cases in which lesser sentences were imposed and which he contends are similar to his, Ntahobali fails to demonstrate that the Trial Chamber committed a discernible error in imposing a sentence of life imprisonment in light of the sentences imposed on other convicted persons he has identified.

3401. Accordingly, the Appeals Chamber dismisses Ntahobali's contention in this respect. 7760 Ntahobali Notice of Appeal, para. 351; Ntahobali Appeal Brief, para. 999. 7761 Ntahobali Appeal Brief, paras. 1000-1003, referring to Munyakazi Trial Judgement, paras. 5, 24, 26, 134, 425, 501, 508, 522, Munyakazi Appeal Judgement, para. 188, Kayishema and Ruzindana Trial Judgement, paras. 564-566, 571, Ntakirutimana Trial Judgement, para. 924, Ntakirutimana Appeal Judgement, paras. 554-564. 1162 Prosecution Response Brief, para. 1228. 7763 See, e.g., Ntabakuze Appeal Judgement, para. 298; Muvunyi Appeal Judgement of 1 April 2011, para. 72; Rukundo Appeal Judgement, para. 263; Semanza Appeal Judgement, para.

394. See also Karemera and Ngirumpatse Appeal Judgement, para.

701. Ntabakuze Appeal Judgement, para. 298; Simba Appeal Judgement, para. 336; Strugar Appeal Judgement, por see, e.s., Nrabakuze Appeal Judgement, para, 298; Milosevié Appeal Judgement, para 326; Nahimana et al. Appeal Judgement, para. 1046, citing Celebici Appeal Judgement, para. 719. 1170 Case No. ICTR-98-42-A 14 December 2015

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19194/H 5. Life Sentence 3402. Ntahobali submits that, while the Statute of the International Residual Mechanism for Criminal Tribunals ("Residual Mechanism Statute" and "Residual Mechanism", respectively) provides for the possibility of pardon or commutation of sentence, the realisation of such possibility depends on the law of the State where the sentence is being served. 766 He argues that, given that certain States in which persons convicted by the Tribunal may serve their sentences do not provide for the possibility of parole,7767 there is a risk that he may be subjected to serving a sentence of life imprisonment without the possibility of parole in violation of, inter alia, Article 7 of the ICCPR and other instruments prohibiting cruel, inhumane or degrading treatment or punishment. 768 Ntahobali further contends that the "Appeals Chamber should take the opportunity to state unequivocally that [a life] sentence violates [his] fundamental rights [...] and that the absence of a formal provision in the [Residual Mechanism] Statute enabling mandatory review of sentences after a mandatory period of service of a life sentence violates those rights."7769 He adds that persons sentenced by the ICTY and ICTR should be treated equally and that, while he may have no prospect of conditional release if his sentence is affirmed, persons convicted by the ICTY generally serve their

sentences in States which recognise the principle of conditional release in the case of life sentences. 770 3403. The Prosecution responds that Ntahobali does not demonstrate any error of law or fact committed by the Trial Chamber and that his allegations are based on material not on the record and mere assertions unsupported by any evidence??? It submits that Article 7 of the ICCPR does not list life imprisonment as a degrading and inhumane treatment. 772 7766 Ntahobali Appeal Brief, para. 1004, referring to Article 26 of the Residual Mechanism Statute. 7767 Ntahobali points out that countries such as Mali and Rwanda do not provide for the possibility of parole but only refers to Rwandan domestic legislation. See Ntahobali Appeal Brief, para. 1005. 7768 Ntahobali Notice of Appeal, paras. 354, 355; Ntahobali Appeal Brief, paras. 1005-1008, referring, inter alia, to Article 3 of the European Convention on Human Rights, Article 5 of the American Convention on Human Rights, Article 5 of the African Charter on Human and Peoples' Rights, Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10 of the Rome Statute. Ntahobali also refers to a number of cases before the ECtHR in support of his contention. See Ntahobali Appeal Brief, para. 1008, referring to Kafkaris v. Cyprus, ECtHR, No. 21906/04, Judgment, 12 February 2008,

para. 97, Einhorn v. France, ECtHR, No. 71555/01, Judgment, 16 October 2001, para. 27, Nivette v. France, ECtHR, No. 44190/98, Decision, 3 July 2001, Vinter and others v. United Kingdom, ECtHR, Nos. 66069/09, 130/10, 3896/10, Judgment, 17 January 2012, paras. 56-58, Kafkaris v. Cyprus, ECtHR, No. 21906/04, Opinion partiellement dissidente commune aux Juges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann et Jebens, 12 February 2008, para. 6, Vinter and others v. United Kingdom, ECIHR, Nos. 66069/09, 130/10, 3896/10, Dissenting Opinion of Judges Garlicki, Thórn Björgvinsson and Nicolaou, 17 January 2012, p.

39. Ntahobali Appeal Brief, para. 1009, referring to Selmouni v. France, ECtHR, No. 25803/94, Judgment, 28 July 1999, para. 95, V. v. United Kingdom. ECtHR, No. 24888/94, Judgment, 16 December 1999. 7770 Ntahobali Appeal Brief, paras. 1006, 1010. 7771 Prosecution Response Brief, para. 1232. 7772 Prosecution Response Brief, para.

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19193/H 3404. The Appeals Chamber notes that nothing precludes a trial chamber from imposing a term of life imprisonment when the gravity of the offence so requires, 773 and that neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment."* The Appeals Chamber considers that Ntahobali's submissions concerning the enforcement of his sentence are speculative. Furthermore, the Appeals Chamber observes that sentence enforcement issues were not matters for the Trial Chamber and that, as such, there can be no error on behalf of the Trial Chamber in this respect. His arguments concerning pardon, commutation of sentence, and early release are therefore dismissed.

3405. The Appeals Chamber further dismisses Ntahobali's contention that the absence in the Residual Mechanism Statute of a mandatory review of his life sentence after a fixed period would violate his fundamental rights. The Appeals Chamber observes that Ntahobali will retain the possibility to directly petition the President of the Residual Mechanism for pardon, commutation of sentence, or early release. 775 3406. Based on the foregoing, the Appeals Chamber dismisses Ntahobali's contentions concerning the imposition of a sentence of life imprisonment.

6. Conclusion 3407. The Appeals Chamber, Judge Agius and Judge Liu dissenting with respect to the gravity of the offences, finds that Ntahobali has failed to demonstrate any error in the Trial Chamber's determination of his sentence and, accordingly, dismisses the remainder of Ground 5 of his appeal. 7773 See Rule 101(A) of the Rules; Ntawukulilyayo Appeal Judgement, fn. 581; Munyakazi Appeal Judgement, para. 186, quoting Rukundo Appeal Judgement, para. 260 ("there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated."). See Stakié Appeal Judgement, para. 395. 7775 See Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the ICTR, the ICTY or the Mechanism, MICT/3, 5 July 2012, 1172 Case No. 'ICTR-98-42-A 14 December 2015

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19192/H C. Nsabimana's Sentencing Appeal (Grounds 15 and 16) 3408. The Trial Chamber sentenced Nsabimana to a single term of 25 years of imprisonment for his convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental-well being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 7776 3409. Nsabimana submits that the Trial Chamber erred in: (i) assessing the aggravating circumstances; (ii) failing to consider or accord sufficient weight to certain mitigating circumstances; and (iii) imposing a sentence manifestly disproportionate to the form and degree of his participation in the crimes.'" He requests that the Appeals Chamber "revise the sentence imposed by the Trial Chamber to faithfully reflect the particular circumstances of this case."7778 1. Aggravating Circumstances 3410. The Trial Chamber found that the vulnerability of the victims at the Butare Prefecture Office constituted an aggravating circumstance when imposing Nsabimana's sentence.779 It noted that other potentially aggravating factors had not been proven. 780 3411. Nsabimana argues that the Trial Chamber engaged in impermissible double-counting because it considered the vulnerability of the victims both when assessing the gravity of the offences and as an aggravating circumstance.

781 He submits that the Trial Chamber also impermissibly considered his participation in the crimes through omission as an aggravating circumstance, as this was also an element of the form of aiding and abetting for which he was convicted. 782 3412. The Prosecution responds that Nsabimana does not demonstrate any discernible error in the Trial Chamber's determination that the vulnerability of the refugees at the prefectoral office constitutes an aggravating circumstance. 783 7776 Trial Judgement, paras. 6186, 6271. 7777 Nsabimana Notice of Appeal, paras. 112-129; Nsabimana Appeal Brief, paras. 503-546; Nsabimana Reply Brief, paras. 188-194. Nsabimana Appeal Brief, para. 546. 7779 Trial Judgement, para. 6231. 7780 Trial Judgement, para. 6231. 7781 Nsabimana Appeal Brief, paras. 529-531; Nsabimana Reply Brief, para. 193. 7782 Nsabimana Notice of Appeal, paras. 113-119; Nsabimana Appeal Brief, paras. 506-510, 533-536, referring to Trial udgement, para.

6230. Nsabimana also submits that the Trial Chamber's "acknowledgement that there was n remeditation" on his part "amounts to confirming that he could not have been aware of the violent acts committed the [Butare Prefecture Office] because premeditation presupposes preparation prior to the commission of the offence." See Nsabimana Appeal Brief, para. 508. 783 Prosecution Response Brief, paras. 1412, 1421. 1173 Case No. ICTR-98-42-A 14 December 2015

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19191/H 3413. The Appeals Chamber finds that the Trial Chamber relied on the vulnerability of the victims in assessing the gravity of the crimes 784 and the aggravating circumstances. 785 By doing so, the Trial Chamber engaged in impermissible double-counting as factors taken into consideration as aspects of the gravity of a crime cannot be additionally taken into account as separate aggravating circumstances and vice versa. 786 Accordingly, the Appeals Chamber finds that the Trial Chamber erred in considering the same factor in assessing the gravity of the offences and as a separate aggravating circumstance and will consider the impact of this error, if any, in Section XII below.

3414. Nsabimana's remaining argument that the Trial Chamber impermissibly considered his indirect participation in crimes committed at the prefectoral office as an aggravating factor as this also constituted an element of aiding and abetting through omission is without merit. As indicated above, the Trial Chamber only considered the vulnerability of the victims as an aggravating factor and, in fact, considered that his indirect participation in crimes through omission warranted "substantial mitigation."7787 2. Mitigating Circumstances 3415. The Trial Chamber considered Nsabimana's indirect participation in the crimes at the prefectoral office and the fact that he eventually discharged his legal duty in June 1994 to protect the refugees there as mitigating factors.788 It considered as further mitigating circumstances his: (i) humanitarian actions in helping individuals and groups find refuge; (ii) assistance in evacuating orphans, including approximately 600 children from the Groupe scolaire; and (iii) remorsefulness and good behaviour in detention as further mitigating circumstances. 78) 7784 See Trial Judgement, paras. 6229 (noting the "particularly vulnerable" refugees at the Butare Prefecture Office), 6230 ("the magnitude of human devastation could only have occurred because he failed to discharge his legal duty. Nsabimana's position as préfet imposed upon him a duty to act

to protect those vulnerable people within his realm. His omission in this regard at the Butare prefecture office, despite his knowledge that these acts were occurring around him, was central to the crimes that resulted."). See Trial Judgement, para. 6231 ("The victims of the attacks at the Butare prefecture office were particularly vulnerable. The Chamber considers this as an aggravating circumstance."). vara.

338. See also supra, para. 3385 See Trial Judgement, para.

6232. To the extent that, through his reference to paragraph 6230 of the Trial Judgement which relates to the Trial Chamber's assessment of the gravity of the offences, Nsabimana intended to argue that the Trial Chamber impermissibly double-counted his participation in the crimes through omission both in assessing the gravity of the offences and as an element of his form of responsibility, the Appeals Chamber recalls that the determination of the gravity of the offences requires a consideration of the particular circumstances of the case as well as the form and degree of the participation of the convicted person in the crime. See Kanyarukiga Appeal Judgement, para. 281; Rukundo Appeal Judgement, para.

243. The Appeals Chamber therefore finds no error in the Trial Chamber's consideration of the nature of Nsabimana's contribution to the crimes at the prefectoral office when assessing the 788 Trial Judgement, para. 6232 7789 Trial Judgement, paras. 6232, 6233. 1174 Case No. ICTR-98-42-A 14 December 2015

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19190/H 3416. Nsabimana submits that the Trial Chamber failed to consider certain mitigating circumstances such as his inexperience for his appointment as prefect, the length of his trial, and his humanitarian actions in providing blankets and food to refugees.790 He also argues that the Trial Chamber failed to accord sufficient weight to the factors it considered which, in his view, would have led to a significant reduction of the sentence imposed. 791 3417. The Prosecution responds that the Trial Chamber correctly assessed the mitigating circumstances and that Nsabimana fails to identify any error in the Trial Chamber's exercise of its discretion when assessing them. 792 3418. The Appeals Chamber notes that Nsabimana failed to identify his inexperience, the length of the proceedings, and his humanitarian acts in assisting refugees by providing food and blankets as mitigating circumstances in his closing brief or oral closing arguments.93 Recalling that it is the accused's prerogative to identify any mitigating circumstances he wished to have considered by the Trial Chamber and cannot raise them for the first time on appeal, 794 the Appeals Chamber finds that the Trial Chamber did not err in not considering whether these circumstances warranted mitigation and considers that Nsabimana has waived his right to have them considered on appeal.

3419. Turning to Nsabimana's remaining contentions that the Trial Chamber failed to give sufficient weight to the mitigating factors it did identify, the Appeals Chamber recalls that mere assertions that the Trial Chamber failed to give sufficient weight to certain evidence, or that it should have interpreted evidence in a particular manner, are liable to be summarily dismissed. 795 The Appeals Chamber observes that the Trial Chamber explicitly stated that Nsabimana's indirect participation "warrants substantial mitigation", listed concrete examples of individuals, families, and groups he aided, and expressly considered his words of remorse as well as an attestation of his good conduct in detention.' 7796 Nsabimana does not demonstrate any error in the Trial Chamber's assessment. 1790 Nsabimana Notice of Appeal, paras. 122-126; Nsabimana Appeal Brief, paras. 511-514, 518-520, 525, 526; Nsabimana Reply Brief, paras. 189-192. 7791 Nsabimana Notice of Appeal, para. 127; Nsabimana Appeal Brief, paras. 515, 516, 521-524, 527, 528. 7792 Prosecution Response Brief, paras. 1413, 1416-1418. See also AT. 16 April 2015 pp. 60, 61. 7793 See Nsabimana Closing Brief, paras. 1996-2019; Closing Arguments, T. 27 April 2009 p.

23. In this respect, the Appeals Chamber considers that Nsabimana's general statement that he "provided better protection for the lives of some Rwandan Tutsis and Hutus alike through food, drugs etc..." in paragraph 2016 of his closing brief is not sufficiently detailed to identify mitigating circumstances and fails to demonstrate their existence by a preponderance of the evidence. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 694; Rukundo Appeal Judgement, para. 255; Muhimana Appeal Judgement, para. 231; Kajelijeli Appeal Judgement, para. 294. 1794 See, e.g., Nzabonimana Appeal Judgement, para. 459; Kanyarukiga Appeal Judgement, para. 274; Bikindi Appea Judgement, para. 165; Kamuhanda Appeal Judgement, para.

354. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 693; Nchamihigo Appeal Judgement, para.

157. See also Martié Appeal Judgement, para. 19. 779 See Trial Judgement, paras. 6232, 6233, fins. 14888, 14889. 1175 Case No. ICTR-98-42-A 14 December 2015

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19189/H 3420. Based on the foregoing, the Appeals Chamber dismisses Nsabimana's contentions related to the Trial Chamber's consideration of the mitigating circumstances relevant to the determination of his sentence.

3. Form and Degree of Participation in the Crimes 3421. In determining the gravity of his offences, the Trial Chamber noted that it had not found that "Nsabimana was a direct perpetrator in any massacre or killing perpetrated in Butare préfecture or that he ordered or was in any other way directly associated with any given attack."7797 The Trial Chamber, however, considered that "the magnitude of human devastation could only have occurred because he failed to discharge his legal duty" and that "[h]is omission in this regard at the Butare préfecture office [...] was central to the crimes that resulted. "7798 3422. Nsabimana submits that the sentence imposed by the Trial Chamber is excessive and manifestly disproportionate given the indirect mode of participation by omission of which he was convicted and the absence of premeditation and lack of direct collaboration. 799 He argues that secondary or indirect forms of responsibility have generally resulted in lower sentences and that he should have received a sentence of less than 15 years. 7800 3423. The Prosecution responds that Nsabimana fails to show that the Trial Chamber committed an error in exercising its discretion or in following the applicable law in determinating his sentence.7801 3424. The Appeals Chamber considers that Nsabimana's participation in the killings of Tutsis who had sought refuge at the Butare Prefecture

Office constituted his culpable conduct and that the fact that he was not found to have acted with premeditation or directly collaborated with the principal perpetrators or those who ordered the crimes does not reduce that culpability. It is correct, however, that aiding and abetting is a form of responsibility that has generally warranted lower sentences than forms of direct participation. 802 In the specific circumstances of this case and in light of the form and degree of participation of Nsabimana in the crimes committed, the Appeals Chamber considers that the sentence imposed by the Trial Chamber is excessive. Accordingly, the Appeals Chamber 7797 Trial Judgement, para. 6230. 7798 Trial Judgement, para. 6230. 7799 Nsabimana Notice of Appeal, para. 129; Nsabimana Appeal Brief, paras. 538, 541. See also AT. 16 April 2015 POT PrOSeCution Response Brief, paras. 1422-1424. See also AT. 16 April 2015 pp. 60, 61. 7802 Ntawukuliyayo Appeal Judgement, para. 244 and references cited therein. 1176 Case No. ICTR-98-42-A 14 December 2015 841

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19188/H finds that the Trial Chamber committed a discernible error in exercising its discretion and will consider the impact of this error, if any, in Section XII below.

4. Conclusion 3425. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in considering the vulnerability of the victims in assessing the gravity of the offences and as a separate aggravating factor. The Appeals Chamber further finds that, in light of the form and degree of participation of Nsabimana in the crimes committed, the sentence imposed by the Trial Chamber is excessive and that the Trial Chamber committed a discernible error in exercising its discretion in this regard. The Appeals Chamber will consider the impact of these errors, if any, in Section XII below. The Appeals Chamber dismisses the remainder of Grounds 15 and 16 of Nsabimana's appeal. 1177 Case No. ICTR-98-42-A 14 December 2015

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19187/H D. Nteziryayo's Sentencing Appeal (Grounds 10 and 11) 3426. The Trial Chamber sentenced Nteziryayo to a single term of 30 years of imprisonment for his convictions for direct and public incitement to commit genocide. 7803 3427. Nteziryayo submits that the Trial Chamber erred in: (i) assessing the gravity of the offences; (ii) its consideration of certain aggravating factors; (iii) failing to consider or accord sufficient weight to certain mitigating factors; (iv) failing to impose a sentence proportionate to his criminal conduct; and (v) failing to impose a sentence similar to those imposed in comparable cases. 7804 Nteziryayo requests that his sentence be reduced to time served. 7805 1. Gravity of the Offences 3428. When considering the gravity of Nteziryayo's offences, the Trial Chamber recalled that he "incited the population to kill Tutsis at meetings.»7806 It further noted, however, that Nieziryayo "was not a direct perpetrator in any massacre or killing perpetrated in Butare préfecture. 7807 The Trial Chamber then stated the following: The Chamber has determined that Nteziryayo had a leadership role in the civil defence programm in Butare préfecture, and that he was later sworn in as préfet of Butare, on 17 June 1994. As such he exerted considerable authority and power in Butare préfecture at this time. During this period, soldiers and civilian militiamen participated in a widespread and systematic campaign of slaughter and targeted Tutsi civilians, including those who were particularly vulnerable, as well as Hutu moderates.

3429. Nteziryayo contends that the Trial Chamber erred in considering his role in the civil defence programme as well as crimes committed by "civilian militiamen" in determining the gravity of the offences as it elsewhere found that he could not be held criminally responsible in relation to his involvement in the civil defence programme and acquitted him of crimes committed by its members.7809 3430. The Prosecution responds that the Trial Chamber found it established beyond reasonable doubt that Nteziryayo had a leadership role in the civil defence programme in Butare Prefecture, 7803 Trial Judgement, paras. 6186, 6271. 7804 Nteziryayo Notice of Appeal, paras. 70, 71, 73-75; Nteziryayo Appeal Brief, paras. 289-328. 7805 Nteziryayo Notice of Appeal, paras. 72, 77. 7806 Trial Judgement, para. 6239. 7807 Trial Judgement, para. 6239. 7808 Trial Judgement, para. 6240. 7809 Nteziryayo Appeal Brief, paras. 306(a), 307-310, 312(b) (emphasis omitted), 325(a), (b), 326, 328, referring, inter alia, to Trial Judgement, paras. 5966, 5967. See also Nteziryayo Notice of Appeal, paras. 73, 74; Nteziryayo Reply Brief, paras. 130-133; AT. 17 April 2015 pp. 19, 20. 1178 Case No. ICTR-98-42-A 14 December 2015

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19186/H even though it was not satisfied that the only reasonable inference was that Nteziryayo was responsible for the attacks by civil defence forces. 7810 3431. The Appeals Chamber recalls that the determination of the gravity of the offence requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime.?811 The Appeals Chamber finds that the Trial Chamber's consideration of Nteziryayo's leadership role in the civilian defence programme when assessing the gravity of his offences constitutes a discernible error as the Trial Chamber had previously found that Nteziryayo could not be held responsible for his role in the civil defence programme and acquitted him for the crimes committed by its members. 812 Moreover, the Appeals Chamber finds that the Trial Chamber's unreferenced statement that "soldiers and civilian militiamen participated in a widespread and systematic campaign of slaughter and targeted Tutsi civilians, including those who were particularly vulnerable, as well as Hutu moderates'7813 insufficiently linked to the crime for which Nteziryayo was convicted - direct and public incitement to commit genocide - and, consequently, irrelevant to the consideration of its gravity.

3432. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in taking into account Nteziryayo's role in the civil defence programme in Butare Prefecture in determining the gravity of his offences and will consider the impact of this error, if any, in Section XII below.

2. Aggravating Circumstances 3433. When assessing Nteziryayo's aggravating circumstances, the Trial Chamber stated the following: In aggravation, the Chamber has considered Nteziryayo's role as leader of the civil defence programme and his position as préfet of Butare préfecture. Given his high profile position, Nteziryayo's active incitement and encouragement of the public to commit genocide demonstrates 7814 the abuse of his position. This constitutes an aggravating factor.

3434. In addition to arguing that he was not found to have committed crimes in relation to his participation in the civil defence programme, Nteziryayo submits that the Trial Chamber's findings as to his role and responsibility in the civil defence programme were vague, preventing the Trial 7810 Prosecution Response Brief, para. 1588. 7811 See Kanyarukiga Appeal Judgement, para. 281; Rukundo Appeal Judgement, para. 243 zon Trial Judemen, para 567.

5968. Se also ibid, para. 5589. 7814 Trial Judgement, para. 6241 (internal references omitted). 1179 Case No. ICTR-98-42-A 14 December 2015

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19185/H Chamber from considering it "in aggravation" 7815 He contends that the Trial Chamber erred in its assessment of the evidence concerning his participation in the civil defence programme. 816 3435. The Prosecution responds that the Trial Chamber correctly found that Nteziryayo had a high profile position based on his role in the civil defence programme and position as Butare Prefect and reasonably concluded that his abuse of his position constituted an aggravating factor. 817 3436. The Appeals Chamber recalls that Nteziryayo's conviction for direct and public incitement to commit genocide is based on conduct that he engaged in his official capacity as prefect of Butare.?818 The Appeals Chamber considers that this finding alone reasonably supports the Trial Chamber's determination that his abuse of his authority constituted an aggravating factor.

3437. Consequently, Nteziryayo's challenges about the ambiguity of the Trial Chamber's findings as to his role in the civil defence programme as well as its alleged erroneous assessment of the evidence relating to it, if substantiated, could not invalidate the sentence or lead to a miscarriage of justice. As a result, the Appeals Chamber dismisses these arguments without further consideration.

3. Mitigating Circumstances 3438. In discussing Nteziryayo's mitigating factors, the Trial Chamber stated: [The Chamber] has taken into account [Nteziryayo's] selective assistance to some Tutsis in Butare préfecture during this period, including Egide Gatera and his wife Rose Umulisa, who he welcomed into his house and helped evacuate to Burundi, as well as, among others, six seminarians of Mbazi, in cooperation with Father Vieckoslav. The Chamber has assessed his efforts to facilitate the evacuation of orphans on 18 June 1994 and 3 July 1994 respectively. It is mindful of Nteziryayo's endeavours in relation to the protection of Bishop Gahamanyi, a Tutsi, and other priests, Tutsi nuns and monks at the Karubanda minor seminary, and religious personalities in Save, including the Tutsi parish of Father Calver Rahundi and the Mother Superior of the Benebikira sisters, where many Tutsi refugees had sought sanctuary. In the Chamber's view, this selective assistance carries only limited weight as a mitigating factor. The Trial Chamber concluded, however, that. "helping a handful of Tutsi civilians does not outweigh the gravity of the crimes for which Nteziryayo has been charged" and that "the gravity of the crimes and the aggravating factors negate[d] any mitigating factors."7820 3439. Nteziryayo submits that the Trial Chamber erred in failing to consider or explain why it did not

accord any weight in mitigation to his deteriorating health as well as in failing to consider his: (i) assistance to the refugees in Rango; (ii) participation in an evacuation on 5 June 1994; (iti) role 815 Nteziryayo Appeal Brief, paras. 306(b), 313-317, 326-328. See also Nteziryayo Notice of Appeal, paras. 73, 74 Nteziryayo Reply Brief, paras. 129, 131-135; AT. 17 April 2015 pp. 19, 20 7816 Nteziryayo Appeal Brief, paras. 318-323. See also Nteziryayo Reply Brief, paras. 136-139. 7817 Prosecution Response Brief, paras. 1586-1588. See also ibid., paras. 1589-1600; AT. 17 April 2015 pp. 37, 38. 7818 See Trial Judgement, paras. 3672, 3674, 3677, 3691, 5945, 6022-6029, 6036. 360. 94, 02 03 8916 7819 Trial Judgement, para. 6242 (internal references omitted). 1180 Case No. ICTR-98-42-A 14 December 2015

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19184/H in the evacuation of 600 school children on 30 June 1994; (iv) assistance in evacuating a Rwandan woman who was the wife of an expatriate on 25 June 1994; and (v) implementation of security directives which saved thousands of lives. 821 3440. Nteziryayo further contends that the Trial Chamber erred in finding that his assistance was selective and that he helped only a handful of Tutsis?® He argues that the Trial Chamber failed to consider the entire scale of his assistance, which shows a consistent pattern of conduct aimed at indiscriminately saving hundreds if not thousands of civilians. 7823 3441. The Prosecution responds that Nteziryayo failed to demonstrate any discernible error in the Trial Chamber's assessment of the mitigating circumstances.?82 It submits that Nteziryayo's alleged deteriorating health was considered and that Nteziryayo's submissions are insufficient to establish that it should have been considered as a mitigating factor?825 The Prosecution also argues that Nteziryayo did not make submissions at trial regarding his alleged assistance to the Rango refugees, his involvement in the evacuation of a Rwandan woman on 25 June 1994, and his participation in the evacuation of 600 school children on 30 June 1994, which precludes him from raising them for the first time on appeal. ?826 3442. The Appeals Chamber finds no merit in Nteziryayo's contention that

the Trial Chamber failed to consider his health as a mitigating circumstance. The Trial Chamber expressly summarised Nteziryayo's submission that his health problems should be considered in mitigation in the Trial Judgement?827 Nteziryayo does not demonstrate that the Trial Chamber committed a discernible ertor in not giving weight to this argument in light of the vague and unsupported submissions he made at trial. 7828 7820 Trial Judgement, para.

6243. AT. 17 April 2015 p. 45. 7822 Nteziryayo Appeal Brief, paras. 301, 304. 7823 Nteziryayo Appeal Brief, paras. 302, 304. See also Nteziryayo Reply Brief, paras. 127, 128; AT. 17 April 2015 Biza prosecution Response Brief, paras. 1578-1585. 7825 Prosecution Response Brief, para.

1580. The Prosecution contends that Nteziryayo did not, for example, refer to any medical documentation to support his claim. See idem. 7826 Prosecution Response Brief, paras. 1583, 1584. 7827 See Trial Judgement, para. 6238. 7828 Nteziryayo Closing Arguments, T. 28 April 2009 p. 31 ("Apart from that, we would like to draw your kind attention to the fact of the Trial Chamber actually taking into account mitigating circumstances when they look at an accused's health. Recently Alphonse Nteziryayo has been experiencing serious health problems which continue to dog him. Therefore, the judgement of 24* February 2003 in the Prosecutor versus Elizaphan, [...] in paragraph 898, agreed to mitigating factors because the Accused was ill. Therefore, we request the Trial Chamber to take into account mitigating circumstances in respect of the Accused Alphonse Nteziryayo."). 1181 Case No. ICTR-98-42-A 14 December 2015

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19183/H 3443. The Appeals Chamber also observes that, as noted by the Prosecution, Nteziryayo failed to identify as mitigating circumstances in his closing brief or oral closing arguments his assistance to the Rango refugees, his role in evacuating 600 school children on 30 June 1994, and his assistance in the evacuation of a Rwandan woman who was the wife of an expatriate on 25 June 1994.7829 Recalling that it is the accused's prerogative to identify any mitigating circumstances he wished to have considered by the Trial Chamber and cannot raise them for the first time on appeal, 7830 the Appeals Chamber finds that the Trial Chamber did not err in not considering whether these circumstances warranted mitigation and considers that Nteziryayo has waived his right to have them considered on appeal.

3444. The Appeals Chamber notes that Nteziryayo did identify, albeit vaguely, the 5 June 1994 evacuation from the Groupe scolaire and that he implemented security directives that resulted in the saving of thousands of lives as mitigating factors in his oral closing arguments.?831 Although the Trial Chamber did not expressly discuss these factors, the Trial Judgement reflects that they were considered by the Trial Chamber.7832 Moreover, the Appeals Chamber observes that the Trial Chamber found that Nteziryayo "attempted to prevent the evacuation from Butare of about 300 orphans and their adult supervisors and selected about 30 individuals whom they believed to be Tutsi adults and forced them to remain in Rwanda. 7833 The Appeals Chamber therefore finds no error in the Trial Chamber's decision not to consider the 5 June 1994 evacuation in mitigation of Nteziryayo's sentence. Given that an accused bears the burden of establishing mitigating factors by a preponderance of the evidence,7834 the Appeals Chamber is also not persuaded that, although Nteziryayo's counsel briefly indicated that evidence of Nteziryayo's assistance could be found in his testimony, 835 the Trial Chamber was required to search for and expressly assess whether Nteziryayo met his burden in establishing that security directives he issued contributed to saving the lives of thousands given the vague and ambiguous

nature of his submissions. 7836 7829 See Nteziryayo Closing Arguments, T. 28 April 2009 pp. 27-31. As for the alleged assistance to the Rango refugees, the Appeals Chamber observes that, in his closing arguments, Nteziryayo merely pointed to Expert Witness Des Forges's testimony that the refugees who had been sent to Rango were fed and survived, without pointing, as he does now for the first time on appeal, to the fact that he visited the refugees and ensured their safety. See idem. 7830 See, e.g., Nzabonimana Appeal Judgement, para. 459; Kanyarukiga Appeal Judgement, para. 274; Bikindi Appeal Judgement, para. 165; Kamuhanda Appeal Judgement, para. 354. 7831 See Nteziryayo Closing Arguments, T. 28 April 2009 p. 29. 7832 Trial Judgement, para. 6238, fn. 14894, referring to Nteziryayo Closing Argument, T. 28 April 2009 pp. 27-31. 7833 Trial Judgement, para. 4875. 7834 See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 694; Rukundo Appeal Judgement, para. 255; Muhimana Appeal Judgement, para. 231; Kajelijeli Appeal Judgement, para. 294. 7835 Nteziryayo Closing Arguments, T. 28 April 2009 p. 29. 7836 See Nteziryayo Closing Arguments, T. 28 April 2009 p. 29 (stating without any reference to the record: "[w]hen the situation became desperate and the population was trying to flee into exile, Préfet Nteziryayo took measures to warn urban population in the vicinity of urban centers so that the people there could have directives regarding their own security with regard to when to evacuate from the city. This enabled thousands of lives to be saved, Mr. President."). 1182 Case No. ICTR-98-42-A 14 December 2015

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19182/H 3445. The Appeals Chamber also considers that Nteziryayo does not show that the Trial Chamber committed any discernible error in finding that this assistance was selective and that he helped a limited number of Tutsis.

3446. Accordingly, the Appeals Chamber finds that Nteziryayo has failed to demonstrate that the Trial Chamber erred in failing to consider or according sufficient weight to certain mitigating circumstances.

4. Proportionality of Sentence 3447. Nteziryayo submits that a sentence of 30 years of imprisonment is disproportionate to the offences of which he was convicted 7837 He emphasises the Trial Chamber's findings that there was "limited evidence of any specific acts committed by members of the population subsequent to Nteziryayo's speeches" and "insufficient evidence to establish that Nteziryayo's words at [Muyaga and Kibayi Communes] meetings substantially contributed to any subsequent crime" 7838 Nteziryayo argues that his sentence is excessive and disproportionate "where no harm, in terms of consequential crime, is established" 7839 3448. The Prosecution responds that the offence of direct and public incitement to commit genocide, of which Nteziryayo was convicted, is a crime warranting a serious punishment and that the sentence imposed on Nteziryayo was proportionate to the degree of his responsibility. 7840 3449. The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity. 7841 The Trial Chamber found that Nteziryayo committed direct and public incitement to commit genocide on three separate occasions 7842 Accordingly, the Appeals Chamber considers that, regardless of whether or not deaths resulted from his statements, the imposition of a sentence of 30 years of imprisonment was not beyond the Trial Chamber's sentencing discretion.

3450. In light of the above, the Appeals Chamber dismisses Nteziryayo's contention that the Trial Chamber imposed a sentence disproportionate to his criminal conduct. 7837 Nteziryayo Notice of Appeal, paras. 70, 71; Nteziryayo Appeal Brief, para.

291. See also Nteziryayo Notice of nighlights that he was acquitted of several crimes. See ibid., fn.

361. See also AT. 17 April 2015 pp. 43, 44, 46 Prosecution Response Brief, paras. 1569, 1570. See also AT. 17 April 2015 pp. 38, 39 7841 Cf. Bikindi Appeal Judgement, para. 208 7842 See Trial Judgement, paras. 6022-6029, 6036. 1183 Case No. ICTR-98-42-A 14 December 2015

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19181/H S. Comparability of Sentences 3451. Nteziryayo points to parallels between his case and those of Muvunyi, Simon Bikindi ("Bikindi"), Aloys Simba, and Nsabimana?843 and argues that his criminal conduct "was no more serious than in each of the four cases" and that the higher sentence imposed on him by the Trial Chamber "was wholly unjust in all the circumstances"7844 In particular, with respect to Nsabimana, Nteziryayo emphasises that his tenure as prefect of Butare was much shorter and that Nsabimana was convicted of more crimes. 7845 3452. The Prosecution responds that comparing sentences imposed in other cases is not a proper avenue for challenging the exercise of the Trial Chamber's discretion on sentencing and points to factors that distinguish Nteziryayo's case from the cases he cites. 846 3453. The Appeals Chamber reiterates that comparison between cases is of limited assistance in challenging a sentence given the discretion afforded to trial chambers in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes 847 Aside from referring to cases before the Tribunal in which lesser sentences were imposed and which Nteziryayo contends are similar to his, Nteziryayo does not demonstrate that the Trial Chamber committed a discernible error in imposing a sentence of 30 years of imprisonment in light of the sentences imposed on the other convicted persons he has identified.

3454. With respect to the sentence imposed on Nsabimana, while Nteziryayo highlights the respective length of his and Nsabimana's tenures as prefects of Butare and the number of counts upon which the Trial Chamber entered convictions, his submissions ignore the difference in his and Nsabimana's criminal conduct as well as the aggravating and the mitigating factors considered by the Trial Chamber. 7848 The Appeals Chamber therefore finds that Nteziryayo does not demonstrate that the sentence imposed on him by the Trial Chamber was out of reasonable proportion in comparison to that imposed on Nsabimana.

3455. Accordingly, the Appeals Chamber dismisses Nteziryayo's arguments in this respect. 7843 Nteziryayo Appeal Brief, paras. 292-296. 7841 Nteziryayo Appeal Brief, para. 297. 7845 Nteziryayo Appeal Brief, para. 296. 7846 Prosecution Response Brief, paras. 1571-1577. Judgement, para. 701. 7848 See Trial Judgement, paras. 6229-6233, 6239-6243. 1184 Case No. ICTR-98-42-A 14 December 2015

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19180/H 6. Conclusion 3456. The Appeals Chamber finds that the Trial Chamber erred in considering Nteziryayo's role in the civil defence programme and the unspecified conclusion that "soldiers and civilian militiamen participated in a widespread and systematic campaign of slaughter and targeted Tutsi civilians, including those who were particularly vulnerable, as well as Hutu moderates" when assessing the gravity of his offences. It will consider the impact of this error, if any, in Section XII below. The Appeals Chamber nonetheless finds that Nteziryayo has failed to demonstrate any other error in the Trial Chamber's findings that may impact the determination of his sentence and dismisses the remainder of Grounds 10 and 11 of his appeal. 1185 Case No. ICTR-98-42-A 14 December 2015

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19179/H E. Kanyabashi's Sentencing Appeal (Ground 8) 3457. The Trial Chamber sentenced Kanyabashi to a single term of 35 years of imprisonment for his convictions for genocide, direct and public incitement to commit genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II.7849 3458. Kanyabashi submits that the Trial Chamber erred in: (i) assessing the gravity of the offences; (ii) double-counting the aggravating circumstances; (iii) failing to consider or accord sufficient weight to mitigating circumstances; and (iv) imposing a disproportionate sentence which the Appeals Chamber should substantially reduce?850 He requests that his sentence be substantially reduced. 851 1. Gravity of the Offences 3459. When assessing the gravity of Kanyabashi's offences, the Trial Chamber determined that his crimes were "of an obvious gravity resulting in a significant number of casualties in terms of death and injuries. »7852 3460. Kanyabashi submits that the Trial Chamber erred in relying on the killings that resulted from the May and June 1994 megaphone announcements that support his conviction for direct and public incitement to commit genocide since the Trial Chamber found that the evidence was insufficient

to establish that the megaphone announcements contributed to subsequent killings.?853 He further contends that it was erroneous and illogical for the Trial Chamber to have considered the number of victims with respect to the Kabakobwa Hill attack in assessing the gravity of the offences as he was found to have failed to punish his culpable subordinates, an act that would have had no impact on the number of casualties. 7854 3461. The Prosecution did not respond to these contentions.

3462. The Appeals Chamber finds that, contrary to Kanyabashi's contention, the Trial Chamber did not consider the killings that followed the megaphone announcements in order to determine the 7849 Trial Judgement, paras. 6186, 6271. 7850 Kanyabashi Notice of Appeal, sub-paras. 8.1.1-8.1.4, para. 35; Kanyabashi Appeal Brief, paras. 383-394. 7851 Kanyabashi Appeal Brief, para. 397. 7852 Trial Judgement, para. 6253. 7853 Kanyabashi Notice of Appeal, sub-para, 8.1.1; Kanyabashi Appeal Brief, para. 383, heading 8.1.1 at p. 131; Kanyabashi Reply Brief, para. 148. 7854 Kanyabashi Notice of Appeal, sub-para. 8.1.2; Kanyabashi Appeal Brief, para. 384; Kanyabashi Reply Brief, paras. 147, 148. 1186 Case No. ICTR-98-42-A 14 December 2015

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19178/H gravity of his offences. Rather, the Trial Chamber considered that "all [of Kanyabashi's] crimes are of an obvious gravity, resulting in a significant number of casualties in terms of death and injuries."7835 The Appeals Chamber notes that the Trial Chamber's conclusions related to the casualties that occurred as a result of attacks on Kabakobwa Hill and Matyazo Clinic alone supported the finding as it concerned the "significant number of casualties" 7856 The fact that the Trial Chamber only relied on these casualties in determining Kanyabashi's sentence is obvious as it only considered the number of victims resulting from Kabakobwa Hill and Matyazo Clinic when determining that the number of victims constituted an aggravating circumstance 851 Consequently, the Appeals Chamber is not persuaded that the Trial Chamber considered the resulting killings in assessing the gravity of the offence as it related to his conviction for direct and public incitement to commit genocide. Accordingly, the Appeals Chamber dismisses Kanyabashi's challenge in this regard.

3463. With respect to Kanyabashi's argument that the Trial Chamber erred in taking into account the casualties resulting from the attack at Kabakobwa Hill, the Appeals Chamber finds that he does not demonstrate that his responsibility under Article 6(3) of the Statute as determined by the Trial Chamber would have prevented the Trial Chamber from considering this factor in determining the gravity of the offences in sentencing?858 Accordingly, the Appeals Chamber dismisses his arguments in this respect.

2. Aggravating Circumstances 3464. The Trial Chamber considered Kanyabashi's abuse of authority in committing the crimes that occurred at Matyazo Clinic and the number of victims resulting from the killings at Kabakobwa Hill and Matyazo Clinic as aggravating circumstances in determining his sentence. 859 3465. Kanyabashi submits that the Trial Chamber erred in relying on his abuse of authority with respect to the killings at Matyazo Clinic since an element of a crime cannot be also considered as an aggravating factor?860 He also contends that the Trial Chamber erred in double-counting the 7855 Trial Judgement, para. 6253. 7856 Trial Judgement, paras. 2103, 5791, 6061, 6253. 7857 Trial Judgement, para, 6254. 7858 Ntabakuze Appeal Judgement, para. 302 ("the seriousness of a superior's conduct in failing to prevent or punish rimes must be measured to some degree by the nature of the crimes to which this failure relates, i.e. the gravity of th rimes committed by the direct perpetrator(s)"). See also Celebiéi Appeal Judgement, para. 738 7859 Trial Judgement, paras. 6254, 6255. 1187 Case No. ICTR-98-42-A 14 December 2015

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19177/H number of victims of the attacks on Kabakobwa Hill and at Matyazo Clinic when assessing the gravity of the offences and factors in aggravation. 7861 3466. The Prosecution responds that the Trial Chamber properly assessed Kanyabashi's aggravating factors and that it did not err in considering his abuse of authority as an aggravating circumstance since it is not an element of superior responsibility. 82 It also submits that Kanyabashi's sentence reflects his extensive criminal culpability and that, "although the Trial Chamber erred in double counting the number of victims, this error does not warrant a lower sentence.*7863 3467. With respect to the Trial Chamber's consideration of Kanyabashi's abuse of authority as an aggravating factor, the Appeals Chamber observes that, while Kanyabashi was only convicted pursuant to Article 6(3) of the Statute, the Trial Chamber, Judge Ramaroson dissenting, found that he ordered soldiers to open fire on the Tutsis at Matyazo Clinic, resulting in the deaths of many Tutsi refugees. 7864 As an abuse of authority is not an element of superior responsibility under Article 6(3) of the Statute, the Appeals Chamber finds that it was not improper for the Trial Chamber to consider Kanyabashi's abuse of authority through, for instance, ordering the killings as an aggravating circumstance. 7865 3468. Turning to Kanyabashi's argument that the Trial

Chamber erred in double-counting the number of the casualties of the attacks on Kabakobwa Hill and at Matyazo Clinic for the purpose of the gravity of the offences and as an aggravating factor, the Appeals Chamber recalls that factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances. 866 Since the Trial Chamber clearly relied on the number of victims from the attacks at Kabakobwa Hill and Matyazo Clinic when assessing the gravity of the offences,?867 this same factor could not be taken into account as an aggravating circumstance. 868 7861 Kanyabashi Notice of Appeal, sub-para. 8.1.3; Kanyabashi Appeal Brief, para. 386. 7862 Prosecution Response Brief, paras. 1976-1979. 7863 Prosecution Response Brief, para.

1982. See also ibid., paras. 1980, 1981. 7864 Trial Judgement, paras. 2103, 5818. 7865 See Karemera and Ngirumpatse Appeal Judgement, para. 682, referring to Simba Appeal Judgement, para. 310; Ndindabahizi Appeal judgement, para. 136; Hadzhasanovié and Kubura Appeal Judgement, para. 320; Aleksovski participation in the killing on Kabakobwa Hill. 7866 See, e.g., Gatete Appeal Judgement, para. 275; Milosevic Appeal Judgement, para. 306; Semanza Appeal Judgement, para. 338. 7867 Trial Judgement, para. 6253. 7868 Trial Judgement, para. 6254. 1188 Case No. ICTR-98-42-A 14 December 2015

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19176/H 3469. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in considering the number of casualties of the attacks on Kabakobwa Hill and at Matyazo Clinic both in assessing the gravity of the offences and as a separate aggravating circumstance. The Appeals Chamber will consider the impact of this error, if any, in Section XII below.

3. Mitigating Circumstances 3470. The Trial Chamber took into account "Kanyabashi's purported good character and his 20 years of service as a bourgmestre" as well as his "efforts, on occasions, to stop the massacres from spreading and to assist the refugees" as mitigating circumstances in determining his sentence.?869 However, it found that these mitigating circumstances were of limited weight given the gravity of Kanyabashi's crimes. 7870 3471. Kanyabashi submits that the Trial Chamber "gravely underestimated the exculpatory evidence" 787) He also argues that the Trial Chamber did not consider his assistance to a Tutsi woman called Rumiya,7872 his 18 years of employment at the Butare University Hospital, and the undue delay of the proceedings which resulted in violation of his fair trial rights.?873 He also contends that the Trial Chamber disregarded his advanced age and his good conduct in detention.?874 Kanyabashi suggests that, since he was born in 1937, a sentence of 35 years in effect equals a sentence of imprisonment for life. 7875 3472. The Prosecution responds that the Trial Chamber properly assessed the mitigating circumstances and that, in any case, their existence does not automatically imply a reduction of the sentence.7876 It also submits that the length of the proceedings is not a factor that a trial chamber must consider as a mitigating circumstance.?877 3473. The Appeals Chamber finds that Kanyabashi's contention that the Trial Chamber "underestimated exculpatory evidence" lacks merit. When discussing potential mitigating factors, 7869 Trial Judgement, para. 6256. 7870 Trial Judgement, para. 6256. 7871 Kanyabashi Notice of Appeal, sub-para. 8.1.4; Kanyabashi Appeal Brief, para.

389. Kanyabashi also submits that the Trial Chamber failed to consider as a mitigating circumstance "all the elements of the theory of the Appellant's case as stated under Ground of Appeal 5.1". See Kanyabashi Notice of Appeal, sub-para. 8.1.4. 7872 Kanyabashi Appeal Brief, para.

389. Kanyabashi also highlights that during his closing arguments he emphasised: (i) his deep attachment to the people that he governed regardless of their ethnicity; (ii) the fact that he was deeply affected by the death of innocent people; and (iii) his attempts to stop the genocide. See Kanyabashi Appeal Brief, para. 390; Kanyabashi Reply Brief, para, 146. Kanyabashi Notice of Appeal, sub-para. 8.1.4; Kanyabashi Appeal Brief, para. 388 874 Kanyabashi Notice of Appeal, sub-para. 8.1.4; Kanyabashi Appeal Brief, paras. 391, 393; Kanyabashi Reply Brief Pa Kanyabashi Appeal Brief, para. 393. 7876 Prosecution Response Brief, paras. 1971, 1973, 1974. See also AT. 20 April 2015 p. 46. 7877 Prosecution Response Brief, para. 1972. 1189 Case No. ICTR-98-42-A 14 December 2015

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19175/H the Trial Chamber specifically took into account evidence indicative of his efforts to stop the massacres from spreading and assisting the refugees, but it found that these mitigating elements carried limited weight in light of the gravity of the crimes for which Kanyabashi was convicted.?878 The Appeals Chamber finds that Kanyabashi merely disagrees with the Trial Chamber's determination without demonstrating that it erred and, accordingly, dismisses his contention without further consideration.

3474. The Appeals Chamber also observes that Kanyabashi failed to identify, either in his closing brief or his closing arguments, his assistance to a Tutsi refugee called Rumiya, his previous employment at the Butare University Hospital, and the violation of his right to be tried without undue delay as mitigating circumstances before the Trial Chamber. Given that an accused cannot raise mitigating circumstances for the first time on appeal,87 the Appeals Chamber finds that the Trial Chamber did not err in not considering whether these circumstances warranted mitigation and finds that Kanyabashi has waived his right to have them considered on appeal.

3475. With respect to Kanyabashi's age and good conduct in detention, the Appeals Chamber notes that, while Kanyabashi did not identify these factors as mitigating circumstances in his closing brief, he referred to them as such in his oral closing submissions. 880 The Trial Chamber did not expressly refer to these arguments or consider them when assessing his individual circumstances in sentencing 7881 Instead, it indicated that Kanyabashi did not provide any specific sentencing submissions, referring only to his closing brief and not to his oral closing arguments. 882 3476. The Appeals Chamber recalls that the age and state of health of an accused may be relevant factors in sentencing.?883 While the Trial Judgement clearly reflects that the Trial Chamber was cognisant of Kanyabashi's age, the Appeals Chamber considers that its statement in the "Sentencing" section of the Trial Judgement suggests that it did not consider this as a possible mitigating circumstance. Likewise, the absence of any reference to Kanyabashi's contention concerning his good conduct in detention, of which Kanyabashi gave evidence through the 7878 Trial Judgement, para.

6256. See also ibid., paras. 6250-6252, referring to Kanyabashi Closing Brief, paras. 23, 24, 787, 108, 174-177, 635, 644-646. See, e.g., Nzabonimana Appeal Judgement, para. 459; Kanyarukiga Appeal Judgement, para. 274; Bikindi Appeal Judgement, para. 165; Kamuhanda Appeal Judgement, para. 354. 7880 Kanyabashi Closing Arguments, T. 29 April 2009 pp. 38, 39. 7881 Trial Judgement, paras. 6250-6252, 6256. 7882 Trial Judgement, para. 6250 ("The Kanyabashi Defence does not make any submission in relation to sentencing; however, throughout its Closing Brief it refers to a series of factors that might be considered as mitigating circumstances by the Chamber in determining a sentence against Kanyabashi."), referring to Kanyabashi Closing Brief. para.

666. In this regard, the Appeals Chamber considers that the Trial Chamber's general statement that Defence teams addressed mitigation in varying degrees during closing arguments does not demonstrate that the Trial Chamber ronsidered the mitigating factors raised by Kanyabashi during them. See Trial Judgement, fn. 14855. See Simba Appeal Judgement, para. 287; Blaskic Appeal Judgement, para.

696. See also Karemera and Ngirumpatse Appeal Judgement, para. 693. 1190 Case No. ICTR-98-42-A 14 December 2015

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19174/H presentation of a letter from the commander of the Tribunal's detention facility and of which the Trial Chamber took note, 7884 shows that the Trial Chamber also disregarded this factor.

3477. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to consider Kanyabashi's age and good conduct in detention in determining his individual circumstances relevant to sentencing. The Appeals Chamber will consider the impact of this error, if any, in Section XII below.

4. Proportionality of Sentence 3478. Kanyabashi submits that his sentence is manifestly excessive in light of the fact that he was acquitted of a number of charges, that he did not personally participate in the killings at Kabakobwa Hill, and that no killings resulted from the megaphone announcements.788s 3479. The Prosecution responds that the lack of direct participation in the killings at Kabakobwa Hill does not detract from the seriousness of Kanyabashi's conviction under Article 6(3) of the Statute. 7886 3480. The Appeals Chamber, Judge Pocar and Judge Agius dissenting, has affirmed Kanyabashi's convictions pursuant to Article 6(1) of the Statute for committing direct and public incitement to commit genocide in relation to megaphone announcements he made in Butare Town in May and June 1994.7887 However, the Appeals Chamber has reversed Kanyabashi's convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a result of its findings that the Trial Chamber erred in finding Kanyabashi guilty of the killings of Tutsis committed by members of the Ngoma commune police at Kabakobwa Hill on 22 April 1994 and by soldiers at Matyazo Clinic in late April 1994.7888 3481. In light of the

fact that a majority of Kanyabashi's convictions have been overturned on appeal, the Appeals Chamber finds it unnecessary to rule on Kanyabashi's contentions as to whether his sentence is manifestly excessive but will consider these arguments when determining the impact of the Appeals Chamber's findings on his sentence in Section XII below. 7884 See Kanyabashi Closing Arguments, T. 29 April 2009 pp. 38, 39. Specifically, Kanyabashi submitted a letter from the commander of the Tribunal's detention facility dated 17 February 2009 certifying his good conduct while in detention. See ibid., p.

38. While the Trial Chamber did not admit the letter, it took note of its contents. See ibid., p. 39. 7885 Kanyabashi Appeal Brief, paras. 384, 394. 7886 Prosecution Response Brief, para. 1975. 7887 See supra, Section VIII.E. 7888 See supra, Sections VIII.B.1, VII.B.4, VIII.C, VIII.D. 1191 Case No. ICTR-98-42-A 14 December 2015

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19173/H 5. Conclusion 3482. Based on the foregoing, the Appeals Chamber concludes that the Trial Chamber erred in considering the number of casualties of the attacks on Kabakobwa Hill and at Matyazo Clinic both in assessing the gravity of the offences and as a separate aggravating circumstance. The Appeals Chamber further concludes that the Trial Chamber erred in failing to consider Kanyabashi's age and good conduct in detention when determining his mitigating circumstances relevant to sentencing. It will consider the impact of this error, if any, in Section XII below.

3483. Moreover, the Appeals Chamber notes that, in light of the fact that Kanyabashi's convictions for the killings of Tutsis committed by members of the Ngoma commune police at Kabakobwa Hill on 22 April 1994 and by soldiers at Matyazo Clinic in late April 1994 have been overturned on appeal, the Trial Chamber's conclusion in its sentencing deliberations that his crimes were "of an obvious gravity resulting in a significant number of casualties in terms of death and injuries" and its reliance on the number of victims resulting from the killings at Kabakobwa Hill and Matyazo Clinic as an aggravating circumstance are no longer supported 889 Likewise, the Trial Chamber's conclusion that Kanyabashi abused his authority in relation to the crimes that occurred at Matyazo Clinic also lacks support.?890 The Appeals Chamber will consider the impact of this error, if any, in Section XII below.

3484. The Appeals Chamber also concludes that, in light of the fact that a majority of Kanyabashi's convictions have been overturned on appeal, the Appeals Chamber will consider Kanyabashi's contentions as to whether his sentence is manifestly excessive when determining the impact of its own findings on his sentence in Section XII below. The Appeals Chamber grants these parts of Ground 8 of Kanyabashi's appeal and dismisses his remaining challenges under this ground.

3485. The Appeals Chamber dismisses the remainder of Ground 8 of Kanyabashi's appeal. 7889 Trial Judgement, paras. 6253, 6254. See also supra, Section XI.E.1. 7890 Trial Judgement, para. 6254. 1192 Case No. ICTR-98-42-A 14 December 2015

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19172/H F. Ndayambaje's Sentencing Appeal (Ground 21) 3486. The Trial Chamber sentenced Ndayambaje to a single term of life imprisonment for his convictions for genocide, direct and public incitement to commit genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II.7891 3487. Ndayambaje submits that the Trial Chamber erred in: i) assessing certain aggravating factors; (ii) failing to consider or accord sufficient weight to certain mitigating factors; (iii) imposing a sentence disproportionate to the degree of his participation in the crimes; (iv) failing to impose a sentence similar to those imposed in comparable cases; and (v) imposing a single sentence of life imprisonment. 892 He requests that his sentence be reduced. 7893 1. Aggravating Circumstances 3488. When discussing Ndayambaje's aggravating factors, the Trial Chamber recalled "that hundreds, if not thousands, of predominantly Tutsis who took refuge at Kabuye Hill and at Mugombwa Church perished following days of intensified attacks.'7894 The Trial Chamber further found that the number of victims "surpasse[d] the threshold for extermination" and considered this as an aggravating factor.?895 Noting that "Ndayambaje was an influential,

respected figure in Butare" who committed crimes before and during his tenure as bourgmestre of Muganza Commune in 1994, the Trial Chamber concluded that he "used his status and influence to further these grave crimes" and considered this abuse of authority as an aggravating factor. 89 Finally, the Trial Chamber was of the view that "the premeditated nature" of the attacks on Mugombwa Church and Kabuye Hill, as evidenced by their prolonged and repetitive nature, also constituted an aggravating factor.? 897 3489. Ndayambaje argues that the Trial Chamber impermissibly considered the number of victims, abuse of authority, and premeditation as aggravating factors as these were also elements of the offences for which he was convicted.7898 He also contends that the Trial Chamber erroneously 7891 Trial Judgement, paras. 6186, 6271. 7892 Ndayambaje Notice of Appeal, para. 215-219; Ndayambaje Appeal Brief, paras. 677-697. 7893 Ndayambaje Notice of Appeal, para.

220. See also Ndayambaje Appeal Brief, paras. 692, 695; AT. 21 April 2015 Rosa Trial Judgement, para. 6267. 7895 Trial Judgement, para. 6267. 7896 Trial Judgement, para. 6268. 7897 Trial Judgement, para. 6269 7898 Ndayambaje Appeal Brief, para. 684, referring to Trial Judgement, paras. 6195, 6266, 6269, Gatete Appea Judgement, para. 275, Ndindabahizi Appeal Judgement, para.

137. See also Ndayambaje Reply Brief, paras. 279-281 1193 Case No. ICTR-98-42-A 14 December 2015

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19171/H "confused the notions of 'influence' and 'authority' in finding that he "used his status and influence to further these grave crimes" and considering "this abuse of authority as an aggravating factor". 7899 3490. Furthermore, Ndayambaje submits that the Trial Chamber erred in relying on the Semanza Appeal Judgement because, in relation to his convictions for the crimes committed at Mugombwa Church and Kabuye Hill, he "was just a student at the time", unlike Laurent Semanza who was appointed to serve as a member of Parliament.?900 In this context, he argues that "fift was inconceivable to liken him to an authority [like Semanza] and that he abused an influence which he did not have."791 Alternatively, Ndayambaje points to the Rugambarara case to argue that, with respect to his convictions for events that occurred after he was installed as bourgmestre of Muganza Commune, the position of bourgmestre is an insufficiently high level of authority so that abuse of such authority could not constitute an aggravating factor.?902 3491. The Prosecution responds that Ndayambaje does not show any error in the Trial Chamber's reliance on the aggravating factors he challenges and that his claims should be summarily dismissed.7903 3492. The Appeals Chamber notes that, when finding that the number of victims was an aggravating factor in relation to the attacks at Mugombwa Church and

Kabuye Hill, the Trial Chamber recalled that "hundreds, if not thousands, of predominantly Tutsis who took refuge at [these locations] perished" and determined that the number of victims "far surpasse[d] the threshold for extermination" 7904 The Appeals Chamber recalls that there is no minimum number of victims required for a conviction of genocide and that a particularly large number of victims can be an aggravating circumstance in relation to the sentence for extermination as a crime against humanity where the extent of the killings exceeds that required for extermination. 90S None of the other crimes for which Ndayambaje was convicted in relation to these events requires a minimum number of victims. Accordingly, the Appeals Chamber dismisses Ndayambaje's contention that the Trial 7903 Prosecution Response Brief, para. 2528. 7904 Trial Judgement, para. 6267. 7905 Ndahimana Appeal Judgement, para. 231; Ndindabahizi Appeal Judgement, para.

135. See also Nzabonimana Appeal Judgement, para. 465. 1194 Case No. ICTR-98-42-A 14 December 2015

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19170/H Chamber erred in considering the number of victims both as an element of the offence and as an aggravating factor.?906 Likewise, Ndayambaje does not demonstrate that his abuse of authority or the premeditated nature in which the attacks at Mugombwa Church and Kabuye Hill were perpetrated constituted elements of the offences for which he was convicted and that, consequently, they could not be considered as aggravating circumstances.

3493. Turning to Ndayambaje's contention that the Trial Chamber erred in confusing notions of abuse of influence and authority, the Appeals Chamber recalls that a trial chamber may consider the abuse of a convicted person's influence as an aggravating factor in sentencing. 907 Ndayambaje simply points to semantic differences without demonstrating how the Trial Chamber erred in relying on findings that Ndayambaje used "his status and influence to further [...] grave crimes" when determining that his abuse of authority was an aggravating factor. Moreover, the Trial Chamber did not liken Ndayambaje's authority to that of Laurent Semanza but merely cited the Semanza Appeal Judgement in its summary of the applicable law in support of the principle that it "may consider an individual's influence as an aggravating circumstance". 7909 Ndayambaje does not demonstrate how any finding concerning Laurent Semanza's abuse of authority in the Semanza case prevented the Trial Chamber from concluding that Ndayambaje abused his authority in relation to the crimes of which it convicted him. Ndayambaje's submission that he was not a public official at the time of the attacks on Mugombwa Church and Kabuye Hill does not demonstrate that the Trial Chamber erred in finding that he was nonetheless influential within the commune and used his "influence to further these grave crimes" 7910 3494. Moreover,

the Appeals Chamber is not persuaded that, simply because the Trial Chamber found the evidence insufficient to establish that he could bear superior responsibility over perpetrators of the attacks at Mugombwa Church and Kabuye Hill, the Trial Chamber erred in finding that he abused his authority in relation to these events. The Trial Chamber considered that "Ndayambaje was an influential, respected figure in Butare" who: (i) "had been bourgmestre of Muganza commune between 1983 and 1992, prior to his participation in the attacks at Mugombwa Church and Kabuye Hill"; (ii) "committed genocide and incitement to commit genocide both before 7906 As noted previously by the Appeals Chamber, while extermination as a crime against humanity has been found in relation to the killing of thousands of persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and less. See Ndahimana Appeal Judgement, para. 231 and references cited therein. See also supra, para. 2123 ("The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale. This is what distinguishes the crime of extermination from the crime of murder. The Appeals Chamber further recalls that "large scale" does not suggest a strict numerical approach with a minimum number of victims. The assessment of "large scale" is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.") (internal references omitted). 7907 See Karemera and Ngirumpatse Appeal Judgement, para. 682. 7908 Trial Judgement, para. 6268. 7909 Trial Judgement, para. 6196, referring to Semanza Appeal Judgement, paras. 335, 336. 1195 Case No. ICTR-98-42-A 14 December 2015

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19169/H and after his reinstallation as bourgmestre in June 1994"; and (iii) "used his status and influence to further these grave crimes."791' Indeed, when assessing his potential superior responsibility for the attacks at Mugombwa Church, the Trial Chamber emphasised that "Ndayambaje, as former bourgmestre of Muganza commune for a period of 11 years, and the holder of a number of other offices, was a well-known authority figure and was influential within his commune?"7912 The Trial Chamber also referred to "the prominent role that Ndayambaje played in contributing to the attacks at Kabuye Hill". 913 3495. With respect to Ndayambaje's final contention that holding a position of bourgmestre was insufficient to constitute an aggravating factor given a finding of this nature in the Rugambarara Sentencing Judgement, the Appeals Chamber stresses that "the precedential effect of previous sentences rendered by the [ICTY and the Tribunal] is not only 'very limited' but 'also not necessarily a proper avenue to challenge a Trial Chamber's finding in exercising its discretion to impose a sentence' "7914 Ndayambaje's emphasis on the Rugambarara Sentencing Judgement fails to appreciate, for example, that the Appeals Chamber affirmed another trial chamber's determination in the case of Sylvestre Gacumbitsi - who was a bourgmestre and an important and influential personality in Rusumo Commune - that the abuse of his powers as a bourgmestre constituted an aggravating factor. 915 3496. In light of the above, the Appeals Chamber concludes that Ndayambaje has not demonstrated that the Trial Chamber erred in its consideration of the aggravating factors in determining his sentence.

2. Mitigating Circumstances 3497. The Trial Chamber considered the propriety of Ndayambaje's first tenure as bourgmestre between 1983 and October 1992 as well as the facts that he was described as an honest man concerned about the welfare of the people and the agricultural sector and that he accommodated two Tutsis during the events of May 1994 in his home as mitigating factors?916 However, in view of the 7910 See Trial Judgement, para. 6268. 7911 Trial Judgement, para. 6268. 7912 Trial Judgement, para. 5763. 7913 Trial Judgement, para. 5779. 7914 Babié Sentencing Appeal Judgement, para. 32, quoting Nikolié Sentencing Appeal Judgement, para.

19. See also Celebidi Appeal Judgement, para. 821. 1915 See Gacumbitsi Appeal Judgement, paras. 190, 191, referring to Gacumbitsi Trial Judgement, para. 345. 1916 Trial Judgement, para. 6270. 1196 Case No. ICTR-98-42-A 14 December 2015

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19168/H gravity of Ndayambaje's crimes and the nature of his involvement in them, the Trial Chamber accorded these circumstances "very limited weight" 7917 3498. Ndayambaje contends that, when assessing his mitigating circumstances, the Trial Chamber erred in failing to consider adequately his age, the possibility of his social reintegration, and the facts that he is the father of three children and that he did not have a criminal record?918 Ndayambaje also highlights that he expressed remorse and compassion towards the victims and adds that he was not subject of disciplinary measures while detained. 7919 3499. Ndayambaje also contends that the Trial Chamber erred in failing to afford mitigation for the violation of his right to an expeditious trial, in particular for the length of his detention on remand.7920 He argues that he was subject to "the longest preventative detention" and requests a remedy of a considerable reduction in his sentence. 921 3500. The Prosecution responds that since Ndayambaje made no submissions regarding mitigating circumstances at trial, he cannot now raise them on appeal for the first time.?922 It further contends that Ndayambaje has failed to demonstrate undue delay and that a remedy was required in this regard.23 3501. Ndayambaje replies that he identified mitigating circumstances at trial but that the Trial Chamber "incorrectly assessed" them.

924 3502. The Appeals Chamber observes that, in his sentencing submissions at trial, Ndayambaje principally argued that "it [was] premature and almost impossible to discuss the sentence at this stage of the proceedings 7925 and requested that he "be given the broadest mitigating circumstances, taking into account everything that emerged from this trial relating to his personality and the circumstances under which he experienced the extremely difficult events from April to June 1994.*7926 Given the ambiguity of these submissions, the Appeals Chamber considers that the 7917 Trial Judgement, para. 6270. 7918 Ndayambaje Notice of Appeal, para. 218; Ndayambaje Appeal Brief, para. 688, referring to Trial Judgement, para.

6270. See also Ndayambaje Appeal Brief, para. 690 919 Ndayambaje Appeal Brief, paras. 689, 691. See also AT. 21 April 2015 pp. 71, 72 7920 Ndayambaje Notice of Appeal, para. 218; Ndayambaje Appeal Brief, para.

693. See also AT. 21 April 2015 p. 31. 1921 Ndayambaje Appeal Brief, para.

695. See also ibid., para. 692. 7922 Prosecution Response Brief, para. 2529, referring to Bikindi Appeal Judgement, para. 165. 7923 Prosecution Response Brief, para.

2530. See also ibid., paras. 4, 7. At the appeals hearing, the Prosecution opposed Ndayambaje's claim that he expressed compassion towards the victims. See AT. 21 April 2015 p. 61. 7924 Ndayambaje Reply Brief, para. 282, referring to Ndayambaje Closing Brief, para. 1025, Trial Judgement, R25 Ndayambaje Closing Brief, para, 1021. See also Ndayambaje Closing Arguments, T. 30 April 2009 p. 46, referrins to Ndayambaje Closing Brief, paras. 1021-1025 7926 Ndayambaje Closing Brief, para.

1025. See also Ndayambaje Closing Arguments, T. 30 April 2009 p. 46, referring to Ndayambaje Closing Brief, paras. 1021-1025. 1197 Case No. ICTR-98-42-A 14 December 2015

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19167/H Trial Chamber was under no obligation to consider the mitigating circumstances Ndayambaje now points to and that he has waived his right to have them considered on appeal.

3503. Moreover, the Appeals Chamber notes that, notwithstanding the nature of his submissions at trial, the Trial Chamber nevertheless considered as mitigating factors: (i) the propriety of Ndayambaje's first tenure as bourgmestre between 1983 and October 1992 as well as the fact that Ndayambaje was described as an honest man concerned about the welfare of the people and the agricultural sector; and (ii) the fact that Ndayambaje accommodated two Tutsis during the events of May 1994 in his home.?927 However, as noted above, they were accorded only "very limited weight' 7928 While Ndayambaje generally argues that the Trial Chamber "incorrectly assessed" the mitigating circumstances, he does not demonstrate how it committed a discernible error in this respect.

3504. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in its consideration of the mitigating factors in determining his sentence.

3. Degree of Participation in the Crimes 3505. Ndayambaje submits that the sentence imposed by the Trial Chamber was disproportionate to the degree of his participation in the crimes as he was only convicted of aiding and abetting and inciting certain crimes?929 Quoting the Trial Chamber's finding that "[while Ndayambaje played a role in events surrounding the killings, and substantially contributed to them, the Chamber does not find that his conduct was as much an integral part of genocide as the killings themselves", 7930 Ndayambaje argues that his direct participation in the crimes was not established and the sentence of life imprisonment imposed by the Trial Chamber was excessive and disproportionate.931 He further contends that the sentence was disproportionate because he was not a superior and did not possess de jure or de facto authority over the principal perpetrators.?932 7927 Trial Judgement, para. 6270. 1932 Ndayambaje Appeal Brief, para.

682. Ndayambaje adds that a conviction under both Articles 6(1) and 6(3) of the Statute warrants a heavier sentence than a conviction under Article 6(1) of the Statute alone. See ibid., para. 683 1198 Case No. ICTR-98-42-A 14 December 2015

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19166/H 3506. The Prosecution responds that, given the scale of the crimes for which Ndayambaje was found responsible, a life sentence was not disproportionate and that the Trial Chamber did not abuse its discretion. 933 3507. The Appeals Chamber recalls that the Trial Chamber found that Ndayambaje aided and abetted the killings of Tutsis at Mugombwa Church and Kabuye Hill, committed direct and public incitement to commit genocide prior to an attack on Mugombwa Church and during his swearing-in ceremony as the new bourgmestre of Muganza Commune, and instigated the killings of Tutsi women and girls abducted from Mugombwa Sector?94 Furthermore, while the Trial Chamber determined that "his conduct [at Mugombwa Church and Kabuye Hill] was [not] as much an integral part of the genocide as the killings themselves" when determining that aiding and abetting rather than committing best characterised his responsibility under Article 6(1) of the Statute,7935 it nevertheless "found Ndayambaje guilty of genocide for his direct participation in the massacres at Mugombwa Church and Kabuye Hill' 7936 The Appeals Chamber finds that the Trial Chamber's conclusions as to Ndayambaje's participation in the attacks at Mugombwa Church and Kabuye Hill support the characterisation that he directly participated in the massacres even though he was only found to have aided and abetted them. 937 Moreover,

Ndayambaje's contentions ignore that, with respect to the other events for which he was convicted, he was found responsible under Article 6(1) of the Statute for directly participating in the crimes through committing or instigating them.938 3508. Furthermore, the Appeals Chamber considers that the fact that the Trial Chamber found that the Prosecution failed to lead sufficient evidence that Ndayambaje exercised effective control over the perpetrators of the attacks at Mugombwa Church and Kabuye Hill did not prevent the Trial Chamber from imposing a sentence of life imprisonment.939 3509. In light of the gravity of the crimes which the Trial Chamber described as leading "to a loss of life on a massive scale and caused immense human suffering', 7940 the Appeals Chamber dismisses Ndayambaje's contention that the Trial Chamber imposed a sentence disproportionate to the form and degree of his participation in the crimes of which he was convicted at trial. 7933 Prosecution Response Brief, paras. 2520-2527. See AT. 21 April 2015 pp. 60, 61. 7934 See Trial Judgement, paras. 5949, 5976, 5977, 5995-6002, 6026-6029, 6038, 6064-6066, 6107, 6108, 6125, 6175, 6176, 6186. See also ibid., para. 6266. 7935 Trial Judgement, para. 5776, referring to Seromba Appeal Judgement, para. 182. 7936 Trial Judgement, para. 6266. 7937 See Trial Judgement, paras. 1245, 1246, 1424, 1431, 1455, 1456, 5754, 5755, 5769, 5772, 5774, 5775. 7938 See Trial Judgement, paras. 5976, 5977, 6002, 6029, 6031, 6038, 6064, 6066, 6107, 6108, 6125, 6175, 6176. 7939 See Trial Judgement, paras. 5764, 5779. 7940 See Trial Judgement, para. 6266. 1199 Case No. ICTR-98-42-A 14 December 2015

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19165/H 4. Comparability of Sentences 3510. Ndayambaje submits that the Trial Chamber erred in not applying the principle of parity and not imposing a similar sentence on him as those imposed on Elizaphan and Gérard Ntakirutimana, Muvunyi, Emmanuel Rukundo, Bikindi, Kalimanzira, and Dominique Ntawukulilyayo.?941 3511. The Prosecution did not directly respond to these submissions.

3512. The Appeals Chamber recalls that comparison between cases is of limited assistance in challenging a sentence given the broad discretion afforded to trial chambers in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes. 942 Apart from referring to other cases before the Tribunal that he argues are comparable to his, Ndayambaje does not demonstrate that the Trial Chamber committed a discernible error in imposing a sentence of life imprisonment in light of the sentences imposed on other convicted persons he has identified.

3513. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate that the Trial Chamber erred in this respect.

5. Life Sentence 3514. Ndayambaje submits that, in imposing a life sentence without a possibility of conditional release, the Trial Chamber violated his rights under Articles 19 and 20 of the Statute as well as his rights under Article 7 of the ICCPR. 943 In his appeal brief, Ndayambaje further argues that the Trial Chamber erred in imposing a life imprisonment without providing a reasoned opinion and, that, by sentencing him to a single sentence for all of his crimes, the Trial Chamber deprived him of the benefit of any credit based on the period already spent in detention.?944 3515. The Prosecution responds that Ndayambaje does not show any error and that his argument should be dismissed. 945 7941 Ndayambaje Notice of Appeal, para. 216, fn. 178; Ndayambaje Appeal Brief, para. 681, fn. 1034. 1942 See, e.g., Ntabakuze Appeal Judgement, para. 298; Muvunyi Appeal Judgement of 1 April 2011, para. 72; Rukundo Appeal Judgement, para. 263; Semanza Appeal Judgement, para.

394. See also Karemera and Ngirumpatse Appeal udgement, para. 70 2 vel ya main come hip tal, a tie seNd ambie, icon providing specific referent co, aldo that the c- Se idem. 7944 See Ndayambaje Appeal Brief, paras. 696, 697. 1945 Prosecution Response Brief, para. 2531. 1200 Case No. ICTR-98-42-A 14 December 2015

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19164/H 3516. In the absence of substantiation, the Appeals Chamber dismisses Ndayambaje's claim that his sentence of life imprisonment, which is provided for in the Rules, violates Articles 19 and 20 of the Statute and Article 7 of the ICCPR.

3517. The Appeals Chamber also dismisses Ndayambaje's claim that imposing a single life sentence deprived him of the benefit of any credit based on the period already spent in detention and that the Trial Chamber erred in failing to provide a reasoned opinion in this regard. Rule 101(C) of the Rules states that "[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal". This provision, however, does not affect the ability of a trial chamber to impose the maximum sentence, as provided for by Rule 101(A) of the Rules. 946 3518. Moreover, the Appeals Chamber recalls that Rule 87(C) of the Rules provides that "[iff the Trial Chamber finds the accused guilty on one or more of the counts contained in the indictment, it shall impose a sentence in respect of each finding of guilt [...] unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.»7947 Ndayambaje does not demonstrate that the Trial Chamber abused its discretion in deciding to impose a single sentence in this instance.

3519. Based on the foregoing, the Appeals Chamber dismisses Ndayambaje's arguments concerning the imposition of a sentence of life imprisonment.

6. Conclusion 3520. Based on the foregoing, the Appeals Chamber finds that Ndayambaje has failed to demonstrate any error in the Trial Chamber's determination of his sentence and dismisses Ground 21 of his appeal. 7946 See Karera Appeal Judgement, para. 397. 7947 The Appeals Chamber notes that Rule 87(C) of the Rules was amended on 14 March 2008 to expressly provide for the imposition of single sentences. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 679, fn. 1828; Ntabakuze Appeal Judgement, para. 276, fn.

631. Prior to this amendment, the Appeals Chamber confirmed the propriety of this practice. See Nahimana et al. Appeal Judgement, paras. 1042, 1043; Kambanda Appeal Judgement, paras. 111, 112.

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19163/H XII. IMPACT OF THE APPEALS CHAMBER'S FINDINGS ON

SENTENCES A. Nyiramasuhuko 3521. With respect to Nyiramasuhuko, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that her right to be tried without undue delay had not been violated, and that this violation caused her prejudice.948 The Appeals Chamber further recalls that it has reversed, Judge Agius dissenting, Nyiramasuhuko's conviction for persecution as a crime against humanity. 7949 3522. However, the Appeals Chamber has upheld Nyiramasuhuko's convictions for: (i) conspiracy to commit genocide pursuant to Article 6(1) of the Statute by entering into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture;7950 (ii) genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for ordering the killings of Tutsis who had sought refuge at the office of Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks,7951 and (iii) rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il as a superior pursuant to Article 6(3) of the Statute for failing to

prevent and punish rapes perpetrated by Interahamwe at the Butare Prefecture Office during the Night of Three Attacks and the First Half of June Attacks.7952 3523. In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Nyiramasuhuko's sentence of life imprisonment to 47 years of imprisonment. B. Ntahobali 3524. With respect to Ntahobali, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that his right to be tried without undue delay had not been violated, and that this violation caused him prejudice?953 The Appeals Chamber further recalls that it has reversed, Judge Agius dissenting, Ntahobali's conviction for persecution as a crime against 1948 See supra, Section I.K. 7952 See supra, Section IV.F. 1202 Case No. ICTR-98-42-A 14 December 2015

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19162/H humanity.7954 In addition, the Appeals Chamber has reversed Ntahobali's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well- being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for: (i) killing numerous Tutsis, other than a Tutsi girl, at the Hotel Ihuliro roadblock in late April 1994; and (ii) aiding and abetting the killing of Rwamukwaya and his family around 29-30 April 19947955 It has also reversed Ntahobali's convictions for rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol I pursuant to Article 6(1) of the Statute for: (i) raping Tutsi women, other than Witness TA, at the Butare Prefecture Office; and (ii) ordering the rapes of six Tutsi women, other than Witness TA, at the prefectoral office during the First Attack of the Last Half of May Attacks.?956 3525. However, the Appeals Chamber, Judge Liu dissenting with respect to Ntahobali's responsibility for ordering killings during the Mid-May Attack, has upheld Ntahobali's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious

violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for: (i) killing a Tutsi girl he had first raped at the Hotel Ihuliro roadblock in late April 1994; (ii) ordering the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994, killings of Tutsis at the IRST on 21 April 1994, and killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack; and (iii) aiding and abetting the killings of Tutsis abducted from the EER perpetrated between mid-May and early June 1994?957 The Appeals Chamber has further upheld Ntahobali's convictions for rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II 7953 See supra, Section III.K. 7954 See supra, Section V.M. 7955 See supra, Sections V.G, V.H. 7996 See supra, Section V.I. The Appeals Chamber recalls that it has further reversed the Trial Chamber's finding that Ntahobali also bore responsibility as a superior under Article 6(3) of the Statute for the rapes of six Tutsi women, other than Witness TA, at the prefectoral office during the First Attack of the Last Half of May Attacks. 7957 See supra, Sections V.F, V.G, V.I, V.J. With respect to the Mid-May Attack for which Ntahobali was convicted for ordering

killings of Tutsis who had sought refuge at the Butare Prefecture Office, although the Appeals Chamber, Judge Liu dissenting, upheld Ntahobali's responsibility for ordering the killings of Tutsi abducted during the Mid-May Attack, it recalls that is has also found that the Trial Chamber's apparent attribution of responsibility to Ntahobali for the killings of hundreds of Tutsi refugees abducted from the Butare Prefectoral Office is not sustained by the record or is based on findings for which Ntahobali was not convicted by the Trial Chamber. See supra, Section V.I. The Appeals Chamber recalls that it has, Judge Liu dissenting with respect to Ntahobali's responsibility for the Mid-May Attack, further upheld the Trial Chamber's finding that Ntahobali also bore responsibility as a superior under Article 6(3) of the Statute for the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994, the killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack, and the killings of Tutsis abducted from the EER perpetrated between mid-May and early June 1994. See supra, Sections V.G, V.I, V.J. The Appeals Chamber, Judge Liu dissenting, has further upheld the Trial Chamber's finding that Ntahobali also bore responsibility as a superior under Article 6(3) of the Statute for the rape of Witness TA at the prefectoral office during the Second Attack of the Last Half of May Attacks. See supra, Section V.I. 1203 Case No. ICTR-98-42-A 14 December 2015 1

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19161/H pursuant to Article 6(1) of the Statute for: (i) raping a Tutsi girl near the Hotel Ihuliro roadblock in late April 1994 as well as Witness TA during the Mid-May Attack and the First Attack of the Last Half of May Attacks at the prefectoral office; (ii) ordering the rape of Witness TA at the prefectoral office during the Second Attack of the Last Half of May Attacks; and (iii) aiding and abetting the rapes of Witness TA at the prefectoral office during the First Half of June Attacks.7958 3526. In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ntahobali's sentence of life imprisonment to 47 years of imprisonment. C. Nsabimana 3527. With respect to Nsabimana, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that his right to be tried without undue delay had not been violated, and that this violation caused him prejudice.'9 The Appeals Chamber further recalls that it has reversed, Judge Agius dissenting, Nsabimana's conviction for persecution as a crime against humanity. 7960 The Appeals Chamber has also found that the Trial Chamber erred in considering the vulnerability of the victims in assessing the gravity of the offences and as a separate aggravating factor and that, in light of the form and degree of participation of Nsabimana in the crimes committed, the sentence imposed by the

Trial Chamber is excessive and that the Trial Chamber committed a discernible error in exercising its discretion in this regard.?961 3528. However, the Appeals Chamber has upheld Nsabimana's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for aiding and abetting by omission the killing of Tutsis who had sought refuge at the Butare Prefecture-Office by failing to discharge his duty to provide assistance to people in danger and to protect civilians against acts of violence.?962 3529. In light of the above, the Appeals Chamber reduces Nsabimana's sentence of 25 years of imprisonment to 18 years of imprisonment. D. Nteziryayo 3530. With respect to Nteziryayo, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that his right to be tried without undue delay had not been violated, and 1958 See supra, Sections V.G, V.I 7959 See supra, Section I.K. 60 See supra, Section V.I 51 See sunra. Section XI. 1204 Case No. ICTR-98-42-A 14 December 2015

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19160/H that this violation caused him prejudice?963 The Appeals Chamber has also found that the Trial Chamber erred in considering Nteziryayo's role in the civil defence programme and the unspecified conclusion that "soldiers and civilian militiamen participated in a widespread and systematic campaign of slaughter and targeted Tutsi civilians, including those who were particularly vulnerable, as well as Hutu moderates" when assessing the gravity of his offences. 964 3531. However, the Appeals Chamber has upheld Nteziryayo's conviction for committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making speeches that constituted direct appeals to the population to kill Tutsis at public meetings held in Muyaga and Kibayi Communes in mid to late June 1994 and at Ndayambaje's Swearing-In Ceremony as the new bourgmestre of Muganza Commune that took place on 22 June 1994.7965 3532. In light of the above, the Appeals Chamber reduces Nteziryayo's sentence of 30 years of imprisonment to 25 years of imprisonment. E. Kanyabashi 3533. With respect to Kanyabashi, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that his right to be tried without undue delay had not been violated, and that this violation caused him prejudice?966 In addition, the Appeals Chamber has reversed Kanyabashi's convictions for

genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a superior pursuant to Article 6(3) of the Statute for failing to prevent and punish the killings of Tutsis perpetrated by Ngoma commune policemen at Kabakobwa Hill on 22 April 1994 and by soldiers at Matyazo Clinic in late April 19947967 The Appeals Chamber recalls that, in Section XIE above, it has concluded that, in light of the fact that a majority of Kanyabashi's convictions have been overturned 1962 See supra, Section VI.D. 7963 See supra, Section III.K. 7964 See supra, Section XI.D. 7965 See supra, Sections VII.B- VII.D. 1966 See supra, Section III.K. 7967 See supra, Sections VIII.B.1, VIII.B.4, VIII.C, VIII.D. See also supra, Section V.M. The Appeals Chamber recalls that it had also found that the Trial Chamber erred in considering the number of casualties of the attacks on Kabakobwa Hill and at Matyazo Clinic both in assessing the gravity of the offences and as a separate aggravating circumstance. See supra, Section XI.E. The Appeals Chamber further recalls that it has found that, in light of the fact that Kanyabashi's convictions for the killings of Tutsis committed by members of the Ngoma commune police at Kabakobwa Hill on 22

April 1994 and by soldiers at Matyazo Clinic in late April 1994 have been overturned on appeal, the Trial Chamber's conclusion in its sentencing deliberations that his crimes were "of an obvious gravity resulting in a significant number of casualties in terms of death and injuries" and its reliance on the number of victims resulting from the killings at Kabakobwa Hill and Matyazo Clinic as an aggravating circumstance are no longer supported. Likewise, the Appeals Chamber has found that the Trial Chamber's conclusion that Kanyabashi abused his authority in relation to the crimes that occurred at Matyazo Clinic also lacks support. See supra, Section XI.E. 1205 Case No. ICTR-98-42-A 14 December 2015

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19159/H on appeal, the Appeals Chamber will consider Kanyabashi's contentions as to whether his sentence is manifestly excessive when determining the impact of its own findings on his sentence. The Appeals Chamber has also found that the Trial Chamber erred in failing to consider Kanyabashi's age and good conduct in detention when determining his mitigating circumstances relevant to sentencing. 7968 3534. However, the Appeals Chamber, Judge Pocar and Judge Agius dissenting, has upheld Kanyabashi's conviction for committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making megaphone announcements on two occasions in late May and mid-June 1994 calling on the population to kill Tutsis.?969 3535. In light of the above, the Appeals Chamber reduces Kanyabashi's sentence of 35 years of imprisonment to 20 years of imprisonment. F. Ndayambaje 3536. With respect to Ndayambaje, the Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that his right to be tried without undue delay had not been violated, and that this violation caused him prejudice. 970 The Appeals Chamber further recalls that it has reversed, Judge Agius dissenting, Ndayambaje's conviction for persecution as a crime against humanity?971 In addition, the Appeals Chamber has reversed Ndayambaje's convictions for committing direct and public

incitement to commit genocide pursuant to Article 6(1) of the Statute by directly inciting a crowd outside Mugombwa Church to kill the Tutsis who were taking refuge in the church on 20 and 21 April 1994.7972 It has also reversed Ndayambaje's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for: (i) aiding and abetting the killings of Tutsis at Kabuye Hill on 22 April 1994; and (ii) instigating the killing of a Tutsi girl named Nambaje abducted from Mugombwa Sector after his swearing-in ceremony on 22 June 1994.7973 3537. However, the Appeals Chamber has upheld Ndayambaje's conviction for committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making a 7968 See supra, Section XI.E. 7969 See supra, Section VIII.E. 7970 See supra, Section II.K. 7971 See supra, Section V.M. 7972 See supra, Sections IX.A.1.(c), IX.A.5 7973 See supra, Sections IX.F, IX.H 1206 Case No. ICTR-98-42-A 14 December 2015

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19158/H speech containing inciting statements to commit genocide at his swearing in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994.7974 The Appeals Chamber has further upheld Ndayambaje's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for: (i) aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill from 23 to 24 April 1994; and (ii) instigating the killings of Tutsi women and girls, other than one named Nambaje, abducted from Mugombwa Sector based on his utterances at the Virgin Mary Statute after his swearing-in ceremony on 22 June 1994.7975 3538. In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ndayambaje's sentence of life imprisonment to 47 years of imprisonment. 7974 See supra, Section IX.G. 1975 See supra, Sections IX.E, IX.F, IX.H. 1207 Case No. ICTR-98-42-A 14 December 2015

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19157/H XIII. DISPOSITION 3539. For the foregoing reasons, THE APPEALS CHAMBER, PURSUANT to Article 24 of the Statute and Rule 118 of the Rules, NOTING the written submissions of the parties and their oral arguments presented at the appeals hearing between 14 and 17 April 2015 as well as between 20 and 22 April 2015; SITTING in open session; WITH RESPECT TO PAULINE NYIRAMASUHUKO'S APPEAL GRANTS Ground 1 of Nyiramasuhuko's appeal in part, FINDS that the Trial Chamber erred in concluding that her right to be tried without undue delay had not been violated, and FINDS that this violation caused her prejudice; DISMISSES Nyiramasuhuko's appeal in all other respects; FINDS, proprio motu, Judge Agius dissenting, that the Trial Chamber erred in convicting Nyiramasuhuko for persecution as a crime against humanity, REVERSES Nyiramasuhuko's conviction for this crime, and ENTERS a verdict of acquittal under Count 8 of the Nyiramasuhuko and Ntahobali Indictment; AFFIRMS Nyiramasuhuko's convictions for: - conspiracy to commit genocide pursuant to Article 6(1) of the Statute by entering into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture; genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva

Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for ordering the killing of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack and the Night of Three Attacks; and - rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II as a superior pursuant to Article 6(3) of the Statute for failing to prevent and punish rapes perpetrated by Interahamwe at the Butare Prefecture Office during the Night of Three Attacks and the First Half of June Attacks; 1208 Case No. ICTR-98-42-A 14 December 2015

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19156/H REDUCES Nyiramasuhuko's sentence of life imprisonment imposed by the Trial Chamber to 47 years of imprisonment, Judge Agius dissenting as to the number of years, subject to credit being given under Rules 101(C) and 107 of the Rules for the period she has already spent in detention since her arrest on 18 July 1997; WITH RESPECT TO ARSÈNE SHALOM NTAHOBALI'S APPEAL GRANTS Ground 1.1 of Ntahobali's appeal, FINDS that the Trial Chamber erred in concluding that his right to be tried without undue delay had not been violated, and FINDS that this violation caused him prejudice; GRANTS, Judge Agius dissenting, Ground 4.6 of Ntahobali's appeal, REVERSES Ntahobali's conviction for persecution as a crime against humanity, and ENTERS a verdict of acquittal under Count 8 of the Nyiramasuhuko and Ntahobali Indictment; GRANTS Ground 4.2 of Ntahobali's appeal in part and REVERSES his convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for killing numerous Tutsis, other than a Tutsi girl, at the Hotel Ihuliro roadblock in late April 1994; GRANTS Grounds 3.4, in part, and 4.7 of Ntahobali's appeal and REVERSES his convictions for genocide, extermination as a

crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for aiding and abetting the killing of Rwamukwaya and his family around 29-30 April 1994; GRANTS, in part, Grounds 3.6, and 4.2 through 4.4, of Ntahobali's appeal and REVERSES his convictions for rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for: - raping Tutsi women, other than Witness TA, at the Butare Prefecture Office; and ordering the rapes of six Tutsi women, other than Witness TA, at the Butare Prefecture Office during the First Attack of the Last Half of May Attacks; DISMISSES Ntahobali's appeal in all other respects; 1209 Case No. ICTR-98-42-A 14 December 2015

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19155/H AFFIRMS, Judge Liu dissenting with respect to Ntahobali's responsibility for ordering killings during the Mid-May Attack at the Butare Prefecture Office, Ntahobali's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of. Additional Protocol II pursuant to Article 6(1) of the Statute for: - killing a Tutsi girl he had first raped at the Hotel Ihuliro roadblock in late April 1994; - ordering the killing of Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994, the killing of Tutsis at the IRST on 21 April 1994, and the killing of Tutsis who had sought refuge at the Butare Prefecture Office during the Mid-May Attack; and - aiding and abetting the killings of Tutsis abducted from the EER between mid-May and early June 1994; AFFIRMS Ntahobali's convictions for rape as a crime against humanity and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute for: - raping a Tutsi girl near the Hotel Ihuliro roadblock in late April 1994 as well as Witness TA during the Mid-May Attack and the First Attack of the Last Half of May Attacks at the prefectoral office; - ordering the rape of Witness TA at the

prefectoral office during the Second Attack of the Last Half of May Attacks; and - aiding and abetting the rapes of Witness TA at the prefectoral office during the First Half of June Attacks; REDUCES Ntahobali's sentence of life imprisonment imposed by the Trial Chamber to 47 years of imprisonment, Judge Agius dissenting as to the number of years, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 24 July 1997; WITH RESPECT TO SYLVAIN NSABIMANA'S APPEAL DISMISSES Nsabimana's appeal in all respects; FINDS, proprio motu, that the Trial Chamber erred in concluding that Nsabimana's right to be tried without undue delay had not been violated and FINDS that this violation caused him prejudice; FINDS, proprio motu, Judge Agius dissenting, that the Trial Chamber erred in convicting 1210 Case No. ICTR-98-42-A 14 December 2015 1

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19154/H Nsabimana for persecution as a crime against humanity, REVERSES Nsabimana's conviction for this crime, and ENTERS a verdict of acquittal under Count 7 of the Nsabimana and Nteziryayo Indictment; AFFIRMS Nsabimana's convictions for genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for aiding and abetting by omission the killing of Tutsis who had sought refuge at the Butare Prefecture Office by failing to discharge his duty to provide assistance to people in danger and to protect civilians against acts of violence; REDUCES Nsabimana's sentence of 25 years of imprisonment imposed by the Trial Chamber to 18 years of imprisonment, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 18 July 1997; WITH RESPECT TO ALPHONSE NTEZIRYAYO'S APPEAL GRANTS Ground 9 of Nieziryayo's appeal, FINDS that the Trial Chamber erred in concluding that his right to be tried without undue delay had not been violated, and FINDS that this violation caused him prejudice; DISMISSES Nteziryayo's appeal in all other respects; AFFIRMS Nteziryayo's convictions for direct and public incitement to commit

genocide pursuant to Article 6(1) of the Statute by making speeches that constituted direct appeals to the population to kill Tutsis at public meetings held in Muyaga and Kibayi Communes in mid to late June 1994 and at Ndayambaje's Swearing-In Ceremony as the new bourgmestre of Muganza Commune that took place on 22 June 1994; REDUCES Nteziryayo's sentence of 30 years of imprisonment imposed by the Trial Chamber to 25 years of imprisonment, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 26 March 1998; WITH RESPECT TO JOSEPH KANYABASHI'S APPEAL GRANTS Ground 6 of Kanyabashi's appeal, FINDS that the Trial Chamber erred in concluding that his right to be tried without undue delay had not been violated, and FINDS that this violation caused him prejudice; 1211 Case No. ICTR-98-42-A 14 December 2015

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19153/H GRANTS Grounds 1.1 and 2.2 of Kanyabashi's appeal, REVERSES his convictions for genocide extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol Il as a superior pursuant to Article 6(3) of the Statute for failing to prevent and punish the killings of Tutsis perpetrated by Ngoma commune policemen at Kabakobwa Hill on 22 April 1994 and by soldiers at Matyazo Clinic in late April 1994, and ENTERS a verdict of acquittal under Counts 2, 6, 7, and 9 of the Kanyabashi Indictment; DISMISSES, Judge Pocar and Judge Agius dissenting with respect to the incitement by megaphone, Kanyabashi's appeal in all other respects; AFFIRMS, Judge Pocar and Judge Agius dissenting, Kanyabashi's convictions for committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making megaphone announcements on two occasions in late May and mid-June 1994 calling on the population to kill Tutsis; REDUCES Kanyabashi's sentence of 35 years of imprisonment imposed by the Trial Chamber to 20 years of imprisonment, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 28 June 1995; WITH RESPECT TO ÉLIE NDAYAMBAJE'S

APPEAL GRANTS Ground 15 of Ndayambaje's appeal in part, FINDS that the Trial Chamber erred in concluding that his right to be tried without undue delay had not been violated, and FINDS that this violation caused him prejudice; GRANTS Ground 2 of Ndayambaje's appeal and REVERSES his conviction for committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by directly inciting a crowd outside Mugombwa Church to kill the Tutsis who were taking refuge in the church on 20 and 21 April 1994; GRANTS Ground 18 of Ndayambaje's appeal in part and REVERSES his convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol pursuant to Article 6(1) of the Statute for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994; GRANTS Ground 20 of Ndayambaje's appeal in part and REVERSES his convictions for genocide, extermination and persecution as crimes against humanity, and violence to life, 1212 Case No. ICTR-98-42-A 14 December 2015

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19152/H health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol pursuant to Article 6(1) of the Statute for instigating the killing of a Tutsi girl named Nambaje abducted from Mugombwa Sector after his swearing-in ceremony on 22 June 1994; DISMISSES Ndayambaje's appeal in all other respects; FINDS, proprio motu, that the Trial Chamber ented in convicting Ndayambaje for persecution as a crime against humanity, REVERSES Ndayambaje's conviction for this crime, and ENTERS a verdict of acquittal under Count 7 of the Ndayambaje Indictment; AFFIRMS Ndayambaje's convictions for: - committing direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute by making a speech containing inciting statements to commit genocide at his swearing in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994; - genocide, extermination as a crime against humanity, and violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and '21 April 1994 and at Kabuye Hill from 23 to 24 April 1994; and genocide, extermination as a crime against humanity, and

violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(1) of the Statute for instigating the killings of Tutsi women and girls, other than one named Nambaje, abducted from Mugombwa Sector based on his utterances at the Virgin Mary Statute after his swearing-in ceremony on 22 June 1994; REDUCES Ndayambaje's sentence of life imprisonment imposed by the Trial Chamber to 47 years of imprisonment, Judge Agius dissenting as to the number of years, subject to credit being given under Rules 101(C) and 107 of the Rules for the period he has already spent in detention since his arrest on 28 June 1995;

WITH RESPECT TO THE APPEAL OF THE PROSECUTION DISMISSES the Prosecution's appeal in its entirety; RULES that this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules; 1213 Case No. ICTR-98-42-A 14 December 2015

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19151/H ORDERS, in light of time served, Nsabimana's and Kanyabashi's immediate release; and ORDERS that, in accordance with Rules 103(B) and 107 of the Rules, Nyiramasuhuko, Ntahobali, Nteziryayo, and Ndayambaje are to remain in the custody of the Tribunal pending the finalisation of arrangements for their transfer to the State where their sentence will be served. Done in English and French, the English text being authoritative. Deuction Fausto Pocar Presiding Judge with Carmel Agius Judge Ain, Dep Judge Khalida Rachid Khan Judge Judge Fausto Pocar appends a partially dissenting opinion. Judge Fausto Pocar and Judge Carmel Agius append a joint dissenting opinion. Judge Carmel Agius appends dissenting and separate opinions. Judge Liu Daqun appends partially dissenting and dissenting opinions. Judge Khalida Rachid Khan appends a dissenting opinion and a declaration. Dated this fourteenth day of December 2015, in Arusha, Tanzania. [Seal of the Tribunal] ICTR •

TRIP 1214 Case No. ICTR-98-42-A 14 December 2015

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19150/H XIV. PARTIALLY DISSENTING OPINION OF JUDGE POCAR At trial, the Prosecution submitted an initial indictment against Nyiramasuhuko and Ntahobali on 26 May 1997, which was confirmed on 29 May 1997. On 10 August 1999 the Prosecution was granted leave to amend the indictment, which included, inter alia, adding six new counts.?

2. In deciding to grant the Prosecution leave to amend the indictment as requested, the Trial Chamber held that there was no need to inquire whether or not a prima facie case had been established in support of the new counts since it had only been seised of a motion to amend the indictment pursuant to Rule 50 of the Rules. The Trial Chamber only satisfied itself that the Prosecution "provided sufficient grounds both in fact and in law" 4 3. In this Judgement, the Appeals Chamber finds Nyiramasuhuko's allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the six new counts to be without merit.' Likewise, the Appeals Chamber also dismisses Ntahobali's similar arguments.' I respectfully disagree with both the reasoning and the conclusion of the majority of the Appeals Chamber ("Majority") in this respect.

4. Although on 10 August 1999 when the Prosecution was granted leave to amend the initial indictment against Nyiramasuhuko and Nahobali Rule 50(A)(ii) of the Rules had not been adopted yet, for the reasons already expressed in my opinion of 12 February 2004 in the Casimir Bizimungu et al. case, I believe that - even prior to the adoption of Rule 50(A)(ii) of the Rules - an amendment to an indictment to include new counts could not be allowed if the conditions for confirming the indictment set forth in Rule 47 of the Rules were not satisfied." For the completeness of my argument, I hereby reproduce the relevant paragraphs of my previous opinion: 2. [...] In paragraph 11 of the decision, it is stated that "...Rule 50 of the Rules assigns the decision to allow an amendment to the indictment to the discretion of the Trial Chamber...." This may give the impression that a decision to allow an amendment rests solely in the discretion of a Trial Chamber, without more. I do not believe, however, that such a decision is solely a matter of discretion, because the conditions set forth in Rule 47 of the Rules must be taken into account by the Trial Chamber when it carries out its assessment. To dispel confusion, the Appeals Chamber should have pronounced on the issue even if the parties did not raise it expressly. 1 Appeal Judgement, para.

443. See also Trial Judgement, paras. 13, 6294. 2 See Appeal Judgement, para. 443. 3 See Appeal Judgement, para. 444, referring to 10 August 1999 Decision, para. 17. 4 See Appeal Judgement, para. 444, quoting 10 August 1999 Oral Decision, p. 4. § Appeal Judgement, para. 450. 6 Appeal Judgement, paras. 1077, 1079. ' As noted in this Judgement, Rule 50(A)(ii) of the Rules was introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004. See Appeal Judgement, para. 450, fn. 1051. & Bizimung et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar, para.

1. I note that Rule 47 of the Rules applicable on 10 August 1999 is similar to Rule 47 of te Rules applicable today. 1215 Case No. ICTR-98-42-A 14 December 2015

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19149/H 3. Article 18(1) of the Statute of the International Tribunal provides that "[the judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed." The confirmation of an indictment can. therefore only take place if a prima facie case exists. This statutory requirement is echoed in Rule 47(E) of the Rules, which states that "(t)he reviewing Judge shall examine each of the counts. suspect." 4. Rule 50 of the Rules governs the amendment of indictments. This rule does not set forth conditions for allowing an amendment to an indictment. But it does preserve the rights of the accused in relation to new charges- -for example, it provides for a further appearance to enable the accused to enter a plea on the new charges, and it also provides for a further period of thirty days to file preliminary motions pursuant to Rule 72 in relation to the new charges. Hence, after a request for an amendment is allowed, the new charges are subject to the same rules that would have applied if they had been presented in the original indictment. 6. *or these reasons, I believe that the Appeals Chamber should have stated, in this decisior hat an amendment to an indictment should not be allowed if the conditions for confirming th indictment, articulated in Rule 47 of the Rules, are not satisfied.

5. In light of the above, I dissent from the Majority's conclusion that Nyiramasuhuko's - and Ntahobali's - allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the six new counts is without merit. Done in English and French, the English version being authoritative. Dated this fourteenth day of December 2015, in Arusha, Tanzania. panion Judge Fausto Pocar [Seal of the Tribunal] 1216 Case No. ICTR-98-42-A 14 December 2015

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19148/H XV. JOINT DISSENTING OPINION OF JUDGE POCAR

AND JUDGE AGIUS 1. In this Judgement, the Appeals Chamber considers that, although the Trial Chamber erred in failing to find that the Indictment was defective in relation to the number of incidents of incitement by megaphone of which Kanyabashi was alleged to be responsible, Kanyabashi was ultimately put on adequate notice of the relevant material facts with respect to the number of alleged incidents of incitement by megaphone and that the vagueness of the Indictment did not impair his ability to prepare his defence.' Accordingly, the Appeals Chamber finds that the Trial Chamber's error concerning the form of the Indictment regarding the number of incidents of incitement by megaphone did not invalidate its decision to convict Kanyabashi on the basis of the late May and mid-June 1994 megaphone announcements and, therefore, dismisses Kanyabashi's contentions that he lacked sufficient notice of his alleged responsibility for committing direct and public incitement to commit genocide through two megaphone announcements in late May and mid-June 1994.2 2. Moreover, when examining the merits of Kanyabashi's appeal against his conviction for direct and public incitement to commit genocide by making megaphone announcements in Butare Town in late May and mid-June 1994, the Appeals Chamber concludes that Kanyabashi has not demonstrated that the Trial Chamber erred in concluding that

Witness TK's evidence partly corroborated Witness QJ's testimony with respect to the megaphone announcement in late May 1994? In light of this conclusion and after having found that the Trial Chamber erred in finding that the evidence established that megaphone announcements from a moving vehicle were part of a modus operandi by which messages from Kanyabashi were delivered to the population of Ngoma Commune from April through June 1994, the Appeals Chamber finds that Witness TK's evidence alone, which the Trial Chamber found credible and corroborative of Witness QJ's testimony, is sufficient to sustain the Trial Chamber's reliance on Witness QJ's direct evidence that around late May 1994 Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.* Accordingly, the Appeals Chamber finds that the Trial Chamber's error in finding and relying on the existence of a modus operandi has not occasioned a miscarriage of justice and that Kanyabashi has failed to demonstrate that the Trial 1 Appeal Judgement, para. 2558. 2 Appeal Judgement, paras. 2558, 2560. 3 Appeal Judgement, para.

2626. See also ibid., paras. 2621-2625. 4 Appeal Judgement, paras. 2644, 2648. 1217 Case No. ICTR-98-42-A 14 December 2015

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19147/H Chamber erred in finding that, around late May 1994, he drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.' 3. Similarly, with respect to the megaphone announcement in mid-June 1994, the Appeals Chamber rejects Kanyabashi's contention related to this event and finds that the Trial Chamber's error in finding the existence of a modus operandi did not result in a miscarriage of justice as Witness QI's evidence alone was sufficient to support the Trial Chamber's conclusions as to the mid-June 1994 megaphone announcement.

4. In light of the above, the Appeals Chamber: (i) finds that Kanyabashi has failed to demonstrate any error in the Trial Chamber's assessment of the evidence concerning the late May and mid-June 1994 megaphone announcements that occasioned a miscarriage of justice and warrants its intervention; (ii) dismisses Grounds 3.2 through 3.8 of his appeal; and (iii) upholds his conviction for direct and public incitement to commit genocide by making megaphone announcements in Butare Town in late May and mid-June 1994.' 5. For the reasons mentioned below, we disagree with both the reasoning and the conclusions of the Majority concerning Kanyabashi's conviction for direct and public incitement to commit genocide by making megaphone announcements in Butare Town in late May and mid-June 1994.

1. Kanyabashi Indictment: Mid-June 1994 Incident 6. On one hand, the Appeals Chamber - and we concur with this conclusion - finds that paragraph 5.8 of the Kanyabashi Indictment® was overly vague as regards the number of times Kanyabashi was alleged to have incited the population through a megaphone while driving through Butare Town? On the other hand, the Majority - and we disagree with this conclusion - is not persuaded by Kanyabashi's argument that paragraph 5.8 was defective regarding the pleading of the § Appeal Judgement, paras. 2648, 2649. • Appeal Judgement, para. 2673. ' Appeal Judgement, paras. 2682, 2694, 3539. & Paragraph 5.8 of the Kanyabashi Indictment reads as follows: 5.8 From April to July 1994, various prominent persons, including members of the government and local authorities propagated incitement to hatred and violence. On or about April 19, 1994, after the interim president Théodore Sindikubwabo delivered a speech in Butare encouraging people to fight the enemy, Joseph KANYABASHI, gave a speech in support of the interim president, encouraging the population to follow Sindikubwabo's instructions. Shortly thereafter, widespr[lead attacks on Tutsis began in the area. In or around late May, 1994, on at least on one occasion, Joseph KANY ABASHI drove through the town of Butare and spoke to the population through a megaphone. He encouraged the population to

systematically search for the "enemy" in the commune and immediately afterwards, more Tutsis were killed in Ngoma commune. Also in or around May, 1994 Joseph KANYABASHI held at least two meetings in Cyarwa sector, Ngoma commune, at which he encouraged local residents to kill Tutsis. In the days following the meetings, Tutsis in the area were attacked. 9 Appeal Judgement, para. 2551. 1218 Case No. ICTR-98-42-A 14 December 2015

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19146/H dates of the incidents. ° In particular, the Majority considers that, while the Kanyabashi Indictment does not refer to the month of June in particular, the timeframe "[i]n or around late May, 1994" was sufficiently specific to allow Kanyabashi to prepare his defence against two allegations of incitement occurring in late May and mid-June 1994." In this respect, the Majority notes that, although the Prosecution was in possession of information regarding the date of the late May incident through Witness QJ's written statements, it did not have information regarding the date of the June incident at the time of the filing of the Indictment.? Accordingly, the Majority finds no error in the Trial Chamber's finding that the allegation of a megaphone announcement by Kanyabashi in mid-June 1994 fell under the scope of paragraph 5.8 and considers that the timeframe of the allegation of megaphone announcements by Kanyabashi pleaded in this paragraph was sufficient to provide him adequate notice. 13 7. In our view, the two above-mentioned conclusions of the Majority are contradictory. Indeed, how can the Majority finds, on one hand, that the Kanyabashi Indictment is defective as to the number of times Kanyabashi was alleged to have incited the population through a megaphone and, on the other hand, that it is not defective regarding the pleading of the dates of the incidents? In

this respect, we recall that paragraph 5.8 of the Kanyabashi Indictment only mentions that, "fin or around late May, 1994, on at least on one occasion, Joseph KANYABASHI drove through the town of Butare and spoke to the population through a megaphone. "14 If the Kanyabashi Indictment does not indicate how many times Kanyabashi is alleged to have incited the population through a megaphone while driving through Butare Town, how can it be not defective regarding the pleading of the dates of the incidents, especially with respect to the mid-June 1994 incident? Thus, we consider that - after having found that the Kanyabashi Indictment is defective as to the number of times Kanyabashi was alleged to have incited the population through a megaphone - the Majoriy had no other choice than to find that the Trial Chamber also erred with respect to the pleading of the date of the mid-June 1994 incident. We consider that Kanyabashi has demonstrated that the phrase "[in or around late May, 1994, on at least on one occasion"' pleaded in paragraph 5.8 did not provide him with notice that he was to defend against a second allegation of incitement by megaphone occurring in mid-June 1994. The Trial Chamber therefore erred in determining that the mid-June 1994 megaphone incident fell within the scope of paragraph 5.8 and that Kanyabashi was put on notice that he was alleged to have incited to the commission of genocide through a megaphone announcement while driving though Butare Town in mid-June 1994. 10 Appeal Judgement, para. 2552. " Appeal Judgement, para. 2552 (emphasis added). 12 Appeal Judgement, para. 2552. 13 Appeal Judgement, para. 2552. 14 Emphasis added. See also supra, fn. 8. 1219 Case No. ICTR-98-42-A 14 December 2015 524

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19145/H 8. We also note that, while the Prosecution was in possession of information regarding the date of the late May incident through Witness QJ's written statements when charging Kanyabashi, it did not have information on any incident of incitement by megaphone occurring in mid-June 1994.15 In this respect, we recall that it is the well established jurisprudence of the Appeals Chamber that "the Prosecution is expected to know its case before proceeding to trial and may not rely on the weaknesses of its own investigation in order to mould the case against the accused in the course of the trial depending on how the evidence unfolds."l6 In light of the fact that the Prosecution only charged Kanyabashi based on megaphone incidents) taking place "[i]n or around late May, 1994, on at least on one occasion" in paragraph 5.8 of the Kanyabashi Indictment and was not in possession of any information regarding the mid-June 1994 incident when charging Kanyabashi and up until Witness QI testified at trial, we are of the view that the mid-June 1994 megaphone incident was not part of the Prosecution case against Kanyabashi at the time of the filing of the Indictment.

9. Accordingly, we believe that the Trial Chamber erred in convicting Kanyabashi of an incident of incitement by megaphone in mid-June 1994 since he was not charged on this basis in the Kanyabashi Indictment. We would therefore have acquitted Kanyabashi of the mid-June 1994 incident.

2. Assessment of the Evidence: Late May 1994 Incident 10. Turning to the merits of Kanyabashi's appeal against his conviction for direct and public incitement to commit genocide by making megaphone announcements in Butare Town, we would also have acquitted Kanyabashi of the late May 1994 incident for the reasons expressed below.

11. We recall that the Appeals Chamber - and we concur with this conclusion - found that the Trial Chamber erred in finding that the evidence established that megaphone announcements from a moving vehicle were part of a modus operandi by which messages from Kanyabashi were delivered 15 In this respect, we note that, in paragraph 2556 of the Appeal Judgement, the Majority - after having found that the Kanyabashi Indictment was defective but could be cured by the provision of timely, clear, and consistent information — correctly notes that "there is no mention of the allegation of megaphone announcements in the Prosecution's pre-trial brief or opening statement." The Majority then proceeds to examine whether Witnesses QJ's and QI's summaries and prior statements can remedy the defect in the Kanyabashi Indictment. While the Majority concludes that, "[a]lthough not obvious from a reading of Witnesses QJ's and QI's summaries", "a review of the witnesses' prior statements confirms that both witnesses were referring to two distinct incidents implicating Kanyabashi in delivering a message using a megaphone", it fails short to provide any explanation. See idem. Indeed, a review of the witnesses' prior statements, even in light of the witnesses' summaries, does not confirm that both witnesses were referring to two distinct incidents. While they contain differences, they are also very similar in many respects. See ibid., fns. 5934-5936. In our view, these materials are inconclusive at to whether the witnesses were referring to two distinct incidents and, more importantly, certainly do not prove that the Prosecution intended to charge Kanyabashi with a second incident occurring in mid-June 1994. See, e.g., Ntagerura et al. Appeal Judgement, para.

27. See also Kupreskié et al. Appeal Judgement, para. 92; Niyitegeka Appeal Judgement, para. 194; Kvocka et al. Appeal Judgement, para. 30. 1220 Case No. ICTR-98-42-A 14 December 2015

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19144/H to the population of Ngoma Commune from April through June 1994.1 We further recall that, as correctly noted by the Appeals Chamber,18 the Trial Chamber relied on Witness QJ's evidence to reach its factual conclusion with respect to the late May 1994 megaphone announcement in the following terms: Insofar as Witness QJ's account was also corroborated and complemented by evidence establishing a pattern of préfecture announcements being disseminated from a vehicle with a public address system, the Chamber finds that the Prosecution has proven beyond a reasonable doubt that around late May 1994 Kanyabashi drove through Butare town with a megaphone and instructed the population to search for the enemy among them."' 12. In light of the wording of the Trial Chamber's conclusion, it is clear that the Trial Chamber only relied on Witness QJ's evidence concerning the May 1994 megaphone announcement "[i]nsofar as [his] account was corroborated and complemented by evidence establishing a pattern of préfecture announcements being disseminated from a vehicle with a public address system" 20 Having determined that the Trial Chamber's findings as they concern the modus operandi were unreasonable, the Majority finds that "Witness TK's evidence alone, which the Trial Chamber found credible and corroborative of Witness QJ's testimony, sufficient to sustain the Trial Chamber's reliance on

Witness QJ's direct evidence that around late May 1994 Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them."?! It adds that "this evidence is sufficiently complementary and corroborative of Witness QJ's evidence of 'announcements being disseminated from a vehicle with a public address system'"22 In light of these findings, the Majority concludes that the Trial Chamber's error in finding and relying on the existence of a modus operandi has not occasioned a miscarriage of justice and, therefore, finds that Kanyabashi has failed to demonstrate that the Trial Chamber erred in finding that, around late May 1994, Kanyabashi drove through Butare Town with a megaphone and instructed the population to search for the enemy among them.23 13. However, in our view, and contrary to the Majority's position," the Trial Chamber erred in concluding that Witness TK's evidence partly corroborated Witness QJ's testimony? Indeed, Witness TK's evidence that an announcement was made to the public with a megaphone from a vehicle by someone else than Kanyabashi is insufficiently linked to Witness QI's testimony that Kanyabashi directly and publicly incited genocide using a megaphone announcement in late 17 Appeal Judgement, paras. 2600-2602. See also ibid., para. 2644. 18 Appeal Judgement, para. 2645. 19 Trial Judgement, para. 3813. 20 Trial Judgement, para. 3813. 21| Appeal Judgement, para.

2648. Appeal Judgement, para. 2648, quoting Trial Judgement, para. 3813. 23 Appeal Judgement, paras. 2648, 2649. 24 Appeal Judgement, paras. 2624, 2626. 25 Trial Judgement, para.

3804. See also ibid., para. 3802. 1221 Case No. ICTR-98-42-A 14 December 2015

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19143/H May 1994. Witness TK's evidence concerns the conduct of someone else than Kanyabashi. Thus, it simply cannot be corroborative of Witness QJ's testimony. On this basis, we believe that no reasonable trier of fact could have found that Witness TK's evidence corroborated Witness QJ's evidence of Kanyabashi inciting the population using a megaphone in May 1994.

14. Having found that the Trial Chamber's findings as they concern the modus operandi were unreasonable and that the Trial Chamber erred in concluding that Witness TK's evidence corroborated Witness QJ's concerning the May 1994 megaphone announcement, we would have found that Witness QJ's evidence is no longer corroborated in the manner in which the Trial Chamber required it to be in order to reach findings beyond reasonable doubt. Consequently, we believe that these errors have occasioned a miscarriage of justice and that fairness requires that the findings concerning the May 1994 megaphone announcement must be set aside.

3. Conclusion 15. For the foregoing reasons, we disagree with both the reasoning and the conclusions of the Majority concerning Kanyabashi's conviction for direct and public incitement to commit genocide by making megaphone announcements in Butare Town in late May and mid-June 1994. Given that the mid-June 1994 incident was never part of the Prosecution case against Kanyabashi at the time of the filing of the Indictment and up until Witness QI testified at trial, we would have acquitted Kanyabashi of the mid-June 1994 incident. Moreover, having found that Witness QJ's testimony is no longer corroborated in the manner in which the Trial Chamber required it to be in order to reach findings beyond reasonable doub, we would also have acquitted Kanyabashi of the late May 1994 incident. Accordingly, we would have reversed Kanyabashi's conviction for direct and public incitement to commit genocide for the late May and mid-June 1994 megaphone announcements.

16. In light of the above, and the fact that the Appeal Chamber reversed Kanybashi convictions in relation to the killings perpetrated at Kabakobwa Hill on 22 April 1994 as well as his convictions for failing to prevent the soldiers from committing the killings at Matyazo Clinic in late April 1994 and punish them,26 we would have acquitted Kanyabashi fully. 26 Appeal Judgement, paras. 2520, 2563, 2575, 3539. 1222 Case No. ICTR-98-42-A 14 December 2015

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19142/H Done in English and French, the English version being authoritative. Quisian Judge Fausto Pocar Dated this fourteenth day of December 2015, in Arusha, Tanzania. with Judge Carmel Agius [Seal of the Tribunal] CIR: • ! 1223 Case No. ICTR-98-42-A 14 December 2015

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19141/H XVI. DISSENTING AND SEPARATE OPINIONS OF JUDGE AGIUS 1. I respectfully disagree with the Majority's position concerning: (i) Ndayambaje's and Nteziryayo's arrest and initial appearance; (ii) the reversal of the convictions of Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje for persecution as a crime against humanity; (iii) Kanyabashi's conviction for direct and public incitement to commit genocide for the late May and mid-June 1994 Megaphone Announcements; (iv) Ntahobali's appeal on sentencing related to the Trial Chamber's assessment of the gravity of the offences; and (v) the impact of the Appeals Chamber's findings on Nyiramasuhuko's, Ntahobali's, and Ndayambaje's sentences. Moreover, I attach to this Judgement a separate opinion setting out my position in relation to the mode of responsibility of aiding and abetting.

2. My position concerning Kanyabashi's conviction for direct and public incitement to commit genocide for the late May and mid-June 1994 Megaphone Announcements is expressed above, in a joint dissenting opinion with Judge Pocar.' I discuss my views in relation to the other matters below. A. Dissenting Opinion: Ndayambaje's and Nteziryayo's Arrest and Initial Appearance 1. Ndayambaje's Arrest and Initial Appearance 3. In this Judgement, the Majority declines to consider on the merits Ndayambaje's submissions concerning the legality of his detention prior to the issuance of the indictment against him, as well as the delays in his transfer to the Tribunal and in his initial appearance following the issuance of his indictment.? The Majority also declines to examine Ndayambaje's submissions that these delays resulted in violations of his right to be promptly informed of the charges against him, his right to counsel, and his right to initial appearance without delay." It does so on the basis that Ndayambaje failed to raise these submissions during the course of his trial and in his notice of appeal, and that he has failed to identify the error allegedly committed by the Trial Chamber which would justifiy the intervention of the Appeals Chamber.* Further, the Majority states that it "does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeal hearing."' The Majority concludes that ' See supra, Joint Dissenting Opinion of Judge Pocar and Judge Agius. 2 Appeal Judgement, para.

63. See Ndayambaje Appeal Brief, para. 308; Appeal Judgement, para. 59. 3 Appeal Judgement, para.

63. See Ndayambaje Appeal Brief, para. 308; AT. 21 April 2015рр. 7-9. * Appeal Judgement, para. 62. 5 Appeal Judgement, para. 63. 1224 Case No. ICTR-98-42-A 14 December 2015

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19140/H Ndayambaje has therefore waived his right to raise these issues on appeal, and dismisses the relevant part of Ndayambaje's appeal "without further consideration" 4. For the reasons set out below, I respectfully disagree with the approach taken by the Majority and its decision not to consider Ndayambaje's submissions on the merits. In my view, the Appeals Chamber ought to examine the merits of his submissions. (a) The Issue of Waiver 5. I accept that, as a general principle, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of "special circumstances", the Appeals Chamber will find that the party has waived its right to adduce the issue on appeal.' I am also aware that this waiver principle has been applied to allegations of fair trial violations, including allegations of violations of the right to initial appearance without delay and the right to counsel of one's own choosing.® However, as set out below, I am not convinced that Ndayambaje did waive his right to adduce the issues on appeal. On the contrary, in my view, he sufficiently raised the issues at trial. Furthermore, even if Ndayambaje had failed to raise these issues, I consider that the nature of the alleged fair trial violations, and particularly their gravity and seriousness in the circumstances described by Ndayambaje, constitutes "special circumstances" requiring the Appeals Chamber to address his submissions on the merits, or otherwise warrants its intervention in the interests of justice.

6. I should note at the outset that I am not in a position to properly assess the merits or accuracy of Ndayambaje's submissions or to establish the precise nature and extent of any violation of his rights. In my view, were the Appeals Chamber minded to consider his submissions on the merits, it would require and indeed should request submissions in writing from both Ndayambaje and the Prosecution' My point is that the seriousness of the alleged violations warrants the attention and concern of the Appeals Chamber, which, upon full briefing by the parties, would then make its own determination on the issues. I will therefore limit my dissenting opinion to whether the Majority rightfully declined to examine Ndayambaje's submissions. 6 Appeal Judgement, para. 63. ' See Bagosora and Nsengiyumva Appeal Judgement, para. 31; Musema Appeal Judgement, paras. 127, 341; Rambanda Appeal Judgement, para.

25. Cf. Renzaho Appeal Judgement, para.

17. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing). See also, Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of the defence); chares AbiliAgemen, paras 361, 375, 375, 7, (right to be informed promitly and in detail of the nature of the elebiéi Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to the attention of judges to the proceedings); Tadié Appeal Judgement, para. SS (right to equality of arms). See Appeal Judgement, fn.

169. See Augustin Ndindiliyimana et. al v. The Prosecutor, Case No. ICTR-00-56-A, Order for Further Submissions and Severance, 7 February 2014, pp. 1, 2. 1225 Case No. ICTR-98-42-A 14 December 2015

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19139/H (i) Whether Ndayambaje failed to raise the issues at trial I agree with the Majority that Ndayambaje did not raise the allegations of violations of his right to be promply informed of the charges against him and his right to counsel in his notice of appeal. '° However, I respectfully disagree with the Majority that "Ndayambaje has further failed to demonstrate that he raised these allegations of violations of his rights at trial" " In particular, I take a different view from the Majority when it states that "contrary to Ndayambaje's argument, these allegations were not raised in the motions he referred to during the appeals hearing."12 I consider that the relevant motions do in fact raise the relevant issues.

8. At the appeal hearing, in response to the Prosecution's submission that he failed to previously raise any issue concerning the appointment of counsel,' Ndayambaje referred to a motion dated 28 November 1996, which he stated "underscored his difficulties" in relation to the right to counsel of one's choosing. * I note that the Motion of 29 November 1996 indicates, inter alia, that Ndayambaje was assigned counsel by the Registrar of the Tribunal on 22 November 1996 and that they met for the first time on the eve of Ndayambaje's initial appearance, on 28 November 1996.'5 The Motion of 29 November 1996 further reflects that Ndayambaje sought to be represented by a different counsel than the assigned counsel, and that the assigned counsel requested the Trial Chamber's intervention to resolve the dispute between Ndayambaje and the Registrar on the assignment of counsel. I note further that, in a correspondence to the Registrar dated 3 December 1996, Ndayambaje reiterated his position that the assigned counsel was not counsel of his choice and provided the names of several lawyers whose assignment would satisfy him.'' Nonetheless, it appears that Ndayambaje continued to be represented by the assigned counsel at least until 7 July 1998, when the Trial Chamber granted motions by Ndayambaje for the withdrawal of the assigned counsel and the assignment of new counsel to his case.l8 10

Appeal Judgement, para. 62; Ndayambaje Notice of Appeal. " Appeal Judgement, para. 62. 12 Appeal Judgement, para. 62. 13 AT. 21 April 2015 рр. 32, 33. de règlement d'une question préalable, dated 28 November 1996, filed 29 November 1996 ("Motion of ' Motion of 29 November 1996, p. 42bis (Registry pagination). See also Appeal Judgement, para. 58 16 Motion of 29 November 1996, pp. 42bis, 41bis, 38bis (Registry pagination). The Motion of 29 November 1996 also outlined that Ndayambaje's chosen counsel had not been appointed to the case due to the fact that she was found unqualified by the Registrar. See Motion of 29 November 1996, p. 41bis (Registry pagination). See also AT. 21 April 2015 p. 62. 17 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-0160, Ndayambaje's Letter to the Registrar of the Tribunal, 3 December 1996. 18 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Motion of the Accused for the Replacement of Appointed Counsel, 7 July 1998. 1226 Case No. ICTR-98-42-A 14 December 2015

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19138/H 9. In response to the Prosecution's submissions that he had also failed to raise issues regarding the delay in service of the Indictment and other pre-trial delays, Ndayambaje referred to an extremely urgent motion for provisional release dated 15 August 2002 and filed 21 August 2002.20 Ndayambaje stated that, while the violation of his right to counsel had prevented him from raising arguments during the initial pre-trial period with respect to the right to be informed of the charges against him, all of the relevant circumstances, dates and delays were "clearly indicated in that motion".

2) I observe that in the Motion of 21 August 2002, Ndayambaje requested provisional release on the basis of the unduly long period of time in which he had been in detention and the prospect of the trial being exceptionally long, asserting that continued detention throughout the trial would be prejudicial to him. Ndayambaje also asserted that, as of 24 January 1996, his detention in Belgium was based on the request of the ICTR Prosecutor, and that while an indictment was issued against him on 21 June 1996, it was not served on him until 12 August 1996.23 He further noted that he was transferred to Arusha three months later, on 8 November 1996, which according to him was 289 days after his provisional arrest at the request of the ICTR Prosecutor.?4 Additionally, in describing the many delays to the commencement of his trial, Ndayambaje pointed to the fact that he made his initial appearance before the Trial Chamber on 29 November 1996.25 Finally, he argued that "his detention to date largely exceeds any acceptable standard" 26 10. In these circumstances, I am unable to see how Ndayambaje can be claimed to have failed to raise any objection to the alleged violations before the Trial Chamber. In my view, Ndayambaje set out in detail the factual circumstances which form the basis of his allegations and sought remedies for these alleged violations before the Trial Chamber.

Furthermore, the Trial Chamber issued its determination on the issues raised by Ndayambaje in a decision on the Motion of 21 August 2002, rejecting his submission that the delays suffered by him were unacceptable." Recalling that "[the obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation", and emphasising the duty of the Trial Chamber to ensure the 19 AT. 21 April 2015 pp. 32, 33. 20 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Extremely Urgent Motion for the Provisional Release, Under Conditions, of the Accused, 21 August 2002 (originally filed in French, English translation filed on 3 October 2002) ("Motion of 21 August 2002"). AT. 21 April 2015 p. 62. 22 Motion of 21 August 2002, pp. 48, 49. 23 Motion of 21 August 2002, paras. 12, 16. 24 Motion of 21 August 2002, para. 17 (original emphasis omitted). 25 Motion of 21 August 2002, para. 18. 26 Motion of 21 August 2002, para. 111. 27 The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Defence Motion for the Provisional Release of the Accused, 22 October 2002, paras. 23, 24, 28. 28 Kambanda Appeal Judgement, para. 25, citing Tadié Appeal Judgement, para. 55. 1227 Case No. ICTR-98-42-A 14 December 2015 524

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19137/H fairness of the trial, I consider that Ndayambaje sufficiently brought his complaints to the Trial Chamber's attention in such a way as to oblige the Trial Chamber to act on the issues and address his allegations with careful attention 11. Further, in my view, any waiver of the right to adduce issues on appeal must be unequivocal. I emphasise in this respect that the European Court of Human Rights ("ECtHR") has held that a waiver of a procedural right, including the right to appeal, must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. 30 I consider that these principles should apply in the instant case, particularly as it concerns allegations of breaches of fundamental fair trial rights."' Moreover, I find it very difficult to accept that Ndayambaje has unequivocally waived his right to raise the relevant matters on appeal, for the following reasons.

12. First, as set out above, in my view the Motion of 29 November 1996 and Motion of 21 August 2002 clearly relate to the same issues that Ndayambaje elaborated upon in his oral submissions (even if they do not precisely mirror those submissions), and request the Trial Chamber to grant appropriate relief.'2 Second, in his oral submissions in reply, Ndayambaje disputed the Prosecution's assertion that he had not raised the relevant issues before the Trial Chamber, and drew the Appeals Chamber's attention to the motions.33 Third, in his appeal brief Ndayambaje clearly (albeit briefly) set out his allegations concerning the delays he suffered before his initial appearance and the alleged violation of his right to be informed of the charges34 Fourth, Ndayambaje's submission that he was without legal counsel for almost all of the period between his 29 See Sainovié Appeal Judgement, para. 100 ("The Appeals Chamber recalls that the primary duty of the trial chamber is to safeguard the fairness of the trial, ensuring that the proceedings are conducted with full respect for the rights of the accused. In this context, the Appeals Chamber also recalls that the right to be tried without undue delay is provided under Article 21(4)(c) of the Statute and embodied in numerous international human rights instruments and is an inseparable and constituent element of the right to a fair trial.

Accordingly, the trial chamber has a duty to be proactive in ensuring that the accused is tried without undue delay, regardless of whether the accused himself asserts that right.") (internal references omitted). 30 See, e.g., Litwin v. Germany, ECtHR, No. 29090/06, Judgment, 3 November 2011, para. 37 "the Court reiterates that the waiver of a procedural right - in so far as it is permissible under the Convention - must be established in an unequivocal manner. Moreover, such waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance. The Court further considers that the waiver of a right to appeal is, in principle, permissible if the principles mentioned above are adhered to."); Natsvlishvili and Togonidze v. Georgia, ECtHR, No. 9043/05, Judgment, 29 April 2014, para. 91 ("it is also a cornerstone principle that any waiver of procedural rights must always, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest."). When examining the circumstances to ensure minimum safeguards are in place, the ECtHR considered, inter alia, whether an applicant benefited from legal representation and whether he was aware of the consequences of his waiver and waived

his right to appeal voluntarily. See, e.g., Natsvlishvili and Togonidze v. Georgia, ECtHR, No. 9043/05, Judgment, 29 April 2014, paras. 93, 97; Litwin v. Germany, ECtHR, No. 29090/06, Judgment, 3 November 2011, para. 45; Thind v. Germany, ECtHR, No. 29752/04, Decision, 23 March 2010, p. 11. 31 See infra, paras. 14-16. 32 See supra, paras. 8, 9. 33 AT. 21 April 2015 p. 62. 34 Ndayambaje Appeal Brief, para. 308. 1228 Case No. ICTR-98-42-A 14 December 2015

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19136/H arrest and initial appearance raises serious questions as to whether he was in a position to be able to effectively object to issues before the Trial Chamber during that time To my mind, these are strong indications that Ndayambaje has not waived his right unequivocally. Regardless, if there is the slightest doubt as to whether the appellant has waived his right, and where the relevant submissions address fundamental fair trial rights, I firmly believe that we ought to err in favour of the appellant in considering those submissions. (ii) Whether the Appeals Chamber should nevertheless consider Ndayambaje's submissions 13. As noted above, the Majority "does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeal hearing,"37 Here, I must respectfully but strongly disagree. Even if I were to agree with the Majority that Ndayambaje did not object to the relevant issues at trial, in my view, the seriousness of the alleged violations in this case most certainly warrants the attention and consideration of the Appeals Chamber.

14. I emphasise in this respect that Ndayambaje has raised issues of the utmost gravity regarding breaches of his fundamental fair trial rights. He alleges, inter alia, that he was in detention for 202 days without a warrant of arrest and without an indictment; that he was without legal counsel for 303 days after his arrest; and that the total number of days between his arrest and initial appearance was 311 days.40 15. The Tribunal has acknowledged the crucial importance of the rights of a detainee to be brought promptly before a Judge and to be informed of the charges against him.* These rights concern the fundamental right to liberty and their protection is key to ensuring that other basic rights of the detainee are respected. 42 I note that the Appeals Chamber held in the Kajelijeli Appeal 35 AT. 21 April 2015 p.

62. Supra, fn. 30. 37 Appeal Judgement, para.

63. AT. 21 April 2015 p. 7. 39 AT. 21 April 2015 p. 9. 40 AT. 21 April 2015 pp. 8, 9. 41 Kajelijeli Appeal Judgement, paras. 226, 229-233; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, paras. 46, 63. first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision"); calan v. Turkey, ECtHR, No. 46221/99, Judgment, 12 May 2005, para. 103 ("The Grand Chamber notes 1229 Case No. ICTR-98-42-A 14 December 2015

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19135/H Judgement that a delay of 85 days in serving an arrest warrant and a redacted indictment after a suspect's arrest could not be considered "prompt" or "immediate" within the meaning of the Tribunal's Statute and Rules, and that it was "clearly unlawful and was in violation of the suspect's rights under the Tribunal's Statute and Rules as well as international human rights law" 43 In the present case, where Ndayambaje asserts that he was kept in custody for a period of over six months without a warrant of arrest and without receiving notice of the charges against him, the extent of the alleged violations is far more serious and alarming 16. Ndayambaje's submission that he was without legal representation from the time of his arrest and until the assignment of duty counsel on 22 November 1996 is also extremely concerning. The right to counsel is one of the fundamental features of a fair trial, being crucial for the ability of the accused to defend himself and to protect his procedural rights." In this light, I am also most concerned by Ndayambaje's submission that, because he was without counsel for almost all of the period between his arrest and initial appearance, he was not able to make submissions before the Trial Chamber concerning alleged violations of other fair trial rights during that time. 45 17. For these reasons, I simply cannot agree with the Majority that the

violations alleged by Ndayambaje are insufficiently serious to constitute "special circumstances". On the contrary, I would consider such breaches, if substantiated, to be an egregious violation of Ndayambaje's fair trial rights. While I again make no comment as to whether such violations have occurred,* the very nature of the allegations disturbs me to my core. at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment"). Concerning the right of a suspect to be promptly informed about the reasons for his arrest, see Lutsenko v. Ukraine, ECtHR, No. 6492/11, Judgment, 3 July 2012, para. 77 ("The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. By virtue of this provision any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness"); Nechiporuk and Yonkalo v. Ukraine, ECtHR, No. 42310/01, Judgment, 21 April 2011, para.

208. Concerning the right of an accused to be promptly informed of the nature and cause of the accusations, see Nuutinen v. Finland, ECtHR, No. 45830/99, Judgment, 24 April 2007, para. 30 ("Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair"); Mulosmani v. Albania, ECtHR, No. 29864/03, Judgment, 8 October 2013, para. 123. 43 Kajelijeli Appeal Judgement, para. 231. 11 See Article 14 of the International Covenant on Civil and Political Rights; Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. See also Krombach v. France, ECtHR, No. 29731/96, Judgment, 13 February 2001, para. 89; Omelchenko v. Ukraine, ECtHR, No. 34592/06, Judgment, 17 July 2014, para.

46. See AT. 21 April 2015 p. 62. 46 See supra, para. 6. 1230 Case No. ICTR-98-42-A 14 December 2015

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19134/H 18. I acknowledge (as noted above) that the waiver principle has been applied in cases involving alleged violations of fair trial rights." However, in my view, the seriousness of the allegations in this case eclipses that of the alleged violations in those cases. 48 Further, I note that in other cases concerning alleged violations of fair trial rights, the Appeals Chamber has decided to consider submissions - notwithstanding a party's failure to object to the relevant issues at trial - given the general importance of the matter49 or because it concerned an integral component of the right to a fair trial.S° I consider that the principles established therein clearly allow the Appeals Chamber to intervene and examine Ndayambaje's submissions in the present case.1 19. Most notably, the Appeals Chamber has exercised its discretion in such a manner in the present Judgement. In the section of the Judgement dealing with the appellants' right to be tried without undue delay,? the Appeals Chamber has considered Nteziryayo's submissions on undue delay despite the fact that he did not raise them at trial." In addition, it has proprio motu considered the impact of its findings on undue delay on Nsabimana's rights, regardless of the fact that he did not raise allegations on this issue at all. The Appeals Chamber has addressed these arguments "[considering the extraordinary length of these proceedings, the Trial Chamber's determination in the Trial Judgement that none of the co-Accused's right to a trial without undue delay had been violated, and the interests of justice" $ I fully agree with this approach.

20. In these circumstances, I am unsure why the Majority is unwilling to also examine Ndayambaje's arguments in the interests of justice, given that his submissions - like Nteziryayo's - relate to serious matters of delay, inter alia, and the Trial Chamber made determinations on the 47 See supra, para. 5, fn.

8. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, paras. 28-31 (concerning an alleged delay of almost 10 months between arrest and transfer, and 27 days between the transfer and plea, however unlike in the present case there were no additional allegations of being held without warrant or indictment, or of lack of legal counsel); Akayesu Appeal Judgement, paras. 365, 372 (concerning an alleged delay of approximately four months in being informed of the charges while in detention, including also delays in transfer and initial appearance). 49 Furundzija Appeal Judgement, paras. 173, 174; Galic Appeal Judgement, para. 34; Kambanda Appeal Judgement, para.

55. See Sainovié et al. Appeal Judgement, para.

182. Renzaho Appeal Judgement, para. 17. 5' I note further that the Appeals Chamber has, in previous cases, proprio motu addressed arguments even though these were not raised by the parties, if they concern an issue of general importance for the case-law or functioning of the Tribunal or if interests of justice so require. See Krnojelac Appeal Judgement, para. 6; Boskoski and Tarculovski Appeal Judgement, para. 19; Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Judgement on Sentencing Appeal, 30 August 2005, para. 26; Kordic and Cerkez Appeal Judgement, para. 1031; Erdemovic Appeal Judgement, para. 16 (where it was stated that "[t]he Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties."). 52 Appeal Judgement, paras. 342-399. submissions should be summarily dismissed because he failed to raise them at trial and had therefore waived his right to Judgement, para. 355. 54 Appeal Judgement, paras. 358, 398. 5S Appeal Judgement, para. 358 (internal references omitted). 1231 Case No. ICTR-98-42-A 14 December 2015

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19133/H relevant issues. I consider that the allegations raised by Ndayambaje concern not one, but several, integral components of a fair trial, and that these matters are undoubtedly of "general importance". I emphasise further that, as held in the Mucic et al case, the Appeals Chamber "has an inherent power, deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done.'"' I strongly believe that the allegations brought before us by Ndayambaje relate to the protection of the most fundamental fair trial rights, and indeed call on the Appeals Chamber to utilise its inherent powers in the interests of justice. (b) Conclusion 21. For the foregoing reasons I respectfully, but strongly, disagree with the Majority that Ndayambaje has waived his right to raise the alleged violations of his fair trial rights on appeal. I also respectfully, but strongly, disagree that the seriousness of these alleged violations does not warrant consideration of his arguments on the merits. In my view, the interests of justice dictate that the Appeals Chamber consider the merits of Ndayambaje's submissions. Accordingly, and it pains me to say it, I cannot accept that the Majority's refusal to consider Ndayambaje's submissions will lead to a just result.

2. Nteziryayo's Arrest and Initial Appearance 22. In the 5 July 2013 Appeal Decision, the Appeals Chamber, of which I was a part, granted the Prosecution's request for summary dismissal of Nteziryayo's allegation of violation of his rights as a result of the delay between his arrest and his initial appearance, on the ground that Nteziryayo had waived his right to raise the issue on appeal.'8 At the appeals hearing, Nteziryayo requested inter alia that the Appeals Chamber reconsider its decision to summarily dismiss his submissions, in light particularly of the fact that the length of delay now appeared to be "no less than 144 days". 59 23. In this Judgement, the Majority declines to reconsider the 5 July 2013 Appeal Decision and to examine on the merits Nteziryayo's allegation of violation of his rights resulting from the delay between his arrest and initial appearance." For the reasons explained below, I respectfully disagree with the reasoning and the outcome reached by the Majority. 56 See supra, paras. 8, 10. 51 Prosecutor v. Zdravko Mucié et al, Case No. IT-96-21-Abis, Judgment on Sentence Appeal, 8 April 2003, para. 16. 58 5 July 2013 Appeal Decision, paras. 14-18, 23. 59 AT. 17 April 1994 p.

18. See AT. 17 April 1994 p. 19. 60 Appeal Judgement, paras. 56, 57. 1232 Case No. ICTR-98-42-A 14 December 2015

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19132/H 24. I recall that the Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice."' In this case, I consider that the Appeals Chamber should have reconsidered the 5 July 2013 Appeal Decision as it contains a clear error of reasoning. Moreover, although I am not in a position to assess whether reconsideration is necessary to prevent an injustice, I consider that Nteziryayo's allegations, if substantiated, would constitute serious violations of his fair trial rights.2 25. In the 5 July 2013 Appeal Decision, the Appeals Chamber found that "none of the arguments raised by Nteziryayo constitute special circumstances that may convince the Appeals Chamber to exercise its discretion to entertain Nteziryayo's allegation of error despite his failure to raise the issue in the nearly 14 years that the trial proceedings lasted in his case."63 I observe that, at the time, Nteziryayo had submitted inter alia that the issue of the delay between his arrest and initial appearance was a central feature of the right to a fair trial, and that summary dismissal was inappropriate given the Prosecution's acknowledgement of the "anomalous" delay between his arrest and initial appearance. 4 26. Having reconsidered the issue, I find that

Nteziryayo's arguments should have led the Appeals Chamber to conclude, in 2013, that special circumstances existed and therefore should have convinced the Appeals Chamber to exercise its discretion to entertain Nteziryayo's allegation of violation of his fair trial rights in light of the delays between his arrest and initial appearance. In this respect, I emphasise that Nteziryayo had raised serious issues regarding breaches of his fundamental fair trial rights. In his relevant appeal submissions, Nteziryayo alleged that 115 days had elapsed between his arrest on behalf of the Tribunal and his presentation to a Judge during his initial appearance, and that the delay between his transfer and initial appearance amounted to 88 days."S For the reasons explained above in relation to Ndayambaje, I cannot agree that such alleged violations are insufficiently serious to constitute "special circumstances" * I would consider such breaches, if substantiated, to be serious violations of Nteziryayo's fair trial rights. While I cannot make any comment as to whether such violations actually occurred," the very nature of the 61 See Appeal Judgement, para. 56 and references cited therein. 62 See infra, para. 26. 63 5 July 2013 Appeal Decision, para. 16. 64 5 July 2013 Appeal Decision, para. 12, referring to Nteziryayo's Response to Prosecutor's Motion for Summary Dismissal or in the

Alternative for Clarification of the Record on Appeal and Admission of Evidence under Rule 115, 23 May 2013 (confidential), para. 9(a) and (h). 65 See Nteziryayo Notice of Appeal, para. 66; Nteziryayo Appeal Brief, paras. 265-277. See also 5 July 2013 Appeal Decision, para. 3. 66 See supra, paras. 15-18. 67 I am not in a position to properly assess the merits or accuracy of Nteziryayo's submissions. I observe that, at the time of the 5 July 2013 Appeal Decision, the Prosecution had requested the Appeals Chamber, as an alternative to the summarily dismissal of Nteziryayo argument, to: (i) instruct the Registry to certify that five documents pertaining to 1233 Case No. ICTR-98-42-A 14 December 2015

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19131/H allegations is sufficiently serious to warrant the Appeals Chamber's attention. I therefore conclude that the Appeals Chamber erred in considering in its 5 July 2013 Appeal Decision that none of Nteziryayo's arguments constituted "special circumstances". I further find that the fact that the authorities of Burkina Faso have since indicated that the date of Nteziryayo's arrest was almost a month earlier than the date taken into account in the Trial Judgement and in the 5 July 2013 Appeal Decision, increases the seriousness of the possible violations. Indeed, it reinforces my conclusion that the 5 July 2013 Appeal Decision should have been reconsidered by the Appeals Chamber.

27. Moreover, I find the way the Majority deals with the waiver principle in this Judgement to be inconsistent and unpredictable. I recall that, in dealing with the appellants' right to be tried without undue delay, the Appeals Chamber has considered Nteziryayo's submissions on undue delay despite the fact that he did not raise them at trial. The Appeals Chamber has addressed his arguments "[considering the extraordinary length of these proceedings, the Trial Chamber's determination in the Trial Judgement that none of the co-Accused's right to a trial without undue delay had been violated, and the interests of justice"? As indicated previously, I am in full agreement with this approach." However, I find no valid reason for the Majority not to apply the same reasoning to other serious allegations of violations of Nteziryayo's rights resulting from the delay between his arrest and initial appearance. To the contrary, I find that the Majority's decision to treat these similar allegations of fair trial violations in a different manner creates inconsistency and unpredictability in the application of the waiver principle in this case?? Here again, I believe that the Appeals Chamber's decision to address Nteziryayo's arguments on undue delay, despite the waiver principle, strongly supports that there was a clear error of reasoning in the 5 July 2013 Appeal Decision, and that special

circumstances exist in this case that should have convinced the Appeals Chamber to exercise its discretion to entertain Nteziryayo's allegations on the merits. Nteziryayo's arrest and detention in Burkina Faso and his transfer to the Tribunal's detention facility ("Documents") were part of the record on appeal or, if the Appeals Chamber found that the Documents were not part of the record, admit them as additional evidence on appeal pursuant to Rule 115 of the Rules of Procedure and Evidence of the Tribunal; and (ii) instruct the Registry pursuant to Rule 33(B) of the Rules to provide clarifications on the dates of, and actions related to, Nteziryayo's arrest, transfer, appointment of counsel, and initial appearance. See 5 July 2013 Appeal Decision, para.

4. In my view, were the Appeals Chamber minded to reconsider the 5 July 2013 Appeal Decision and consider Nteziryayo's submissions on the merits, the alternative request of the Prosecution should have been considered and dealt with, and further submissions requested from both Ndayambaje and the Prosecution. Upon full briefing by the parties, the Appeals Chamber would then make its own determination on the issues. As a result of Nteziryayo's request for clarification of the date of his arrest, the Appeals Chamber instructed the Registrar to make written representations as to Nteziryayo's date of arrest. See 5 July 2013 Appeal Decision, paras. 19-23. On 14 March 2014, the Registrar indicated that the authorities of Burkina Faso provided the date of the arrest of Nteziryayo as 26 March 1998. See Appeal Judgement, fn.

18. The Trial Chamber initially stated in the Trial Judgement that Nteziryayo was arrested in Burkina Faso on 24 April 1998. See Trial Judgement, paras. 49, 6309. 69 Appeal Judgement, paras. 355, 358. In addition, the Appeals Chamber has proprio motu considered the impact of its findings on undue delay on Nsabimana's rights, regardless of the fact that he did not raise allegations on this issue at all. See Appeal Judgement, paras. 358, 398. See also supra, para. 19. 70 Appeal Judgement, para. 358 (internal references omitted). Supra, para. 19. 12 See also supra, paras. 19, 20. 1234 Case No. ICTR-98-42-A 14 December 2015

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19130/H 28. Based on the foregoing, I find myself unable to agree with the Majority's decision not to reconsider the 5 July 2013 Appeal Decision and examine on the merits Nteziryayo's allegations of violations of his right resulting from the delay between his arrest and initial appearance. B. Dissenting Opinion: the Crime of Persecution as a Crime Against Humanity 29. The Trial Chamber convicted Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje for persecution as a crime against humanity on the basis of their individual criminal responsibility for killings of Tutsis between April and June 1994?3 In this Judgement, the Majority overturns their convictions in this respect.'* For the reasons detailed below, I respectfully, but strongly, disagree with the reasoning and the conclusion reached by the Majority.

30. I should first emphasise that I do not contest that, in light of Article 3(h) of the Statute, the jurisdiction of the Tribunal over the crime of persecution as a crime against humanity is limited to the three listed discriminatory grounds, namely "racial, political and religious grounds.»75 As a result, I agree with the Appeals Chamber's finding that the Trial Chamber erred in law to the extent that it intended to convict Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje on the basis that they acted with discriminatory intent on "ethnic" grounds as a separate discriminatory ground. 6 31. I also concur with the Appeals Chamber's statement that while the Statute "is legally a very different instrument from an international treaty", it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law." However, I disagree with the way the Majority applies this principle of interpretation in this case. In my view, the interpretation conducted by the Majority erroneously leads it to conclude that discrimination on the basis of "ethnicity" cannot be included in one of the three listed discriminatory grounds of persecution and, in particular, under "racial grounds" 78 73 Trial Judgement, paras. 6098-6103, 6105-6108, 6120-6122, 6124, 6125. 76 Appeal Judgement, para. 2139. 77 Appeal Judgement, para. 2137 and references cited therein. 78 Appeal Judgement, para.

2137. Case No. ICTR-98-42-A 1235 14 December 2015

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19129/H 32. The Majority reasons as follows: it first notes that the chapeau of Article 3 of the Statute distinguishes "ethnicity" from "race" in the listed discriminatory grounds for the attack against a civilian population. 79 The Majority then finds that: "[a]ccording to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. This conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that 'ethnicity' cannot be encapsulated in 'race'. Indeed, interpreting the discriminatory ground of "race' in Article 3(h) of the Statute as including 'ethnicity' would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous."80 33. I disagree that the fact that "ethnic" and "racial" are listed as two separate terms under the chapeau element of Article 3 of the Statute indicates that the two notions are autonomous with respect to persecution as a crime against humanity. I am of the view that this distinction does not mechanically lead to the conclusion that discrimination on the basis of ethnicity cannot overlap or be encompassed in other discriminatory grounds for persecution, in particular, "racial" grounds. The Majority does not interpret the Statute in accordance with the ordinary meaning to be given to the terms "ethnic" and "racial" in their context, but merely states that since the Statute refers to both "ethnicity" and "race", these terms must be different and cannot overlap in any way. This reasoning appears overly restrictive.

34. I further note that when the Majority states that interpreting the discriminatory ground of "racial" in Article 3(h) of the Statute as including "ethnicity" would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous, it implies that the intention of the drafters of the Statute was to deliberately exclude discrimination on the basis of ethnicity from the definition of persecution by mentioning in the chapeau of Article 3 of the Statute both the terms "ethnic" and "racial". However, as outlined below, I do not detect any such intention from the drafters of the Statute to exclude crimes committed on the basis of ethnicity from the crime of persecution. Further, in my view, the Majority places too much emphasis on the chapeau of Article 3 of the Statute, while in fact this additional jurisdictional requirement is of a very different nature from the discriminatory intent required for persecution as a- crime against humanity.81 In doing so, the Majority fails to address the relevant question in this case, which is to define 79 Appeal Judgement, para.

2137. I note that the Majority refers to "ethnicity" in its reasoning while in the chapeau of Article 3 of the Statute the term "ethnic" is used. 30 Appeal Judgement, para. 2137. crimes against humanity other than for the crime of persecution. See Akayesu Appeal Judgement, paras. 465, 466, 469; Tadic Appeal Judgement, para.

305. See also Bagosora et al. Trial Judgement, paras. 2166, 2208. I also note that the discriminatory grounds contained in the chapeau of Article 3 of the Statute are not reproduced in Article 5 of the ICTY Statute. 1236 Case No. ICTR-98-42-A 14 December 2015

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19128/H persecution on "racial grounds" as a crime against humanity under Article 3(h) of the Statute at the time the Statute was adopted.

35. In this respect, I recall that as a general principle, provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or discerned from other authoritative sources. 2 I cannot discern such will to depart here. Indeed it appears that the intention of the drafters of the Statute was to mirror the definition of crimes against humanity adopted in the Charter of the International Military Tribunal for the Trial of the Major War Criminals annexed to the London Agreement of 8 August 1945 ("Nuremberg Charter") and in the Control Council Law No. 10, which the Secretary General considered to be reflective of international customary law.83 36. Having reviewed relevant international sources, I conclude that at the time of the adoption of the Statute, persecution on "racial grounds" as a crime against humanity was understood under international customary law as including discrimination on the basis of ethnicity. In this respect, I observe that Article 1.1 of the broadly ratified International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin."84 Indeed, the CERD differentiates the terms "race" and "ethnic", just as the Statute does, but also establishes that exclusion, restriction or preference based on "race" and "ethnic" origin constitutes "racial" discrimination in both cases.

37. Moreover the travaux préparatoires of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 ("Genocide Convention") do not support the conclusion that the notions "ethnical" and "racial" were autonomous at the time of the adoption of 82 Tadic Appeal Judgement, para.

296. See also Tadié Appeal Judgement, para. 287 ("In the case of the Statute, it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules"). 83 See Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, paras. 47-49 ("Report of the Secretary General on ICTY"); Report of the Secretary General Pursuant to Paragraph 5 of the Security Council Resolution 955 (1994), U.N. Doc. S/1995/134, 13 February 1995. para. 11, fn. 5 ("Report of the Secretary General on ICTR"). There is no discussion in the Report of the Secretary General on ICTY about the proposed definition of persecution as a crime against humanity and its limitation to persecution committed on "political, racial and religious grounds" in the ICTY Statute. The Report of the Secretary General on ICTY reflects, however, that the definition of persecution suggested by the United Nations Secretary General was based on the definition of the crime provided for in the Nuremberg Charter and the Law No. 10 of the Control Council. The Report of the Secretary General on ICTR merely refers to the list of crimes against humanity defined in Article 5 of the ICTY Statute, suggesting that the definition of the crime was by analogy also

based on the Nuremberg Charter and Law No. 10 of the Control Council. 84 Article 1.1, International Convention on the Elimination of All Forms of Racial Discrimination adopted by General Assembly Resolution 2106(XX), UN Doc. A/RES/20/2106, 21 December 1965, entered into force on 4 January 1969 ("CERD"). I note that there are currently 177 States Parties to the CERD. 1237 Case No. ICTR-98-42-A 14 December 2015

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19127/H the Genocide Convention. It appears that there, the term "ethnical" was added at a late stage in the negotiation process and there was no controversy over its addition since it did not appear to be a "fresh category" compared to the groups already listed in the draft of the Genocide Convention, namely "national", "racial", and "religious". No clear delineation of the concept of ethnicity emerged from the travaux préparatoires of the Genocide Convention, in which the concept was considered by the States as largely overlapping or as synonymous with the term "racial" but also in some cases as a "sub-group of a national group" or as "linguistic group" 85 38. I further note that the post-World War II cases reflect that several convictions were entered for persecution on "racial grounds" as a crime against humanity against the "Poles" and "Jews" 86 In my view, this shows that persecution on "racial grounds" as a crime against humanity was understood in international law at the time as including a broad range of features, including descent or national origin.

39. In my opinion, the foregoing strongly supports the conclusion that at the time the Statute was adopted, persecution on "racial grounds" as a crime against humanity was understood in international customary law as including discrimination on the basis of ethnicity. Accordingly, I consider that persecution on "racial grounds" in Article 3(h) of the Statute should be interpreted as encompassing discrimination on the basis of ethnicity.

40. Moreover, I underline that the Tribunal was created to adjudicate alleged crimes committed in Rwanda in 1994. In this respect, I observe that the Report of the Secretary General on ICTR explicitly makes reference to crimes allegedly committed against the "Tutsi ethnic group."87 In my view, it would be illogical for the drafters of the Statute to give the Tribunal jurisdiction over persecution as a crime against humanity, but wilfully exclude from its jurisdiction the ground upon which it considered the Tutsis had been persecuted. Concluding otherwise leads to an unreasonable interpretation of Article 3(h) of the Statute.8 5 See UN ORGA, Sixth Committee, Third Session, 74" meeting, UN Doc. A/C.6/SR.74, 14 October 1948, pp. 99, 106; JN ORGA, Sixth Committee, Third Session, 75" meeting, UN Doc. A/C.6/SR.75, 15 October 1948, pp. 115, 116. 86 The United States of America v. Alstoetter et al., U.S. Military Tribunal, Judgement, 3 and 4 December 1947, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1951), Vol. III, pp. 1041, 1118, 1136, 1142, 1144-1156, 1161; The United States of America v. Greifelt et al., U.S. Military Tribunal, Judgement, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1951), Vol. V, p. 152; The United States of America v. von Weizsaecker et al., U.S. Military Tribunal, Judgement, 11 April 1949, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1951), Vol. XIV, p.

575. See also The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics against Herman Wilhelm Göring et al., Judgement, 1 October 1946, Trial of Major War Criminals Before the International Military Tribunal Under Control Council Law No. 10, Vol. 1 (1947), pp. 66, 67, 282, 287, 288, 295-298, 300-307, 328-330, 339-341. Report of the Secretary General on ICTR, para. 3. 88 The ICTY Appeals Chamber, considering whether the ICTY Statute should be interpreted to include internal conflicts, or solely international conflicts, held that it would defeat the Security Council's purpose to exclude internal 1238 Case No. ICTR-98-42-A 14 December 2015

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19126/H 41. I further note that, although the jurisprudence on the matter is not settled, this interpretation finds some support in the jurisprudence of the ICTY. I highlight the Branin Trial Judgement, for instance, where the trial chamber stated that "the concept of 'race' includes 'ethnicity', which [the trial chamber] finds more appropriate to refer to in the context of the present case."89 The Dordevic Trial Judgement, in which Vladimir Dordevié was convicted of persecution as a crime against humanity on "racial grounds" committed against Kosovo Albanians, also provides support in this respect. In that case, the trial chamber found that the Kosovo Albanians were discriminated against on the basis of their ethnicity." Although this question was not directly addressed by the ICTY Appeals Chamber, the Dordevié Appeal Judgement recalled the applicable law as including only the intent to discriminate on "political, racial, or religious grounds."9! It then held that the victims were discriminated against on the basis of their ethnicity before concluding that the requirements for persecution were fulfilled, without further precision on the ground under which this conviction was entered. In my view, the Dordevié Appeal Judgement provides further support for considering that discriminatory intent on the basis of ethnicity is covered by "racial grounds".

42. As a result, I consider that, even if the Trial Chamber erred in law to the extent that it intended to convict Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi and Ndayambaje on the basis that they acted with discriminatory intent on "ethnic" grounds as a separate discriminatory ground, this error does not invalidate the Trial Chamber's decision to convict them for persecution as a crime against humanity. Having articulated the correct legal standard above, I would conclude that the Trial Chamber's factual findings that Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje acted with discriminatory intent against the Tutsi on the basis of their ethnicity conflicts as it would be "illogical for the drafters of the Statute to confer on the International Tribunal the competence to adjudicate the very conduct with which they were concerned only in the event that the context was an international conflict, when they knew that the conflicts at issue in the former Yugoslavia could have been classified, at varying times and places, as internal, international, or both." See Tadié Appeal Decision on Jurisdiction, para. 78. 89 Prosecutor v. Radoslav Braanin, Case No. IT-99-36-T, Judgement, 1 September 2004, fn. 2484. 9 Dordevié Trial Judgement, paras. 1758, 1759, 2230. See also Dordevié Appeal Judgement, para.

930. See also Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Judgement, 2 November 2011 ("Kvocka et al. Trial 91 Dordevié Appeal Judgement, para. 886. 92 See Dordevic Appeal Judgement, paras. 892, 893, 895, 897, 898, 901, 929, p.

380. I also note that, in several cases, ICTY trial chambers reasoned in a similar way to the Dordevié Appeals Chamber. In these cases, trial chambers recalled the applicable law for persecution as including only the intent to discriminate on "political, racial, or religious grounds", but then went on to define the discriminated-against group by reference to ethnicity before concluding that the requirements for persecution were fulfilled. In my view, these ICTY trial judgements provide further support for considering that discriminatory intent on the basis of ethnicity is covered by "racial grounds" for the crime of persecution as a crime against humanity. See Prosecutor v. Vujadin Popovié et al., Case No. IT-05-88-T, Judgement, 10 June 2010, paras. 968, 991, 995; Prosecutor v. Milan Martic, Case No. IT-95-11-T, Judgement, 12 June 2007, paras. 113, 118, 358, 363, 367, 411, 416, 432, 473; Prosecutor v. Momcilo KrajiJnik, Case No. IT-00-39-T, Judgement, 27 September 2006, paras. 734, 787, 788, 1126; See also Kordié and Cerkez Appeal Judgement, para. 950. 1239 Case No. ICTR-98-42-A 14 December 2015

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19125/H support their convictions for persecution on "racial grounds" as a crime against humanity. Accordingly, I would uphold their convictions in this respect.93 43. For these reasons, I find myself unable to agree with the Majority that the convictions of Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje for persecution as crime against humanity should be overturned on appeal. C. Separate Opinion: Aiding and Abetting 44. In the Perisié Appeal Judgement, the majority, of which I was part, set out why "specific direction" had always been an element of aiding and abetting liability pursuant to the jurisprudence of this Tribunal.®* I acknowledge that appeal judgements have subsequently been issued in the Sainovié et al. and the Popovié et al. cases, departing from the approach adopted in the Perisié case.'S However, I remain of the opinion that the decision in the Perisic Appeal Judgement was the correct one, and am not convinced by the reasoning expressed in these subsequent cases. Therefore, I must express my disagreement with paragraphs 1955, 3332, and 3343 of the Judgement to the extent that these paragraphs do not mention "specific direction" when recalling the applicable law on aiding and abetting. 6 D. Dissenting Opinion: Sentencing 1. Ntahobali's Appeal on the Gravity of the Offences in Sentencing 45. The Majority dismissed Ntahobali's argument that the

Trial Chamber erred in taking into account rapes perpetrated at the Hotel Ihuliro roadblock in assessing the gravity of the offences," because Ntahobali failed to raise this alleged error in his notice of appeal, and thus impermissibly expanded the scope of his appeal." The Majority further finds that the interests of justice do not require consideration of this argument." I respectfully disagree with the Majority for the reasons developed by Judge Liu in his dissenting opinion in this respect. To the extent that Judge Liu explains the reasons why the Majority should have considered Ntahobali's argument and finds that 1212; Joint Dissenting Opinion of Judge Pocar and Judge Agius. See Perisié Appeal Judgement, paras. 25-40. See also Perisic Appeal Judgement, Joint Separate Opinion of Judges Theordor Meron and Carmel Agius. 95 See Sainovic et al. Appeal Judgement, paras. 1617-1651; Popovid et al. Appeal Judgement, paras. 1758, 1764. %6 Appeal Judgement, paras. 1955, 3332, 3343. 97 Ntahobali Appeal Brief, para. 986. 98 Appeal Judgement, paras. 3379-3381. 9ª Appeal Judgement, para. 3380. 1240 Case No. ICTR-98-42-A 14 December 2015

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19124/H the Trial Chamber erred in determining the gravity of the offences in relation to Ntahobali's sentence, I fully endorse his position. 100 46. I wish, however, to add a further point. I note that the reasons relied upon by the Majority in deciding not to consider Ntahobali's argument are that: (i) all of the co-Appellants shall be treated equally, and that since Nteziryayo was prevented from raising challenges due to his failure to raise them in his notice of appeal, the same should apply to Ntahobali; and (ii) the Prosecution objected to Ntahobali's failure to raise his argument in his notice of appeal.' I find this reasoning inconsistent with footnote 7671 of the Judgement, where, contrary to the equality of treatment relied upon by the Majority in declining to examine Ntahobali's argument on the gravity of the offences, the Appeals Chamber exercises its discretion to consider allegations of error on sentencing that were not raised in some of the co-Appellants' notices of appeal.

47. In this footnote, the Appeals Chamber explains that it exercises its discretion to consider allegations of error that some of the co-Appellants' failed to raise in their respective notices of appeal, in light of "the nature of the allegations and the fact that the Prosecution did not object to these allegations on this basis and responded to the appellant's submissions." As explained by Judge Liu, the nature of Ntahobali's allegation on the gravity of the offences clearly justifies the consideration of his argument. 102 In my opinion, it appears that the only difference between Ntahobali's allegation relating to the gravity of the offences and the other co-Appellants' arguments is whether or not the Prosecution objected to the expansion of the scope of the appeal. I do not believe that whether or not the Prosecution objects should be the decisive, if not the only, element to determine whether it is in the interests of justice to examine on the substance an appellant's contention when he or she failed to raise it in his or her notice of appeal.

2. Impact of the Appeals Chamber's Findings on Nyiramasuhuko's, Ntahobali's, and Ndayambaje's Sentences 48. The Majority, addressing the impact of the Appeals Chamber's findings on the Co-Appellants' sentences, reduces the life sentences imposed on Nyiramasuhuko, Ntahobali, and 100 Partially Dissenting and Dissenting Opinions of Judge Liu, paras. 25-27. I note that Judge Liu further indicates that, given this error regarding the gravity of offences as well as the error he identified in relation to Ntahobali's liability for ordering the killings and superior responsibility at the Butare Prefecture Office, Ntahobali's sentence should be further reduced. See Partially Dissenting and Dissenting Opinions of Judge Liu, para.

28. I do not endorse this statement since, vith the Majority, I find that the Trial Chamber did not err in relation to Ntahobali's liability for ordering the killing und superior responsibility at the Butare Prefecture Office. My view on the impact of the Appeals Chamber's finding 1241 Case No. ICTR-98-42-A 14 December 2015

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19123/H Ndayambaje to 47 years of imprisonment. l03 I find myself unable to agree with the sentences imposed by the Majority in this respect. Having given due consideration to the violation of Nyiramasuhuko's, Ntahobali's, and Ndayambaje's rights to be tried without undue delay and the related prejudice they suffered, as well as the errors committed by the Trial Chamber, '* I believe that a sentence of 45 years of imprisonment in lieu of life imprisonment more adequately reflects the overall criminal responsibility of Nyiramasuhuko, Ntahobali, and Ndayambaje in the present case. Done in English and French, the English version being authoritative. Dated this fourteenth day of December 2015, in Arusha, Tanzania. with Judge Carmel Agius [Seal of the Tribunal] ICTR • 103 Appeal Judgement, paras. 3523, 3526, 3538.

104. Appeal Judgement, paras. 3521, 3524, 3536. In this respect, I recall that I disagree with the Majority's reyersal of Nyiramasuhuko's, Ntahobali's, and Ndayambaje's convictions for persecution as a crime against humanity. See supra, paras. 29-43. 1242 Case No. ICTR-98-42-A 14 December 2015

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19122/H XVII. PARTIALLY DISSENTING AND DISSENTING OPINIONS OF

JUDGE LIU 1. I respectfully disagree with the Majority's position on the following: i) regarding the appeals of Nyiramasuhuko and Ntahobali on leave to amend the indictment, the Majority upheld the Trial Chamber's position of not requiring the Prosecution to present a prima facie case in support of the new counts;' (ii) as to Ntahobali's responsibility at the Butare Prefecture Office, the Majority upheld the Trial Chamber's determination that he was responsible for ordering killings during the Mid-May Attack, and was responsible as a superior over the Interahamwe who committed crimes based on his orders; and (ili) with respect to sentencing, the Majority found no error in the Trial Chamber's assessment of Nyiramasuhuko's abuse of authority as an aggravating factor,* and it declined to consider Ntahobali's appeal on gravity of offences because his contention impermissibly expanded the scope of his appeal." I will discuss my views on these matters in turn. A. Partially Dissenting Opinion: Leave to Amend Indictment 2. On 10 August 1999, the Trial Chamber granted the Prosecution leave to amend the indictment against Nyiramasuhuko and Ntahobali." The Trial Chamber held that, under Rule 50 of the Rules, there was no necessity to assess whether a prima facie case had been met prior to granting the amendment.' The Trial Chamber was satisfied that the Prosecution "provided

sufficient grounds both in fact and in law",& and determined that the accused will suffer no prejudice as any prejudice can be remedied through Rule 72 of the Rules.' 3. Nyiramasuhuko and Ntahobali both argue, inter alia, that the Trial Chamber erred in law in failing to ascertain the existence of prima facie evidence before granting leave to include six new counts in the indictment and the addition of the charge of superior responsibility."º The Majority Appeal Judgement, paras. 450, 453, 1077, 1079. 2 Appeal Judgement, paras. 1898-1906, 1918, 1945. 3 Appeal Judgement, paras. 1934-1941, 1943, 1945. * Appeal Judgement, para. 3359, referring to Trial Judgement, para. 6207. § Appeal Judgement, paras. 3379-3381. * I note that with respect to Nyiramasuhuko several new charges were added, including: conspiracy to commit genocide, rape as a crime against humanity, as well as her responsibility pursuant to Article 6(3) of the Statute. As for Ntahobali, his superior responsibility under Article 6(3) of the Statute was added in relevant and existing counts of the indictment. See 10 August 1999 Oral Decision; 10 August 1999 Decision, p. 6. 10 August 1999 Decision, para.

17. See also 1 November 2000 Nyiramasuhuko Decision, para. 61; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Decision on the Status of the Hearings for the Amendment of the Indictments and for Disclosure of Supporting Material, 30 September 1998, para. 13. & See 10 August 1999 Oral Decision, p. 4; 10 August 1999 Decision, para.

23. See also ibid., p. 2-3. ° 10 August 1999 Decision, para. 20. 10 Nyiramasuhuko Notice of Appeal, paras. 1.9-1.11; Nyiramasuhuko Appeal Brief, paras. 72, 83, 86-88, 90-92, 95-98, 100, 101, 104, 111, 112, 114, 117, 122-125, 127, 129; Ntahobali Notice of Appeal, para. 146; Ntahobali Appeal Brief, paras. 319-324. 1243 Case No. ICTR-98-42-A 14 December 2015 M

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19121/H dismissed this submission on the basis that: (a) the requirement to establish a prima facie case for granting leave to amend an indictment pursuant to Rule 50(A)(ii) of the Rules was only introduced on 15 May 2004; (b) prior to this enactment; the practice of trial chambers of the Tribunal was not uniform regarding the need to establish a prima facie case; and (c) the Appeals Chamber, when seised with the matter, provided no guidance on this issue." 4. From the Majority's position, it appears that, on the basis of Rule 50 of the Rules at the time, the Trial Chamber had full discretion to choose whether a prima facie case had to be met or not before granting amendment of the indictment. Respectfully, I disagree. As a matter of law, I believe that prior to granting leave to amend an indictment, a trial chamber must ensure that the new charges satisfy the same requirements applied at the confirmation stage of the original indictment.l? Specifically, according to Article 18(1) of the Statute, a judge of the Trial Chamber shall confirm an indictment "[i]f satisfied that a prima facie case has been established by the Prosecutor", and if not satisfied, shall dismiss the indictment. l3 5. While not explicitly stated in Rule 50 of the Rules at the time, it is my view that a prima facie case was required prior to granting an amendment to the indictment against Nyiramasuhuko and

Ntahobali. In particular, I note that Rule 50 of the Rules was placed within the same section of provisions for the confirmation of indictments and no derogation from the general rule could be inferred from the text.'* In addition, it would be illogical that an amended indictment satisfies lower thresholds than those necessary for the original indictment's confirmation'S Finally, allowing an amendment that fails to satisfy a prima facie case could have allowed the Prosecution to insert new counts and undermined the accused's right to be adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence. 16 6. Having reviewed the relevant parties' submissions and decisions of the Trial Chamber, I am of the view that a prima facie case could have been, in any event, established prior to the Trial 11 Appeal Judgement, paras. 450, 1077. Opinion, para.

3. See Judge Pocar Individual Opinion, para. S § See Judge Pocar Individual Opinion, para. 5 16 See Article 20(4)(a) of the Statute stipulating that the accused shall be entitled "[tjo be informed promptly and in letail in a language which he or she understands of the nature and cause of the charge against him or her". See als vocka et al. Appeal Judgement, para. 28; Ntakirutimana Appeal Judgement, paras. 25, 27, 28, 58; Kupreskié et a Appeal Judgement, paras. 88, 122. 1244 Case No. ICTR-98-42-A 14 December 2015

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19120/H Chamber granting leave to amend the indictment." Despite my disagreement with the Majority's reasoning, I would therefore reject this submission from Nyiramasuhuko's and Ntahobali's appeals. B. Dissenting Opinion: Ntahobali's Responsibility at the Butare Prefecture Office 1. Ordering Responsibility for Killings at the Mid-May Attack 7. The Trial Chamber found that, in mid-May 1994, Nyiramasuhuko, Ntahobali, and about 10 Interahamwe came to the Butare Prefecture Office in a camouflaged pickup truck and that Nyiramasuhuko pointed out Tutsi refugees to the Interahamwe, ordering them to force the refugees onto the pickup truck.'* The Trial Chamber found that "Ntahobali also gave the Interahamwe orders, telling them to stop loading the truck because it could not accept anymore dead. "" The Trial Chamber concluded that refugees were taken to other locations in Butare and killed, and it found that "both Nyiramasuhuko and Ntahobali were responsible for ordering the killings of numerous Tutsi refugees who were forced on board the pickup.'20 8. While determining that the Trial Chamber erred in its obligation to provide a reasoned opinion, the Majority concluded that the error did not invalidate the Trial Chamber's decision, as its findings and relevant evidence sustain the conclusion that Ntahobali is responsible under Article 6(1) of the Statute for ordering the killings of numerous Tutsi refugees who were forced on board the pickup during the Mid-May Attack at the prefectoral office." Contrary to the Majority's position, I cannot agree that the Trial Chamber's error in failing to provide a reasoned opinion did not invalidate Ntahobali's conviction for ordering killings during this specific attack.

9. I recall that a person in a position of authority may incur responsibility for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act. I find that the Trial Chamber, having concluded that Ntahobali ordered killings of 17 See The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Prosecutor's Request for Leave to File an Amended Indictment, 18 August 1998; Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, Brief in Support of Prosecutor's Request for Leave to File an Amended Indictment, 18 August 1998, paras. 14-17. See also Attachments (Annexes) A and B to the Prosecutor's Request for Leave to Amend Indictment, 18 August 1998. See also 10 August 1999 Decision, paras. 18, 23; 10 August 1999 Oral Decision, pp. 2, 3; The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, T. 9 August 1999. 18 Trial Judgement, para. 5867. 19 Trial Judgement, para. 5867. 20 Trial Judgement, para. 5867. 21 Appeal Judgement, para. 1906. 22 See e.g., Ndindiliyimana et al. Appeal Judgement, paras. 291, 365; Hategekimana Appeal Judgement, para. 67; Renzaho Appeal Judgement, para. 315; Kamuhanda Appeal Judgement, paras. 75, 76. Responsibility for ordering is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. Ordering with such awareness has to be regarded as accepting that crime. See Blaskié Appeal Judgement, para.

42. See also Galic Appeal Judgement, para. 157; Kordic and Cerkez Appeal Judgement, para. 30. 28298332 1245 Case No. ICTR-98-42-A 14 December 2015

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19119/H Tutsis during the Mid-May Attack, failed to refer to any express order to kill, identify a particular instruction that had a direct and substantial effect on the eventual killings of Tutsis forced to board the pickup truck, or state that it inferred as the only reasonable conclusion that Ntahobali ordered the killings.24 10. In my view, the Trial Chamber's failure to provide a reasoned opinion in this regard was further compounded by the absence of findings or relevant evidence that could sustain Ntahobali's conviction for ordering killings during this specific attack. The only order that the Trial Chamber identified was Ntahobali's instruction to the Interahamwe to stop putting refugees on the pickup truck.25 I fail to see how this instruction could lead to the only reasonable inference that it had direct and substantial effect on the killing of Tutsi refugees who were forced on board the pickup truck. 6 In addition, having reviewed relevant parts of the Trial Judgement and the record, I find that Ntahobali's responsibility cannot be supported on the basis of Witness TA's evidence. According to Witness TA, only Nyiramasuhuko, and not Ntahobali, selected individuals to be placed on the vehicle? Thus, the Trial Chamber's finding that the Interahamwe were acting under Ntahobali's orders to load the truck with Tutsi refugees is not supported by the evidence.

11. For the foregoing reasons, I consider the evidence on the record insufficient to support as the only reasonable conclusion that Ntahobali ordered killings during the Mid-May Attack at the prefectoral office. In these circumstances, I therefore consider that Ntahobali's convictions on this basis should be overturned.

2. Superior Responsibility 12. Recalling that "Nyiramasuhuko and Ntahobali issued orders to Interahamwe and the Interahamwe complied with these orders and perpetrated the acts asked of them, which included abductions, rapes and killings" as well as "considering the evidence in its entirety", the Trial Chamber found that Ntahobali and Nyiramasuhuko were in a superior-subordinate relationship over the Interhamwe at the prefectoral office and wielded effective control over them?* On this basis, the Trial Chamber determined that Ntahobali was responsible pursuant to Article 6(3) of the Statute for 23 Trial Judgement, para. 5867. 24 Trial Judgement, paras. 5866-5871. See ibid., paras. 6053, 6100, 6168 25 Trial Judgement, para. 5867. 26 Trial Judgement, para. 5867. 27 See Trial Judgement, paras. 2178, 2628. See also Witness TA, T. 25 October 2001 p. 28 28 Trial Judgement, para. 5884. 1246 Case No. ICTR-98-42-A 14 December 2015 hir

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19118/H the acts of the Interahamwe against Tutsis who had sought refuge at the Butare Prefecture Office, including their perpetration of rapes and killings.?9 13. The Majority upheld Ntahobali's responsibility under Article 6(3) of the Statute 3 and also considered that, as reflected in the Trial Judgement, he was only held liable as a superior for crimes committed by the Interahamwe who followed his orders." Having considered the jurisprudence and reviewed the evidence, I respectfully disagree with the Majority's position to uphold the Trial Chamber's finding as to Ntahobali's superior responsibility at the Butare Prefecture Office? In my view, the Trial Chamber erroneously conflated Ntahobali's liability for ordering and superior responsibility, and no reasonable trier of fact could have concluded that Ntahobali had effective control over the Interahamwe at the prefectoral office. As discussed below, I distinguish this from circumstances at the Hotel Ihuliro roadblock and the EER, where I agree that Ntahobali should have incurred superior responsibility over the acts of the Interahamwe.

14. I recall that the imposition of superior responsibility necessitates a pre-existing superior-subordinate relationship between the accused and the perpetrators.3 A commander or superior is "one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate's crime or to punish the perpetrators of the crime after the crime is committed "34 While "the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. *35 15. For a superior to be found criminally liable, it must be shown that he or she exercised effective control over subordinates who have committed crimes.36 The indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate.?" According to the jurisprudence of the Tribunal, an accused's ability to issue orders and the fact that his orders were actually followed 29 Trial Judgement, para.

5886. See also ibid., paras. 6056, 6086. 30 Appeal Judgement, paras. 1941, 1943, 1945. 31 Appeal Judgement, para. 1925, referring to Trial Judgement, paras. 5884-5886. 32 This applies both to his orders to kill (Mid-May Attack) and orders to commit rape (Last Half of May Attacks). 33 Halilovie Appeal Judgement, para.

210. See also Bizimungu Appeal Judgement, para. 133. 34 Celebici Appeal Judgement, para. 192. 35 Celebidi Appeal Judgement, para.

197. I note that the Appeals Chamber in Celebidi has also stated that generally possession of de jure power in itself may not suffice for finding command responsibility if it does not manifest in -ffective control. See idem. See e.g., Popovié et al. Appeal Judgement, para. 1857 and references cited therein. The Appeals Chamber in Celebici has stated that "[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of crimes if he failed to exercise such abilities of control." See Celebici Appeal Judgement, para. 198. 1247 Case No. ICTR-98-42-A 14 December 2015

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19117/H can demonstrate effective control.38 However, this cannot be the sole indicator nor does it automatically establish effective control." Indeed, "[i]n circumstances where a superior would not be able to perform the functions necessary to prevent or punish, the superior could not be said to possess the material ability required to exercise effective control."40 Additionally, a superior need not know the exact identity of his or her subordinates who perpetrate crimes." However, where multiple groups of subordinates may exist, there should be evidence linking the accused to the specific group committing the crimes. 42 16. In comparison, the threshold to establish authority for ordering liability under Article 6(1) of the Statute is lower than that for superior responsibility. Based on the Tribunal's jurisprudence, ordering liability requires no formal superior-subordinate relationship between the accused and the perpetrator and no effective control.** Additionally, the authority may be informal or of a purely temporary nature, 4S and physical perpetrators, those receiving orders, may be identified generally by group.* It is sufficient that there is proof of a position of authority on the part of the accused that would compel another person to commit a crime. 47 Whether such authority exists is a question of fact48 and is a "more subjective criterion that depends on the

circumstances and the perceptions of the listener."49 17. Turning to the circumstances at the Butare Prefecture Office, I believe that, based on the evidence, no reasonable trier of fact could have found that Ntahobali was in a superior-subordinate relationship with the Interahamwe and that he had effective control over them. I observe the Trial Chamber's consideration that, inter alia: (i) Nyiramasuhuko and Ntahobali (although mostly 37 Blaskic Appeal Judgement, para.

69. See also Popovié et al. Appeal Judgement, para. 1860; Ndahimana Appeal Judgement, para. 53; Strugar Appeal Judgement, para.

254. Halilovié Appeal Judgement, para.

207. See also Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fn. 139; Kajelijeli Appeal Judgement, paras. 90, 91. so ntrol bu als chance in stomatial yested that such controls Seti A pest dies is parin 2 it trife hid that "convictions under Article 6(3) of the Statute are generally based on a thorough analysis of various indicators of effective control." Setako Appeal Judgement, fn. 615 and references cited therein. According to the Appeals Chamber in Strugar: "a superior's authority to issue orders does not automatically establish that a superior had effective control over his subordinates." Strugar Appeal Judgement, para. 253 (emphasis in original). Furthermore, the Appeals Chamber in Blaskid found that "the issuing of humanitarian orders does not by itself establish that the Appellant had effective control over troops that received the orders." Blaskit Appeal Judgement, para. 485. 40 Popovié et al. Appeal Judgement, para. 1857. 41 Blagojevié and Jokié Appeal Judgement, para. 287. 42 Cf. Ntabakuze Appeal Judgement, paras. 169-174. 43 Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para. 361. 41 Seromba Appeal Judgement, para. 202. 45 Setako Appeal Judgement, para. 240; Semanza Appeal Judgemnet, para. 363. 46 See Boskoski and Tarculovski Appeal Judgement, para. 75, fn. 216 and references cited therein. Appeal Judgement, para. 164. 481 Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para. 363. 49 Gacumbitsi Appeal Judgement, para. 182. 1248 Case No. ICTR-98-42-A 14 December 2015

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19116/H Nyiramasuhuko) appeared to be in charge of assailants; (ii) Ntahobali had the ability to stop the Interahamwe from putting more refugees on the pickup truck, and (iii) the Interahamwe referred to him as "Shalom, chef' and he told them "to do their work seriously."S? From the evidence and Trial Chamber's findings as to the attacks occurring between May and June 1994 at the prefectoral office, I also note the identification of the Interahamwe to be extremely vague. 3 It is unclear whether the Interahamwe, who came during separate and multiple attacks, were the same individuals, from the same group, under the same authority, or otherwise. Indeed, as indicated in this Appeal Judgement, Ntahobali was not found liable as a superior of Interahamwe who committed crimes on the basis of Nyiramasuhuko's orders.54 18. In my view, the evidence could demonstrate that Ntahobali was at most in some temporary position of authority over the Interahamwe and this may have been sufficient for ordering liability under Article 6(1) of the Statute. However, irrespective of the Majority's position regarding the alleged repeated nature of his "orders" and the fact that they were followed," there is insufficient evidence, outside these "orders", to conclude that Ntahobali had a de facto superior-subordinate relationship over the Interahamwe during attacks at the prefectoral office. In assessing

Ntahobali's superior responsibility, the Trial Chamber stated that it "considered] the evidence in its entirety" 56 However, other than his orders, it is unclear upon what solid evidence the Trial Chamber relied There is also inadequate evidence to show that he could materially prevent crimes of the Interahamwe before their commission or punish crimes thereafter. The insufficiency of evidence is revealed by the Trial Chamber's circular reasoning in assessing his ability to prevent or punish: [Nyiramasuhuko's and Ntahobali's] orders demonstrate that they knew that the Interahamwe were about to commit a crime and had later done so, and that they failed to prevent the crimes. It is also clear from that evidence that they did not punish the Interahamwe for obeying their orders.

19. I distinguish the situation at the prefectoral office from the circumstances at the Hotel Ihuliro roadblock and at the EER, where there appears to be stronger indicia of his effective control See Trial Judgement, para. 2178 (emphasis added). See also Witness TA, T. 25 October 2001 pp. 66, 67, T. 29 October 2001 pp. 46, 47. See Trial Judgement, para.

2178. See also Witness TA, T. 29 October 2001 pp. 46, 47. 52 See Trial Judgement, paras. 2668, 2681. See also Witness TK, T. 20 May 2002, p. 88, T. 23 May 2002 p. 93. 53 See e.g., Trial Judgement, paras, 2628-2632, 2634, 2636, 2638, 2644-2646, 2648-2651, 2653, 2681, 2687, 2688, 2691, 2693, 2694, 2696, 2698, 2699, 2702-2709, 2711-2715, 2717-2719, 2721, 2727-2730, 2732-2736, 2738, 2741, 2742, 2747, 2748, 2770, 2771, 2773, 2781. I note that an individual named Kazungu was identified as either an Interahamwe or a soldier. See ibid., paras. 2707-2709. The Trial Chamber considered that other Interahamwe were identified, but none appears to be linked to attacks that Ntahobali allegedly ordered. See ibid., para. 2755. 54 See Appeal Judgement, para. 1926. 55 See Appeal Judgement, para.

1936. I consider that, based on my position regarding the Mid-May Attack, I do not believe that Ntahobali was or should have been convicted for ordering killings at the Butare Prefecture Office. 56 Trial Judgement, para. 5884. 57 Trial Judgement, para. 5885 (emphasis added). 1249 Case No. ICTR-98-42-A 14 December 2015

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19115/H over the Interahamwe present. In particular, at the roadblock, aside from his order to kill Ruvurajabo, the Trial Chamber considered direct evidence that the Interahamwe, identified to be present at the time, specifically sought instructions from Ntahobali.!' At the EER, the Trial Chamber considered concrete evidence that Ntahobali was the leader of the Interahamwe, " he led attacks at the EER," and that the Interahamwe at the scene feared and obeyed him. 2 20. On the basis of the foregoing, I would accordingly conclude that no reasonable trier of fact could have found that Ntahobali had superior responsibility over the crimes committed by the Interahamwe at the prefectoral office. C. Partially Dissenting Opinion: Sentencing 1. Double-Counting Nyiramasuhuko's Abuse of Authority 21. The Trial Chamber found Nyiramasuhuko guilty of ordering the killing of Tutsi refugees at the Butare Prefecture Office.' 63 In determining her sentence, the Trial Chamber stated that "Nyiramasuhuko, on a number of occasions, used her influence over Interahamwe to commit crimes such as rape and murder" and concluded that this "abuse of general authority vis-à-vis the assailants is an aggravating factor."64 Nyiramasuhuko submits that the Trial Chamber erred in considering her abuse of authority as an aggravating factor since this was an element of the crimes for which she was convicted.

6s 22. The Majority found no error in the Trial Chamber's conclusion and dismissed Nyiramasukuo's appeal that the Trial Chamber impermissibly double-counted an element of the crime as an aggravating factor." I respectfully disagree with the Majority's conclusion in this regard. 58 See Appeal Judgement, paras. 1471-1476, 2106-2113. 59 The Trial Chamber considered that the Interahamwe asked Ntahobali "what shall we do with [Ruvurajabo]", to which Ntahobali responded, "[k]ill him." See Trial Judgement, paras. 2959, 5847. 60 See Trial Judgement, paras. 3858, 3951; Witness RE, T. 24 February 2003 p. 13. 61 See Trial Judgement, para. 3965. 62 See Trial Judgement, paras. 3878, 3951. According to Witness SX: "[Ntahobali] was their leader, he ordered [the Interahamwe] around. He ordered them to arrest anybody. He could turn to anybody to say something and the other would say in turn, Shalom, but they were scared of him because he was their boss. At any rate, when he came, he [was] consulted when there was any issue to be consulted about." Witness SX, T. 27 January 2004 p.

26. Based on her orders to kill at the prefectoral office, the Trial Chamber convicted Nyiramasuhuko of genocide, extermination and persecution as crimes against humanity, as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common of the Geneva Conventions and of Additional Protocol Il pursuant to Article 6(1) of the Statute. Trial Judgement, paras. 5876, 5969, 5970, 6049-6051, 6098, 6099, 6120, 6166, 6167, 6186. 64 Trial Judgement, para. 6207. 65 Nyiramasuhuko Appeal Brief, para. 1300. 6 Appeal Judgement, para. 3359. 1250 Case No. ICTR-98-42-A 14 December 2015

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19114/H 23. According to the Tribunal's jurisprudence, a factor considered by a trial chamber as an element of a crime cannot also be considered as an aggravating circumstance." The actus reus of ordering responsibility requires a person in a position of authority to issue an instruction to commit a crime."" In my view, it follows that the abuse of a position of authority is inherent in the mode of liability for ordering." Given Nyrimasuhuko's position as Minister for Family and Women's Affairs" and her authority over the Interahamwe during the events at the prefectoral office," any order issued by her in breach of the principles of international criminal law necessarily entailed an abuse of her position of authority and influence.

24. Based on the foregoing, I would conclude that the Trial Chamber erred by impermissibly double-counting an element of the crime as an aggravating factor when it determined Nyiramasukuo's sentence.

2. Consideration of Argument in Gravity of Offences 25. In assessing gravity of the offences in relation to Ntahobali's sentence, the Trial Chamber considered that the crimes included, inter alia, "the rapes and killings of Tutsis at the Hotel Ihuliro roadblock".?2 Ntahobali submits that the Trial Chamber erred in taking into account "rapes" perpetrated at this roadblock because he was found guilty of only perpetrating one rape at this location. 3 Considering that Ntahobali only raised this contention in his appeal brief and not in his notice of appeal, the Majority dismissed his contention because it impermissibly expanded the scope of his appeal and determined that the interests of justice do not require consideration of this argument. * I respectfully disagree with the Majority's position and believe that it is in the interests of justice to address Ntahobali's submission. For the reasons set out below, I consider that the Trial Chamber erred in its assessment of gravity of offences and that Ntahobali should not be prejudiced in this regard.

26. I observe that the language in the gravity portion of the "Sentencing" section of the Trial Judgement gives the impression that Ntahobali was found responsible for the rapes of multiple Tutsis at the Hotel Thuliro roadblock? However, the Trial Chamber's detailed legal findings reflect 67 See e.g., Nzabonimana Appeal Judgement, para. 464 and references cited therein. 68 See e.g., Setako Appeal Judgement, para. 240 and references cited therein. 6 See Prosecutor v. Dragomir Milosevic, Case No. IT-98-29/1-A, Judgement, Partly Dissenting Opinion of Judge Liu Daqun, 12 November 2009, para. 30. 70 Trial Judgement, para. 6207. 71 Trial Judgement, paras. 5884-5886, 6088. 72 Trial Judgement, para. 6216. 73 Ntahobali Appeal Brief, para. 986, referring to Trial Judgement, paras. 6077-6082, 6216. 74 Appeal Judgement, paras. 3379-3381. 75 Trial Judgement, para. 6216 ("The Chamber has found Ntahobali guilty of genocide, crimes against humanity and serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II thereto, with respect 1251 Case No. ICTR-98-42-A 14 December 2015

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19113/H that Ntahobali was found responsible for having committed the rape of a single woman at this roadblock? Moreover, while it determined that other rapes were committed against members of the Tutsi population when Ntahobali manned the roadblock, it found that the evidence was insufficient to establish that Ntahobali could be held responsible as a superior for the rapes that occurred near this roadblock." Consequently, the Trial Chamber stated that it would not take into account this "alleged responsibility I...] in sentencing."78 Accordingly, I would find that the Trial Chamber erred to the extent that it considered that Ntahobali was held responsible for more than one rape at the Hotel Ihuliro roadblock and took it into consideration when determining the gravity of the offences.

27. Given that the Trial Chamber erred in determining the gravity of the offences and that this may impact Ntahobali's sentence, I am of the view that he should not bear the burden of this error on the Trial Chamber's part. Thus, contrary to the Majority's findings, I believe his argument should have been considered in the interest of justice and not dismissed on the basis of a technicality.

28. Given my dissent regarding gravity of offences as well as to Ntahobali's liability for ordering killings and superior responsibility at the Butare Prefecture Office, I am of the view that his sentence should be further reduced. Done in English and French, the English version being authoritative. Dated this fourteenth day of December 2015, in Arusha, Tanzania. Lin [Seal of the Tribunal] ICTR • to his involvement in various crimes. These crimes include Nie See Trial Judgement, paras. 6077-6080. 77 See Trial Judgement, paras. 6081, 6082. 78 See Trial Judgement, para. 6082. s [...] of Tutsis at the Hotel Ihuliro roadblock"). 1252 Case No. ICTR-98-42-A 14 December 2015

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19112/H XVIII. DISSENTING OPINION AND DECLARATION OF JUDGE KHAN A. Dissenting Opinion: Ntahobali's Responsibility at the Butare Prefecture Office 1. In this Judgement, the Majority finds that the Trial Chamber did not convict Ntahobali for ordering the killings committed during the Night of Three Attacks and the First Half of June Attacks.' The Majority concludes that, although the evidence of Prosecution Witnesses TK, QBQ, RE, SS, SU, FAP, and TA appears to reflect that Ntahobali participated in abductions and killings, issued orders, and held a position of authority over the assailants during these events, the Trial Chamber's discussion of this evidence does not demonstrate that it relied on this evidence to find Ntahobali responsible for ordering killings of Tutsis who sought refuge at the prefectoral office? The Majority therefore concludes that Ntahobali was not convicted for the killings perpetrated during these attacks in the absence of: (i) relevant factual or legal findings underlying Ntahobali's responsibility for ordering such killings; or (ii) any clear indication that the Trial Chamber intended to convict him on this basis." While I see merit to the Majority's conclusion, for the reasons set forth below, I respectfully disagree.

1. The Trial Chamber Convicted Ntahobali for Ordering Killings in Relation to These Attacks 2. At the outset, I fully endorse the Majority's position that, on their face, the Trial Chamber's conclusions in the "Factual Findings" and "Legal Findings" sections of the Trial Judgement about the Night of Three Attacks and the First Half of June Attacks do not: (i) refer to an express order to kill given by Ntahobali or a particular instruction that had a direct and substantial effect on the relevant killings; or (ii) specify the category of assailants to whom Ntahobali gave an order.* However, for the reasons set forth below, I find that these omissions are the result of the Trial Chamber's failure in its obligation to provide a reasoned opinion in accordance with Article 22(2) of the Statute and Rule 88(C) of the Rules. The omissions do not, in my view, reflect that the Trial Chamber did not convict him on the basis of his participation in the abduction and killing of Tutsi refugees during the Night of Three Attacks and the First Half of June Attacks.

3. As noted by the Majority, in the "Factual Findings" section of the Trial Judgement, the Trial Chamber stated as follows concerning Ntahobali's involvement in crimes which occurred at the Butare Prefecture Office during the Night of Three Attacks: " See supra, Appeal Judgement, para. 1545. 2 See supra, Appeal Judgement, para. 1544. 3 See supra, Appeal Judgement, para. 1545. 4 See supra, Appeal Judgement, para. 1543. yet 1253 Case No. ICTR-98-42-A 14 December 2015

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19111/H the Chamber finds beyond a reasonable doubt that Ntahobali, Nyiramasuhuko and Interahamwe chi eighthe (Butarc Prefecture Office] throe times abducting Tutsi refugees on each occasion on [...] the Chamber is convinced beyond a reasonable doubt that Ntahobali and Interahamwe attacked many different women and children at the [Butare Prefecture Office], assaulted them and forced them aboard the pickup. It further finds that Nyiramasuhuko gave orders to the Interahamwe to commit these crimes. The women and children were taken away from the [Butare Prefecture Office] and killed elsewhere.® (...] Therefore, based upon the evidence of Witnesses TK, QBQ, RE, SS, SU and FAP, including the specific evidence as to the abduction of Mbasha's wife and children, the assault of a woman named Trifina and the assault of an unnamed woman and her children, the Chamber finds it established beyond a reasonable doubt that at the end of May or beginning of June 1994, Nyiramasuhuko, Ntahobali and about 10 Interahamwe came to the [Butare Prefecture Office] aboard a camouflaged pickup. Nyiramasuhuko ordered the Interahamwe to force Tutsi refugees onto the pickup. The pickup left the [Butare Prefecture Office), abducting Tutsi refugees in the process, some of whom were forced to undress.

4. In the same section, the Trial Chamber found, in relevant respects, the following regarding Ntahobali's involvement in crimes which occurred at the prefectoral office during the First Half of June Attacks:® the Chamber finds it established beyond a reasonable doubt, based on the testimony of Witnesses TA, QBP and TK that, in addition to those attacks described above, Ntahobali, injured soldiers and Interahamwe came to the [Butare Prefecture Office] in June 1994 to rape women and abduct refugees. As noted by the Majority, the Trial Chamber recalled these conclusions when summarising its factual findings related to Nyiramasuhuko's and Ntahobali's involvement in crimes committed at the prefectoral office during the Night of Three Attacks and the First Half of June Attacks.lº Furthermore, it is worth noting that when concluding in the "Factual Findings" section of the Trial Judgement that "hundreds of Tutsi refugees were abducted from the [prefectoral office] and killed", the Trial Chamber relied, in part, on Ntahobali's participation in the Night of Three Attacks and the First Half of June Attacks." It is my view that the Trial Chamber's extensive and repeated conclusions concerning Ntahobali's participation in the abductions and killing of Tutsi refugees during the Night of Three Attacks and the First Half of June Attacks in the "Factual Findings" section of the Trial Judgement support the conclusion that the Trial Chamber intended to convict Ntahobali based on his § Trial Judgement, para.

2715. Trial Judgement, para. 273 1º See Trial Judgement, para. 271) /). 1254 Case No. ICTR-98-42-A 14 December 2015

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19110/H involvement in these attacks. That the Trial Chamber did convict him for his role in these attacks is, in my view, evident from the fact that, in the "Legal Findings" section, the Trial Chamber again recalled its findings of Ntahobali's participation in the Night of Three Attacks! and the First Half of June Attacks! before ultimately concluding that Ntahobali was responsible for ordering the killing of "Tutsis taking refuge at the Butare préfecture office" 4 Furthermore, in the "Sentencing" section of the Trial Judgement, the Trial Chamber noted, with respect to the gravity of the crimes, the "seriousness and atrocity of crimes repetitively perpetrated at the [Butare Prefecture Office], where hundreds of Tutsis were abducted, raped and killed. Is 6. Consequently, a holistic reading of the Trial Judgement leads to the conclusion that, when convicting Ntahobali of genocide, crimes against humanity, and a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II for "ordering the killing of Tutsis taking refuge at the Butare préfecture office", 16 the Trial Chamber entered these convictions on the basis of its findings that Ntahobali was involved in the abduction and killings of Tutsis during the Night of Three Attacks and the First Half of June Attacks. For these reasons, I respectfully disagree with the Majority's interpretation of the

Trial Judgement that Ntahobali was only convicted for ordering killings during the Mid-May Attack."7 2. The Absence of a Reasoned Opinion Does Not Invalidate the Verdict 7. As noted, above, I find that the Trial Chamber erred in law by failing to provide a reasoned opinion in support of Ntahobali's conviction for ordering killings in relation to the Night of Three Attacks and the First Half of June Attacks in accordance with Article 22(2) of the Statute and Rule 88(C) of the Rules.!* In this respect, the Trial Chamber failed to set out in a clear and articulate manner the factual and legal findings on the basis of which it concluded that Ntahobali was responsible for ordering killings in relation to these attacks. Instead, Ntahobali has had to interpret imprecise legal and scattered factual findings as well as the evidence supporting them in order to decipher the basis of his conviction for ordering these killings. 12 See Trial Judgement, para. 5873 ("Around the end of May to the beginning of June 1994, Ntahobali, Nyiramasuhuko Butare préfecture to be killed."). 13 See Trial Judgement, para. 5874 ("In the first half of June 1994, [...] Ntahobali, injured soldiers, and Interahamwe came to the [Butare Prefecture Office] to rape women and abduct refugees."). during he amons tars the Bus P, tre Steals didopat a pose or ordering reviewing lining his responsible pursuant to Article 6(1) of the Statute). 15 Trial Judgement, para. 6217. 16 Trial Judgement, paras. 5971, 6053, 6100, 6168. 17 See supra, Appeal Judgement, paras. 1545, 1568. 18 See supra, Dissenting Opinion and Declaration of Judge Khan, para. 2. 1255 Case No. ICTR-98-42-A 14 December 2015

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19109/H 8. I recall that a reasoned opinion in the trial judgement is essential to allow for a meaningful exercise of the right of appeal by the parties and to enable the Appeals Chamber to understand and review the trial chamber's findings. " In this regard, despite the Trial Chamber's failure to provide a reasoned opinion, I do not think that Ntahobali has been denied the opportunity to fully exercise his right to appeal this aspect of his convictions. I note, in particular, that the Appeals Chamber requested further briefing from the Prosecution and a response from Ntahobali as to what evidence cited in the Trial Judgement and findings of the Trial Chamber would support a conviction for ordering the killings of Tutsis who had sought refuge at the Butare Prefecture Office during the Night of Three Attacks and the First Half of June Attacks.20 9. Having found that Ntahobali's right to appeal has not been infringed, I will proceed to examine the Trial Chamber's findings in order to define the scope of Ntahobali's liability for ordering killings before considering whether the findings and the evidence the Trial Chamber relied upon as well as the evidence identified by the parties could sustain its conclusions that Ntahobali was responsible for ordering the killings in relation to the Night of Three Attacks and the First Half of June Attacks.

3. The Scope of Ntahobali's Liability in Relation to These Attacks 10. The imprecision in the Trial Judgement has fuelled considerable confusion as to the scope of Ntahobali's liability for ordering the killings of Tutsi refugees during the Night of Three Attacks and the First Half of June Attacks. For example, the Prosecution's arguments suggest that Ntahobali's liability is based on the conduct of soldiers and Interahamwe for killings committed at the Butare Prefecture Office and elsewhere.?' Ntahobali's argues that he could not be convicted for the conduct of soldiers and submits that the Trial Judgement is unclear as to whether he was convicted for killings that occurred at the prefectoral office or only for the killings of Tutsis removed from it during the Night of Three Attacks and the First Half of June Attacks.23 11. I recall the Appeals Chamber's previous observation that the Trial Chamber found that, although soldiers played a role in events at the Butare Prefecture Office, "no evidence has been led to establish any relationship between the soldiers and […..] Ntahobali" 2 Even though this finding was made in the context of assessing Ntahobali's superior responsibility, the Appeals Chamber has 19 See Bizimungu Appeal Judgement, para. 18; Hadzhasanovié and Kubura Appeal Judgement, para.

13. See also Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20. 20 See 25 March 2015 Order, p. 2. 21 See Prosecution Supplementary Submissions, paras. 1, 2, 6, 21, 31, 33, 34, 41, 52. 22 See Ntahobali Appeal Brief, paras. 890, 953. See also Ntahobali Supplementary Submissions, paras. 5, 14, 33, 37 23 See Ntahobali Appeal Brief, para.

893. See also Ntahobali Supplementary Submissions, para. 3 24 See supra, Appeal Judgement, fn. 3557, referring to Trial Judgement, para. 5887. 1256 Case No. ICTR-98-42-A eat 14 December 2015

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19108/H found that "it suggests that no finding of any liability was imposed on Ntahobali for the conduct of soldiers" as it concerns attacks at the prefectoral office?" I fully endorse this conclusion and reject any suggestion that the Trial Chamber convicted Ntahobali in relation to killings committed by soldiers during these attacks? Rather, the relevant findings demonstrate that Ntahobali was found responsible in relation to the killings committed by the Interahamwe.?7 12. Unquestionably, there is evidence of Ntahobali issuing orders at the Butare Prefecture Office in relation to killings committed at the prefectoral office during these attacks.* Furthermore, the Trial Chamber generally found that Ntahobali was responsible for "ordering the killing of Tutsis taking refuge at the Butare préfecture office". 2 However, the Trial Chamber's most detailed findings in the "Legal Findings" section of the Trial Judgment necessarily limit Ntahobali's responsibility to ordering the killings of Tutsi refugees who were abducted and taken to other locations in Butare Prefecture to be killed.3º That the Trial Chamber intended to limit Ntahobali's responsibility for killings in this respect is further reflected by the fact that, when considering the extent of the killings in relation to the attacks perpetrated by Nyiramasuhuko and Ntahobali, the Trial Chamber limited its conclusion specifically to the number of Tutsi refugees who were abducted and killed.

13. In light of the above, it is clear to me that Ntahobali was found to have ordered killings of Tutsis abducted from the prefectoral office during the Night of Three Attacks and the First Half of June Attacks, which were perpetrated by Interahamwe who participated in these attacks with him.

4. The Record Sustains Ntahobali's Convictions for Ordering Killings During These Attacks 14. I note that the Prosecution points to findings and evidence credited by the Trial Chamber that it contends support the elements establishing Ntahobali's ordering responsibility in relation to 25 See supra, Appeal Judgement, fn. 3557. 26 See Prosecution Supplementary Submissions, para.

6. See Trial Judgement, paras. 2682, 2715, 2727, 2736, 2738, 2781(iii), 5873, 5876. 28 See, e.g., Trial Judgement, paras. 2184, 2218, 2681, 2735, 2736, 2771, referring to, inter alia, Witness TA, Г. 29 October 2001 pp. 7-9; Witness TK, T. 20 May 2002 pp. 75, 88, 89; Witness TK, T.22 May 2002 p. 109 * Trial Judgement, paras. 5971, 6053, 6100, 6168 30 With respect to the Night of Three Attacks, the Trial Chamber concluded that Ntahobali "abducted Tutsi refugees" and "took them to other sites in Butare préfecture to be killed". See Trial Judgement, para. 5873 (emphasis added). It similarly found with respect to the First Half of June Attacks that "Ntahobali, injured soldiers, and Interahamwe came para.

2779. Cf. ibid., para. 5867 ("Between mid-May and mid-June 1994, [...] Ntahobali [...] went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted and raped; and were killed in various locations throughout Butare [Prefecture].") (emphasis added). See Trial Judgement, para. 2779. 1257 Case No. ICTR-98-42-A 14 December 2015

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19107/H the Night of Three Attacks32 and the First Half of June Attacks.33 Ntahobali's argues that no reasonable trier of fact could rely on the sole order he issued during the Mid-May Attack - the order to stop loading the truck - to find that he ordered all the killings during the subsequent attacks* He further submits that neither the evidence nor the factual and legal findings concerning the Night of Three Attacks and the First Half of June Attacks supports the conclusion that he ordered killings during the Night of Three Attacks' or the First Half of June Attacks.36 15. I recall that a person in a position of authority may incur responsibility under Article 6(1) of the Statute for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act." Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order.?8 16. At the outset, I disagree with Ntahobali's contention that the finding of his liability for ordering killings during the Night of Three Attacks and First Half of June Attacks in the Trial Judgement is based solely on the instruction he gave to Interahamwe to stop loading the truck during the Mid-May Attack. The Trial Chamber considered the various

attacks committed at the Butare Prefecture Office collectively, evidence of Ntahobali's participation therein, as well as the similarity among them to reach its conclusions as to his criminal liability. 39 I note the extensive evidence cited by the Trial Chamber and its findings* describing the violent nature of the attacks at the prefectoral office on the Night of Three Attacks as well as the roles that Ntahobali, Nyiramasuhuko, and Interahamwe played in abducting Tutsi refugees, as well as their killings. The evidence and findings indicate a regular and systematic pattern of attacks aimed at eliminating Tutsis refugees at the prefectoral office. I therefore find Ntahobali's contention in this respect unpersuasive. 32 Prosecution Supplementary Submissions, paras. 21, 23, 24, 26, 28-33, referring to Trial Judgement, paras. 2212, 2231, 2278, 2662, 2668, 2681, 2705, 2744, 2749, 2779, 2781 (ili), (iv), 5873, 5884. 33 Prosecution Supplementary Submissions, paras. 37-41, referring to Trial Judgement, paras. 2771, 5874. 34 Ntahobali Appeal Brief, para. 951; Ntahobali Supplementary Submissions, para.

45. Cf. Ntahobali Supplementary Submissions, para. 36. 35 Ntahobali Supplementary Submissions, paras. 11, 16, 20, 25, 26, 31, 33, 35, 36, 39, 45, referring to Trial Judgement, paras. 2744, 2773, 2779, 2781(iv), 5867, 5870, 5872-5875, 5884. See Ntahobali Supplemental Submissions, paras. 43-46, referring to Trial Judgement, para.

2771. See also ibid., paras. 30-35, referring to Trial Judgement, para. 2749. para. 361; Kordié and Cerkez Appeal Judgement, para.

28. Judgement, para. 30. 39 See, e.g., Trial Judgement, para. 5867 ("Between mid-May and mid-June 1994, [...] Ntahobali [...] went to the [Butare Prefecture Office] to abduct hundreds of Tutsis; the Tutsi refugees were physically assaulted and raped; and were killed in various locations throughout Butare préfecture."). See also supra, Appeal Judgement, paras. 1901, 1902. 40 See, e.g., Trial Judgement, paras. 2703, 2704, 2706-2715, 2731-2736. 41 See, e.g., Trial Judgement, paras. 2715, 2736, 2738, 2749. 1258 Case No. ICTR-98-42-A 14 December 2015

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19106/H 17. With respect to Ntahobali's ordering responsibility in relation to the Night of Three Attacks, the Appeals Chamber has accepted Ntahobali's submission that Witness SJ's evidence cannot be relied upon in relation to the Night of Three Attacks.42 I extend this conclusion to my own analysis and will not consider the Prosecution's arguments that rely on this witness's evidence in establishing Ntahobali's responsibility for ordering the killings of Tutsis abducted from the prefectoral office. 43 Nonetheless, the Trial Chamber credited Witness TK's evidence concerning the Night of Three Attacks and, in particular, her testimony as to Ntahobali's conduct and position of authority vis-à-vis the Interahamwe. The Trial Chamber referred to Witness TK's evidence that Interahamwe surrounded Ntahobali and referred to him as "Shalom, chef."14 The Trial Chamber similarly pointed to Witness TK's testimony that upon arriving at the prefectoral office during the Night of Three Attacks, Ntahobali "and some of the Interahamwe exclaimed that nobody should be spared or treated leniently", that Ntahobali "told the Interahamwe to do their work seriously", that "Interahamwe attacked the group of refugees and chose people to be taken away to be killed", and that the "truck left behind certain Interahamwe to select those who were to be loaded on the next trip."45 Similarly, the Trial Chamber

credited evidence that Tutsi refugees who were abducted from the prefectoral office during, inter alia, the Night of Three Attacks were killed. 46 18. Ntahobali does not demonstrate that it was unreasonable for the Trial Chamber to rely on these aspects of WitnessTK's evidence or that it mischaracterised the witness's evidence.47 Witness TK's evidence demonstrates Ntahobali's authority over the Interahamwe present at the prefectoral office and reflects that they followed his instructions.8 Ntahobali also fails to demonstrate that a reasonable trier of fact could not have concluded that refugees abducted from the prefectoral office during the Night of Three Attacks and other attacks were killed.49 42 See supra, Appeal Judgement, Sections V.I.2(b)(iii)a.ii, V.I.2(d)(ii)a. 43 See Prosecution Supplementary Submissions, paras. 24, 26. 44 Trial Judgement, para. 2668, referring to Witness TK, T. 23 May 2002 p. 93. 45 Trial Judgement, para. 2681, referring to Witness TK, T. 20 May 2002 pp. 75, 88, 89. Ntahobali's assertion that Witness TK's testimony about the alleged instructions issued by Ntahobali cannot reasonably be interpreted as instructions to kill and that the evidence fails to support the conclusion that Interahamwe attacked refugees at the prefectoral office based on his orders reflects mere disagreement and does not demonstrate any error on the part of the Trial Chamber.

See Ntahobali Supplementary Submissions, para. 31. 46 See Trial Judgement, paras. 2739-2749. 47 The Appeals Chamber has previously considered and rejected contentions that the Trial Chamber failed to apply sufficient caution when assessing Witness TK's evidence. See supra, Appeal Judgement, Section III.J.3. It has also found that the Trial Chamber acted reasonably in relying on Witness TK's evidence, notwithstanding its disbelief that Witnesses TK and QJ did not discuss the events at issue in this proceeding or their plans to testify before the Tribunal. See supra, Appeal Judgement, Section VIII.E.1(a). Similarly, the Appeals Chamber has rejected contentions that Witness TK's testimony cannot be believed due to variances between her account of the Night of Three Attacks and that of other witnesses who were in proximity to her that evening. See supra, Appeal Judgement, Section IV.F.2(e)(iii). I find no merit to any of Ntahobali's additional challenges to the credibility and reliability of Witness TK's evidence concerning the Night of Three Attacks. See, e.g., Ntahobali Supplementary Submissions, paras. 25, 26. 48 I also find no merit to Ntahobali's contention that the record fails to demonstrate that he possessed the requisite authority over the perpetrators. See Ntahobali Supplementary Submissions, paras. 16, 20. 49 See supra, Appeal Judgement, Section V.I.2(d)(vi). 1259 Case No. ICTR-98-42-A set. 14 December 2015

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19105/H 19. Furthermore, I am not persuaded by Ntahobali's contention that no evidence could support the conclusion that he ordered killings, in the absence of clear findings and evidence establishing the exact perpetrators of the killings. Based on the evidence relied upon by the Trial Chamber, its general findings that Ntahobali ordered killings and that refugees abducted by Ntahobali and Interahamwe from the prefectoral office during, inter alia, the Night of Three Attacks were killed, it is clear that the Trial Chamber concluded as the only reasonable inference that some of the Interahamwe who participated in the attacks at the prefectoral office subsequently killed the refugees elsewhere on Ntahobali's orders. In my view, it was well within the discretion of the Trial Chamber to make such an inference, notwithstanding its findings that Nyiramasuhuko also ordered killings of Tutsis who were abducted from the prefectoral office during this attack. Given the entire record before the Trial Chamber, including the finding affirmed by the Appeals Chamber, Judge Liu dissenting, that Ntahobali is responsible for ordering killings of Tutsis abducted during . the Mid-May Attack, I find that a reasonable trier of fact could have convicted Ntahobali for ordering killings of Tutsi refugees who were abducted and killed during the Night of Three Attacks.

20. Regarding the First Half of June Attacks, the Trial Chamber accepted Witness TK's evidence that Ntahobali came to the Butare Prefecture Office on a number of evenings accompanied by Interahamwe "or" disabled soldiers, that he "committed crimes on each evening he came to the [Butare Prefecture Office]" and that, on some occasions, Ntahobali "came to determine whether there were any men left, who were then taken away to be killed" 53 The Trial Chamber also noted that Witness TK testified that Ntahobali "would say to the Interahamwe, '[ble firm in your actions,' when he meant, 'kill all of them."54 The Trial Chamber similarly recalled Witness TA's evidence that "a group of eight Interahamwe, including Shalom arrived at the [Butare Prefecture Office] in the same vehicle and attacked the refugees with machetes, hammers, Rwandan clubs and sticks"S$ and that "[thley killed some, wounded others and threw the dead and wounded into their vehicle" 56 21. The Appeals Chamber has previously dismissed Ntahobali's contentions as to the unreliability of the evidence of Witnesses TK and TA that would relate to killings during the First Half of June Attack." I consider Ntahobali's additional submissions challenging this evidence as 50 See, e.g., Ntahobali Supplementary Submissions, paras. 33, 35. 5' In this respect, Ntahobali's contention that the record fails to demonstrate that his words and actions had a direct and substantial effect on the perpetration of the killings is unpersuasive. See Nahobali Supplementary Submissions, paras. 33, 35. See supra, Appeal Judgement, paras. 1902, 1905, 1906. 53 Trial Judgement, para. 2771. 54 Trial Judgement, para. 2771. 55 Trial Judgement, para.

2770. See also ibid., para. 2184. 56 Trial Judgement, para. 2184. 57 See supra, Appeal Judgement, Section V.I.2(e) (ii). 1260 Case No. ICTR-98-42-A 14 December 2015

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19104/H unpersuasive!* Given the Trial Chamber's factual findings as to Ntahobali's conduct during other attacks at the prefectoral office starting in mid-May 1994 and its conclusions that Tutsis who were abducted from the prefectoral office were killed - findings that have been sustained on appeal" - I am also satisfied that it was within the discretion of the Trial Chamber to infer as the only reasonable inference that Ntahobali ordered Interahamwe to kill Tutsis who were abducted from the prefectoral office during the First Half of June Attacks.6° 22. . For the foregoing reasons, I conclude that the findings of the Trial Chamber, the evidence it relied upon, and the evidence identified by the parties sustain the conclusion that Ntahobali is responsible for ordering the killings of Tutsi refugees abducted from the Butare Prefecture Office during the Night of Three Attacks and the First Half of June Attacks.

5. The Record Sustains Ntahobali's Superior Responsibility for Killings During These Attacks 23. With regards to his responsibility as a superior, as stated in this Judgement, the Trial Chamber held Ntahobali responsible as a superior only of those crimes that he ordered and for which he was convicted under Article 6(1) of the Statute." I agree with this conclusion but, in light of the above, would extend it to include the killings of abducted refugees committed by Interahamwe on the basis of Ntahobali's orders during the Night of Three Attacks and the First Half of June Attacks.62 6. Number of Refugees Abducted and Killed 24. The Appeals Chamber in this Judgement has found the record insufficient to affirm that hundreds of Tutsi refugees were abducted and killed during the attacks of which Ntahobali was convicted by the Trial Chamber. 3 Notwithstanding my view that Ntahobali was convicted for ordering the killings of Tutsi refugees abducted during the Night of Three Attacks and the First Half of June Attacks, I continue to agree that the record remains insufficient to affirm that hundreds of Tutsi refugees were abducted and killed during the attacks in which Ntahobali participated. 4 58 In particular, Ntahobali's contention that that Witness TK's uncorroborated evidence cannot be relied upon and that her testimony that, during these attacks, he instructed Interahamwe to "be

firm in [their] actions" is taken out of context and cannot be understood as an order to kill reflects mere disagreement without demonstrating error. See Ntahobali Supplementary Submissions, para. 43, referring to Trial Judgement, para, 2771, Witness TK, T. 22 May 2002 p. 109. 59 See generally supra, Appeal Judgement, Section V.I.2. 60 In this respect, I find unpersuasive Ntahobali's contentions that the record is insufficient to demonstrate that any one who killed abducted Tutsis from the prefectoral office was acting on Ntahobali's instructions or that his instructions had a direct and substantial effect on the perpetration of the killings. See Ntahobali Supplementary Submissions, paras. 44, 46. See also ibid., paras. 30-35. See supra, Appeal Judgement, paras. 1927, 1928. 62 The analysis and findings in paragraphs 1929-1943 of the Appeal Judgement apply with equal force to these events. 63 See supra, Appeal Judgement, paras. 1884-1887. 6 With respect to the Night of Three Attacks, the evidence of Witnesses TK, SU, SS, RE, FAP, QJ, and QBQ found credible by the Trial Chamber reflects that the purpose of the attacks that night was to target the refugees at the 1261 Case No. ICTR-98-42-A 14 December 2015

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19103/H Nevertheless, I consider that the evidence reflects Ntahobali's involvement in a regular and systematic pattern of attacks aimed at eliminating Tutsi refugees at the prefectoral office and reasonably demonstrates that he is responsible for a large number of killings of Tutsis abducted from the prefectoral office. B. Declaration: Joinder 25. I am in full agreement with the conclusion in this Judgement to dismiss the appeals of Nyiramasuhuko and Ntahobali concerning the issues of joinder and severance in the context of this case. The relevant decisions of the Trial Chamber fall within, inter alia, the boundaries imposed by Rules 48 and 82 of the Rules as guided by Article 20 of the Statute." Furthermore, I agree with the finding of the Appeals Chamber that "the argument that the excessive length of the proceedings in this case was an unavoidable and clearly foreseeable consequence of the joinder decision is not substantiated."67 I also agree with the conclusion that "the mere contention that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder."68 26. However, armed with the benefit of hindsight, it is my view that the legacy of joined cases in this Tribunal serves as a cautionary one. On the completion of this, the last and longest case of the Tribunal, now is the time to consider the

theoretical considerations that have commonly supported the joinder of cases alongside the empirical reality of joined cases before this Tribunal. Ultimately, for the reasons explained below, it is my view that international criminal tribunals should take a more rigorous approach when examining whether joinder is appropriate, notwithstanding permissive rules that might otherwise allow it. prefectoral office. See supra, Appeal Judgement, Section V.I.2(d); Trial Judgement, paras. 2212, 2253, 2254, 2284, 2287, 2289, 2307. See also Trial Judgement, paras. 2705, 2706, 2708, 2709. The evidence further describes persons being loaded onto the vehicle accompanying Ntahobali and Nyiramasuhuko that night. See Trial Judgement, paras. 2253, 2278, 2285, 2287, 2289, 2303, 2307, 2308, 2331, 2332. See also Trial Judgement, paras. 2703, 2704, 2710-2712, 2714, 2732, 2736, 2738. Notably, Witness TK specified that on at least one occasion the vehicle was full when it left with the abducted refugees. See Trial Judgement, para.

2215. With respect to the First Half of June Attacks, Witness TK's evidence, as summarised and relied upon by the Trial Chamber, is of principal relevance as to the number of persons abducted by Ntahobali to be killed, but her account does not provide a specific or estimated number of victims. See Trial Judgement, para.

2218. Nonetheless, and as noted by the Trial Chamber, the evidence reflects that those who were abducted from the prefectoral office were, almost without exception, killed. See Trial Judgement, paras. 2703, 2740-2749. See generally supra, Appeal Judgement, Section III.B. 6 See, e.g., Prosecutor v. Jadranko Prlié et al., Case No. IT-04-74-AR73.17, Decision on Slobodan Praljak's Appeal of the Trial Chamber's Refusal to Decide Upon Evidence Tendered Pursuant to Rule 92 bis, 1 July 2010, para. 20; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletié's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused, 27 January 2006 ("Tolimir et al. Decision of 27 January 2006"), para.

8. I note that Article 20 of the Statute contains similar provisions to that of Article 21 of the Statute of the 67 See supra, Appeal Judgement, para. 365. 68 See supra, Appeal Judgement, para. 365. 1262 Case No. ICTR-98-42-A 14 December 2015

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19102/H 1. Examining the Theoretical Justifications for Joinder 27. In theory, joint proceedings require less court time and judicial resources, ' minimise hardship to witnesses and ensure the presentation of evidence that might not be available in the future," avoid undue delay for the defendants," and minimise the possibility of inconsistent verdicts while enhancing procedural and substantive fairness among defendants through uniform proceedings." Furthermore, it must be stressed that the purpose of joining cases is to serve the interests of justice and avoid undue delay.?3 28. Examining first the judicial efficiency theory that joint trials will require less court time and judicial resources, the history of joint proceedings in this Tribunal reflects that they have required more trial days to hear witnesses than single accused trials.'* On average, a witness's evidence in a multi-accused case will last for nearly two and a quarter trial days while a witness's testimony in a single accused case will last around one trial day.?' Explained differently, trials with one defendant, 69 See, e.g., Gotovina et al. Appeal Decision on Joinder, para. 44 ("Two separate trials, whether conducted simultaneously or otherwise, are still likely to require more court hours in total than one joint trial and require more judicial time and resources."). See also Ntabakuze Appeal Decision on

Severance, para. 25. e.g., Gotovina et al. Appeal Decision on Joinder, para. 47 ("The Appeals Chamber finds that it was not unreasonable for the Trial Chamber to generally conclude [...] that there will be lesser hardship for some witnesses if only one trial is held and that this should weigh in favour of joinder."); The Prosecutor v. Théoneste Bagosora et al., 71 Tolimir et al. Decision of 27 January 2006, para. 25 ("It is possible that if the Appellant were tried separately from the other Accused, further delay would result as it is not obvious that his separate trial could commence at the same time as this joint trial."). 72 See Ntabakuze Appeal Decision on Severance, para. 25 (*Joint appeal proceedings not only enhance fairness as between the appellants by ensuring a uniform procedure against all but also minimize the possibility of inconsistencies in (a) treatment of such evidence, (b) common legal findings of the Trial Chamber, (c) sentencing, or (d) other matters that could arise from separate appeals."); Prosecutor v. Radoslav Brdanin and Momir Talié, Case No. IT-99-36, Decision on Request to Appeal, 16 May 2000 ("Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts."). 73 Cf. Gotovina et al. Appeal Decision on Joinder, para. 44; Tolimir et al. Decision of 27 January 2006, para. 8. 74

In reaching this calculation, I was unable to determine the trial days for the following proceedings before the Tribunal: Gacumbitsi; Kajelijeli; Kamuhanda; Kayishema; Mpambara; Ndahimana; Rutaganda; Seromba. My calculations in this declaration are based on information provided in the trial and appeal judgements of the relevant cases if rectsed trials: Akayesu (43 trial days; 41 witnesses); Bagilishma (60 trial days; 33 witnesses); Bikindi (61 trial days; 57 witnesses): Gatete (30 trial days; 49 witnesses); Hategekimana (43 trial days; 40 witnesses); Kajelijeli (91 trial days; 42 witnesses); Kalimanzira (37 trial days; 66 witnesses); Kanyarukiga (28 trial days; 34 witnesses); Karera (33 trial days; 43 witnesses); Muhimana (34 trial days; 52 witnesses); Munyakazi (19 trial days; 31 witnesses); Musema (39 trial days; 30 witnesses); Muvunyi I (80 trial days; 48 witnesses); Muvunyi II (9 trial days; 13 witnesses); Nchamihigo (57 trial days; 60 witnesses); Ndindabahizi (27 trial days; 34 witnesses); Ngirabatware (75 trial days; 62 witnesses); Niyitegeka (33 trial days; 24 witnesses); Nizeyimana (54 trial days; 84 witnesses); Nsengimana (42 trial days; 43 witnesses); Ntawukulilyayo (33 trial days; 35 witnesses); Nzabonimana (87 trial days; 60 witnesses); Renzaho (49 trial days; 53 witnesses); Rukundo (66 trial days; 50 witnesses); Rutaganda (108 trial days; 41 witnesses); Rwamakuba

(78 trial days; 49 witnesses); Semanza (73 trial days; 51 witnesses); Setako (60 trial days; 55 witnesses); Simba (53 trial days; 36 witnesses); Zigiranyirazo (90 trial days; 66 witnesses). Multi-accused trials: Bagosora et al. (408 trial days; 242 witnesses); Bizimungu et al. (399 trial days; 171 witnesses); Karemera et al. (374 trial days; 153 witnesses); Nahimana et al. (238 trial days; 93 witnesses); Ndindiliyimana et al. (395 trial days; 216 witnesses); Ntagerura et al. (161 trial days; 123 witnesses); Ntakirutimana and Ntakirutimana (57 trial days; 43 witnesses); Nyiramasuhuko et al. (714 trial days; 189 witnesses). 1263 Case No. ICTR-98-42-A 14 December 2015

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19101/H on average, have used 53 trial days to hear around 46 witnesses. Proceedings with multiple defendants have, on average, required around 343 trial days to hear only around 154 witnesses. I must also note that not a single multi-accused case had more witnesses testify than trial days,?6 standing in marked contrast to several single-accused cases." 29. In my view, this comparative inefficiency in hearing witnesses is not simply explained by the greater substantive complexity of multi-accused trials or the notion that witnesses will testify longer in multi-accused trials because they are necessarily giving evidence against more than one accused. Having presided over a multi-accused trial as well as participated in multi-appellant appeal proceedings, it is apparent to me that, in some circumstances, the examination of witnesses in multi- accused cases tends to be less focused and unnecessarily lengthy because the size of the cases can prevent the parties - the prosecution in particular - from fully grasping what evidence is and is not crucial to their case. Furthermore, it is my view that the inefficiency is also a result of the inherently greater procedural complexity that accompanies trials when more than two parties are litigating a case.

30. In addition, when considering judicial resources outside the court room, one must consider that proceedings with multiple defendants present weighty, practical and legal challenges that would not otherwise arise in a single accused case. Motions to sever may arise from pre-trial proceedings through appeal. Defence objections to evidence or motions to exclude evidence may arise not only in relation to prosecution evidence but in relation to inculpatory evidence presented by a co-accused. Health issues concerning one defendant or a single defendant's refusal te participate in proceedings involves extra litigation and inevitably delays proceedings for his co- defendants. The proceedings for co-defendants may also be delayed when: (i) disputes between one defendant and his counsel arise during the proceedings; (ii) there are disputes between one defendant's counsel and the administration that require judicial intervention; or (iii) counsel for one defendant needs to be replaced. While Rule 82 of the Rules requires that "each accused shall be accorded the same rights as if such accused were being tried separately"78 and empowers a chamber to sever cases when "it is necessary to avoid a conflict of interests that might cause serious 76 See Bagosora et al. (408 trial days; 242 witnesses called); Bizimungu et al. (399 trial days; 171 witnesses called); Karemera et al. (374 trial

days; 153 witnesses called); Nahimana et al. (238 trial days; 93 witnesses called); Ndindiliyimana et al. (395 trial days; 216 witnesses called); Ntagerura et al. (161 trial days; 123 witnesses called); Ntakirutimana and Ntakirutimana (57 trial days; 43 witnesses called); Nyiramasuhuko et al. (714 trial days; 189 witnesses called). Gatete (30 trial days; 49 witnesses called); Kalimanzira (37 trial days; 66 witnesses called): Kanyarukiga (28 trial days; 34 witnesses called); Muhimana (34 trial days; 52 witnesses called); Munyakazi (19 trial days; 31 witnesses called); Muvunyi II (9 trial days; 13 witnesses called); Nchamihigo (57 trial days; 60 witnesses called); Ndindabahizi (27 trial days; 34 witnesses called); Nizeyimana (54 trial days; 84 witnesses called); Nsengimana (42 trial days; 43 witnesses called); Ntawukulilyayo (33 trial days; 35 witnesses called); Renzaho (49 trial days: 53 witnesses called). 78 Rule 82(A) of the Rules. 1264 Case No. ICTR-98-42-A

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19100/H prejudice to an accused or to protect the interests of justice", the issues identified above present perplexing practical and legal questions that require careful consideration by the judiciary. Resolving them can be a difficult and time consuming process.

31. I turn now to the theoretical consideration that joined proceedings will minimise the hardship to witnesses and/or ensure the presentation of evidence that might not be available in the future. There is no question that being a witness is a disruptive and often uncomfortable exercise. For victims of sexual and physical violence or persons who lost loved ones, testifying about such incidents can result in new trauma. Furthermore, there is no certainty that a witness will be able to testify in multiple proceedings. However, let us consider this theory in the context of the Muvunyi, Hategekimana, and Nizeyimana proceedings. In January 2000, a joint indictment was confirmed against these three military figures whose criminal liability was principally based on the crimes committed by École des sous-officiers ("ESO") and Ngoma Camp soldiers in and around Butare Town during the genocide. In December 2003, the Muvunyi case was severed from that of the Hategekimana and Nizeyimana cases as Hategekimana had only been arrested in February of that year and was unprepared for trial and because Nizeyimana remained at large."º In September 2007, the Hategekimana case was severed from the Nizeyimana case, as Nizeyimana remained a fugitive.® Nizeyimana was eventually arrested in October 2009.2 32. What can be seen from an examination of these three cases is that there was

considerable overlap as it pertains the crime bases for which each defendant was pursued at trial."3 What is also clear is that, in three different trials held between February 2005 and September 2011, the relevant 79 Rule 82(B) of the Rules. 80 See The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-51-I, Decision Regarding the Prosecutor's Motion for Leave to Sever an Indictment and for Directions on the Trial of Tharcisse Muvunyi, 11 December 2003, paras. 1, 7. 8 See The Prosecutor v. Ildéphonse Nizeyimana and Ildephonse Hategekimana, Case No. ICTR-00-55-I, Decision on the Prosecutor's Application for Severance and Leave to Amend the Indictment of I[!]delphonse Hategekimana, 25 September 2007, paras. 1, 6, p.

11. In granting severance of the Hategekimana trial from the Nizeyimana case, the Trial Chamber also accepted the prosecution's submission that the "key allegations against Mr. Hategekimana are largely distinct from those made against Mr. Nizeyimana, so a joint trial is not likely to promote judicial economy." See ibid., para. 6. 82 See The Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-T, Judgement and Sentence, pronounced on 19 June 2012, filed on 22 June 2012 ("Nizeyimana Trial Judgement), Annex A, para. 2 Muvunyi and Nizeyimana were both pursued on the basis of crimes committed by ESO soldiers at roadblocks throughout Butaré Town as well as for attacks at the Butare University and the Butare University Hospital. See Nizeyimana Trial Judgement, Sections II.5 (Butare University), II.7.3 (roadblocks), II.8 (Butare University Hospital); Muvunyi Trial Judgement of 12 September 2006, Sections II.5.3 (roadblocks), II.5.6 (Butare University Hospital), II.5.8 (Butare University). Muvunyi, Hategekimana, and Nizeyimana were all pursued with respect to the attacks on Groupe Scolaire and the Benebrika Convent in late April 1994. See Nizeyimana Trial Judgement, Section II.7.3 (Benebrika), II.10 (Groupe Scolaire); The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement and Sentence, pronounced on 6 December 2010, filed on 14 February 2011 ("Hategekimana

Trial Judgement"), Sections III.C.12 (Groupe Scolaire), III.C.14 (Benebrika); Muvunyi Trial Judgement of 12 September 2006, Sections II.5.7 and II.5.12.3 (Benebrika), II.5.10.3 (Groupe Scolaire). Hategekimana and Nizeyimana were both tried on. the basis of alleged orders issued during a 7 April 1994 meeting at the ESO as well as the rapes about which Witness BUQ testified. See Nizeyimana Trial Judgement, Sections II.1 (rapes), II.2 (7 April 1994 meeting); 1265 Case No. ICTR-98-42-A 14 December 2015

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19099/H prosecution and defence teams were able to produce evidence on the same or related events in successive proceedings. Witnesses - including at least one who was a victim of sexual violence - testified in more than one proceeding. While I acknowledge that this "survey sample" is small, it is nonetheless suggestive that we must not blindly fear that hardship on witnesses will prevent them from testifying more than once. Indeed, this Tribunal, like other international criminal tribunals, is equipped with a witness and victims support section with a broad mandate and well trained personnel to mitigate the hardship faced by witnesses through their participation in trials. Likewise, fears that evidence will no longer be available in future proceedings should be examined in light of the fact that evidence of the same or largely similar events was presented in several successive trials before this Tribunal.84 33. Let us now examine the theoretical consideration that joined trials avoid undue delay. Based on my calculation from proceedings before this Tribunal, a single accused proceeding from opening statement to the issuance of a trial judgement will last on average 641 days, whereas the length for a multiple accused trial is on average 2,026 days.8 On average, the time between closing arguments to the issuance of trial judgements in single accused cases before the Tribunal is

196 days, where 84 As an example, Ndayambaje, Kalimanzira, and Ntawakulilyayo were each prosecuted on the basis of the attacks at Kabuye Hill in April 1994. See Trial Judgement, Section II.3.6.5 (Kabuye Hill); The Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T, Judgement and Sentence, pronounced on 3 August 2010, filed on 6 August 2010, Sections II.1.3.2 and II. 1.3.4 (Kabuye Hill); The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Judgement, 22 June 2009, Section III.2.4 (Kabuye Hill). Munyakazi, whose trial started in April 2009, was prosecuted on the basis of attacks in Nyamasheke Parish, Shangi Parish, and Mibilizi Parish, which also featured in the Ntagerura et al. trial, whose evidentiary phase was completed in first quarter of 2003. See Munyakazi Trial Judgement, Sections II.3.7 (Nyamasheke Parish), II.3.8 (Shangi Parish), II.3.9 (Mibilizi Parish); Ntagerura et al. Trial Judgement, Sections II.B.5.b (Shangi Parish), II.B.5.c (Mibilizi Parish), II.B.5.d (Nyamasheke Parish). In addition, Ndahimana, Kanyarugika, and Seromba were prosecuted on the basis of attacks at Kivumu Commune and Nyange Parish. See The Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-T, Judgement and Sentence, pronounced on 17 November 2011, signed on 30 December 2011, filed on 18 January 2012, Sections III.1(Kivumu Commune), III.5 and III.6 (Nyange Parish); The

Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Judgement and Sentence, pronounced on 1 November 2010, filed on 9 November 2010, Sections III.2 (Kivumu Commune), III.5 and III.6 (Nyange Parish); Seromba Trial Judgement, Sections II.3 (Kivumu Commune), II.6 and II.7 (Nyange Parish). Beyond these anecdotal references, the general reliance on incarcerated witnesses - a practice ubiquitous to proceedings before the Tribunal - also tends to reduce the risk that witnesses will not be located or will be unavailable to testify in more than one proceeding. See Akayesu (632 days); Bagilishema (590 days); Bikindi (807 days); Gacumbitsi (326 days); Gatete (528 days): Hategekimana (709 days); Kajelijeli (994 days); Kalimanzira (414 days); Kamuhanda (647 days); Kanyarukiga (436 days); Karera (705 days); Mpambara (359 days); Muhimana (396 days); Munyakazi (440 days); Musema (368 days); Muvunyi I (568 days); Muvunyi II (240 days); Nchamihigo (780 days); Ndahimana (500 days); Ndindibahizi (319 days); Ngirabatware (1248 days); Niyitegeka (334 days); Nizeyimana (523 days); Nsengimana (912 days); Ntawukulilyayo (458 davs): Nzabonimana (960 days): Renzaho (950 days): Rukundo (850 days): Rutaganda (994 davs): Rwamukuba (469 days); Semanza (942 days); Seromba (821 days); Setako (554 days); Simba (471 days); Zigiranyirazo (1173 days). Bagosora et al. (2506 days) ; Bizimungu et al. (2905

days); Karemera et al. (2990 days); Kayishema and Ruzindana (775 days); Nahimana et al. (1139 days); Ndindiliyimana et al. (2462 days); Ntagerura et al. (1256 days); Ntakirutimana and Ntakirutimana (522 days); Nyiramasuhuko et al. (3685 days). 87 See, e.g., Akayesu (161 days); Bikindi (191 days); Gacumbitsi (109 days); Gatete (117 days); Hategekimana (293 days); Kajelijeli (139 days); Kalimanzira (64 days); Kamuhanda (253 days); Kanyarukiga (170 days); Karera (379 days); Mpambara (132 days); Muhimana (99 days); Munyakazi (159 days); Musema (214 days); Muvunyi I (82 days); Muvunyi II (133 days); Nchamihigo (295 days); Ndahimana (119 days); Ndindabahizi (136 days); Ngirabatware (212 days); Niyitegeka (78 days); Nizeyimana (199 days); Nsengimana (340 days); Ntawukulilyayo (54 days); Nzabonimana Case No. ICTR-98-42-A -14 December 2015

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=÷| 19098/H in multiple accused cases it is 479 days.* From notice of appeal to appeal judgement, the duration for a case involving a single convicted person is 556 days,8 where it is 973 days when it involves multiple convicted persons." The average length from the date of arrest to final judgement on appeal for a single accused proceeding before the Tribunal is 2395 days" (or around six and a half years), while the length of multiple accused proceedings is approximately 4825 days (or just over 13 years).92 34. These numbers do not necessarily reflect the occurrence of undue delay in joined proceedings. However, that an accused convicted at trial in a joined proceeding might expect to spend around six and a half years more in preventative detention before receiving a final verdict than an accused who proceeds at trial and appeal alone reflects a staggering difference.

35. I concede that the data reflecting that single accused proceedings generally advance faster than multiple accused proceedings does not eliminate the possibility of other logistical considerations that could delay the commencement of single accused cases.'3 However, I would nonetheless support that defendants be tried individually, particularly where the circumstances I discuss below that could lead to more efficient joint proceedings are not present,*4 given the relative efficiency of single accused proceedings when compared to multi-accused proceedings. (249 days); Renzaho (547 days); Rukundo (388 days); Rutaganda (173 days); Rwamakuba (153 days); Semanza (331 days); Seromba (170 days); Setako (116 days); Simba (159 days); Zigiranyirazo (204 days). See Bagosora et al. (620 days); Bizimungu et al. (1225 days); Karemera et al. (162 days); Kayishema and Ruzindana (186 days); Nahimana et al. (209 days); Ndindiliyimana et al. (722 days); Ntagerura et al. (195 days); Ntakirutimana and Ntakirutimana (184 days); Nyiramasuhuko et al. (806 days). 89 See, e.g., Akayesu (975 days); Bagilishema (360 days); Bikindi (443 days); Gacumbitsi (357 days); Gatete (526 days): Hategekimana (345 days); Kajelijeli (510 days); Kalimanzira (457 days); Kamuhanda (776 days); Kanyarukiga (517 days); Karera (386 days); Mpambara (358 days); Muhimana (481 days); Munyakazi (442 days); Musema (322

days); Muvunyi I (688 days); Muvunyi II (383 days); Nchamihigo (378 days); Ndahimana (669 days); Ndindabahizi (887 days); Ngirabatware (619 days); Niyitegeka (386 days); Nizeyimana (799 days); Ntavukulilyayo (465 days); Nzabonimana (823 days); Renzaho (547 days); Rukundo (555 days); Rutaganda (1238 days); Semanza (705 days); Seromba (419 davs): Setako (549 days): Simba (685 days): Zigiranvirazo (306 days) Nyiramasuhuko et al. (1566 days). So as not to skew the statistics when comparing single accused cases to multi-accused proceedings, I have excluded from this calculation single accused cases where guilty pleas were entered as well as cases where defendants were acquitted at trial and where such acquittals were not appealed. 92 The length of multi-accused cases consists of the entire proceedings through appeal, even where one or multiple defendants was or were acquitted at trial and where such acquittals were not appealed. 93 In this respect, where defendants who could be tried jointly are tried separately, the separate proceedings would require either: (i) more court space and additional judges to hear the separate proceedings; (ii) one bench to hear both cases and splitting the court time for both so that each may proceed at the same time; or (iti) one bench hear both proceedings consecutively, with one defendant waiting for his case to start after the close of the first defendant's case. Thus, the last scenario validates the concern that "further delay would result as it is not obvious that his separate trial could commence at the same time as this joint trial." See Tolimir et al. Decision of 27 January 2006, para. 25. 94 See infra, Dissenting Opinion and Declaration of Judge Khan, para. 38. 1267 Case No. ICTR-98-42-A *14 December 2015

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19097/H 36. Let us now consider the theoretical justification that joined trials minimise the possibility of inconsistent verdicts while enhancing procedural and substantive fairness among defendants through uniform proceedings. While the work of the Tribunal will contribute to the collective history of the Rwandan genocide, its purpose is not to create a cohesive historical narrative. The Tribunal, like all criminal courts, is tasked with determining the individual criminal liability of each defendant tried before it. "Inconsistent verdicts" might occur in any trial due to the rigorous application of the high standard of proof in criminal proceedings to the evidence of the acts and omissions of each individual defendant, even where they are alleged to bear criminal responsibility for the same or related events. Furthermore, the fairness of proceedings before the Tribunal is enshrined in Article 20 of the Statute and required by Article 19 of the Statute. It is my view that joining trials does not inherently provide further guarantees of such fairness for defendants even where evidence and the alleged crime base is overlapping.

2. Considering Joinder in the Future 37. Having compared the theoretical justifications for joinder with some empirical data, I must first concede that the calculations I have used above are an imperfect reflection of how trials and appeals proceeded before the Tribunal. I have drawn heavily from my personal experiences or used anecdotes to raise questions about broad theories. Furthermore, I also acknowledge that not all single accused cases have proceeded "efficiently" and not all joint proceedings were slow. In fact, the Kayishema and Ruzindana and Ntakirutimana and Ntakirutimana trials and appeals moved rapidly, even when compared to cases involving single defendants. The Mugenzi and Mugiraneza appeal, for example, was quick. However, what can be seen from these cases is that: (i) the crime bases were limited; and (ii) the record in support of the criminal liability for each accused was, or was almost, entirely overlapping.

38. The purpose of this declaration is not to criticise the joinder practice of the Tribunal. The reality for this Tribunal is that the Rules allowing joinder are permissive and cases have been joined accordingly. Nonetheless, I hope that this declaration serves as a starting point for international criminal tribunals to take a more nuanced and sceptical approach to the joinder of the cases before them. It is my suggestion that the judiciary of international criminal tribunals, when 9S In this respect, I note that Mugenzi and Mugiraneza were prosecuted on the basis of several different actions and articular crimes in the Bizimungu et al. trial. However, their appeal was based on their convictions for the two sam vents, which were supported by the same evidentiary record. See generally Mugenzi and Mugiraneza Appea Judgement. % Rule 48 of the Rules provides that "persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried." Rule 2 of the Rules defines "transaction" as "[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan." 1268 Case No. ICTR-98-42-A 14 December 2015

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19096/H reviewing the prospective joinder of cases, review the relevant indictments, the prosecution disclosures - including witness statements - and the prosecution pre-trial submissions - such as its pre-trial brief - and ask the following questions: (i) is the crime base limited; ii) are each of the prospective prosecution witnesses intended to give evidence that is central to establishing the criminal responsibility of all or almost all of the accused; and (ili) are the forms of liability for each accused such that the prosecution evidence against one accused is relevant to all accused.

39. If these questions are answered in the affirmative, the possibility of realising the theoretical underpinnings supporting joinder - judicial economy, minimising hardship to witnesses, and avoiding undue delay - is high. However, the theoretical justifications for joinder might not be realised even if some overlap exists where: (i) the crime base is large - e.g. an overlapping charge of conspiracy related to an entire conflict; and (ii) it is clear that the case against each accused will require the presentation of unique evidence from different witnesses due to the fact that there are distinct crime bases and/or particular acts and omissions that are unique to each accused. Done in English and French, the English version being authoritative. Dated this fourteenth day of December 2015, in Arusha, Tanzania. Judge Khalida Rachid Khan [Seal of the Tribunal] ICTR • THI Case No. ICTR-98-42-A 1269 14 December 2015

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19095/H XIX. ANNEX A: PROCEDURAL HISTORY 1. The main aspects of the appeal proceedings are summarised below. A. Briefing 2. Trial Chamber Il of the Tribunal pronounced the judgement in this case on 24 June 2011 and issued its written Trial Judgement in English on 14 July 2011. Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, Ndayambaje, and the Prosecution appealed the Trial Judgement.

1. Notices of Appeal 3. On 22 July 2011, the Pre-Appeal Judge granted, in part, motions for extensions of time and ordered that the Prosecution file its notice of appeal no later than 1 September 2011 and that Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje file their respective notices of appeal no later than 17 October 2011.' Because of the inability of Nteziryayo and his counsel to work in English, the Pre-Appeal Judge, in the same decision, ordered that Nteziryayo file his notice of appeal no later than 90 days from service of the French translation of the Trial Judgement?

4. The Prosecution filed its notice of appeal on 1 September 20113 Nsabimana filed his notice of appeal on 10 October 2011.4 Nyiramasuhuko,' Ntahobali,' Kanyabashi,' and Ndayambaje® filed their respective initial notices of appeal on 17 October 2011.

5. On 22 February 2012, the Appeals Chamber granted Nyiramasuhuko's and Ntahobali's motions to amend their respective notices of appeal.' Each filed their first amended notice of appeal on 24 February 2012.1º ' Decision on Motions for Extension of Time for the Filing of Appeal Submissions, signed on 22 July 2011, filed on 25 July 2011 ("22 July 2011 Appeal Decision"), paras. 13, 16. 22 July 2011 Appeal Decision, paras. 13, 16. 3 Prosecutor's Notice of Appeal, 1 September 2011. 4 Notice of Appeal, 10 October 2011 (originally filed in French, English translation filed on 25 January 2012). § Acte d'appel (de) Pauline Nyiramasuhuko, 17 October 2011. Nyiramasuhuko filed a corrigendum to her notice of appeal on 19 October 2011. See Corrigendum de l'acte d'appel de Pauline Nyiramasuhuko, 19 October 2011. Acte d'appel d'Arsène Shalom Ntahobali, 17 October 2011. ' Acte d'appel de Joseph Kanyabashi, 17 October 2011 (confidential; public redacted version filed on 12 May 2014). Kanyabashi filed a corrected notice of appeal on 18 October 2011. See Notice of Appeal by Joseph Kanyabashi, 18 October 2011 (originally filed in French, English translation filed on 19 April 2012) (confidential). 8 Notice of Appeal, 17 October 2011 (originally filed in French, English translation filed on 8 December 2011). Ndayambaje filed a corrigendum to his notice of appeal on 4 January 2012. See Corrigendum to Élie Ndayambaje's Notice of Appeal, 4 January 2012 (originally filed in French, English translation filed on 13 February 2012). ° Decision on Pauline Nyiramasuhuko's and Arsène Shalom Ntahobali's Motions to Amend Notices of Appeal, 22 February 2012, para. 12. 1270 Case No. ICTR-98-42-A 14 December 2015

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19094/H 6. On 1 March 2012, subsequent to the appointment of an English speaking co-counsel to Nteziryayo's Defence, the Pre-Appeal Judge, proprio motu, reconsidered his 22 July 2011 Appeal Decision and ordered Nteziryayo to file his notice of appeal no later than 1 May 2012." Nteziryayo filed his initial notice of appeal on 26 April 2012.12 7. On 23 October 2012, the Appeals Chamber granted Ntahobali's motion to amend his first amended notice of appeal.'3 Ntahobali filed his second amended notice of appeal on 29 October 2012.14 8. On 18 February 2013, the Appeals Chamber granted, in part, Nyiramasuhuko's motion to amend her first amended notice of appeal.'5 Nyiramasuhuko filed her second amended notice of appeal on 21 February 2013.16 9. On 5 April 2013, the Appeals Chamber allowed Kanyabashi and Ndayambaje to amend their respective notices of appeal."' Ndayambaje and Kanyabashi each filed a second amended notice of appeal on 8 April 2013.18 10. On 8 May 2013, the Appeals Chamber granted, in part, Nteziryayo's motion to amend his notice of appeal.'' Nteziryayo filed his amended notice of appeal on 13 May 2013.20 On 5 July 2013, the Appeals Chamber granted the Prosecution's request to summarily dismiss Nteziryayo's appeal as it concerned the delay between his arrest and initial appearance, finding that Nteziryayo had waived his right to raise this issue on appeal.? 10 Pauline

Nyiramasuhuko's Amended Notice of Appeal, 24 February 2012 (originally filed in French, English translation filed on 25 June 2012); Amended Notice of Appeal of Arsène Shalom Ntahobali, 24 February 2012 (originally filed in French, English translation filed on 25 July 2012). Decision on the Filing of Alphonse Nteziryayo's Appeal Submissions, 1 March 2012 ("1 March 2012 Appeal Decision"), paras. 1, 6. Alphonse Nteziryayo's Notice of Appeal, 26 April 2012. 13 Decision on Arsène Shalom Ntahobali's Motion to Amend his Amended Notice of Appeal, 23 October 2012, para.

13. Second Amended Notice of Appeal of Arsène Shalom Ntahobali, 29 October 2012 (originally filed in French, English translation filed on 24 January 2013). Decision on Pauline Nyiramasuhuko's Motion to Amend her Amended Notice of Appeal, 18 February 2013, paras. 27, 28. Pauline Nyiramasuhuko's Re-Amended Notice of Appeal, 21 February 2013 (originally filed in French, English translation filed on 25 April 2013). 17 Decision on Joseph Kanyabashi's Motion to Amend his Notice of Appeal, 5 April 2013, para. 32; Decision on Élie Ndayambaje's Motion to Amend his Notice of Appeal, 5 April 2013, paras. 33, 34. 18 Élie Ndayambaje's Amended Notice of Appeal, 8 April 2013 (originally filed in French, English translation filed on 7 June 2013); Amended Notice of Appeal by Joseph Kanyabashi, 8 April 2013 (originally filed in French, English translation filed on 24 May 2013) (confidential; French public redacted version filed on 12 May 2014). 19 8 May 2013 Appeal Decision, para. 74. 20 Alphonse Nteziryayo's Amended Notice of Appeal, 13 May 2013. 21 5 July 2013 Appeal Decision, paras. 16, 18, 23. In the same decision, the Appeals Chamber also granted Nteziryayo's request to have the date of his arrest in Burkina Faso clarified and ordered the Registrar file written submissions in this respect. See ibid., paras. 22, 23. 1271 Case No. ICTR-98-42-A 14 December 2015

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19093/H 2. Appeal Briefs 11. On 22 July 2011, the Pre-Appeal Judge ordered that Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo, Kanyabashi, and Ndayambaje file their respective appeal briefs no later than 60 days from the date of service of the French translation of the Trial Judgement.2 12. The Prosecution filed its appeal brief on 15 November 2011.23 13. On 13 December 2012, the Pre-Appeal Judge granted, in part, motions for extension of the word limits, and authorised: (i) Nyiramasuhuko and Ntahobali to file appeal briefs not exceeding 80,000 words; (ii) Kanyabashi to file an appeal brief not exceeding 40,000 words; and (iii) Ndayambaje to file an appeal brief not exceeding 50,000 words.24 14. The French translation of the Trial Judgement was filed on 1 February 2013.25 On 8 April 2013, Nyiramasuhuko, 26 Ntahobali," Nsabimana,? Nteziryayo," Kanyabashi,30 and Ndayambaje'' filed their respective appeal briefs.32 Ndayambaje filed a corrigendum to his appeal brief on 19 April 2013.33 22 22 July 2011 Appeal Decision, paras. 11, 16. See also 1 March 2012 Appeal Decision, paras. 1, 6. 23 Prosecutor's Appellant's Brief, 15 November 2011. 24 Decision on Nyiramasuhuko's, Ntahobali's, Kanyabashi's, and Ndayambaje's Motions for Extensions of the Word Limit for their Appeal Briefs, 13 December 2012 ("13 December 2012 Appeal Decision"), para.

20. Jugement portant condamnation, 1 February 2013. 26 Pauline Nyiramasuhuko's Appellant's Brief, 8 April 2013 (originally filed in French, English translation filed on 30 April 2014) (confidential). A public version of Nyiramasuhuko's appeal brief in French was filed on 7 June 2013. On 17 March 2014, the Appeals Chamber ordered Nyiramasuhuko to file an amended public redacted version that preserved the confidentiality of certain information contained therein as well as ordered the reclassification of Nyiramasuhuko's initial public redacted appeal brief as confidential. See Decision on Prosecution's Motion to Withdraw Public Filings and on Nyiramasuhuko's and Ntahobali's Counter Motions to Reclassify Confidential Materials, signed on 14 March 2014, filed on 17 March 2014, para. 29 (confidential) ("14 March 2014 Appeal Decision"). Nyiramasuhuko filed the amended public version of her appeal brief in French on 3 April 2014. Arsène Shalom Ntahobali's Appellant's Brief, 8 April 2013 (originally filed in French, English translation filed on 15 April 2014) (confidential). A public version of Ntahobali's appeal brief in French was filed on 24 May 2013. On 17 March 2014, the Appeals Chamber ordered Ntahobali to file a public redacted version that preserved the confidentiality of certain information contained therein as well as ordered the reclassification of Ntahobali's initial public redacted appeal brief as confidential. See 14 March 2014 Appeal Decision, para.

29. Ntahobali filed a second public version of his appeal brief in French on 24 March 2014. Appellant's Brief, 8 April 2013 (originally filed in French, English translation filed on 26 September 2013). On 11 April 2013, Nsabimana filed a corrigendum to his appeal brief in order to include the word count of his appeal brief. See Corrigendum du nombre de mots, 11 April 2013. 29 Confidential Appeal Brief on Behalf of Alphonse Nteziryayo, 8 April 2013 (confidential). 30 Joseph Kanyabashi's Appellant's Brief, 8 April 2013 (originally publicly filed in French, English translation filed on 11 August 2014) (confidential; public redacted version filed in French on 8 May 2014). On 23 April 2014, the Appeals Chamber ordered Kanyabashi to file a public redacted version of his appeal brief that maintained the confidentiality of the content of filings classified as confidential as well as directed the Registry to permanently reclassify Kanyabashi's initial public redacted appeal brief as confidential. See Decision on Kanyabashi's Motion to Lift Confidential Status of Certain Documents or to Refer Publicly to Certain Confidential Documents, 23 April 2014 (*23 April 2014 Appeal Decision") (confidential), para.

25. Kanyabashi filed an amended public redacted appeal brief in French on 8 May 2014. 31 Élie Ndayambaje's Appellant's Brief, 8 April 2013 (originally filed in French, English translation filed on 26 July 2013) (confidential). 1272 Case No. ICTR-98-42-A 14 December 2015

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19092/H 15. On 8 May 2013, the Appeals Chamber granted, in part, a Prosecution's motion to strike paragraphs of Nteziryayo's appeal brief containing new grounds of appeal and ordered Nteziryayo to file a revised appeal brief no later than 13 May 201334 Nteziryayo filed his confidential corrected revised appeal brief on 14 June 2013.35 On 16 July 2013, he filed an addendum to his confidential corrected revised appeal brief. 36 3. Response Briefs 16. On 28 October 2011, Kanyabashi was granted leave to file his response brief to the Prosecution's appeal no later than 30 days from the service of the French translation of the Trial Judgement and the Prosecution's appeal brief, whichever occurred later? Kanyabashi filed his response to the Prosecution's appeal on 6 March 2013.38 17. In his decision of 13 December 2012, the Pre-Appeal Judge allowed the Prosecution to file a consolidated response brief not exceeding 270,000 words in total or separate response briefs not exceeding the word limit granted for the corresponding appeal brief. On 22 April 2013, the Pre-Appeal Judge granted, in part, the Prosecution's motion for an extension of time to file its response briefs, ordering that they be filed no later than 100 days from the date of filing of each corresponding appeal brief.40 18. The Prosecution filed a consolidated response brief on 17 July 2013.4' On 19 July 2013,

the Pre-Appeal Judge ordered the Prosecution to re-file a consolidated response brief not exceeding 270,000 words that complied with the formal requirements on appeal no later than 32 On 15 April 2013, the Pre-Appeal Judge noted that the appeals briefs filed by Ntahobali, Kanyabashi, and Ndayambaje had systematically omitted necessary spaces between words, numbers, and punctuation marks and considered that, if corrected, these appeal briefs would exceed the word limits imposed on them. The Pre-Appeal Judge issued a formal warning under Rule 46(A) of the Rules to the counsel for Ntahobali, Kanyabashi, and Ndayambaje but, in light of the need to facilitate expeditious appellate proceedings and in order not to prejudice Ntahobali, Kanyabashi, and Ndayambaje for the misconduct of their respective counsel, found their respective appeal briefs validly filed. See Order Issuing a Formal Warning to Counsel for Ntahobali, Kanyabashi, and Ndayambaje, 15 April 2013. 33 Corrigendum Élie Ndayambaje's Appellant's Brief, 19 April 2013 (originally filed in French, English translation filed on 26 July 2013) (confidential; public redacted version filed in French on 4 June 2013). 34 8 May 2013 Appeal Decision, paras. 72-74. The Appeals Chamber subsequently denied Nteziryayo's motion for reconsideration of the 8 May 2013 Appeal Decision. See 12 July 2013 Appeal Decision, paras. 17, 25. Confidential

Corrected Revised Appeal Brief on Behalf of Alphonse Nteziryayo, 14 June 2013 (confidential; public redacted version filed on the same day). Addendum to Confidential Corrected Revised Appeal Brief on Behalf of Alphonse Nteziryayo, 16 July 2013. 37 Decision on Joseph Kanyabashi's Motion for Extension of Time to File his Response Brief, 28 October 2011, p. 826/H (Registry pagination). Joseph Kanyabashi's Brief in Response to the Prosecutor's Brief, 6 March 2013 (originally filed in French, English translation filed on 13 February 2014). 39 13 December 2012 Appeal Decision, para. 20. 40 Decision on Prosecution's Motion for Extension of Time to File its Response Briefs, 22 April 2013. 41 Prosecution Consolidated Respondent Brief, 17 July 2013. See also Corrigendum to Prosecution Consolidated Respondents [sic] Brief, 17 July 2013. Case No. ICTR-98-42-A 14 December 2015

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19091/H 21 August 2013.42 The Prosecution filed its revised consolidated response brief on 21 August 2013.43 19.

4. Reply Briefs The Prosecution filed its reply brief on 21 March 2013.4 20. On 27 August 2013, the Pre-Appeal Judge granted, in part, motions for the extension of time and word limits and authorised and ordered: (i) Nyiramasuhuko to file a reply brief of no more than 21,000 words no later than 45 days from the filing of the Prosecution's revised response brief; (ii) Ntahobali to file a reply brief of no more than 23,000 words no later than 45 days from the filing of the Prosecution's revised response brief; (iii) Nsabimana to file his reply brief no later than 30 days from the filing of the Prosecution's revised response brief; (iv) Kanyabashi to file a reply brief of no more than 11,000 words no later than 30 days from the date of the filing of the Prosecution's revised response brief; and (v) Ndayambaje to file a reply brief not exceeding 16,000 words no later than 35 days from the date of filing of the Prosecution's revised response brief.4S In the same decision, the Pre-Appeal Judge, proprio motu, authorised Nteziryayo to file his reply brief no later than 30 days from the date of the filing of the Prosecution's revised response brief.46 21. Nsabimana," Nteziryayo,48 and Kanyabashi* each filed their respective reply briefs on 20 September 2013. Ndayambaje filed his reply brief on 25 September 2013.5° Nyiramasuhuko" and Ntahobali? each filed their respective reply briefs on 7 October 2013. 42 See Decision on Prosecution's Motion for Order Nunc Pro Tunc and on Ntahobali's Motion to Reject the Prosecution Response Brief, 19 July 2013, p.

4. In the same decision, the Pre-Appeal Judge denied the Prosecution's motion requesting an extension nunc pro tunc of 57,330 words for its response brief and issued a formal warning to counsel for the Prosecution, within the meaning of Rule 46(A) of the Rules, to strictly abide by the Appeals Chamber's decisions and practice directions applicable on appeal subject to sanctions for abusive conduct. See idem. Prosecution Consolidated Respondent's Brief, 21 August 2013 (confidential; public redacted version filed on 4 October 2013). 44 Prosecution Reply Brief, 21 March 2013. 45 Decision on Motions for Extensions of Time Limit and Word Limit for the Filing of the Reply Briefs, 27 August 2013 (*27 August 2013 Appeal Decision"), p. 5. 6 27 August 2013 Appeal Decision, p. 5. 17 Brief in Reply, 20 September 2013 (originally filed in French, English translation filed on 9 April 2014). 48 Reply Brief on Behalf of Alphonse Nteziryayo, 20 September 2013. 49 Joseph Kanyabashi's Brief in Reply to the Prosecutor's Response, 20 September 2013 (originally filed in French, English translation filed on 14 May 2014 ). On 23 April 2014, the Appeals Chamber ordered Kanyabashi to file an amended public redacted version of his reply brief that maintained the confidentiality of the content of filings classified as confidential as well as directed the Registry to permanently reclassify Kanyabashi's initial public redacted reply brief as confidential. See 23 April 2014 Appeal Decision, para.

25. Kanyabashi filed an amended public redacted reply brief in French on 7 May 2014. so Élie Ndayambaje's Brief in Reply, 25 September 2013 (originally filed in French, English translation filed on 4 April 2014) (confidential; public redacted version filed in French on 1 November 2013). 51 Pauline Nyiramasuhuko's Brief in Reply, 7 October 2013 (originally filed in French, English translation filed on 24 June 2014) (confidential). 1274 Case No. ICTR-98-42-A 14 December 2015

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19090/H B. Assignment of Judges 22. On 15 July 2011, the Presiding Judge of the Appeals Chamber, Judge Patrick Robinson, assigned the following Judges to hear the appeal: Judge Fausto Pocar (Presiding), Judge Liu Daqun, Judge Andrésia Vaz, Judge Theodor Meron, and Judge Carmel Agius! On 21 July 2011, Judge Fausto Pocar assigned himself as Pre-Appeal Judge. 54 23. On 17 November 2011, Judge Theodor Meron became the Presiding Judge of the Appeals Chamber and assigned Judge Patrick Robinson to replace him in this case." On 11 July 2012, Judge Theodor Meron assigned Judge Bakhtiyar Tuzmukhamedov to replace Judge Liu Daqun.

24. On 2 October 2012, Judge Theodor Meron denied Ndayambaje's motion requesting the disqualification of Judge Fausto Pocar from this case.57 25. On 19 March 2013, Judge Theodor Meron assigned Judge Liu Daqun to replace Judge Andrésia Vaz. On 8 October 2013, Judge Theodor Meron assigned Judge Khalida Rachid Khan to replace Judge Patrick Robinson. On 17 November 2015, Judge Carmel Agius became the the Presiding Judge of the Appeals Chamber and, on 18 November 2015, ordered that the Bench in this case shall not change in composition and that Judge Fausto Pocar shall remain the Presiding Judge of this case. ° C. Status Conference 26. A status conference was held by the Pre-Appeal Judge on 10 May 2013 in Arusha, Tanzania.61 52 Arsène Shalom Ntahobali's Brief in Reply, 7 October 2013 (originally publicly filed in French, English translation filed on 5 August 2014) (confidential). Ntahobali's reply brief was initially filed publicly. However, on 17 March 2014, the Appeals Chamber ordered Ntahobali to file a public redacted version of his reply brief that preserved the confidentiality of certain information contained therein as well as ordered the permanent reclassification of Ntahobali's reply brief as confidential. See 14 March 2014 Appeal Decision, para.

29. Ntahobali filed a second public redacted version of his reply brief in French on 24 March 2014. 53 Order Assigning Judges to a Case before the Appeals Chamber, 15 July 2011. 5* Order Assigning a Pre-Appeal Judge, 21 July 2011. 55 Order Replacing a Judge in a Case before the Appeals Chamber, 17 November 2011. See also Corrigendum to Order Replacing a Judge in a Case before the Appeals Chamber, 21 November 2011. * Order Replacing a Judge in a Case before the Appeals Chamber, 11 July 2012. 57 Decision on Motion for Disqualification of Judge Fausto Pocar, 2 October 2012, paras. 1, 22. 58 Order Replacing a Judge in a Case before the Appeals Chamber, 19 March 2013. 59 Order Replacing a Judge in a Case before the Appeals Chamber, 8 October 2013. 60 Order on the Composition of the Bench in a Case Before the Appeals Chamber, 18 November 2015. 61 Status Conference, AT. 10 May 2013. See also Order Scheduling a Status Conference, 8 March 2013. 1275 Case No. ICTR-98-42-A 14 December 2015

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19089/H D. Motions for Stay of the Proceedings, Provisional Release, and Severance 27. On 7 February 2014, the Appeals Chamber allowed the Prosecution's application to strike Nyiramasuhuko's motion for a stay of proceedings filed by Nyiramasuhuko on 21 November 2013, finding that Nyiramasuhuko's motion was an unauthorised attempt to expand the scope of her arguments in her written appeal submissions.2 28. On 10 September 2014, the Appeals Chamber dismissed Nsabimana's motion for provisional release, finding that Nsabimana failed to satisfy the requirements of Rule 65(I)(iii) of the Rules. 3 29. On 21 November 2014, the Appeals Chamber denied Nsabimana's request for severance of his appeal on the ground that Nsabimana did not establish a conflict of interest causing him serious prejudice or demonstrate that the severance of his case would protect the interests of justice. 4 E. Motions for the Admission of Additional Evidence on Appeal 30. In response to a motion filed by Ntahobali, the Appeals Chamber, on 23 November 2012, clarified that amicus curiae reports relating to false testimony and contempt investigations were part of the record on appeal, and determined that Ntahobali's request that they be admitted as additional evidence on appeal was moot. s 31. On 9 April 2015, the Appeals Chamber granted, in part, a motion filed by Ndayambaje to present additional evidence on

appeal and admitted a witness statement as additional evidence on appeal." In the same decision, the Appeals Chamber denied Ndayambaje's request for the admission of a second witness statement. *7 32. On 14 April 2015, the Appeals Chamber granted, in part, a motion filed by Ntahobali and admitted as additional evidence on appeal statements given by Witness QCB during investigations in Canadian criminal proceedings.8 The Appeals Chamber denied Ntahobali®s further request for the admission of letters and testimony as additional evidence on appeal in the same decision. 62 Decision on Prosecution's Motion to Strike Nyiramasuhuko's Motion for Stay of Proceedings, 7 February 2014, pp. 2, 3. 'Decision on Nsabimana's Motion for Provisional Release, 10 September 2014 (confidential), p. 4. 64 Decision on Nsabimana's Motion for Severance, 21 November 2014, p. 4. 6S 23 November 2012 Appeal Decision, p. 2. 66 9 April 2015 Appeal Decision, pp. 3, 4. 67.9 April 2015 Appeal Decision, pp. 3, 4. 68 14 April 2015 Áppeal Decision, paras. 37, 49. 69 14 April 2015 Appeal Decision, paras, 25, 48, 49. 1276 Case No. ICTR-98-42-A 14 December 2015

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19088/H 33. On 12 May 2015, the Appeals Chamber also granted, in part, Ndayambaje's request to admit as additional evidence on appeal a prior statement and testimony given by a witness in the Ntawukulilyayo case.?" The Appeals Chamber denied Ndayambaje's requests to admit as additional evidence on appeal testimonies and statements from the Kalimanzira case and the Ntawukulilyayo case in the same decision." On 1 October 2015, the Appeals Chamber dismissed the Prosecution requests to admit rebuttal evidence in light of the additional evidence admitted on appeal." 34. In decisions issued on 27 March 2015,73 2 April 2015,74 8 April 2015,75 9 April 2015,76 17 April 2015, 6 May 2015,78 and 6 October 2015,9 the Appeals Chamber denied all other motions for the admission of additional evidence on appcal. F. Appeals Hearing 35. In accordance with the scheduling order of 5 March 2015,8 the 19 March 2015 order setting the timetable for the appeal hearings,' and the 25 March 2015 order inviting the appellants to address certain issues,? oral arguments of the parties were heard at a hearing held between 14 and 17 and between 20 and 22 April 2015 in Arusha, Tanzania. inadmissible and dismiss one of the Prosecution's requests to admit rebuttal evidence pursuant to Rule 115(A) of the Rules. See idem. 73 Decision on Nteziryayo's Motion to Present Additional Evidence, 27 March 2015; Decision on

Ntahobali's Fifth Motion to Present Additional Evidence, 27 March 2015. 74 Decision on Nyiramasuhuko's Third Motion and Ntahobali's Sixth Motion to Present Additional Evidence and on Prosecution's Motion to Strike, 2 April 2015 (confidential); Decision on Ndayambaje's Second Motion to Present Additional Evidence, 2 April 2015 (confidential. Decision on Nyiramasuhuko's Second Motion for Relief for a Rule 68 Violation and on Ntahobali's Third Motion to Present Additional Evidence, 8 April 2015 (confidential). 76 Decision on Nyiramasuhuko's First Motion for Relief for Rule 68 Violations and to Present Additional Evidence, ¾ April 2015. Decision on Ndayambaje's Fifth Motion for Relief for Rule 68 Violations and to Present Additional Evidence, 17 April 2015 (confidential). 78 Decision on Kanyabashi's Motion for Admission of Additional Evidence, 6 May 2015 (confidential). 1 Decision on Ntahobali's Seventh Motion to Present Additional Evidence, 6 October 2015 (confidential). 80 Scheduling Order, 5 March 2015. 81 Order Setting the Timetable for the Appeals Hearing, 19 March 2015. 82 25 March 2015 Order. 1277 Case No. ICTR-98-42-A 14 December 2015

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19087/H XX. ANNEX B: CITED MATERIALS AND DEFINED TERMS A. Jurisprudence 1. Tribunal AKAYESU Jean-Paul The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001 (originally filed in French, English translation filed on 23 November 2001) ("Akayesu Appeal Judgement"). BAGILISHEMA Ignace The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement, 3 July 2002 (originally filed in French, English translation filed on 16 June 2003) ("Bagilishema Appeal Judgement"). The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 ("Bagilishema Trial Judgement"). BAGOSORA Théoneste et al. Théoneste Bagosora and Anatole Nsengiyumva v. The Prosecutor, Case No. ICTR-98-41-A, Judgement, 14 December 2011 ("Bagosora and Nsengiyumva Appeal Judgement"). Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze's Motion for Severance, Retention of the Briefing Schedule and Judicial Bar to the Untimely Filing of the Prosecution's Response Brief, 24 July 2009 ("Ntabakuze Appeal Decision on Severance"). The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Case No. ICTR-98-41-T, Judgement and Sentence, 18 December 2008 ("Bagosora et al. Trial Judgement"). The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze's

Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 ("Bagosora et al. Appeal Decision on Exclusion of Evidence"). ("Kabiligi 8 October 1999 Decision"). BIKINDI Simon Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Judgement, 18 March 2010 ("Bikindi Appeal Judgement"). BISENGIMANA Paul Paul Bisengimana v. The Prosecutor, Case No. ICTR-00-60-T, Corrigendum-Judgement and Sentence, 20 April 2006 ("Bisengimana Sentencing Judgement"). BIZIMUNGU Augustin See Augustin Bizimungu v. The Prosecutor, Case No. ICTR-00-56B-A, Judgement, 30 June 2014 ("Bizimungu Appeal Judgement"). 1278 Case No. ICTR-98-42-A 14 December 2015

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19086/H BIZIMUNGU Casimir et al. The Prosecutor v. Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka, and Prosper Mugiraneza, Case No. ICTR-99-50-T, Judgement and Sentence, 30 September 2011 ("Bizimungu et al. Trial Judgement"). The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 ("Bizimungu et al. Appeal Decision"). The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor's Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 ("Bizimungu et al. 12 February 2004 Appeal Decision"). GACUMBITSI Sylvestre Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 ("Gacumbitsi Appeal Judgement"). The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgment, 17 June 2004 ("Gacumbitsi Trial Judgement"). GATETE Jean-Baptiste Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012 ("Gatete Appeal Judgement"). The Prosecutor v. Jean-Baptiste Gatete Case No. ICTR-00-61-T, Judgement and Sentence, 31 March 2011 ("Gatete Trial Judgement"). HATEGEKIMANA Ildephonse Idelphonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Judgement, 8 May 2012 ("Hategekimana

Appeal Judgement"). KAJELIJELI Juvénal Juvénal Rajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 ("Kajelijeli Appeal Judgement"). KALIMANZIRA Callixte Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 ("Kalimanzira Appeal Judgement"). KAMBANDA Jean Jean Rambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000 ("Kambanda Appeal Judgement"). KAMUHANDA Jean de Dieu ean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgemen 9 September 2005 ("Kamuhanda Appeal Judgement" Jean de Dieu Kamuhanda v. the Prosecutor, Case No. ICTR-95-54A-T, Judgement, 22 January 2004 ("Kamuhanda Trial Judgement"). 1279 Case No. ICTR-98-42-A 14 December 2015

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19085/H KANYARUKIGA Gaspard Gaspard Kanyarukiga v. the Prosecutor, Case No. ICTR-02-78-A, Judgement, 8 May 2012 ("Kanyarukiga Appeal Judgement"). Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga's Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 ("Kanyarukiga Appeal Decision"). KAREMERA Édouard et al. Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014 ("Karemera and Ngirumpatse Appeal Judgement"). Édouard Karemera, Matthieu Ngirumpatse, and Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR91.2, Decision on Joseph Nzirorera's and the Prosecutor's Appeals of Decision Not to Prosecute Witness BTH for False Testimony, 16 February 2010 (confidential) ("Nzirorera Appeal Decision of 16 February 2010"). The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 ("Karemera et al. 20 April 2007 Appeal Decision"). KARERA François François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009 ("Karera Appeal Judgement"). The Prosecutor v. François Karera, Case No. ICTR-01-74-T, Judgement and Sentence, 7 December 2007 ("Karera Trial Judgement"). KAYISHEMA Clément and RUZINDANA Obed The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No.

ICTR-95-1-A, Judgment, 1 June 2001 ("Kayishema and Ruzindana Appeal Judgement"). The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999 ("Kayishema and Ruzindana Trial Judgement"). MPAMBARA Jean The Prosecutor v. Jean Mpambara, Case No. ICTR-01-65-T, Judgment, 11 September 2006, (Mpambara Trial Judgement). MUGENZI Justin and MUGIRANEZA Prosper Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Judgement, 4 February 2013 ("Mugenzi and Mugiraneza Appeal Judgement"). MUHIMANA Mikaeli Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Judgement, 21 May 2007 ("Muhimana Appeal Judgement"). MUNYAGISHARI Bernard Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari's Motion for Reconsideration of the Decision on Appeals Against Referral Decision, 8 July 2013 ("Munyagishari Appeal Decision"). 1280 Case No. ICTR-98-42-A| 14 December 2015

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19084/H MUNYAKAZI Yussuf The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011 ("Munyakazi Appeal Judgement"). The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-T, Judgement and Sentence, 5 July 2010 ("Munyakazi Trial Judgement"). MUSEMA Alfred Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (originally filed in French, English translation filed on 25 October 2002) ("Musema Appeal Judgement"). MUVUNYI Tharcisse Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 1 April 2011 ("Muvunyi Appeal Judgement of 1 April 2011"). Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 29 August 2008 ("Muvunyi Appeal Judgement of 29 August 2008"). The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T, Judgement and Sentence, 12 September 2006 ("Muvunyi Trial Judgement of 12 September 2006"). NAHIMANA Ferdinand et al. Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (originally filed in French, English translation filed on 15 May 2008) ("Nahimana et al. Appeal Judgement"). Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza's Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the

Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006 ("Nahimana et al. 23 November 2006 Decision"). Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la Requête de l'appelant Jean-Bosco Barayagwiza demandant l'examen de la requête de la Défense datée du 28 Juillet 2000 et réparation pour abus de procédure, 23 June 2006 ("Barayagwiza 23 June 2006 Appeal Decision"). Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza's Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005 ("Barayagwiza 4 February 2005 Appeal Decision"). The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement and Sentence, 3 December 2003 ("Nahimana et al. Trial Judgement"). Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor's Request for Review or Reconsideration), 31 March 2000 ("Barayagwiza Review Decision"). NCHAMIHIGO Siméon Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-01-63-A, Judgement, 18 March 2010 ("Nchamihigo Appeal Judgement"). The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-01-63-T, Judgement and Sentence, 12 November 2008("Nchamihigo Trial Judgement"). 1281 Case No. ICTR-98-42-A 14 December 2015

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19083/H NDAHIMANA Grégoire Grégoire Ndahimana v. The Prosecutor, Case No. ICTR-01-68-A, Judgement, 16 December 2013 ("Ndahimana Appeal Judgement"). NDINDABAHIZI Emmanuel Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Judgement, 16 January 2007 ("Ndindabahizi Appeal Judgement"). The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-01-71-T, Judgement and Sentence, 15 July 2004 ("Ndindabahizi Trial Judgement"). NDINDILIYIMANA Augustin et al. ugustin Ndindiliyimana, François-Xavier Nzuwonemeye, and Innocent Sagahutu he Prosecutor, Case No. ICTR-00-56-A, Judgement, 11 February 2014 ("Ndindiliyimana et c Appeal Judgement"). The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Judgement and Sentence, 17 May 2011 ("Ndindiliyimana et al. Trial Judgement"). NGIRABATWARE Augustin Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware's Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 ("Ngirabatware Appeal Decision"). Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware's Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009 ("Ngirabatware 12 May 2009 Appeal Decision"). NIYITEGEKA Eliézer Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 ("Niyitegeka Appeal Judgement"). NIZEYIMANA

Ildéphonse Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR-00-5SC-A, Judgement, 29 September 2014 ("Nizeyimana Appeal Judgement"). NSHOGOZA Léonidas Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010 ("Nshogoza Appeal Judgement"). NTABAKUZE Aloys Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Judgement, 8 May 2012 ("Ntabakuze Appeal Judgement"). NTAGERURA André et al. The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Cas Yo. ICTR-99-46-A, Judgement, 7 July 2006 (originally filed in French, English translation filed o 9 May 2007) ("Ntagerura et al. Appeal Judgement"). The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence, 25 February 2004 ("Ntagerura et al. Trial Judgement"). 1282 Case No. ICTR-98-42-A 14 December 2015

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19082/H NTAKIRUTIMANA Elizaphan and Gérard The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A & ICTR-96-17-A, Judgement, 13 December 2004 ("Ntakirutimana Appeal Judgement"). The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-T & ICTR-96-17-T, Judgement and Sentence, 21 February 2003 ("Ntakirutimana Trial Judgement". NTA WUKULILYAYO Dominique Dominique Ntawukulilyayo v. The Prosecutor, Case No. ICTR-05-82-A, 14 December 2011 ("Ntawukulilyayo Appeal Judgement"). Judgement, NYIRAMASUHUKO Pauline et al. 2015 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ndayambaje's First, Second, Third, and Fourth Motions for Relief for Rule 68 Violations and to Present Additional Evidence, 12 May 2015 (confidential) ("12 May 2015 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali' s Second Motion to Present Additional Evidence and His Fourth Motion for Relief for Rule 68 Violations and to Present Additional Evidence, 14 April 2015 (confidential) (*14 April 2015 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ndayambaje's First Motion to Present Additional Evidence, 9 April 2015 (confidential) ("9 April 2015 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et

al., Case No. ICTR-98-42-A, Order for the Preparation of the Appeals Hearing, 25 March 2015 (*25 March 2015 Order"). 2014 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Kanyabashi's Motion to Lift Confidential Status of Certain Documents or to Refer Publicly to Certain Confidential Documents, 23 April 2014 ("23 April 2014 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Prosecution's Motion to Withdraw Public Filings and on Nyiramasuhuko's and Ntahobali's Counter Motions to Reclassify Confidential Materials, dated 14 March 2014, filed 17 March 2014 (confidential) ("14 March 2014 Appeal Decision"). 2013 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Motions for Extensions of Time Limit and Word Limit for the Filing of the Reply Briefs, 27 August 2013 ("27 August 2013 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Nteziryayo's Motion for Reconsideration and on Prosecution's Motion for Clarification of the 8 May 2013 Decision, 12 July 2013 ("12 July 2013 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Prosecution's Motion for Summary Dismissal or Alternative Remedies, 5 July 2013 ("5 July 2013 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Nteziryayo's Motion to Amend His Notice of Appeal and on Prosecution's Motion to Strike Nteziryayo's New Grounds of Appeal, 8 May 2013 ("8 May 2013 Appeal Decision"). 1283 Case No. ICTR-98-42-A 14 December 2015 ile

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19081/H The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Kanyabashi's Motion for Disclosure of the Amicus Curiae Report Concerning Witness QA, 18 March 2013 (confidential) ("18 March 2013 Decision"). 2012 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Nyiramasuhuko's, Ntahobali's, Kanyabashi's, and Ndayambaje's Motions for Extensions of the Word Limit for their Appeal Briefs, 13 December 2012 ("13 December 2012 Appeal Decision". The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Arsène Shalom Ntahobali's Motion to Present Additional Evidence, 23 November 2012 ("23 November 2012 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on the Filing of Alphonse Nteziryayo's Appeal Submissions, 1 March 2012 ("1 March 2012 Appeal Decision"). 2011 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony [of] Witness QA, 2 September 2011 (confidential) (*2 September 2011 Decision Concerning Witness QA"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony and

Witnesses QY and SJ, 2 September 2011 (confidential) (*2 September 2011 Decision Concerning Witnesses QY and SJ"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, signed 22 July 2011, filed 25 July 2011 ("22 July 2011 Appeal Decision"). 2010 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision Regarding Ntahobali, Nyiramasuhuko, and Kanyabashi's Motions to Transmit the Amicus Curiae Report, signed 4 March 2010, filed 5 March 2010 ("4 March 2010 Decision"). 2009 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Order, 30 October 2009 ("30 October 2009 Order"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for an Investigation into False Testimony and Kanyabashi's Motion for an Investigation into Contempt of Court Relative to Prosecution Witnesses QY and SJ, 19 March 2009 ("19 March 2009 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Prosecutor's Motion for Site Visits in the Republic of Rwanda, 26 February 2009 ("Site Visits Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Alphonse Nteziryayo's Motion for Exclusion of Evidence, 25 February 2009 ("25 February 2009 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 24 February 2009 pp. 55-58 (closed session) ("24 February 2009 Oral Decision"). 1284 Case No. ICTR-98-42-A 14 December 2015

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19080/H The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for Exclusion of Evidence or for Recall of Witnesses, 19 January 2009 (*19 January 2009 Decision on Exclusion of Evidence and Recall of Witnesses"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motions for Reconsideration of the 2 July 2008 Decision, Requesting that Witnesses D-2-23-C and D-11-AB Be Called to Testify, and for Special Protective Measures for Witnesses D-2-23-C and D-11-AB, 19 January 2009 ("19 January 2009 Decision"). 2008 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Nyiramasuhuko's Motion for Exclusion of Evidence, Alternatively for Admission of Documents into Evidence or for Recall of Witness TK, signed 9 December 2008, filed 10 December 2008 (9 December 2008 Decision on Motion to Recall Witness TK). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Nyiramasuhuko's Motion for Exclusion of Evidence or Admission of the Testimony of i Prosecutor Моной вок Witness QBQ in the Trial of Désiré Munyaneza, or Recall of Witness QBQ, signed 9 December 2008, filed 10 December 2008 (*9 December 2008 Decision on Motion to Recall Witness QBQ"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion

for the Exclusion of Evidence or for Recall of Prosecution Witnesses QY, SJ, and Others, 3 December 2008 ("3 December 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for a Stay of Proceedings for Undue Delay, 26 November 2008 (*26 November 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Motion for an Investigation Relative to False Testimony and Contempt of Court, 7 November 2008 ("7 November 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions Further Cross-Examination of Prosecution Witness QCB, 20 November 2008 ("20 November 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motion to Re-Open His Case and to Recall Prosecution Witness QA, signed 2 July 2008, filed 3 July 2008 ("2 July 2008 Decision"). The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Prosecution Motion for Further Particulars of Élie Ndayambaje's Alibi Pursuant to Rule 67 (A)(ii)(a), 23 May 2008 (confidential) ("23 May 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsăne Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Motion for Disclosure of Documents Under Rule 68 and for Re-Opening of Her

Case, 29 April 2008 ("29 April 2008 Decision"). The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Decision on Kanyabashi's Three Motions to Vary His List of Witnesses and to Admit Written Statements under Rule 92bis, 24 April 2008 ("24 April 2008 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Kanyabashi's Motion to Vary His List of Witnesses Pursuant to Rule 73ter, 15 February 2008 ("15 February 2008 Decision"). 1285 Case No. ICTR-98-42-A 14 December 2015

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19079/H 2007 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi's Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 (*21 August 2007 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Arsène Shalom Ntahobali's Motion to Exclude Certain Evidence from the Expected Testimony of Kanyabashi's Witness D-2-13-O, 29 June 2007 ("29 June 2007 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Joseph Kanyabashi's Motions for Modification of His Witness List, the Defence Responses to the Scheduling Order of 13 December 2006 and Ndayambaje's Request for Extension of Time Within Which to Respond to the Scheduling Order of 13 December 2006, 21 March 2007 ("21 March 2007 Decision"). 2006 The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21- AR73, Decision on "Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi's Oral Motion to Cross-Examine Ntahobali Using Ntahobali's Statements to Prosecution Investigators in July 1997", 27 October 2006 ("27 October 2006 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ndayambaje's Motion for Exclusion of

Evidence, 1 September 2006 (*1 September 2006 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Motion for Separate Proceedings, a New Trial, and Stay of Proceedings, 7 April 2006 ("7 April 2006 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Ntahobali's Strictly Confidential Motion to Recall Witnesses TN, QBQ, and QY, for Additional Cross-Examination - Rule 54, 73(A), 90(G), Rules of Procedure and Evidence, signed 3 March 2006, filed 4 March 2006 ("3 March 2006 Decision"). 2005 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Confidential Prosecutor's Motion to be Served with Particulars of Alibi Pursuant to Rule 67(A)(ii)(a), I March 2005 ("Alibi Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Strictly Confidential Ex-Parte - Under Seal - Motion for Additional Protective Measures for Some Defence Witnesses, 1 March 2005 ("1 March 2005 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Motion for Separate Trial, 2 February 2005 ("2 February 2005 Decision"). 2004 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions for Acquittal Under Rule 98bis, 16 December 2004 ("Rule 98bis Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 18 October 2004 pp. 16, 17 (closed session) ("18 October 2004 Oral Decision"). 1286 Case No. ICTR-98-42-A 14 December 2015

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19078/H The Prosecutor v. Pauline Nyiramasuhuko, Case No. ICTR-98-42-AR73.2, Decision on Pauline Nyiramasuhuko's Appeal on the Admissibility of Evidence, 4 October 2004 (4 October 2004 Appeal Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Prosecutor's Motion for Site Visits in the Republic of Rwanda under Rules 4 and 73 of the Rules of Procedure and Evidence, 23 September 2004 ("2004 Site Visits Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-97-21-AR73, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the "Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible", signed 2 July 2004, filed 5 July 2004 ("Admissibility Appeal Decision of 2 July 2004"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Motion for Recall of Witnesses, 29 June 2004 ("29 June 2004 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 24 June 2004 pp. 12-16 (*24 June 2004 Oral Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 23 June 2004 p. 22 ("23 June 2004 Oral Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Recall of Witnesses

TA, QJ, TK, SJ, SU, SS, QBP, RE, FAP, SD and QY or, in Default a Disjunction of Trial or a Stay of Proceedings Against Nyiramasuhuko, 6 May 2004 ("6 May 2004 Decision on Nyiramasuhuko Motion to Recall Witnesses"). The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "QAQ" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 (*6 May 2004 Decision on Motion to Recall Witness QAQ"). The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "QAR" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 ("6 May 2004 Decision on Motion to Recall Witness QAR"). The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on Defence Motion Requesting the Recall of Witness "TO" Based on the Decision of the Appeals Chamber in the Matter of Proceedings Under Rule 15bis(D), 6 May 2004 ("6 May 2004 Decision on Motion to Recall Witness TO"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecutor's Motion to Drop and Add Witnesses, 30 March 2004 ("30 March 2004 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Certification to Appeal the

"Decision on Defence Motion for a Stay of Proceedings and Abuse of Process", 19 March 2004 (*19 March 2004 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Oral Motion Regarding Prosecution's Use of Material Under Seal, 27 April 2004 ("27 April 2004 Decision". The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for a Stay of Proceedings and Abuse of Process, 20 February 2004 ("20 February 2004 Decision"). 1287 Case No. ICTR-98-42-A 14 December 2015

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19077/H 2003 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 ("Appeal Decision on Continuation of Trial"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision in the Matter of Proceedings under Rule 15bis(D), 15 July 2003 ("Decision on Continuation of Trial"). 2002 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Defence Motions for Disclosure of Information on the Coversheets of Prosecution Witness Statements, 26 March 2002 ("26 March 2002 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, The President's Decision on the Application by Arsène Shalom Ntahobali for Review of the Registrar's Decision Pertaining to the Assignment of an Investigator, signed on 13 November 2002, filed on 14 November 2002 ("President Review Decision"). 2001 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali's Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr. Thaddée Kwitonda, 14 December 2001 ("14 December 2001 Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 24 October 2001 pp. 84, 85 ("24 October 2001 Oral Decision"). The Prosecutor v. Pauline Nyiramasuhuko

et al., Case No. ICTR-98-42-T, T. 22 October 2001 pp. 31, 32 ("22 October 2001 Oral Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Motion for Separate Trials, 8 June 2001 ("8 June 2001 Decision"). The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Decision on the Defence Motion for Separate Trial, 25 April 2001 ("25 April 2001 Decision"). The Pros on try. Paul is lisame uhuke Ide try a Shared cald sti, men of Che Pit Witnesses, 8 June 2001 ("8 June 2001 Disclosure Decision"). The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Defense Motions for an Extension of the Time Limit for Filing the Notice in Respect of Expert Witness Statements, 25 May 2001 ("25 May 2001 Decision"). 2000 The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Defence Motion for Disclosure of Evidence, 1 November 2000 (originally filed in French, English translation filed on 27 November 2001) ("1 November 2000 Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Arsène Shalom Ntahobali's Preliminary Motion Objecting to Defects in the Form and Substance of the Indictment, 1 November 2000 ("1 November 2000 Ntahobali Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramasuhuko's Preliminary Motion Based on Defects in the Form and the Substance of the Indictment, signed 1 November 2000, filed 2 November 2000 (*1 November 2000 Nyiramasuhuko Decision"). 1288 Case No. ICTR-98-42-A 14 December 2015

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19076/H The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day) ("12 October 2000 Decision"). The Prosecutor v. Sylvain Nsabimana, Case No. ICTR-97-29A-T, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimana, signed 8 September 2000, filed 11 September 2000 ("8 September 2000 Decision"). The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, signed 11 May 2000, dated 31 May 2000, filed 7 June 2000 (originally filed on French, English translation filed on 7 June 2000) (*31 May 2000 Decision"). The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings, 23 May 2000 (*23 May 2000 Decision"). Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-I, Decision (Appeal Against Trial Chamber II's Decision of 5 October 1999), 17 April 2000 ("Kanyabashi 17 April 2000 Decision"). 1999 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-1, Decision on the Prosecutor's Motion for Joinder of Trials, 5 October 1999 ("Joinder Decision"). The

Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, T. 10 August 1999 pp. 2-6 ("10 August 1999 Oral Decision"). The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-I, signed 3 September 1999, filed 6 September 1999 ("10 August 1999 Decision"). NZABIRINDA Joseph The Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-T, Sentencing Judgement, 23 February 2007 ("Nzabirinda Sentencing Judgement"). NZABONIMANA Callixte Callixte Nzabonimana v. The Prosecutor, Case No. ICTR-98-44D-A, Judgement, 29 September 2014 ("Nzabonimana Appeal Judgement"). The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Judgement and Sentence, 31 May 2012 ("Nzabonimana Trial Judgement"). RENZAHO Tharcisse Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011 ("Renzaho Appeal Judgement"). RUGAMBARARA Juvénal The Prosecutor v. Juvénal Rugambarara, Case No. ICTR-00-59-T, Sentencing Judgement, 16 November 2007 (Rugambarara Sentencing Judgement). 1289 Case No. ICTR-98-42-A 14 December 2015

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19075/H RUKUNDO Emmanuel Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-A, Judgement, 20 October 2010 ("Rukundo Appeal Judgement"). RUTAGANDA Georges Anderson Nderubumwe Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (originally filed in French, English translation filed on 9 February 2004) ("Rutaganda Appeal Judgement"). RWAMAKUBA André André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 ("Rwamakuba Appeal Decision"). The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007 ("Rwamakuba Decision"). The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Judgement, 20 September 2006 (Rwamakuba Trial Judgement). SEMANZA Laurent Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005 ("Semanza Appeal Judgement"). Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-T, Judgement, 15 May 2003 ("Semanza Trial Judgement"). Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, dated 31 May 2000, filed 1 June 2000 (originally filed in French, English translation filed on 4 July 2001) ("Semanza Appeal Decision"). SEROMBA Athanase The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-A, Judgement, 12 March 2008 ("Seromba Appeal Judgement"). The

Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-T, Judgement, 13 December 2006 ("Seromba Trial Judgement"). SERUSHAGO Omar Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgement, 6 April 2000 ("Serushago Appeal Judgement"). SETAKO Ephrem Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Judgement, 28 September 2011 ("Setako Appeal Judgement""). SIMBA Aloys Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 ("Simba Appeal Judgement"). The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Judgement and Sentence, 13 December 2005 ("Simba Trial Judgement"). 1290 Case No. ICTR-98-42-A 14 December 2015

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19074/H UWINKINDI Jean Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011 ("Uwinkindi Appeal Decision") ZIGIRANYIRAZO Protais Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Judgement, 16 November 2009 ("Zigiranyirazo Appeal Judgement"). The Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-73-T, Judgement, 18 December 2008 ("Zigiranyirazo Trial Judgement").

2. International Criminal Tribunal for the Former Yugoslavia (ICTY) ALEKSOVSKI Zlatko Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 ("Aleksovski Appeal Judgement"). BABIC Milan Prosecutor v. Milan Babic, Case No. IT-03-72-A, Judgement on Sentencing Appeal, 18 July 2005 ("Babic Sentencing Appeal Judgement"). BLAGOJEVIC Vidoje and JOKIC Dragan Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Judgement, 9 May 2007 ("Blagojevic and Jokic Appeal Judgement"). BLASKIC Tihomir Prosecutor Tihomir Blaskic, Case No. IT-95-14-A, Judgement, 29 July 2004 ("Blaskic Appeal Judgement"). BOSKOSKI Ljube and TARCULOVSKI Johan Prosecutor v. Ljube Boskoski and Johan Tarculovski, Case No. IT-04-82-A, Judgement, 19 May 2010 ("Boskoski and Tarculovski Appeal Judgement"). BRDANIN Radoslav Prosecutor v. Radoslav Branin, Case No. IT-99-36-A, Judgement, 3 April 2007 ("Brianin Appeal Judgement). "CELEBICI" Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. "Pavo", Hazim Delic, and Esad Landio, a.k.a. "Zenga", Case No. IT-96-21-A, Judgement, 20 February 2001 ("'Celebici Appeal Judgement"). Prosecutor v. Zejnil Delalié et al., Case No. IT-96-21-T, Judgement, 16 November 1998 ("Celebiéi Trial Judgement"). DORDEVIC Vlastimir Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement, 27 January 2014 ("Dordevié Appeal Judgement"). 1291 Case No. ICTR-98-42-A 14 December 2015

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19073/H Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Judgement, 23 February 2011 ("Dordevié Trial Judgement"). Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Decision on Prosecution's Motion to Add Milan Dakovié to the Rule 65ter Witness List, 21 May 2009 ("Dordevié 21 May 2009 Decision"). ERDEMOVIC Drazen Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-Tbis, Sentencing Judgement, 5 March 1998 ("Erdemovic Sentencing Judgement"). FURUNDÈIJA Anto Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 ("Furundzija Appeal Judgement"). Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 ("Furundzija Trial Judgement"). GALIC Stanislav Prosecutor v. Stanislav Galic, Case No. IT-98-29-A, Judgement, 30 November 2006 ("Galié Appeal Judgement"). GOTOVINA Ante et al. Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.6, Decision on Ivan Cermak and Mladen Marka Interlocutory Appeals Against Trial Chamber's Decision to Reopen the Prosecution Case, 1 July 2010 ("Gotovina et al. 1 July 2010 Appeal Decision"). Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73- AR73.2, Decision on Interlocutory Appeals Against the Trial Chamber's Decision to Amend the Indictment and for Joinder, 25 October 2006 ("Gotovina et al. Appeal Decision on Joinder"). HADZIHASANOVIC Enver and KUBURA

Amir Prosecutor v. Enver Hadzihasanovié and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008 ("Hadzihasanovié and Kubura Appeal Judgement"). HALILOVIC Sefer Prosecutor v. Sefer Halilovié, Case No. IT-01-48-A, Judgement, 16 October 2007 ("Halilovié Appeal Judgement"). Prosecutor v. Sefer Halilovic, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 ("Halilovié Appeal Decision"). Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T, Judgement, 16 November 2005 ("Halilovic Trial Judgement"). HARADINAJ Ramush et al. Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, Case No. IT-04-84-A, Judgement, 19 July 2010 ("Haradinaj et al. Appeal Judgement"). Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Judgement, 3 April 2008 ("Haradinaj et al. Trial Judgement of 3 April 2008"). 1292 Case No. ICTR-98-42-A 14 December 2015

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19072/H HARAQIJA Astrit and MORINA Bajrush Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Judgement, 23 July 2009 ("Haraqija and Morina Appeal Judgement). JELISIC Goran Prosecutor v. Goran Jelisié, Case No. IT-95-10-A, Judgement, 5 July 2001 ("Jelisié Appeal Judgement"). KARADZIC Radovan Prosecutor v. Radovan Karadzic, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber's Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009 ("Karadzic Appeal Decision"). KORDIC Dario and CERKEZ Mario Prosecutor v. Dario Kordié and Mario Cerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 ("Kordié and Cerkez Appeal Judgement"). Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 ("Kordié and Cerkez Trial Judgement"). KRAJISNIK Momilo Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-A, Judgement, 17 March 2009 ("KrajiSnik Appeal Judgement"). KRNOJELAC Milorad Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (originally filed in French, English translation filed on 5 November 2003) ("Krojelac Appeal Judgement"). KRSTIC Radislav Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgement, 19 April 2004 ("Krstic Appeal Judgement"). KUNARAC Dragoljub et al. Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovié, Cases Nos. IT-96-23

and IT-96-23/1-A, Judgement, 12 June 2002 ("Kunarac et al. Appeal Judgement"). KUPRESKIC Zoran et al. No. IT-95-16-A, Appeal Judgement, ("Kupreskié et al. Appeal Judgement"). KVOCKA Miroslav et al. Prosecutor v. Miroslav Kvocka, Mlado Radic, Zoran Zigic, and Dragoljub Prcac, Case No. IT-98- 30/1-A, Judgement, 28 February 2005 ("Kvocka et al. Appeal Judgement"). Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar's Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003 ("Kvocka et al. Appeal Decision"). 1293 Case No. ICTR-98-42-A 14 December 2015

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19071/H LIMAJ Fatmir et al. Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-A, Judgement, 27 September 2007 ("Limaj et al. Appeal Judgement"). LUKIC Milan and Sredoje Prosecutor v. Milan Lukié and Sredoje Lukié, Case No. IT-98-32/1-A, Judgement, 4 December 2012 ("Lukié and Lukié Appeal Judgement"). MARTIC Milan Prosecutor v. Milan Martic, Case No. IT-95-11-A, Judgement, 8 October 2008 ("Martic Appeal Judgement"). MILOSEVIC Dragomir Prosecutor v. Dragomir Milosevié, Case No. IT-98-29/1-A, Judgement, 12 November 2009 ("Milosevié Appeal Judgement"). MILUTINOVIC Milan et al. Prosecutor v. Milan Milutinovié et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 ("Milutinovié et al. Appeal Decision"). MRKSIC Mile and SLJIVANCANIN Veselin Prosecutor v. Mile Mrksié and Veselin Sljivanzanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 ("Mrksié and Sljivancanin Appeal Judgement"). NALETILIC Mladen and MARTINOVIC Vinko Prosecutor v. Mladen Naletilic, a.k.a. "TUTA", and Vinko Martinovié, a.k.a. "STELA", Case No. IT-98-34-A, Judgement, 3 May 2006 ("Naletilié and Martinovié Appeal Judgement"). NIKOLIC Dragan Prosecutor v. Dragan Nikolic, Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005 ("Nikolic Sentencing

Appeal Judgement"). Prosecutor v. Dragan Nikolié, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003 ("Nikolié Appeal Decision"). ORIC Naser Prosecutor v. Naser Oric, Case No. IT-03-68-A, Judgement, 3 July 2008 ("Orié Appeal Judgement"). PERISIC Momcilo Prosecutor v. Momcilo Perisic, Case No. IT-04-81-T, Decision on Prosecution's Motion to Substitute Expert Witness, 30 October 2009 ("Perisié 30 October 2009 Decision"). POPOVI Vujadin et al. Prosecutor v. Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovianin, Radivoje Miletic, Milan Gvero, and Vinko Pandurevic, Case No. IT-05-88-A, Judgement, 30 January 2015 ("Popovié et al. Appeal Judgement"). 1294 Case No. ICTR-98-42-A 14 December 2015 5u

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19070/H Prosecutor v. Vujadin Popovié et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 ("Popovic et al. Appeal Decision"). Prosecutor v. Zdravko Tolimir, Radivoje Miletic, and Milan Gvero, Case No. IT-04-80-AR73.1, Decision on Radivoje Miletic's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused, 27 January 2006 ("Miletic Appeal Decision on Joinder"). Prosecutor v. Vinko Pandurevic and Milorad Trbié, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurevic's Interlocutory Appeal against the Trial Chamber's Decision on Joinder of Accused, 24 January 2006 ("Pandurevic Appeal Decision on Joinder"). PRLIC Jadranko et al. Prosecutor v. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovié, Valentin Coric, and Berislav Pusic, Case No. IT-04-74-AR73.13, Decision on Jadranko Prlié Consolidated Interlocutory Appeal Against the Trial Chamber's Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 ("Prlié et al. Appeal Decision"). Prosecutor v. Jadranko Prlié et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber's Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel's Request for Leave to File an Amicus Curiae Brief, 4

July 2006 ("Prlié et al. Appeal Decision on Joinder"). SAINOVIC Nikola et al. Prosecutor v. Nikola Sainovic, Nebojja Pavkovié, Vladimir Lazarevié, and Sreten Lukic, Case No. IT-05-87-A, Judgement, 23 January 2014 ("Sainovié et al. Appeal Judgement"). SIMIC Blagoje Prosecutor v. Blagoje Simic, Case No. IT-95-9-A, Judgement, 28 November 2006 ("Simié Appeal Judgement"). STAKIC Milomir Prosecutor v. Milomir Stakic, Case No. IT-97-24-A, Judgement, 22 March 2006 ("Stakic Appeal Judgement"). STRUGAR Pavle Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008 ("Strugar Appeal Judgement"). TADIC Dusko Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 ("Tadié Appeal Judgement") Prosecutor v. Dusko Tadié, a.k.a. "DULE", Case No. IT-94-1-T, Judgement, 7 May 1997 ("Tadié Trial Judgement"). Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 ("Tadic Appeal Decision on Jurisdiction"). VASILJEVIC Mitar Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004 ("Vasiljevic Appeal Judgement"). 1295 Case No. ICTR-98-42-A 14 December 2015

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19069/H 3. International Residual Mechanism for Criminal Tribunals Augustin Ngirabatware The Prosecutor, Case No. MICT-12-29-A, 18 December 2014 ("Ngirabatware Appeal Judgement"). Judgement, 4. Human Rights Committee B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995.

5. African Commission on Human and People's Rights Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People's Rights, Communication No. 301/05, 12 October 2013.

6. Inter-Américan Court of Human Rights Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997.

7. European Court of Human Rights Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992. Bracci v. Italy, ECtHR, No. 36822/02, Arrêt, 15 February 2006. Dimitrov and others v. Bulgaria, ECtHR, No. 77938/11, Judgement, 1 July 2014. EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005. Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993. Neumeister v. Austria, ECtHR, No. 1936/63, Judgment, 27 June 1968 ("ECHR Neumeister Judgment"). Previti v. Italy, ECtHR, No. 45291/06, Décision sur la recevabilité, 8 December 2009. Sofri and others v. Italy, ECtHR, No. 37234/97, Decision, 4 March 2003. Vocaturo v. Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991. Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995. 1296 Case No. ICTR-98-42-A 14 December 2015

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19068/H B. Defined Terms 1. Acronyms and Abbreviations 16 April Communiqué Communiqué sanctioning the security of the authorities of Butare anc fikongoro issued on 16 April 1994, admitted as Exhibit D24C 27 April Directive Instructions to restore security in the country issued on 27 April 1994, admitted as Exhibit P118 23 January 1974 Law Law of 23 January 1974, Création de la Gendarmerie, admitted as part of Exhibit D468 11 March 1975 Law amit a Mart 1975, sorelure and Functioning of the Prefecture. African Charter on Human African (Banjul) Charter on Human and Peoples' Rights, adopted on and Peoples' Rights 27 June 1986, entered into force on 21 October 1986 American Convention on Human Rights American Convention on Human Rights "Pact of San Jose, Costa Rica", adopted on 22 November 1969, entered into force ol 18 July 1978 Amici Curiae Reports First Amicus Curiae Report and Second Amicus Curiae Reports Appeals Chamber Appeals Chamber of the International Criminal Tribunal for Rwanda AT. Transcript from hearings on appeal in the present case. All references are to the official English transcript, unless otherwise indicated. Butare Prefecture Office Office of the prefecture of Butare, Butare Town, Ngoma Commune Butare University Hospital Butare University Hospital, Butare Town, Ngoma Commune

CERD Co-Accused or Co-Appellants International Convention on the Elimination of All Forms of Racial Discrimination, Resolution UN Doc. A/RES/20/2106, 21 December 1965, solutied in 2 1062x), 4 January 1969 Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, , Joseph Kanyabashi, and Élie Ndayambaie 1297 Case No. ICTR-98-42-A 14 December 2015

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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Des Forges Report ECtHR

EER ESO European Convention on Human Rights First Amicus Curiae First Amicus Curiae Report First Attack First Half of June Attacks Guichaoua Report

ICC

ICCPR

ICTY Case No. ICTR-98-42-A 19067/H Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution 39/46 on 10 December 1984, entered into force on 26 June 1987 Expert Report by Alison Des Forges Prepared for the Butare Case ICTR-98-42-T, admitted as Exhibit P110 European Court of Human Rights École évangéliste du Rwanda, Butare Town, Ngoma Commune École des sous-officiers, Butare Town, Ngoma Commune European Convention for the Protection of Human Rights and undamental Freedoms, adopted on 4 November 1950, entered int orce on 3 September 195. First Amicus curiae designated by the Registrar to investigate the allegations of false testimonies of Witnesses QA, QY, and SJ The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-T, Report of Boniface Njiru Amicus Curiae Appointed by the International Criminal Tribunal for Rwanda to Investigate and Report to the Trial Chamber Il (on] False Testimony and Contempt of Court Relative to Prosecution Witnesses QA, QY and SJ, 2 July 2009 (confidential) The first attack of the Last Half of May Attacks conducted against Tutsis who had sought refuge at the Butare Prefecture Office, whic occurred seven days after the Mid-May Attacl Attacks against Tutsis who had sought refuge at the Butare Prefecture Office that took place in the first half of June 1994 The Prosecutor

v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-T, Full Statement of Expert Witness André Guichaoua, Filed under Rule 94bis (A) for Disclosure to the Defence and to Be Filed with the Trial Chamber, 28 April 2004 International Criminal Court, established on 17 July 1998 International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI), UN Doc. A/RES/21/2200, 16 December 1966, entered into force on 23 March 1976 International Tribunal for the Prosecution of Persons Responsible for erious Violations of International Humanitarian Law Committed i he Territory of the Former Yugoslavia since 199 1298 14 December 2015

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19066/H ICTY Rules of Procedure and Evidence Interim Government

IRST Judge Bossa Certification Judge Ramaroson Dissenting Opinion Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia (IT/32/Rev.

39) Interim Government of Rwanda sworn in on 9 April 1994 and headec by Prime Minister Jean Kambanda Institut de recherche scientifique et technique, Butare Town, Ngoma Commune The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-T, Certification in the Matter of Proceedings under Rule 15bis(D), The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-T, Dissenting Opinion of Judge Arlette Ramaroson, dated 24 June 2011, signed 18 July 2011, filed 19 July 2011 (the English translation of the French original was filed on 21 May 2014) Kambanda's and Sindikubwabo's Speeches Kambanda's Speech Kambanda's speech given at Nsabimana's swearing-in ceremony of 19 April 1994 Kanyabashi's Speech Last Half of May Attacks Matyazo Clinic Mid-May Attack

MRND Kanyabashi's Speech given at Nsabimana's swearing-in ceremony of 19 April 1994 Attacks against Tutsis who had sought refuge at the Butare Prefecture Office that took place seven and 11 days after the Mid-May Attack Clinic (or dispensary) of Matyazo Sector, Ngoma Commune, Butare Prefecture Attack against Tutsis who had sought refuge at the Butare Prefecture Office that took place in mid-May 1994 Movement révolutionnaire national pour la démocratie et le développement [before 5 July 1991] ouvement républicain national pour la démocratie et éveloppement [after 5 July 199 Ndayambaje's Swearing-In Ndayambaje's swearing-in as the bourgmestre of Muganza Commune Ceremony held in Muganza Commune, Butare Prefecture, on 22 June 1994 Night of Three Attacks Attacks against Tutsis who had sought refuge at the Butare Prefecture Office that took place three times in one night around the end of May or the beginning of June 1994 1299 Case No. ICTR-98-42-A 14 December 2015

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Nsabimana's Swearing-in Ceremony Ntakirutimana Report on Sindikubwabo's Speech Ntakirutimana's Reports Ntakirutimana Sociolinguistic Analysis

ORINFOR

PAMU PL Practice Direction on Formal Requirements on Prosecution

PSD

RCMP Registrar Registry Residual Mechanism Case No. ICTR-98-42-A 19065/H Nsabimana's swearing-in ceremony as the prefect of Butare held in Butare on 19 April 1994 Tolerance or Intransigence in Sindikubwabo's Speech in Butare?, by Évariste Ntakirutimana, admitted as Exhibit P159 1994) in Rwanda, by Évariste Ntakirutimana, admitted as Exhibit P158 Sociolinguistic Analysis of Polysemic Terms Produced During the War Period (1990-1994) in Rwanda, by Évariste Ntakirutimana, admitted as Exhibit P158 Office rwandais d'information (Rwandan Office of Information) Projet agricole de Muganza Parti libéral Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005 wace of the Prosecutor of the international criminal Tribunal for Parti social démocrate Royal Canadian Mounted Police Registrar of the International Criminal Tribunal for Rwanda Registry of the International Criminal Tribunal for Rwanda International Residual Mechanism for Criminal Tribunals 1300 14 December 2015

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Residual Mechanism Statute Reyntjens Report Rome Statute

RPA RPF Rules

SCSL Second Amicus Curiae Second Amicus Curiae Report Concerning Witness QA Second Amicus Curiae Report Concerning Witnesses OY and SJ Second Amicus Curiae Reports Second Attack Security Council Shimamungu Report Case No. ICTR-98-42-A 19064/H Statute of the International Residual Mechanism for Criminal Tribunals established by Security Council Resolution 1966 (2010) Expert Report by Filip Reyntjens, admitted as Exhibit D571 Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998, entered into force on 1 July 2002 Rwandan Patriotic Army Rwandan (also Rwandese) Patriotic Front Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda Special Court for Sierra Leone, established to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996 by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000 Second Amicus curiae designated by the Registrar to investigate the allegations of false testimonies of Witnesses QA, QY, and SJ The Prosecutor v. Pauline Nyiramasuhuko et al., ICTR-98-42-T, Report of Amicus Curiae on Rule 77 and Rule 91 Investigation Related to Witness QA, 25 March 2010 (confidential) The Prosecutor

v. Pauline Nyiramasuhuko et al., ICTR-98-42-T, Report of Amicus Curiae on Rule 77 and Rule 91 Investigation Related to Witness QY and SJ, 18 May 2010 (confidential) Second Amicus Curiae Report Concerning Witness QA and Second Amicus Curiae Report Concerning Witnesses QY and SJ (confidential) The second attack of the Last Half of May Attacks conducted against Tutsis who had sought refuge at the Butare Prefecture Office, which occurred 11 days after the Mid-May Attack Security Council of the United Nations Butare 1994: Political Communication of the "Abatabazi" Interim Government and its Impact on the Population, by Eugèn Shimamungu, admitted as Exhibit D278 (confidential) 1301 14 December 2015

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19063/H Sindikubwabo's Speech Statute Statute of the ICTY T. Trial Chamber Trial Judgement Tribunal or ICTR

UNAMIR Vienna Convention Virgin Mary Statue Sindikubwabo's speech given at Nsabimana's swearing-in ceremony of 19 April 1994 (transcripts admitted as Exhibit P151B) Statute of the International Criminal Tribunal for Rwanda established by Security Council Resolution 955 (1994) Statute of the International Criminal Tribunal for the Former Yugoslavia established by Security Council Resolution 827 (25 May 1993) Transcript from hearings at trial in the present case. All references are to the official English transcript, unless otherwise indicated Trial Chamber Il of the International Criminal Tribunal for Rwanda seized of the Nyiramasuhuko et al. proceedings The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- -2-T, Judgement and Sentence, pronounced on 24 June 2011, issued i vriting on 14 July 2011 International Criminal Tribunal for the Prosecution of Persons esponsible for Genocide and Other Serious Violations of Internationa lumanitarian Law Committed in the Territory of Rwanda an Rwandan Citizens Responsible for Genocide and Other Such iolations Committed in the Territory of Neighbouring States, betwee January 1994 and 31 December 199 United Nations Assistance Mission for Rwanda Vienna Convention on The Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155 Statue of the Virgin Mary in Mugombwa Sector, Muganza Commune Butare Prefecture 2. Filings of

the Parties Indictments Operative indictments of all co-Accused Kanyabashi Amended Indictment The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999, 12 August 1999 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. Kanyabashi Appeal Brief ICTR-98-42-A, Joseph Kanyabashi's Appellant's Brief, 8 April 2013 (the English translation of the French original was filed on 1302 Case No. ICTR-98-42-A 14 December 2015

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19062/H Kanyabashi Closing Brief Kanyabashi Indictment Kanyabashi Notice of Appeal The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Joseph Kanyabashi's Closing Brief, 17 February 2009 (the Englist translation of the French original was filed on 6 April 2009 'he Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15- 1 Anded 1 te Pet the Decision of Trial Chamber II o The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Amended Notice of Appeal by Joseph Kanyabashi, 8 April 2013 (the English translation of the French original was filed on 24 May 2013) (confidential; public redacted version originally filed in The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Joseph Kanyabashi's Brief in Reply to the Prosecutor's Kanyabashi Reply Brief The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. Kanyabashi Response Brief ICTR-98-42-A, Joseph Kanyabashi's Brief in Response to the Preschor's was 6 Mont 20lay 2 inglish translation of the Kanyabashi Third Amended Indictment The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber Il of 12 August 1999 and 31 May 2000, 2 November 2000 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Élie Ndayambaje's Appellant's Brief, 8 April 2013 (the English Ndayambaje Appeal Brief translation of the French original was

filed on 26 July 2013) (confidential), as corrected by Corrigendum du Mémoire d'appel d'Élie Ndayambaje, 19 April 2013 (confidential; public redacted The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Elie Ndayambaje Closing Brief Ndayambaje Indictment Ndayambaje Notice of Alibi The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Amended Indictment As Per the Decision of Trial Chamber Il of August 10th 1999. 11 August 1999 The Precio de Rite day ambie, Case No iT AT 203) (confidential) 1303 Case No. ICTR-98-42-A 14 December 2015

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19061/H Ndayambaje Notice of Appeal The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Élie Ndayambaje's Amended Notice of Appeal, 8 April 2013 (the English translation of the French original was filed on 7 June 2013) Ndayambaje Pre-Defence Brief The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-1, Pre-Defence Brief, 8 February 2005 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Élie Ndayambaje's Brief in Reply, 25 September 2013 Ndayambaje Reply Brief (the English translation of the French original was filed on 4 April 2014) (confidential; public redacted version originally filed in French on 1 November 2013) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Written Submissions Subsequent to the "Decision on Ndayambaje Submissions on Additional Evidence Ndayambaje's First, Second, Third and Fourth Motions for Relief for Rule 68 Violations and to Present Additional Evidence" of 12 May 2015, 26 May 2015 (originally filed in French, English translation filed on 3 July 2015) (confidential) The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case. Indictment Nsabimana and Nteziryayo No. ICTR-97-29-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999, 12 August 1999 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- Nsabimana Appeal Brief 42-A, Appellant's

Brief, 8 April 2013 (the English translation of the French original was filed on 26 September 2013) (originally filed confidentially, reclassified as public) Nsabimana Closing Brief The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29-T, Final Brief of Sylvain Nsabimana's Trial, 17 February 2009 (the English translation of the French original was filed on 6 April 2009) (confidential) Nsabimana Notice of Appeal Nsabimana Reply Brief The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Notice of Appeal, 10 October 2011 (the English translation of the French original was filed on 25 January 2012) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Brief in Reply, 20 September 2013 (the English translation of the French original was filed on 9 April 2014) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. Ntahobali Appeal Brief 1304 Case No. ICTR-98-42-A 14 December 2015

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19060/H Ntahobali Closing Brief The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Arsène Shalom Ntahobali's Final Trial Brief and Annexes Thereto, 17 February 2009 (the English translation of the French original was filed on 20 July 2009) (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Second Amended Notice of Appeal of Arsène Shalom Ntahobali Notice of Appeal Ntahobali Pursuant to Article 24 of the Statute and Rule 108 of the Rules of Procedure and Evidence, 29 October 2012 (the English translation of the French original was filed on 24 January 2013) Ntahobali Reply Brief 7 October 2013 (the English translation of the French original was filed on 5 August 2014) (confidential; public redacted version originally filed in French on 24 March 2014) CTR-98-42-A, Arsène Shalo Ntahobali Supplementary Prosecutor's Supplemental Submissions Pursuant to 25 March 2015 Submissions Nteziryayo Appeal Brief (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Confidential Corrected Revised Appeal Brief on Behalf of Alphonse Nteziryayo, 14 June 2013 (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Public Corrected Revised Appeal Brief on Behalf of Alphonse Nteziryayo, 14 June 2013 (public redacted version) The Prosecutor v. Pauline Nyiramasuhuko

et al., Case No. ICTR-98-42-A, Alphonse Nteziryayo's Closing Brief, 17 February 2009 (confidential) Nteziryayo Closing Brief Nteziryayo Notice of Appeal Nteziryayo Pre-Defence Brief 13 May 2013 The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29-T, Alphonse Nteziryayo's Pre-Defence Brief for Presentation of Defence Case, 31 December 2004 (the English translation of the French original was filed on 4 February 2005) Nteziryayo Reply Brief Maronai nato meal 20 September 2013 1305 Case No. ICTR-98-42-A 14 December 2015

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19059/H Nyiramasuhuko and Ntahobali Second Amended Indictment The Prai, Case No Wine Minal, shed a In me, Sialacl 27 November 1997, filed & December 1997 Nyiramasuhuko and The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali Third Amended Ntahobali, Case No. ICTR-97-21-I, Amended Indictment As Per the Indictment Decision of Trial Chamber II of August 10th 1999, 11 August 1999 Nyiramasuhuko Appeal Brief The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Pauline Nyiramasuhuko's Appellant's Brief, 8 April 2013 (the English translation of the French original was filed on 30 April 2014) (confidential; public redacted version originally filed in French on 3 April 2014) Nyiramasuhuko Closing Brief The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Closing Brief of Pauline Nyiramasuhuko with Annex, 17 February 2009 (the English translation of the French original was filed on 1 April 2009) (confidential) The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Nyiramasuhuko Notice of Alibi Ntahobali, Case No. ICTR-97-21-T, Avis au Procureur de l'intention de la Défense de Pauline Nyiramasuhuko d'invoquer une défense d'alibi, 4 March 2005 (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98- 42-A, Pauline Nyiramasuhuko's Re-Amended Notice of Appeal Filed Nyiramasuhuko Notice

of Pursuant to Article 24 of the ICTR Statute, Rule 108 of the Rules of Appeal Procedure and Evidence, Article 1 of the Practice Direction on Formal Requirements for Appeals from Judgement, 21 February 2013 (the English translation of the French original was filed on 25 April 2013) Nyiramasuhuko Pre-Defence Brief Nyiramasuhuko Reply Brief The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Pauline Nyiramasuhuko's Revised Pre-Defence Brief, 5 January 2005 (the English translation of the French original was filed on 25 January 2005) (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Pauline Nyiramasuhuko's Brief in Reply, 7 October 2013 (the English translation of the French original was filed on 24 June 2014) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. Nyiramasuhuko Supplementary Submissions English translation of the French original was filed on 1 July 2015) Prosecution Appeal Brief The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Prosecutor's Appellant's Brief, 15 November 2011 1306 Case No. ICTR-98-42-A 14 December 2015

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19058/H Prosecution Closing Brief ICe 8A2, Pauline in whi, 5 Percy 200) (confidential) Prosecution Notice of Appeal Prosecution Pre-Trial Brief Prosecution Reply Brief Prosecution Response Brief he Prosecutor v. ICTR-98-42-T, Pauline Nyiramasuhuko et al, Case N Prosecutor's Pursuant Rule 73bis(B), 11 April 2001 The FrozA Po Paine Bel, 2013, Case No. Case No TeR 4240 Pro Paulin Consolidal o esponde a N0. ICTR-98-42-A, 21 August 2013 (confidential) he Prosecutor Pro Pauline Nonashuko end, Case rel ICTR-98-42-A, Prosecution 4 October 2013 (public redacted version) Prosecution Submissions on Additional Evidence Prosecution Supplementary Submissions Supporting Material to Kanyabashi Indictment Nahimana [alias Habimana] and Request for Admission of Rebuttal Evidence, 26 May 2015 (confidential) The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Prosecutor's Supplemental Submissions Pursuant to 25 March 2015 Order for the Preparation of the Appeals Hearing, The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Prosecutor's Request for Leave to Amend Indictment, Attachment B "Supporting Material", 18 August 1998 (confidential) Supporting Material to Nyiramasuhuko and Ntahobali Third Amended The Prosecutor v. Pauline MR 92Juhuko and Arsène Shalon. No. ICTR-97-21-I, 18 August 1999 (confidential) Indictment Witness Summaries Grid Summaries Grid (6 April 2001) Appendix" 1307 Case No. ICTR-98-42-A 14 December 2015