Untitled Document

D. Ground Four: Total Absence of the Rule of Law: Erreurs fatales au jugement de culpabilité. [184]

102. Broadly speaking, Akayesu submits that the Chamber erred in law in allowing the Prosecutor to amend the indictment to include three counts relating to sexual crimes. Therefore Akayesu prays the Appeals Chamber “to quash all convictions relating to sexual violence, with prejudice to the Prosecutor”.[186]

103. Akayesu submits that at the hearing of 17 June 1997 the Trial Chamber erred in law, by belatedly granting leave to amend the original indictment. Indeed, during the said hearing, the Prosecutor moved orally the Trial Chamber for leave to amend the said indictment. Now, only on the eve of the hearing in the evening did the Prosecutor serve Counsel for Akayesu with copies of a few witness statements and the amended indictment. Despite objections from Akayesu’s Counsel and his request for written submissions to argue the merits of the case, the Trial Chamber granted leave to amend the indictment without holding an inter partes hearing.[187]

104. Akayesu submits in the main that such late amendment caused him a substantial prejudice arising from several cumulative factors:

105. In the alternative, Akayesu submits that an additional factor aggravated the prejudice already suffered: that is the 19-month time lapse between the date of his detention and the date of amendment of the indictment.[194] Akayesu contends that the Prosecutor, “had she been diligent, could have brought the charges of sexual violence much earlier”.[195]

106. Akayesu maintains that the consequences of such prejudice are irreparable and that the late amendment of the indictment resulted in a violation of his right to full answer and defence.[196] It is Akayesu’s submission that both the case law of the Tribunal and that of the United Kingdom, the United States of America and Canada[197] show that the only test for granting leave to amend an indictment is the absence of prejudice to the accused.[198] Arguing tha there is “serious prejudice”,[199] Akayesu prays the Appeals Chamber to set aside the conviction regarding sexual violence as a remedy.[200]

107. The Prosecution submits, firstly, that Akayesu failed to show prejudice caused to him and it is therefore not required to respond.[201] In any event, it submits that even by basing his argument on the case law of the Tribunal (which incidentally is only partially relied on) Akayesu failed to show that the amendment of the indictment was inadmissible.[202] Moreover, the Appellant failed to show that the postponement of his trial, under the circumstances, from 29 September to 23 October 1997 constituted undue delay.[203]

108. The Prosecution further submits that under Rule 50 of the Rules it may amend the indictment where evidence is obtained after the issuance of an indictment. In the instant case, it actually had, from an early stage of its investigations, certain information about sexual violence at the Bureau communal. However, this evidence was not sufficient to proffer any charges against Akayesu. The Prosecution moved for leave to amend the indictment as soon as it had evidence which showed Akayesu’s responsibility for rape and other acts of sexual violence in Taba (in particular, the evidence of Witnesses J and H at trial satisfied it that sexual crimes had, indeed, been committed).[204] The Prosecution further submits that a large number of national jurisdictions allow amendments of indictments at trial.[205] Furthermore, the amendments to the indictment were neither substantial nor totally new.[206]

109. Lastly, the Prosecution acknowledges that Akayesu’s Counsel did not cross-examine Witnesses J and H as reflected in the Judgment. However, the Trial Chamber, is assessing the evidence, questioned the witnesses about the acts attributed to Akayesu and found the charges of sexual violence in Taba proved beyond a reasonable doubt, based on numerous other testimonies.[207]

110. Following the filing by the Prosecution on 16 June 1997 of its written motion for the Trial Chamber to hold a hearing as soon as possible on the issue of amendment of the original indictment,[208] the Trial Chamber sat on 17 June 1997 in order mainly to hear the parties on the said motion. During the said hearing, the Prosecution put forth its arguments and Counsel responded thereto. However, Counsel did not submit on the merits of the issue. Counsel argued that he lacked adequate sufficient time to peruse the documents submitted in support of the motion and requested leave to file written submissions.

111. Following a short adjournment of the hearing, the Trial Chamber granted leave to the Prosecution to amend the original indictment provided the amended indictment was served on the Defence and the latter afforded a period of four months to prepare its defence.

112. The Appeals Chamber recalls that every accused is entitled to a fair hearing. Nevertheless, in the instant case, the Trial Chamber did not totally deny the Defence’s right to be heard. The question here is whether the Trial Chamber acted reasonably in refusing to adjourn the hearing, which would have occasionned a delay of several weeks.

113. Akayesu argues that his right to be heard prior to the amendment of the original indictment has been violated because the time afforded him was inadequate. The Appeals Chamber holds that it must not consider this argument further. It observes that the accused had pleaded not guilty to the new charges and had actually pleaded his case with respect thereto without raising any further objection. In light of the foregoing, even if the rights of the accused had been violated, there is cause to find that the Defence had renounced all right to invoke such violations before the Appeals Chamber.

114. For the foregoing reasons, the Appeals Chamber finds that the grounds raised are not such as to warrant its intervention, although it concedes that had it been in the Trial Chamber’s shoes it would have probably acted otherwise.

(ii) The merits of the leave granted by the Trial Chamber to amend the original indictment and the possible prejudice suffered by Akayesu

115. In its decision dated 17 June 1997, the Trial Chamber held that it was “convinced” that the Prosecutor’s motion “is well-founded”.[209]

117. The Appeals Chamber recalls that the said Rule must be applied pursuant to Article 9(2) of the ICCPR and Articles 19 and 20 of the Statute of the Tribunal. It recalls in this connection the decision rendered by ICTY Appeals Chamber in Kovacevic.[210]

118. To determine whether the Trial Chamber erred in granting leave to amend the indictment, the Appeals Chamber must take into account several factors so as to enable it to assess any prejudice Akayesu might have suffered.

119. The Trial Chamber granted the Prosecutor leave to include three new counts of sexual violence.[211] The original indictment against Akayesu includes 12 counts. Said indictment underwent several amendments which, the Appeals Chamber finds, are not such as would make the amended indictment a “completely new” one. Indeed, the three new counts related to the sites (Taba commune, in particular, the Bureau communal) and the material time (from April to end of June 1994), referred to in the initial indictment. Therefore, the purpose of the amendments to the indictment was to reflect more accurately Akayesu’s actual responsibility in the crimes allegedly committed in Taba commune in particular at the Bureau communal. Therefore, the Trial Chamber did not err in law in finding that the scope of the amendments to the initial indictment was not objectionable.[212]

120. The Appeals Chamber recalls that the Prosecutor may amend an indictment during trial subject to leave from the Trial Chamber. As the Appeals Chamber found in its Barayagwiza decision, such amendment may be sought based on the results of her investigations.[213] In the instant case, the reasons put forth at the hearing of 17 June 1999 by the Prosecution justified the belated filing of the amendment request. The Prosecution reminded the Trial Chamber of the stages in its investigations and highlighted the particularly difficult security conditions prevailing in Rwanda at the time.[214] Furthermore, the Prosecution filed sufficient material in support of its request.[215] Consequently, the Trial Chamber properly granted leave to amend the indictment albeit belatedly.

121. As regards the fact that it was impossible for Akayesu’s Counsel to cross-examine Witnesses J and H on sexual crimes (these witnesses appeared before the Trial Chamber prior to the amendment of the indictment[216]) the Appeals Chamber wishes to make the following observations: The Appeals Chamber holds the view that Akayesu’s Counsel could not have guessed that there had been acts of sexual violence Akayesu was charged with subsequently after the Trial Chamber had granted the amendment of the indictment. Indeed, the prior statements of the relevant witnesses did not mention acts of rape perpetrated at or in the vicinity of the Bureau communal.[217] When Witnesses J and H testified to acts of rape on or near the premises of the Bureau communal in Taba[218] the judges of the Chamber questioned them about those crimes, but Counsel for Akayesu did not cross-examine them on those specific acts. However, it must be noted that Counsel for Akayesu did not choose to request the Trial Chamber subsequently to recall the witnesses. Consequently, the Appeals Chamber finds that the Trial Chamber did not err in law by taking into account in its factual findings the fact that Akayesu’s Counsel “did not question the testimony of Witness J and Witness H on rape at all”,[219] nor other evidence.

122. In its Decision of 17 June 1997, the Trial Chamber, pursuant to Rule 50 of the Rules, granted Akayesu’s Counsel a 4 month extension to prepare his defence adequately.[220] The Appeals Chamber holds that such time-limit was reasonable and adequate. It further holds that Akayesu did submit on the merits by pleading not guilty to the new charges, without subsequently challenging the amendment of the initial indictment.[221] Furthermore, the extension was not excessive and was in consonance with Articles 19 and 20 of the Statute.”[222]

123. Consequently, the Appeals Chamber rejects all the grounds of appeal relating to the amendment of the original indictment.

125. Akayesu essentially submits that the Trial Chamber erred in adopting what he describes as a “policy” of accepting as more truthful, direct evidence of witnesses before the Trial Chamber than that contained in their prior statements (“Precedence of testimonies”).[224] He also submits that the Trial Chamber erred in refusing to order the production of evidence proving the existence, contents and truthfulness (or otherwise) of prior statements made by witnesses, where the latter deny having made them. Lastly, Akayesu submits that the disclosure of evidence left much to be desired.[225]

126. In the Prosecution’s submission the latter arguments concern the taking of evidence and fall outside the scope of this ground of appeal. They should therefore be disregarded.[226] The Appeals Chamber disagrees. It is not the case that each and every argument in support of a ground of appeal should be set out in the notice of appeal, which often is very brief. Clearly, it all depends on the facts of the case in case at bar, the Appeals Chamber finds that the issues are sufficiently linked for the Appeals Chamber to consider them as being raised in support of the main ground mentioned above.[227]

127. As to the remedy sought, Akayesu submits that the error committed has caused him irreparable prejudice and violated his right to a fair trial.[228] As a result, he prays the Appeals Chamber to order “cassation du verdict”, “quash the verdict”.[229] During the hearing on appeal, Akayesu submitted further that this issue was “central to the entire trial”.[230] He stated that “the consequence of this is the invalidation of the entire trial unless the Prosecutor can prove that there’s absolutely no consequence, because it permeates the entire trial”.[231]

128. Akayesu submits that while he does not allege that the Trial Chamber failed to look into contradictions between testimonies and prior statements, its “examination of the prior declarations was conditioned by a principle and by legal principles which are illogical”.[233] In his submission, the Trial Chamber failed to evaluate the evidence before it on a case-by-case basis.[234] He asserts that though on one or two occasions, prior statements justified the rejection of testimony, this does not mean that the judges were not applying a policy.[235] Akayesu submits that the Trial Chamber failed to consider the strengths and weaknesses of both the live testimony and prior statements before reaching a decision as to which is reliable.[236] He argues that, on the contrary, the Trial Chamber adopted one overall policy, which essentially favoured live testimony.[237] He submits that a Trial Chamber cannot reject prior declarations, “as a principle.”[238] One of the primary ways of impeaching the credibility of a witness is by establishing that he or she made a contrary statement on another occasion. Akayesu submits that the Trial Chamber’s overall policy of favouring live testimony prevented him from doing so.[239]

129. The Prosecution submits that on the contrary the Trial Chamber’s findings illustrate that it did in fact assess discrepancies and inconsistencies on a case by case basis and not pursuant to a policy to reject the witnesses prior statements without assessing their credibility.[240]

130. The Trial Chamber devoted considerable attention to the issue of prior statements and to the fact that there exists numerous inconsistencies between them and evidence given by witnesses in court.[241] The Appeals Chamber observes that in fact, as a result of the frequent allegations of in consistencies made by Akayesu during the trial, the Trial Chamber requested the Prosecutor “in view of the exceptional nature of the offences, to submit to the Tribunal all written witness statements already made available by her to the Defence Counsel in this case”.[242] The Trial Chamber clarified this decision following a Prosecution motion,[243] by stating that, this was sought specifically “so as to enable the Tribunal to better follow the arguments put forward by the parties and to monitor any possible contradictions”.[244]

131. In the Judgment, the Trial Chamber initially set out what it referred to as “general evidentiary matters of concern”.[245] By way of introduction, it indicated having “attached probative value to each testimony and each exhibit individually according to its credibility and relevance to the allegations at issue”.[246] Having noted that both parties often relied on pre-trial statements in cross-examination, it found:

132. Akayesu alleges that the last sentence of the paragraph above, reflects a “policy” which gave precedence to testimonies over prior statements.[248] The Appeals Chamber disagrees and can find no error in such a general finding by the Trial Chamber for the following reasons. It is well established that a Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial. In this regard, ICTY Appeals Chamber has reaffirmed on several occasions that it is guided by the following overriding principle:

133. In the case at bar, the Trial Chamber observed that it was faced frequently with allegations of inconsistency between prior statements and live testimony. It found generally that “[i]n the circumstances, the probative value attached to the [prior] statements is, in the Chamber’s view, considerably less than direct sworn testimony before the Chamber”.[250] The Appeals Chamber finds that such a general finding is, in the circumstances of a particular case, properly open to a Trial Chamber, but it is not, as suggested, reflective of a “policy”.

134. Rule 90(A) of the Rules provides that “[w]itnesses shall, in principle, be heard by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71”.[251] Although there are well-accepted exceptions to this rule, which will be discussed below,[252] the general principle is that Trial Chambers of the Tribunal shall hear live, direct testimony. In the opinion of the Appeals Chamber prior statements of witnesses who appear in court are as a rule relevant only insofar as they are necessary to a Trial Chamber in its assessment of the credibility of a witness.[253] It is not the case, as appears to be suggested by Akayesu, that they should or could generally in and of themselves constitute evidence that the content thereof is truthful. For this reason, live testimony is primarily accepted as being the most persuasive evidence before a court.

135. However, as pointed out by ICTY Appeals Chamber, disclosure of witness statements “is a matter that touches upon the duty of a Trial Chamber to ascertain facts, deal with credibility of witnesses and determine the innocence or guilt of the accused person.[254] The Appeals Chamber finds that it is mainly in this context that any prior statement is considered by a Trial Chamber. Therefore, it falls to the Trial Chamber to assess and weigh the evidence before it, in the circumstances of each individual case, to determine whether or not the evidence of the witness as a whole is relevant and credible.

136. In the instant case, the Appeals Chamber finds that the credibility of witnesses was the primary concern of the Trial Chamber in considering the evidence. This is reflected both in its general observations and in its examination of the evidence before it reached its factual findings on each count of the Indictment.[255] The Trial Chamber stated that “[i]n its assessment of the evidence, as a general principle, the Chamber has attached probative value to each testimony and each exhibit individually according to its credibility and relevance to the allegations at issue.”[256] Thereafter, and as pointed out by the Prosecution, the Trial Chamber considered the testimony of each witness (both Prosecution and Defence)[257] on which it relied to convict or acquit Akayesu of the respective charges. In particular, it elaborated on and reasoned its findings respecting alleged inconsistencies between prior statements and live testimony which emerged during cross-examination.[258] In some cases, The Trial Chamber accepted the prior statement as more credible,[259] while in others it preferred the live testimony, accepting a witness’s explanation for the inconsistency.[260] Contrary to Akayesu’s submission it is not the view of the Appeals Chamber that such a review was carried out in a biased fashion such that inconsistencies in Prosecution evidence were always deemed immaterial, while those of Defence witnesses were adjudged material.[261] On the contrary, the Trial Chamber considered the inconsistencies in the light of its evaluation of the overall credibility of each particular witness.[262] For example, the Appeals Chamber notes the finding by the Trial Chamber that Akayesu had “successfully challenged” the credibility of a Prosecution witness, such that the Trial Chamber could not convict on paragraph 17 of the Indictment.[263] The Trial Chamber found that “[w]hile the Chamber has been cautious in allowing the contents of pre-trial written statements to impeach the testimony of witnesses before it, in this case the inconsistencies between the testimony and the written statement of Victim X are many and too significant to justify a finding of credibility without corroboration of other testimony.”[264]

137. Akayesu relies on the fact the Trial Chamber found that there were “many instances” where inconsistencies arose.[265] He is selective in his citation of the Trial Judgment as in fact it is clear that it was Akayesu who alleged that there were such inconsistencies “[i]n many instances”.

138. Akayesu lists in his Brief several instances where he alleged such discrepancies occurred.[266] However, he failed to show how the Trial Chamber erred in its assessment of the testimonies in question or how he suffered prejudice as a result. During the Hearing on Appeal, he stated that he had a notebook full of other examples, referring in particular to Witnesses D and S.[267] Elsewhere in the present Judgment, the Appeals Chamber reviews in detail the evidence of these two witnesses. However, Akayesu failed to show, under this ground of appeal, how the Trial Chamber committed other errors in assessing such evidence.[268]

139. Akayesu gives two examples (Witness DFX and Akayesu), to show how the Trial Chamber had, in his view, treated Defence witnesses unfairly.[269] However, here again, he failed to put forward any argument in support of this allegation.

140. That the Trial Chamber did not accept as truthful Akayesu’s testimony on some occasions, because of, inter alia, inconsistencies between his prior statement and his live testimony, does not suffice to show, as alleged by Akayesu unfairness by the Trial Chamber. It is prima facie within the Trial Chamber’s discretion that is its right and duty to make a decision on the credibility of the witnesses before it.

141. With regard to Witness DFX, the Trial Chamber made no specific finding as to inconsistencies between her prior statement and her live testimony nor as to the credibility of the witness. It simply noted that with regard to the allegations of sexual violence, “on examination by the Chamber, the witness acknowledged that in her written statement submitted by the Defence she had mentioned reports that the Interahamwe were abducting beautiful Tutsi girls, and taking them home as mistresses. She conceded that such conduct could be considered sexual violence as it was not consensual.”[270] Akayesu failed to show specifically why such findings (or others) are indicative of an unfair approach by the Trial Chamber.

142. The Appeals Chamber finds that there is no evidence that the Trial Chamber’s assessment of the evidence was done on the basis of a pre-conceived notion that where there exist contradictions, all prior statements should be disregarded. The Appeals Chamber agrees with the finding in Kayishema and Ruzindana that, “inconsistencies may raise doubts in relation to the particular piece of evidence in question or, where such inconsistencies are found to be material, to the witnesses’ evidence as a whole.”[271] However, as stated above, in such circumstances, “[t]he Appeals Chamber … has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.”[272] Akayesu has failed to show how the Trial Chamber erred in its assessment of the evidence, and hence, has failed to prove a specific prejudice suffered. It is the opinion of the Appeals Chamber that contrary to Akayesu’s assertion, the Trial Chamber duly assessed the credibility of the witnesses in light of the numerous items before it, including the inconsistencies found between live testimony and prior statements.[273]

143. Akayesu also disputes the reasons put forward by the Trial Chamber for following such a “policy”, including its findings as to the impact of the lapse of time, the nature of the relevant testimony and difficulties in translation and interpretation. In Akayesu’s submission it is not logical for the Trial Chamber to find that it is more difficult for a witness to recall events many years after the occurrence of such events and thereafter to accept such testimony as more reliable than a statement made at the time closer to the events. Akayesu submits that logic must surely go to support reliance on a statement or testimony given closer to the events over evidence given many years later.[274] He argues that the nature of the testimony being heard was such that many of the witnesses were sophisticated and understood both English and French. From this, he infers that such witnesses must have known what they were doing at the time they made their statements.[275]

144. Finally, Akayesu takes issue with the Trial Chamber’s finding that evidence given in court under direct sworn testimony is more credible having been given under oath while statements previously given to investigators were not.[276] He submits that it follows from such reasoning that the Trial Chamber acknowledges that witnesses may have lied to investigators, which surely must call their credibility into question.[277]

146. Akayesu has failed to show how such a reasoning was applied in any single case and how he might have been affected by such findings. At any rate, the Appeals Chamber finds that the Trial Chamber did not err in any way in its general reasoning regarding the overall evaluation and assessment of the credibility of witness testimony and the factors to be taken into account. The Trial Chamber found, as stated above, that it had to consider inconsistencies and contradictions between prior statements and testimony at trial, with caution, in the light of the time lapse, difficulties for witnesses in recollecting precise details, difficulties in translation, the fact that certain witnesses were illiterate and the fact statements were not made under solemn declaration.[278] These are prima facie reasonable conclusions for the Trial Chamber to draw. In addition, it found that:

147. The Appeals Chamber can find no error in this reasoning. As stated above, the Appeals Chamber finds that it is within a Trial Chamber’s discretion, after seeing a witness, hearing their testimony (and that of other witnesses) and observing them under cross-examination, to accept or reject such testimony. It makes this decision on a case-by-case basis while bearing in mind its overall evaluation of such evidence. The factors set out above, which were generally taken into account by this Trial Chamber in assessing testimonial evidence are, in the opinion of the Appeals Chamber, both valid and reasonable. Indeed, such factors are often considered by the Trial Chambers of both ICTY and ICTR and which have recently been confirmed by the Appeals Chamber for ICTY as being acceptable.[280]

148. Akayesu submits that the Trial Chamber erred in refusing to order disclosure of copies of the questions asked to witnesses, tape recordings and notes of investigators, which materials would have enabled him to verify, inter alia, the reliability of the translations.[282] By refusing to order such disclosure, he submits that “the Tribunal deprived him of both his right and duty to investigate the evidence.”[283]

149. Akayesu submits that several witnesses denied having said certain things to investigators.[284] He argues that whenever they did so, it was the duty of the Prosecution, the Tribunal and even the Defence, to require that the relevant investigator or the person who took the statement, be caused to appear to give evidence as to the existence and content of the prior statement, by producing their notes, the questions asked and possibly to secure from the relevant interpreter confirmation that the statement was in fact correct.[285] In Akayesu’s submission the Trial Chamber should have ordered that such evidence be supplied.[286] He contends that:

150. The Appeals Chamber holds the view that issues raised here “…”[288] Consequently, the Appeals Chamber will consider them on the merits. However, it points out that it regards them as ancillary to the main allegation which, as stated above, has been rejected.

151. Akayesu contends that the Trial Chamber erred in its decision of 31 October 1996 in refusing to order the disclosure of tape recordings of statements, questions asked by investigators and notes of investigators.[289] However, Akayesu has been very selective in his interpretation of the events of that day, and here it is worth recalling both the circumstances of the hearing and the specific findings made by the Trial Chamber.

152. Akayesu’s trial was scheduled to commence on 31 October 1996.[290] Mr. Karnavas, Counsel for Akayesu at the time, moved for an adjournment on the grounds, inter alia, that the Prosecution had failed to fully comply with the Rules in terms of disclosure to the Defence.[291] The Trial Chamber granted the adjournment and ordered the Prosecution to comply with its disclosure duty under Rule 66 of the Rules. The Appeals Chamber finds no error in this decision nor in the reasons given by the Trial Chamber.

153. Contrary to Akayesu’s assertions, the Appeals Chamber does not interpret the Trial Chamber’s decision of 31 October 1996 as flatly denying the request by Akayesu’s Counsel for disclosure of the material in question. Mr. Karnavas claimed generally that disclosure by the Prosecution was incomplete. No specifics were given, save for a general request for disclosure of tape recordings of interviews conducted with witnesses and copies of the questions asked, to which he asserted he was entitled as of right.[292] It must be recalled that trial had not yet commenced and that the request covered all such material and not specifically those relating to a particular witness and which had clearly become necessary.

154. The Trial Chamber found initially that Akayesu was entitled to disclosure of all Prosecution evidence as provided for under the Rules.[293] The Trial Chamber held that:

155. The Trial Chamber found that: on the face of it the Rules do not provide for disclosure of tape recordings of interviews conducted with witnesses; that witness statements were interpreted by sworn interpreters; and that the rights of the accused would be protected through the cross-examination of witnesses in court. The Appeals Chamber can find no material error in such findings.

156. Akayesu insisted during the same hearing on the Trial Chamber ordering disclosure of the questions asked to the witnesses. The Trial Chamber responded as follows:

157. The Trial Chamber reached its decision by weighing the arguments put forward by Akayesu against the Prosecution. Although the Trial Chamber rejected the request at the time, the Appeals Chamber does not find that in so doing the Trial Chamber had closed the door to any further applications. The Trial Chamber found that: “Whether or not it is documents, whether it is something presented by the witness or something presented by the defence it’s up to the court to decide.” If it subsequently became clear that a particular statement was incomplete resulting in prejudice to the defence a further application by Akayesu would conceivably have been granted. Obviously, this would have depended on circumstances of the case.

158. Later during the same hearing Akayesu requested again disclosure of the tape recordings of Prosecution witness interviews. The Trial Chamber stated that it did not intend to limit the rights of the defence. On the contrary, it ordered that:

159. Although it appears unclear whether the Prosecution had possession of tape recordings of Prosecution witness interviews the Trial Chamber found that even if it did, the Rules did not place any obligation on it to disclose them. [297] Most importantly, the Trial Chamber concluded by specifically ordering the Prosecution to disclose all evidence, material to the preparation of the defence. It advised Akayesu that it was fully within his right to contact the Prosecution before the start of the trial should items come up missing, or on the contrary, to file any relevant motions before the Trial Chamber.[298]

160. The Appeals Chamber can find no errors in that. Notwithstanding Akayesu’s allegations, it is of the opinion that this decision was broad enough to encompass any subsequent application for the disclosure of missing evidence which Akayesu could show to be material to his defence in any particular case. It is not the case that any general request for disclosure of evidence is to be automatically granted by the Trial Chamber. The Prosecution’s obligations are clearly defined under the Rules, and Akayesu has failed to show that the Trial Chamber erred in this case, in finding that the Prosecution was at the time under no obligation to disclose the items sought. Should the need have arisen eventually and if in an identified case, Akayesu had succeeded in showing that he had problems with comprehension, then that would have been a different case. Thus, Akayesu had ample opportunity (no restriction was placed upon him in that regard) to make a specific application to the Trial Chamber for clarification. It is assumed that the Trial Chamber would have then considered the matter on its merits and reached a different decision. However, it would not have been under no obligation to automatically grant Akayesu’s application. Akayesu has failed to show that he availed himself of this right.[299]

161. Akayesu alleges that there were contradictions between the Trial Chamber’s 31 October 1996 decision and the findings in the Trial Judgment. In Akayesu’s submission the Trial Chamber was inconsistent in asserting that prior statements had been translated by sworn interpreters (thereby suggesting that they were reliable) while in the Trial Judgment it found that such statements were not reliable because of problems with translations.[300] Akayesu alleges that the Trial Chamber was inconsistent in refusing on 31 October 1996 to order disclosure of the questions asked of the witnesses or recordings of the interviews (stating that it would be responsible for ascertaining the veracity of the witnesses), while it stated in the Trial Judgment that it “did not have access to transcripts of the interviews, but only translations thereof” and that therefore, it was “unable to consider the nature and form of the questions put to the witnesses, or the accuracy of the interpretation at the time.”[301]

162. Here again Akayesu is somewhat selective in his reading of the Trial Chamber’s findings on 31 October 1996. The Trial Chamber did state that the witness statements had been translated by interpreters under oath. However, as seen above, that statement was made by the Trial Chamber in the context of a discussion on the request made by Akayesu at the time. The Trial Chamber explained its reasons and one such reason was the fact that the interpreters who had translated the statements were under oath. It inferred therefrom that the witness statements should be prima facie deemed acceptable. The Appeals Chamber finds no error in such a statement.

163. With regard to the transcripts of witness interviews and copies of questions put to the witnesses, the Appeals Chamber finds that the Trial Chamber did not err in refusing to order disclosure of such items to Akayesu on 31 October 1996. Nevertheless, should it have required such items in its assessment of the credibility of a particular testimony, it is the case that it should have ensured it had access thereto. The Appeals Chamber recalls that the Trial Chamber considered this issue in light of several others and in the context of its overall assessment of the evidence before it. It did not find in relation to a particular testimony that such items were lacking and that as a result, it should disregard the prior statement. In any event, the Appeals Chamber finds that Akayesu has failed to point to any prejudice he suffered in a particular case as a result of problems in understanding any particular prior statement.

164. Lastly, it is Akayesu’s submission that whenever a witness denies having stated something in a previous statement, it was incumbent upon the Prosecution, the Tribunal or the Defence to apply for leave to call the relevant investigator to testify as to the existence of and truthfulness of the previous statement.[302] Here again, Akayesu has failed to point to any instance where this should have been done and where he was caused prejudice.[303] Similarly, he has failed to point to any example of any instance where he made such an application which was wrongly denied by the Trial Chamber.

166. As stated earlier, Trial Chambers are often faced with the situation where during his testimony and generally under cross-examination a witness, contradicts a statement given previously to investigators. In such a case, and as stated above, a Trial Chamber must be able to assess the credibility of the witness in question, for having witnessed their testimony both in chief and under cross-examination, and being in a position to assess it, where appropriate, against the alleged inconsistency and against the evidence of other witnesses. The question arises as to the weight to be attached to a particular inconsistency in assessing the overall credibility of the witness’s testimony. Indeed, “[I]nconsistencies may raise doubt in relation to the particular piece of evidence in question or, where such inconsistencies are found to be material, to the witnesses’ evidence as a whole.”[304] Such a decision falls within the discretion of the Trial Chamber. Neither the Prosecution nor the Trial Chamber itself are under any obligation to request that further evidence be furnished to the Trial Chamber to enable it to make its decision.

167. At the same time, the Appeals Chamber concedes that as a matter of principle an accused is not limited in any way, in the applications that he or she may bring before a Trial Chamber. Although it has not been a practice at the Tribunal to proffer “extrinsic evidence” of a prior statement, this does not imply that any application to do so would be automatically denied. On the contrary, as in all cases, a Trial Chamber would have to make a decision based on the facts before it.[305]

168. However, Akayesu’s allegation is more general. He submits that once a witness denies making a statement, the investigator who took such a statememt must be called to give evidence. He cites a case law to the effect that in his submission, before extrinsic evidence of a previous inconsistency may be called “a foundation” must be laid.[306] Without ruling on the applicability of such a test before the Tribunal, the Appeals Chamber notes that Akayesu has failed to show how such a “foundation” had been laid with regard to any of the witnesses in his case. Similarly, he has failed to show that at any given time he moved the Trial Chamber that extrinsic evidence should be called,[307] or that the Trial Chamber should have called such evidence proprio motu, at any given time but failed to do so. Akayesu has failed to show what prejudice was caused him as a result of the failure to call such evidence. It would be wrong to suggest that such evidence should be called in all cases.

169. The Appeals Chamber does not dispute Akayesu’s contention that prior statements constitute an important tool for assessing the credibility of a witness. The Trial Chamber has also acknowledged their importance in that regard. However, the Appeals Chamber finds that Akayesu has failed to show that the Trial Chamber did not properly assess the evidence before it nor that it assessed the credibility of witnesses in this case, in an unfair or biased fashion. Nor has Akayesu shown that the Trial Chamber adopted an improper policy as to the treatment of prior statements.

170. For these reasons, the grounds of appeal covered in this section must fail.

3. Sub-Ground Three: Non-application of the reasonable doubt standard and substantive factual errors.[308]

171. In support of this sub-ground of appeal, Akayesu advances several arguments, principally that:[309]

172. The Appeals Chamber notes, firstly, that some of the aforementioned grounds of appeal (which are, in fact, presented in the introduction to Chapter 10 of Akayesu’s Brief) were neither raised in Akayesu’s Brief nor in his Reply, and were not mentioned during hearings on the appeal.[310] Furthermore, the said grounds are set out in the introduction in such general terms that the Appeals Chamber cannot, in the absence of any supporting arguments or examples, pass on their respective merits in law and in fact. Therefore, the Appeals Chamber will not address them.

173. Akayesu alleges both errors of law and of fact,[311] which he argues warrant that the factual findings relating to paragraphs 12A, 12B, 14 and 18 of the Indictment be reversed.[312]

174. Before reviewing the allegations made by Akayesu, the Appeals Chamber wishes to respond to the preliminary observations made by Akayesu concerning the scope of appellate review. At issue is which standards are to be applied by the Appeals Chamber in considering possible errors of fact and/or of law committed by a Trial Chamber.

175. Akayesu cites ICTY case law on the principles governing the presumption of innocence and the burden of proof, placed on the Prosecutor.[313] Akayesu contends, in particular, that the principles applied by the Trial Chamber in The Prosecutor vs. Delalic et al. “should govern the instant appeal.”[314] He explains that he is not requesting the Appeals Chamber to review all the facts and apply the standard of reasonableness as set forth in the Judgments rendered by ICTY Appeals Chamber in Tadic and Aleksovski. Akayesu argues that his approach is totally different:

176. To begin with, the Appeals Chamber points out that Akayesu misconstrues the provisions of the Statute and the case-law of the Tribunal.[316] Indeed, he confuses the provisions relating to the Appeals Chamber (Article 24 of the Statute) with those which apply to the Trial Chamber. In citing the Delalic et al. case, Akayesu is seeking application of standards for assessing evidence which are the Trial Chamber’s,[317] but which standards are not suited to the specific function of the Appeals Chamber.

177. As stated by ICTY Appeals Chamber, an appeal is not, from the point of view of the Statute, a de novo review.[318] The Appeals Chamber may hear only appeals brought pursuant to Article 24 of the Statute. The standards applied by the Appeals Chamber to pass on both errors of fact and of law are derived from consistent ICTY Appeals Chamber case-law. The Appeals Chamber reiterates and upholds those standards in the instant Judgment.

178. With respect to errors of fact, the Appeals Chamber confirms that the standard to be applied is the standard of reasonableness of the impugned finding, it being understood that “it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.”[319] The onus is therefore on the Appellant to show that an error was committed by the Chamber, which error occasioned a miscarriage of justice. ICTY Appeals Chamber has, on several occasions, applied this standard which can be summed up as follows:

179. Where errors of law are concerned, the Appeals Chamber holds that the burden placed on the Appellant is somewhat different, although the Appellant must, similarly, prove the errors of law committed by the Trial Chamber and set forth arguments in support of his allegations:

180. Akayesu challenges on appeal the findings on the first four paragraphs of the Indictment (paras. 12A, 12B, 14 and 18) in a bid to show that generally, his trial “was unfair” and that the Trial Chamber committed substantive errors of fact.[322] The Appeals Chamber will therefore address the arguments of the parties relating to the said paragraphs of the Indictment. Thus, it will consider the merits of the remedy sought by Akayesu, namely, that the factual findings of the Trial Chamber on the aforementioned paragraphs of the Indictment should purely and simply be set aside.[323]

181. Here, Akayesu alleges several errors of fact and law. The Appeals Chamber wishes to recall the arguments of the parties regarding each of the errors alleged.

183. It is Akayesu’s submission that the French version of the Trial Judgment must be considered as the official version, since it is the one which is most favourable to the accused.[325] Now, the statement that “la Chambre ne sait quoi penser de la déclaration faite par l’accusé” [“the Chamber does not know what to make of the statement made by the accused”] in paragraph 460 of the French version would appear to show that there was doubt as to the culpability of the accused with respect to the perpetration of acts of sexual violence in Taba. Akayesu submits that, the Trial Chamber therefore erred by disregarding the version of the accused.[326]

184. The Prosecutor submits that the English version of the Judgment is the original and that there is no such wording in the English text. In any event, the Prosecutor asserts that Akayesu has failed to identify the type of error that was committed by the Chamber and how it could have caused an invalidation of the Judgment.[327]

185. The Appeals Chamber confirms that the English version of the Trial Judgment is the original version. There can be no doubt on this point.[328] The Appeals Chamber dismisses Akayesu’s argument that the version which corresponds to the language spoken and understood by the accused should be accepted.[329] Only the original version of the Judgment is authoritative.

186. To determine whether the Trial Chamber erred in law, the Appeals Chamber must therefore refer to paragraph 460 in the English version of the Judgment which reads as follows:

187. Indeed, it appears that there is a difference between the English version and the French version of the Judgment as to the meaning of the impugned statement. In the English version, the Trial Chamber states that it does not accept the statement made by the Accused. At no time does the Trial Chamber suggest that it entertains any doubt as to his culpability nor that it does not know “what to make of it”. The Appeals Chamber further observes that paragraph 460 serves, in fact, as a kind of epilogue to the Trial Chamber’s factual findings on sexual crimes, where the testimony of the Accused is assessed against the various “first-hand personal accounts by women who witnessed the acts of sexual violence”.[330] Twice in the paragraph in question,[331] the Trial Chamber states that it does not accept Akayesu’s testimony. Thus, a simple reading of the impugned paragraph shows that Akayesu’s allegations of doubts entertained by the Chamber are without merit.

188. Consequently, the Appeals Chamber holds that the Trial Chamber did not err on this point.

189. Akayesu submits that the Trial Chamber erred in stating that he had denied that acts of sexual violence had been committed. On this point, he refers to paragraph 460 (cited above) and paragraph 32 of the Judgment.[332] He alleges that indeed the testimony of the Accused stands in contrast to the Chamber’s finding thereon. The Accused allegedly did not flatly deny the occurrence of sexual violence.[333]

190. The Prosecution refutes Akayesu’s arguments. It cites extracts from the examination and cross-examination of Akayesu on 12 and 13 March 1998 which, in its submission, prove that the Chamber did not err on this point.[334]

191. During his examination-in-chief, to the question “What do you know of cases of rape in Taba during the events?” Akayesu answered:

192. There is nothing confusing about the tone used by Akayesu in answering this question.[336] True, under cross-examination, he testified to knowing about cases of rape that had been committed throughout the country, particularly in Kigali.[337] However, concerning Taba commune, in which the Trial Chamber was mainly interested, in light of the relevant paragraph of the Indictment, Akayesu insisted several times that he knew nothing of acts of sexual violence committed in his commune:

193. Akayesu’s statements words are therefore clear. He, indeed, denied knowledge of acts of sexual violence being perpetrated. Therefore, the Appeals Chamber finds that the Trial Chamber did not commit any error.

194. Akayesu’s allegations with respect to this ground of appeal relate to comments and questions by two Trial Chamber Judges (Judge Pillay and Judge Kama) during the proceedings.

195. Akayesu submits that “the Trial Chamber showed prejudice against him.”[341] He cites as an example a question on the occurrence of sexual violence put by Judge Pillay to a witness, at the start of trial, whereas no witness had testified to sexual violence being committed at Taba and whereas such crimes were not included in the Indictment.[342] Akayesu argues that, the question shows that Judge Pillay was not impartial with regard to the specific issue of sexual violence committed at Taba.

196. The Prosecutor refers to the general rule laid down by ICTYAppeals Chamber in the Furundzija Appeal Judgment concerning the impartiality of a judge and submits that, according to the said case-law, Akayesu must show bias and the part of the judge. In the instant case, Akayesu has failed to provide such proof .[343] Furthermore, the English version of Judge Pillay’s statement shows that she was not referring to any particular incident.[344]

197. The Appeals Chamber will start by recalling the question challenged by Akayesu. On 17 January 1997, Witness Zacharia testified before the Trial Chamber. At the end of his cross-examination, Judge Pillay put the following question to the said Witness: “Did you come across any incidence of rape?”( Est-ce que vous avez vu des incidents de viols?”) to which the Witness replied: “Non, à ma connaissance non”. Judge Pillay then asked: “Any reports of incidence of rape that you may have heard? » (Est-ce qu’on vous a parlé, tout au moins, de ces viols, de ces agressions sexuelles?). It is this last question that Akayesu challenges, because, in his submission, the use of the demonstrative article “ces” by Judge Pillay shows that she is biased, and at least, that she is referring to incidents she had prior knowledge of.

198. The Appeals Chamber observes that in the English version of the transcript of the hearing, Judge Pillay’s question is worded as follows: “Any report of incidence of rape that you have heard?” No demonstrative article was therefore used by the Judge. This question was asked in a neutral tone, just like all the other questions that Judge Pillay asked.[345] In this case, Judge Pillay was not referring to a specific charge, but talking generally.

199. The Appeals Chamber points out that in case of a dispute over an extract from a court transcript, the version which reflects the language spoken by the person who asked the question or who made the impugned comment, in this case, the English language, spoken by Judge Pillay should prevail.

200. Since the question as posed in English is in no way confusing, and in the absence of any basis therefor, the Appeals Chamber dismisses the allegations made by Akayesu.

201. Akayesu takes issue with the statements made by Judge Kama during the cross-examination of Witness JJ. The Presiding Judge of the Trial Chamber did indeed interrupt Akayesu’s Counsel in order to ask him: “Is that important? … She was raped so frequently that she can no longer remember how often it was; 4, 5, 6, 7 times…”. In Akayesu’s submission, “the Judge had decided that he believed the witness and wanted to protect her from questions that might have embarrassed her.”[346]

202. The Prosecution submits that Akayesu’s allegations are inadmissible. During cross-examination, Akayesu’s Counsel asked the Witness several times if she had been raped and also asked her detailed questions about acts of sexual violence she had been subjected to. The Prosecution submits further that pursuant to Rule 90(F) of the Rules of Procedure and Evidence, the Trial Chamber has a duty to exercise control over the mode of cross-examination. The Chamber was therefore only exercising its role when it interrupted Akayesu’s Counsel.[347]

203. The Appeals Chamber recalls that impartiality is one of the obligations that the Judges undertook to abide by upon assuming their duties.[348] The tests governing the duty of impartiality, which derives from the Statute,[349] were defined by ICTY Appeals Chamber, thusly:

“[..] a Judge should not only be subjectively free from bias, but also … there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

204. In the case at bench, the Appeals Chamber is of the opinion that Akayesu has failed to show that Judge Kama was biased. The Appeals Chamber cannot be satisfied with the few arguments put forward by Akayesu, especially as they are expressed in particularly vague terms.[351] At no time does Akayesu explain why Judge Kama would have wanted to protect the Witness under examination and why he believed her in advance. Therefore, the Appeals Chamber cannot address such serious allegations in the absence of any supporting argument.

205. Furthermore, the Appeals Chamber does not see what kind of error Judge Kama may have committed or how his comments could have been unlawful. The Appeals Chamber reiterates that Judge Kama’s impugned comments must be placed in their proper context. In this particular case, Judge Kama was the Presiding Judge. During the cross-examination of Witness JJ, the Defence asked the witness how many times she had been raped. Seeing that the Witness had not answered the question specifically, the Presiding Judge intervened to put the question again to the Witness.[352] Finally, upon some further questioning, and on the basis of the Witness’ statements, the Presiding Judge concluded that she had been raped at least seven times, leaving aside the other cases of rape she could not remember.[353] Subsequently, the Defence took the floor once again and resumed the cross-examination. Several questions were then asked as to the use of condoms when the rapes were being committed, and the question relating to the frequency of the rapes was therefore implicitly asked. The Presiding Judge interrupted once more to ask the Defence to “make some progress”[354] The Defence stated in reply to the Presiding Judge that “[…] there are a number of contradictions.”[355] It was at this point that the Presiding Judge made the comment contested by Akayesu “[Is that important?] … She was raped so many times that she no longer remembers the exact number of times [4, 5, 6, 7 times].”

206. The Appeals Chamber recalls that the practice of the Tribunal requires the Trial Chamber, generally, to exercise control over the examination and cross-examination of witnesses. Such general practice was sanctioned by Rule 90 (F) of the Rules of Procedure and Evidence adopted on 8 June 1998.[356] In the instant case, the Appeals Chamber notes that Judge Kama did not ignore the initial question put by the Defence. On the contrary, he himself asked the Witness to be more specific about what she had said. The Appeals Chamber therefore holds that the Presiding Judge of the Chamber, upon noting that the witness was finding it difficult to remember the exact number of times she had been raped and being of the opinion that the Defence was asking for superfluous details, properly interrupted the Defence Counsel and thus exercised his duty in a reasonable manner. It is the Chamber’s view that Judge Kama’s comment meant that the Witness’s testimony indicated that she had been raped so many times that she could not remember exactly how many times she had been raped.

207. For the foregoing reasons, the Appeals Chamber holds that the Trial Chamber did not err on this point.

208. Akayesu refers to paragraphs 146, 152, 153 and 154 of the Judgment. In paragraph 146, the Trial Chamber presents certain words used by the witnesses, as well as expressions used in Kinyarwanda for rape. The Trial Chamber explains that it relied on the testimony of Mathias Ruzindana. Akayesu submits that this witness did not mention any words relating to rape during his testimony.[357] Regarding paragraphs 152, 153 and 154 of the Judgment, Akayesu contends that expert opinion was not sought on the terms used by the Trial Chamber. The evidence relied on by the Chamber (in this case, after consulting the Tribunal’s interpreters) is not reflected in the transcripts and, therefore, Akayesu cannot respond thereto, in spite of it being significant as pointed out by the Trial Chamber itself.[358]

209. The Prosecution recalls that some 20 Prosecution and Defence witnesses testified before the Trial Chamber about sexual violence. At no time did Defence Counsel point out to the Trial Chamber that the words used by the witnesses did not mean rape. Moreover, there is no doubt that Witnesses J, H, JJ, OO, KK, NN and PP were actually testifying about rape and not consensual sexual intercourse.[359]

211. It is the view of the Appeals Chamber that Akayesu misinterpreted the above-mentioned paragraph. True, one could understand from a simple reading of the paragraph that the Trial Chamber relied solely on the testimony of Mathias Ruzindana to interpret all the words listed in the first sentence, including “rape”. Nevertheless, a comprehensive reading of the entire portion of the Judgment devoted to the interpretation of Kinyarwanda terms into English and French shows otherwise. Actually, the Trial Chamber relied on the testimony of the expert witness only to interpret the words Inkotanyi, inyenzi, icytso/ibyitso and Interahamwe, as reflected in paragraphs 147 to 151 of the Judgment. At no time, did the Trial Chamber rely on the testimony of Mathias Ruzindana to ascertain the meaning of the terms used in Kinyarwanda for “rape”. Indeed, the paragraphs in the Judgment dealing with the meaning of those terms contain no reference to the testimony of the expert witness.[360]

212. Furthermore, on this last point, the Appeals Chamber does not see how consulting the official interpreters of the Tribunal, as well as using the dictionary of the National Institute for Scientific Research constitutes a substantive error. The Trial Chamber showed itself to be well-informed and vigilant about the problem of translation and particularly on “the obvious risks of misunderstandings in the English version of the words spoken in the source language, Kinyarwanda.”[361] Akayesu submits that he could not challenge the meanings given to the words by the Chamber insofar as they do not appear in the transcripts of the proceedings. The Appeals Chamber holds that such allegations are without merit. As pointed out by the Prosecution, several Prosecution and Defence witnesses testified about sexual violence and at no time during the proceedings before the Trial Chamber did Akayesu raise the issue of a misuse of any term in Kinyarwanda or suggest that the witnesses were not referring to rape.

213. Consequently, in the absence of any valid argument, the Appeals Chamber holds that the Trial Chamber did not err in law.

214. Therefore, the Appeals Chamber dismisses all the arguments put forth by Akayesu with regard to the factual findings of the Trial Chamber on paragraphs 12 (A) and 12 (B) of the Indictment.

(ii) Paragraph 14 of the Indictment: the Meeting at Gishyeshye and the call for the killing of Tutsis in Taba.[362]

215. Akayesu alleges that the Trial Chamber committed two main errors, with respect to paragraphs 349, 361 and 362 of the Judgment. He submits generally, that “In order to find beyond a reasonable doubt[…] that there was a call to genocide, there had to be conclusive, consistent and corroborative evidence and the Chamber erred in law by conjuring up hypotheses in order to arrive at the finding that there had been a call to commit genocide or to kill the Tutsis.”[363] Akayesu submits further that, “this is the most cogent error which weakens the Judgment.”[364]

217. Akayesu contends that the Trial Chamber erred by only requiring proof merely of a possible causal link between the gathering and the start of the massacres. Therefore, he alleges that the Trial Chamber substituted this standard of proof for the standard of proof beyond a reasonable doubt in assessing the events alleged in paragraph 14 of the Indictment.[365]

218. The Prosecutor submits that Akayesu has cited the Trial Chamber’s statements out of context. The paragraph cited by Akayesu should be read in the context of paragraph 362 of the Judgment to understand the Trial Chamber’s reasoning on the existence of a causal link between Akayesu’s statements and the subsequent events.[366] The Prosecutor further submits that the crime of direct and public incitement to commit genocide can be punished even where such incitement was unsuccessful, as stated by the Trial Chamber in paragraphs 561 and 562.[367]

219. The Appeals Chamber recalls that the Trial Chamber must act pursuant to Rule 87 (A) of the Rules, which provides that the Prosecutor must prove the allegations brought against the accused beyond a reasonable doubt.

220. In the opinion of the Appeals Chamber the use of the word “possible” or “éventuel” in the paragraph at issue is unfortunate insofar as it can a priori be misleading. Indeed, it could, suggest that the Trial Chamber applied a less strict standard of proof than the standard of proof “beyond a reasonable doubt”, by requiring the Prosecutor to prove a possible causal link rather than a causal link beyond a reasonable doubt. The Appeals Chamber finds that such interpretation, in the instant case, is overly simplistic and unfounded.

221. In fact, as submitted by the Prosecutor, Akayesu failed to cite the impugned paragraph in its proper context. The paragraph must be read in light of the following paragraphs, particularly, paragraph 362 which reads:

222. Furthermore, it is clear form a reading of the factual findings, that the Trial Chamber assessed the evidence before it (Witnesses C, W, A, N, as well as the testimonies of the accused himself, Witness V and Joseph Matata) against the “beyond a reasonable doubt” standard. Paragraphs 359, 360 and 361 of the Judgment are clear on this point. In paragraph 359, the Trial Chamber states that “it is satisfied beyond a reasonable doubt, that the accused was present in Gishyeshye, during the early hours of 19 April 1994, and that he joined a crowd of more than 100 people gathered around the body of a young member of the Interahamwe, and that he took that opportunity to address the people […]”. The Chamber further states that “it is satisfied beyond a reasonable doubt that on that occasion, the accused, by virtue of his functions as Bourgmestre and the authority he held over the population, did lead the crowd and the ensuing proceedings.” In paragraph 360, the Chamber “holds […] that in the absence of conclusive evidence, the Prosecution has failed to establish beyond reasonable doubt that the accused publicly sanctioned the death of Sylvère Karera at the Gishyeshye gathering.” In paragraph 361, the Chamber explains that “after considering the weight of all supporting and corroborative evidence, the Chamber is satisfied beyond a reasonable doubt that the accused clearly called on the population to unite and eliminate the sole enemy: the accomplices of the Inkotanyi”. The Chamber goes on to state that “On the basis of consistent evidence heard throughout the trial and the information provided by Ruzindana, appearing as an expert witness on linguistic issues, the Chamber is satisfied beyond a reasonable doubt that the accused was himself fully aware of the impact of his statement on the crowd and of the fact that his call to wage war against Inkotanyi accomplices could be construed as one to kill the Tutsi in general” (Emphasis added).

223. Nothing in the Trial Chamber’s Judgment gives cause for doubting that the Trial Chamber complied with Rule 87 (A) of the Rules, and a simple reading of the paragraphs following paragraph 146 shows that the Chamber duly applied the reasonable doubt standard. Moreover, Akayesu did not provide the Appeals Chamber with other examples tending to show that the Trial Chamber did indeed violate the aforementioned Rule 87(A).

224. Accordingly, the Appeals Chamber finds that the Trial Chamber did not commit any error.

227. Akayesu identifies in the paragraphs cited above, three errors allegedly committed with respect to the testimony of Mathias Ruzindana, other evidence referred to as “corroborative” and the so-called “confirmation” by Akayesu.

228. As regards the testimony of Mathias Ruzindana, the Appeals Chamber notes, at the outset, that on 22 August 2000, it dismissed Akayesu’s request for leave to amend his Notice of Appeal with regard to the issue of the independence of the Tribunal, particularly in order to challenge the evidence of Pierre Prosper as an expert in sociolinguistics and that of Mathias Ruzindana as an expert witness.[368] Therefore, the Appeals Chamber will not address Akayesu’s allegations with respect to Witness Mathias Ruzindana’s testimony. Indeed, the allegations presented by Akayesu with respect to his request for leave to amend his Notice of Appeal are similar to those set out in his Brief.

229. As regards the testimonies of other witnesses, Akayesu submits that the said testimonies (Witnesses C, N, A, Z, V, E) are inconsistent on the date of the meeting, the people Akayesu targeted in his speech and the identity of the enemy.[369] On this point, he neither requests the Appeals Chamber “to reassess the evidence nor to apply the test of unreasonableness. Taking into account the Tribunal’s findings, it is necessary for the Chamber to note the total absence of proof, of a specific intent on the part of the accused to kill the Tutsi”[370] in the section of the Judgment relating to paragraph 14 of the Indictment.

230. The Prosecutor recalls that the standard to be applied in the instant case is the standard of “unreasonableness” as held by ICTY Appeals Chamber in Tadic.[371] There was a consensus among Prosecution witnesses as to the content of Akayesu’s statement during the said gathering. Furthermore, Akayesu has failed to show that the reasonable doubt standard has not been applied and that under the circumstances, any reasonable person confronted with the same evidence would have come to a different conclusion.[372]

231. Regarding the testimony of the accused, Akayesu claims that he neither acknowledged nor confirmed that there existed a link between his statements and the killings which took place in Taba, contrary to the finding of the Trial Chamber in paragraph 362 of the Judgment.[373] The Prosecutor submits, on the contrary, that Akayesu did not actually deny that there were killings in Taba and that those killings started after the 19 April 1994 gathering. In the Prosecutor’s submission, the only denial made by Akayesu during his testimony related to the content of his speech at this gathering.[374]

232. Firstly, as regards alleged inconsistencies between the evidence given by Witnesses C, N, A, Z, V and E regarding the persons Akayesu targeted in his speech and the identity of the targeted enemy, the Appeals Chamber recalls that appellate proceedings are not intended as a trial de novo. In this case, the Appeals Chamber is guided by the following standard: “The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber. […] It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber”.[375]

233. In the instant case, Akayesu has failed to show that plainly the Trial Chamber should not have found the above-mentioned testimonies to be inconsistent. Akayesu cites as an example the evidence of Witnesses C, N, A, Z, V, and E and provides with respect of each witness only a very brief background to the testimony and selected portions thereof. Akayesu merely submits that “the record shows that the Appellant urged the people to unite against the invaders or RPF or against the Inkotanyi, which appears to be a totally legitimate statement under the circumstances.”[376] Akayesu does not explain why the Trial Chamber’s findings are erroneous or without basis. In any case, the Appeals Chamber observes that the paragraphs of the Judgment dealing with the challenged witnesses, leave no doubt as to the consistency of the testimonies heard by the Trial Chamber, at least as regards the real meaning of Akayesu’s statements during the meeting and interpretation thereof. The Trial Chamber explained in detail the content of each relevant testimony, and its finding in paragraph 361 appears quite logical and justified.[377]

234. Consequently, in the absence of any convincing explanation, the Appeals Chamber dismisses Akayesu’s allegations.

235. Secondly, as regards the evidence given by the Accused, the Appeals Chamber emphasizes that it is the duty of the Trial Chamber to hear, assess and weigh the evidence presented at trial. In the instant case, the Trial Chamber found beyond a reasonable doubt that Akayesu’s testimony included evidence which, in combination with the evidence of other witnesses, enabled it to find that there was “a causal link between the statement of the Accused at the 19 April 1994 gathering and the ensuing widespread killings in Taba.” The Appeals Chamber is of the opinion that such a finding is not unreasonable. A reading of the Prosecution’s cross-examination of Akayesu shows that, indeed, he did not deny that there might have been a link between anti-RPF utterances and the massacre of Tutsis:

Q. My question was – please listen carefully – would you agree that by saying someone was an accomplice of the RPF it equals death, they would be killed?

236. The Appeals Chamber stresses that the above-mentioned excerpt is taken from the portion of Akayesu’s cross-examination relating specifically to the meeting of 19 April 1994. The Chamber observes that in his Brief, Akayesu quotes another part of his testimony which deals with Akayesu’s public reading of the Prime Minister’s letter calling on the population to mobilize to fight the enemy. To the question by the Presiding Judge of the Trial Chamber as to whether the content of said letter “could [it] not be understood by some persons, maybe some ill-intentioned persons, as meaning a green light to fight the enemies of the Inkotanyis”, Akayesu, indeed answered in the negative .[379] Still, concerning specifically the meeting of 19 April 1994 mentioned in paragraph 14 of the Indictment, Akayesu did not openly deny that there was a causal link.

237. Therefore, the Trial Chamber properly mentionned, in its factual findings on paragraph 14 of the Indictment, the Accused’s testimony as part of the evidence that enabled it to find “that there was a causal link between the statement of the Accused at the 19 April 1994 gathering and the ensuing widespread killings in Taba.” Therefore, the Appeals Chamber dismisses Akayesu’s allegations.

238. Accordingly, the Appeals Chamber finds that the Trial Chamber did not err and therefore dismisses all the arguments put forth by Akayesu with respect to paragraph 14 of the Indictment.

(iii) Paragraph 18 of the Indictment: the killing of Ephrem Karangwa’s brothers and the destruction of his house[380]

239. Akayesu alleges that the Trial Chamber erred in assessing witness evidence relating the killing of Ephrem Karangwa’s brothers and the destruction of his house. He contends that the charges contained in paragraph 18 of the Indictment are not substantiated by witness testimony before the Tribunal, notably that of Witness Ephrem Karangwa. Akayesu prays the Appeals Chamber to acquit him of Count 5, as “the decision was reached through an improper procedure and is unreasonable in view of the fact that the key-witness was not credible”.[381]

240. Firstly, as regards the circumstances surrounding the death of Ephrem Karangwa’s brothers and Akayesu’s involvement in their murder, Akayesu submits that the Trial Chamber miscontrued Ephrem Karangwa’s testimony and misapprehended the events alleged, having improperly accepted the said witness’s account. In Akayesu’s submission, Ephrem Karangwa’s prior statements are inconsistent with his testimony before the Trial Chamber.[382] However, while acknowledging in paragraphs 260 and 261 of the Judgment that there are discrepancies in the Witness’ testimony, the Trial Chamber considered the witness credible, stating that his evidence was corroborated by the testimony of Witness S. Now, Witness S’s account of the circumstances surrounding the killing of Karangwa’s brothers, was so different that Akayesu asserts that the two accounts are incompatible.[383] Moreover, Akayesu alleges that on 17 February 1998, the Trial Chamber denied a request by the Defence for a forensic analysis of the cause of their death, which might have proved conclusive.[384] Secondly, it is Akayesu’s, submission that the witness’s testimony regarding the burning down of his house is implausible in view of the location of the witness at the time. At a distance of at least 500 metres,[385] the witness would not indeed have been able to see and hear what was happening in his house, and, in particular, note the presence of Akayesu.[386]

241. With respect to the inconsistencies between Witness Karangwa’s prior statements and his testimony before the Trial Chamber, the Prosecution, referring to Kayishema/Ruzindana Judgment,[387] submits that the witness explained them to and satisfied the Tribunal, which besides found that his testimony was corroborated by the testimony of another witness. Moreover, the Witness was consistent both throughout the examination-in-chief and the cross-examination.[388] Regarding Akayesu’s request for forensic evidence, the Prosecution submits that the Trial Chamber acted properly in rejecting Akayesu’s request on the basis that the location where Karangwa’s brothers were purportedly buried had been the subject of previous exhumations and reburials. Furthermore, Akayesu fails to specify the nature of the error the Trial Chamber may have committed in refusing to order said forensic analysis.[389] With respect to the burning down of Karangwa’s house, the Prosecution submits that the Trial Chamber did not act unreasonably in relying mainly upon Witness Karangwa’s testimony to make its factual findings. Moreover, Karangwa’s testimony on this point was consistent throughout the examination-in-chief and the cross-examination before the Chamber.[390]

242. Firstly, with respect to the circumstances surrounding the death of Ephrem Karangwa’s brothers, the Appeals Chamber recalls that it falls to the Trial Chamber to satisfy itself beyond a reasonable doubt as to the credibility of each witness appearing before it. The Appeals Chamber only reviews the reasonableness or otherwise the Trial Chamber’s factual findings.

243. In the case at bar, Ephrem Karangwa’s testimony before the Chamber differs indeed on various aspects from his statements to the Prosecution’s investigators. Such contradictions relate in particular to the type of weapon used to kill his brothers.[391] Under cross-examination, Witness Karangwa confirmed having testified during his examination-in-chief that his three brothers had been shot and admitted at the same time to having stated to the investigators that two of his brothers had been machetted to death.[392] The Witness then explained the discrepancy in his accounts.[393] The Appeals Chamber finds that the Trial Chamber took account of the discrepancies between the Witness’s written statements and his live testimony. It did not consider that such discrepancies affected the Witness’s credibility and accepted beyond reasonable doubt, the explanation given by the Witness:

244. Regarding Witness S, the Appeals Chamber does not accept Akayesu’s argument that the evidence of Karangwa and Witness S “are too incompatible to be plausible” and that they are “fabricated.”[396] Read together both testimonies are consistent in all material respects as to the circumstances attending the death of Witness Karangwa’s three brothers: Witness S confirms Karangwa’s testimony regarding the vehicle used,[397] the main witnesses to the crimes,[398] the presence of a group of people around the three brothers,[399] the order given by Akayesu that they be shot[400] and the weapons used.[401]

245. Furthermore, the Appeals Chamber finds, that the Trial Chamber’s decision refusing to order a forensic analysis was justified and founded.[402]

246. Secondly, regarding the destruction by fire of Witness Karangwa’s house and that of his mother, the Appeals Chamber finds that the Trial Chamber’s finding was reasonable. On the basis of Karangwa’s testimony, including one main detail which was corroborated by other witnesses (in this case, the clothes that Akayesu was wearing that day), the Trial Chamber held that “the houses of Karangwa and his mother were destroyed in his [Akayesu’s] presence by men under his control.”[403] Moreover, as pointed out by the Prosecutor, Witness Karangwa maintained, in substance, the same account of the facts from the time he made his statement to the Tribunal’s investigators[404] and throughout his examination-in-chief[405] and cross-examination.[406]

247. For all the foregoing reasons, the Appeals Chamber dismisses Akayesu’s allegations regarding paragraph 18 of the Indictment. Accordingly, it dismisses all the arguments put forward by Akayesu under his third sub-ground of appeal.

248. Akayesu submits that the Trial Chamber erred by relying on out-of-court evidence to pass on a central issue in his trial. He alleges that the said error is “an error in law (miscarriage of justice) invalidating the decision.”[408] Akayesu contends that the resulting prejudice carries a “termination of proceedings”.[409]

250. In particular, Akayesu argues that the Trial Chamber relied on evidence obtained outside his trial to find that like the other Bourgmestres and Préfets, he, Akayesu changed his attitude towards the genocide, after a meeting held on 18 April 1994.[411] Akayesu alleges that:

251. Akayesu alleges, essentially, that the judges of Trial Chamber I took active steps to obtain additional evidence regarding his case from a witness testifying in another trial being heard before the same Trial Chamber, that is, The Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-T (“the Rutaganda case”).[413] He alleges specifically that on 14 October 1997, while Expert Witness Filip Reynjtens (“the Expert Witness”) was testifying in the Rutaganda case, the presiding judge suddenly changed the course of the witness’s testimony by specifically asking questions on the alleged change in attitude of the Bourgmestres after the meeting held in Gitarama on 18 April 1994.[414] Akayesu argues that the Expert Witness testified that some Bourgmestres did change their attitude after this meeting, and stated that he knew that such change in attitude was of interest to the Trial Chamber in the context of the case of Akayesu.[415], In Akayesu’s submission the issue was of no relevance to the Rutaganda case.[416] On the contrary, it concerned only the facts of his case.[417]

252. Akayesu alleges that the questions asked by the presiding judge during the Expert Witness’s testimony were at the heart of his trial[418] and were the basis of the finding in the Trial Judgment, that Akayesu had changed his attitude after the meeting on 18 April 1994.[419] Akayesu argues that he was not present when the Trial Chamber heard what he referred to as this crucial evidence from the Expert Witness.[420] Akayesu submits that the Trial Chamber made these findings on the basis of evidence heard in his absence,[421] obtained following what he referred to as an “investigation conducted by the Tribunal on pivotal facts of his case”;[422] which were not disclosed to him; and in relation to which he was not afforded the opportunity to cross-examine the witness.[423] He asserts that the Trial Chamber undervalued the importance of his right to a fair and public hearing.[424] As a subsidiary argument, Akayesu submits that the Trial Chamber permitted the Expert Witness, at the end of his testimony, to make an “unfavourable and unsympathetic” comment about his case (sic).[425]

253. Akayesu submits that in obtaining evidence in this manner, that is in his absence, the Trial Chamber denied him the right to cross-examine the Witness and violated his fundamental rights. Thus, the Trial Chamber seriously has prejudiced the fairness and integrity of the trial and “discredit[ed]” the administration of the Trial Chamber.[426]

254. The Prosecution generally disputes both Akayesu’s interpretation of the transcript in the Rutaganda case and his factual allegations. It is the Prosecution’s submission that the presiding judge’s questioning of the Expert Witness was, contrary to Akayesu’s allegations, pertinent to that case, and relevant to placing the acts of Georges Rutaganda in proper context.[427] In the Prosecution’s submission that through his questions the presiding judge was only seeking clarification on events relevant to that trial only, and did not venture beyond it into the realm of Akayesu’s trial.[428]

255. The Prosecution submits that there is nothing on the Record supporting the contention that the presiding judge in Rutaganda questioned the expert witness for the purposes of obtaining evidence in the Akayesu trial.[429] In fact, the Prosecution asserts that the presiding judge made it clear that he did not want to engage the expert witness regarding Akayesu’s trial.[430] In the Prosecution’s submission the expert witness, on his own initiative, contemplated that his evidence may be of interest in the context of the Appellant’s trial, without, however, saying more.[431] The Prosecution submits that the fact that the Trial Chamber in Rutaganda found the testimony of the expert witness generally instructive does not show that it used evidence obtained from that trial for the conviction of Akayesu.[432] Lastly, the Prosecution asserts that the Trial relied on ample evidence in finding that Akayesu changed his behaviour following the meeting of 18 April 1994.[433] It is the Prosecution submission that the Trial Chamber clearly indicated the basis on which it reached its conclusion and made no reference whatsoever to the testimony of the Expert Witness in Rutaganda.

256. Akayesu alleges that the Trial Chamber reached its findings on the basis of crucial evidence which was heard in his absence and in relation to which his right to a fair trial was violated, as he was deprived of the right to cross-examine the Witness. The Appeals Chamber recognizes that an accused generally has the right to cross-examine any Prosecution witness. Indeed, this right is guaranteed in Article 20(4)(e) of the Statute and Rule 85(B) of the Rules.[434] At issue is whether the Trial Chamber erred in the instant, in denying Akayesu the right to cross-examine a Prosecution witness. In this case, the Appeals Chamber must determine whether there is evidence to find that the expert witness was questioned by the Trial Chamber on issues pertaining to Akayesu’s case. In particular, it must determine whether the Trial Chamber took such testimony into account in convicting Akayesu on the relevant counts in the Indictment.

257. The Appeals Chamber notes that both parties rely, in large part, on discrepancies they find in the translation of statements made by the Presiding Judge, as recorded in the relevant pages of the English transcripts in the case of Rutaganda.[435] The Appeals Chamber confirms that English and French are the two working languages of the Tribunal.[436] Transcripts are prepared simultaneously in both languages during live testimony of witnesses. However, since, in the instant case, certain discrepancies go to the heart of the issue raised in this ground of appeal, the Appeals Chamber will rely on the transcript reflecting the language in which the presiding judge spoke, that is French.[437]

258. The trial of Georges Rutaganda took place between 18 March 1997 and 17 June 1999[438] and therefore overlapped with the trial of Akayesu which commenced on 9 January 1997 and concluded on 16 March 1998. The expert witness testified in chief on 14 October 1997 in the Rutaganda case. Akayesu contends that the presiding judge suddenly changed the course of the expert witness’s testimony to leave issues relevant to the Rutaganda case and “to make an assessment of evidence tendered during the trial of Jean-Paul Akayesu.”[439]

259. Firstly, Akayesu has submitted no evidence (nor sought leave to do so) showing that the expert witness digressed so substantially from his earlier testimony. Secondly, it is clear from the transcript that the presiding judge did not, as suggested by Akayesu, suddenly change the course of the proceedings.[440] On the contrary, the Expert Witness had already finished answering a question put to him by Judge Aspegren. The presiding judge stated that he was going to adjourn, but before doing so he wished to put a question to the Expert Witness.[441] Akayesu provides no evidence to show that the Presiding Judge “changed the course of the proceedings.”

260. As to the allegation that the Presiding Judge indeed sought evidence relevant only to the Akayesu trial, the Appeals Chamber can find no ambiguity in the statement made at the start of his question. Indeed, the Presiding Judge stated: “Je demanderai au Professeur, je lui poserai une question qui est revenue d’une manière récurrente durant le procès.”[442] This is translated in the English text as being “I would like to ask him a question which has been recurring throughout this trial.”[443] The Appeals Chamber finds that this statement is not ambiguous and must, necessarily, refer to the ongoing trial (to wit the Rutaganda trial) and to an issue which the Presiding Judge considered to have been “recurring throughout this trial.” In fact, the Presiding Judge went on to say:

261. Here, the Presiding Judge appears to be linking his questions with testimony given earlier. Akayesu submits no evidence to show that the said issue had not been recurring during the trial before the Trial Chamber, both in general and during the testimony of the Expert Witness. The Appeals Chamber notes that Akayesu places upon the Prosecution the burden of showing where in the transcripts of the Rutaganda trial, the said issue arises in a recurrent manner.[445] Akayesu contends that since the Prosecution has failed to do so, the necessary implication is that the Presiding Judge was referring to another trial, namely Akayesu’s trial.[446] The Appeals Chamber does not share Akayesu’s opinion and finds that he has failed to show that, as submitted by him, that there was “no connection with the examination-in-chief” of the Expert Witness.[447]

262. Akayesu submits that, clearly, the Presiding Judge was referring to his case because the questions he asked did not relate to the Rutaganda case but only to his case. It is not for the Appeals Chamber to determine whether the issues discussed by the Expert Witness in the Rutaganda case were relevant to the said case, if only because said case is not currently before it. The Appeals Chamber simply observes that it is neither unusual nor improper that ICTY and ICTR Trial Chambers generally refer to the historical context of or background to the events that took place in Yugoslavia and Rwanda (respectively), in order to fully appreciate the circumstance of the accused appearing before them.[448] In this regard, the Appeals Chamber agrees with the Prosecution’s submission that the Presiding Judge had every right to ask any questions he felt were relevant in order to place the acts of the Accused Georges Rutaganda in proper context in the April 1994 genocide in Rwanda. Similarly, the Appeals Chamber holds that the fact that the Trial Chamber found in the Rutaganda case that the testimony of the Expert Witness allowed it “to have an overview of the general situation in the country”, and that “the Tribunal found it very informative”,[449] does not mean that the information obtained was relied on to convict Akayesu.[450]

263. Akayesu alleges that it is clear that the enquiry by the Trial Chamber was specifically directed at discovering facts that were of relevance only to his trial. In his submission, this is exemplified by the fact that the Expert Witness referred to Akayesu’s case, in the course of his testimony. While discussing in general terms, the events which occurred around 18 April 1994, the Expert Witness readily stated: “That is all I can say. That is all I can tell you as for the interest of the Akayesu trial, but I don’t have any further information.”[451] The Presiding Judge intervened immediately to say that he only wanted information “of a general nature.”[452] The Presiding Judge made it very clear that he did not want any information regarding the Akayesu case and, in any event, the Expert Witness stated that he did not have any further information.[453] Clearly, the remarks made by the Expert Witness regarding Akayesu’s trial were pure unsolicited speculation. They do not support the argument that the Trial Chamber or its Presiding Judge were seeking information regarding Akayesu’s trial or that evidence had been obtained in that context.

264. Accordingly, the Appeals Chamber can find no evidence to conclude that the Trial Chamber sought or obtained evidence from the Rutaganda case, which pertained only to the Akayesu case. The evidence in question was elicited by a question put by the Presiding Judge, with regard to testimony of a general nature which the Trial Chamber did not link to the Akayesu trial and which can be said to have been elicited with the sole purpose of obtaining general information.

265. Furthermore, Akayesu submits, that the evidence elicited from the Expert Witness in the Rutaganda case was crucial to the Trial Chamber finding that, Akayesu’s attitude changed after the meeting held on 18 April 1994 and convicting him on several counts, whenever it was established that he had committed acts after that date.[454] Akayesu provides no evidence in support of this allegation and fails to point to any passage in the Trial Judgment, from which one can reasonably (or at all) infer that the Trial Chamber relied on the evidence given by the Expert Witness in the Rutaganda case to find that Akayesu’s attitude changed after 18 April 1994. On the contrary, and as submitted by the Prosecution, “the Trial Chamber clearly indicates the basis on which it reached its conclusion and makes no reference whatsoever to the testimony of 14 October 1997 in the Rutaganda case.”[455]

266. The Trial Chamber found with respect to the allegations under paragraph 12 of the Indictment,[456] that it was “necessary to distinguish between the period before 18 April 1994 when the key meeting between members of the Interim Government and the bourgmestres took place in Murambi, in Gitarama, and the period after 18 April 1994. Moreover, on the Prosecution’s own case, a marked change in the accused’s personality and behaviour took place after 18 April 1994.”[457] Although the Trial Chamber found that there was substantial evidence to conclude that Akayesu prevented acts of violence before 18 April 1994, in the commune of Taba,[458] it concluded that:

267. The Trial Chamber also relied on the testimonies of Witnesses A, DAX, DBB, R, DAAX, DCC, DCX and JJ to point out inconsistencies and defence testimony.[460] As a result, the Trial Chamber found:

268. The Appeals Chamber finds that there is no evidence that the Trial Chamber relied on the testimony of the Expert Witness in making this finding. The Expert Witness did not testify in the Akayesu case, and consequently, there was no violation of Article 20(4)(e) of the Statute or Rule 85(B) of the Rules which guarantee the Accused the right to cross-examine Prosecution witnesses. Nor was the general principle[462] that an accused has a right to be present at his or her own trial violated. The Appeals Chamber points out that there was a partial overlap between Akayesu’s trial and Rutaganda’s trial. Akayesu has failed to demonstrate any error.

269. Lastly, the Appeals Chamber will briefly recall[463] that, as held by ICTY Appeals Chamber, it must be presumed that, “in the absence of evidence to the contrary, Judges of the Tribunal ‘can disabuse their minds of any irrelevant personal beliefs or predispositions.’”[464] That is to say, judges of the Tribunal must be presumed to be impartial.[465] In the context of the allegations made in the instant case, it should be recalled in particular, that they “are professional judges, who are called upon to try a number of cases arising out of the same events [or arising out of the same contextual background], and that they may be relied upon to apply their mind to the evidence in the particular case before them.”[466] The judges of this Tribunal and those of ICTY often try more than one case at the same time, which cases, given their very nature, concern issues which necessarily overlap. It is assumed, in the absence of evidence to the contrary, that by virtue of their training and experience, judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case. Akayesu has submitted no evidence to show that his trial judges imported into his case evidence adduced in another case, and that they relied on such evidence to make their findings.

270. Finally, Akayesu submits that the Expert Witness was allowed, “without the least reprimand” to make unfavourable and unsympathetic comments about his case.[467] No substantive argument is advanced in support of this allegation, and it appears that Akayesu has been somewhat selective in his citations from the transcripts. The Appeals Chamber wishes to put such adverse comment in perspective. At the conclusion of the examination-in-chief, the Presiding Judge stated that the Defence intended to cross-examine the Expert Witness at a date to be determined later.[468] A discussion ensued as to the date on which the Expert Witness would return. The Expert Witness discussed in general his up coming journeys and in so doing, stated:

271. The Appeals Chamber finds that the Expert Witness simply made a remark in the course of a discussion as to his future testimony. This remark was unsollicited and it is, therefore, misleading for Akayesu to suggest that the Trial Chamber allowed the Expert Witness to make this remark “without the least reprimand.”[470] There is no evidence to suggest that this remark was taken into account or even considered by the Trial Chamber in a manner, which would in any way have prejudiced his case as suggested by Akayesu.

272. The Appeals Chamber finds that Akayesu has failed to show that the Trial Chamber erred. This ground of appeal must fail.

273. Akayesu refers to such issues as “irregularities of lesser importance”. The Appeals Chamber has stated above how it intends to treat issues identified as falling under this title. Indeed, it is only after having considered the main grounds of appeal that the Appeals Chamber would rule on these issues.[472]

[184] This ground of appeal was so worded by Akayesu in his second Notice of Appeal and confirmed at the start of the hearing on appeal.

[185] See Annex B concerning the grounds of appeal relating to this issue.

[186] Akayesu’s Brief, Chap. 5, para. 19; Akayesu’s Brief, Chap. 15, para. 3.

[187] Akayesu’s Brief, Chap. 5, paras. 4 to 6.

[188] Akayesu’s Brief, Chap. 5, para. 16; T(A), 1 November 2000, p. 87 (French).

[191] Akayesu quotes para. 453 of the Trial Judgment which states that: “In making its factual findings, the Chamber has carefully considered the cross-examination by the Defence of Prosecution witnesses and the evidence presented by the Defence. With regard to cross-examination, the Chamber notes that the Defence did not question the testimony of Witness J or H on rape at all, although the Chamber itself questioned both witnesses on this testimony;” Akayesu’s Brief, Chapter 5, para. 16.

[192] Akayesu’s Brief, Chapter 5, para. 16.

[193] Akayesu’s Reply, para. 81. During the hearing on appeal, Akayesu argued that: “There was a complete change of the offences over a period of three months with regard to sexual violence”. T(A), 1 November 2000, p. 87.

[195] Akayesu’s Brief, Chapter 5, para. 5; Akayesu’s Reply, para. 80.

[196] Akayesu’s Brief, Chapter 5, para. 19.

[197] Akayesu’s Brief, Chapter 5, paras. 10 to 14.

[198] Akayesu’s Brief, Chapter 5, paras. 10 to 14; T(A), 1 November 2000, p. 86 (Fr.).

[200] Akayesu’s Brief, Chapter 5, para. 19.

[203] Prosecutor’s Response, Chapter 6, para.6.8. The Prosecutor refers to the oral decision rendered by the Trial Chamber on 17 June 1997 in which the said Chamber “decided to postpone the resumption date of the trial to 22 October 1997”, T(A), 17 June 1997. See also the written Decision: “Leave to amend the Indictment”, 17 June 1997, p. 3. Actually, the trial resumed only on 23 October 1997.

[205] Prosecution’s Response, paras. 6.14 to 6.22.

[206] T(A) 1November 2000, pp. 197 to 200 (Fr).

[207] Prosecution’s Response, paras. 6.24 to 6.26.

[208] Prosecution’s request to seize the Trial Chamber of an urgent oral motion seeking amendment of the indictment in the instant case, 16 June 1997.

[209] Leave to Amend the Indictment, 17 June 1997, p.3.

[210] Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, The Prosecutor v. Milan Kovecevic, Case No. IT-97-24-AR73, ICTY Appeals Chamber, 2 July 1998.

[211] Count 13: Crimes against humanity (rape), crimes punishable under Article 3(g) of the Statute of the Tribunal; Count 14: Crimes against humanity (other inhumane acts), crimes punishable under Article 3(i) of the Statute; Count 15: Violations of Article 3 common to the Geneva Conventions and Article 4(2) (e) of Additional Protocol II as reproduced under Article 4(e) [Outrages upon personal dignity, in particular humiliating and degrading treatment rape and any form of indecent assault] of the Statute.

[212] The Appeals Chamber echoes the statements of ICTY Appeals Chamber to the effect that in order to assess whether the leave granted by the Trial Chamber to amend the indictment was well-founded in law asked itself “whether the size of the proposed amendments was objectionable”. See “Decision Stating Reasons for Appeals Chamber Order of 29 May 1998,” The Prosecutor vs. Milan Kovacevic, Case No. IT-96-24-AR73, ICTY Appeals Chamber, 2 July 1998, paras. 22 to 25.

[214] The Prosecutor explained at the hearing of 17 June 1997 that the earlier investigations were not adequate to establish the responsibility of the Accused in the acts of violence. She had received statements from witnesses working with non-governmental organizations about the acts of sexual violence in Taba commune and had examined those statements in the summer of 1996. Thereafter, a team was established in October 1996 to look into the issue of sexual violence. However, the evidentiary material was still not sufficient because “the women were ashamed to admit to the sexual violence they had suffered.” After the testimony of Witness H (March 1997), the Prosecutor decided to go further and refocus the investigations. The investigations were therefore continued “but it was difficult to come to any sort of conclusion in March, April or May, the task was not easy because Rwanda was in phase IV of the Security Plan, which means that [the] investigators could not go to the field without United Nations escort […]. Conducting investigations on such an important issue as the protection of witnesses […] with an armed escort, is not practical due to the risk of attracting attention to the witnesses.” Thus, the Prosecutor resorted to other approaches in order to contact the witnesses. In this way, the investigators managed to take statements, which were forwarded to the Office of the Prosecutor one week before the hearing of 17 June 1997. T(A), 17 June 1997.

[215] Supporting material. Witness statements redacted pursuant to Order of 27 September 1996 to ensure confidentiality. This material was submitted to the Chamber on 17 June 1997. See “Leave to amend indictment”, 17 June 1997, p. 2.

[216] Witness J appeared on 27 January 1997 and Witness H on 7 March 1997 or about five and three months and a half respectively prior to the amendment of the initial indictment.

[218] Witness J testified before the Trial Chamber that her six-year old daughter was raped by three Interahamwe who had come to kill her father and Witness H testified that she herself was raped in a field and that she had seen other Tutsi women being raped close to the Bureau communal. See Judgment, para. 416.

[219] More specifically, the Trial Chamber explained: “In making its factual findings, the Chamber has carefully considered the cross-examination by the Defence of prosecution witnesses and the evidence presented by the Defence. With regard to cross-examination, the Chamber notes that the Defence did not question the testimony of Witness J or Witness H at all, although the Chamber itself questioned both witnesses on this testimony.” See para. 453 of the Judgment.

[220] After having granted leave to amend the original indictment, it “remind[ed] the Prosecutor of her obligation, under Rule 50 of the Rules, to transmit the amended indictment and the evidentiary material submitted in support of these amendments to the accused and his counsel, as soon as possible and in the two official languages of the Tribunal” and “decid[ed] to postpone the resumption date of the trial to Wednesday, 22 October 1997, at 09:30 hours”. Cf. “Leave to amend the indictment”, 17 June 1997, p. 3.

[221] For instance, the Appeals Chamber recalls the wording of Rule 73 of the Rules in force in June 1997: “Subject to Rule 72, either party may move before a Trial Chamber for appropriate ruling or relief after the initial appearance of the accused. Such motions may be written or oral, at the discretion of the Trial Chamber”.

[222] On this point, see “Decision Stating Reasons for Appeals Chamber Order of 29 May 1998”, The Prosecutor v. Milan Kovacevic, Case No. IT-97-24-AR73, Appeals Chamber, 2 July 1998, paras. 26 to 33. It must be understood that the Trial Chamber showed concern for the rights of the Accused: “Whereas the Tribunal takes due note that the rights recognized to the accused thus correspond to the principles established under Article 20(4) of the Statute which provides in sub-article (a) that he must be informed promptly and in detail in a language which he or she understands, of the nature and cause of the charge against him; and in sub-article (b) to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing.”

[223] The Appeals Chamber holds the view that this represents Akayesu’s main ground of appeal in this section. See annex B. Akayesu also requested to amend this ground of appeal to include an allegation that the Trial Chamber erred in permitting the testimony of expert-witness Mathias Ruzindana, to explore matters which fell outside the witness’s field of expertise. This included, inter alia, the fact the witness testified that Rwandans were more likely to tell the truth before the Tribunal than to investigators. Though these submissions are included in Chapter 8 of Akayesu’s Brief (parts of paras. 1 and 6 and paras. 19 to 22 regarding “oath helping”, the prohibition against calling evidence in general of the credibility of witnesses before such evidence has even been challenged, and the fact that a witness may not be called to lend weight to the credibility of another witness, para. 26 and part of para. 27), and the Appeals Chamber refused leave to amend this ground of appeal in its Decision of 22 August 2000 and therefore these arguments will not be considered. Akayesu submits that his grounds of appeal concerning the disclosure of evidence are also reproduced in this section. Akayesu’s Brief, Chapter 13, Section 4. However, in arguments advanced in support of this ground of appeal, Akayesu only cited the shorter of the said grounds, that is, Ground 33 of the first Notice of Appeal.

[225] Akayesu’s Brief, Chapter 8, paras. 4 and 5. Akayesu also alleges that statements disclosed to him were incomplete and did not include the questions put to the witnesses.

[226] Prosecution’s Response, paras. 9.3 and 9.4. As a result, the Prosecution does not put forward any arguments in response. In Akayesu’s Reply, Akayesu submits that the two issues are clearly linked and that the Trial Chamber itself relied on the lack of access to transcripts of the interviews of witnesses, in adopting its policy with regard to prior witness statements. Akayesu holds the view that evidence produced supports the main ground of appeal and that he “is simply indicating in the said paragraph 5 of his Brief the appropriate procedure to be followed when a witness denies his prior statement or when there is inconsistency between his testimony at trial and his prior statement. The approach the Appellant adopts here supports the main ground of appeal and calls into question paragraph 137 of the Judgment, in which the Chamber does not consider whether it could or should call the investigators and/or interpreters to ascertain the content and accuracy of statements”, Akayesu’s Reply, paras. 90 and 91.

[227] The Prosecution also identifies other issues which it states are raised in this ground of appeal, including the alleged violation of the right to have adequate time and means to prepare the defence, and issues as to the right to have effective free legal assistance and which it submits have nothing to do with the main question raised. Prosecution’s Response, para. 9.6. The Appeals Chamber has not identified these issues as having been raised by Akayesu in this ground of appeal and hence will not respond in relation to them.

[228] Akayesu’s Brief, Chapter 13, para. 31.

[229] Akayesu’s Brief, Chapter 15, para. 3.

[230] In the English transcripts of the hearing, Counsel for Akayesu stated that this issue was “central to the entire trial”, TA(A), 1 November 2000, p. 77. This sentence is not in the French transcripts (the interpreter’s microphone was closed, T(A), 1 November 2000, pp. 107 to 108.

[231] T(A), 1 November 2000, pp. 113 to114. See also Akayesu’s Reply, para. 95: “The prejudice suffered by the Appellant is enormous and arises from testimonies given by most of the lay witnesses”. He submits that “This constitutes a fatal error in the trial which pervades almost all the evidence, hence justifying the quashing of the verdict on all the counts”.

[232] In his Brief, Akayesu submits that three issues are raised in this ground of appeal: “disclosure of evidence, discrepancies between statements and testimonies, and the precedence given to statements”, Akayesu’s Brief, Chapter 8, para. 3. However, the Appeals Chamber holds that, based on Appellant’s arguments, it is proper to treat the first two issues together, since the third constitutes the main issue.

[233] T(A), 1 November 2000, p. 78 (French). In his Reply, Akayesu asserts that he has “never stated that the Chamber failed to consider witnesses’ prior statements. He contended that the Chamber had adopted a policy according more probative value to the testimony at trial whenever there were discrepancies” (para. 93).

[235] T(A), 1 November 2000, Chapter 8, para. 6, p. 82 (English transcripts). This argument does not appear in its entirety in the French transcripts (p. 113).

[236] Akayesu’s Brief, Chapter 8, paras. 6 and 24. In his view, it is necessary to consider the strengths and weaknesses of evidence and testimonies, as well as the reasons or explanations offered for any inconsistencies. Akayesu’s Brief, Chapter 8, para. 8.

[237] Akayesu’s Brief, Chapter 8, para. 6. Akayesu makes reference particularly to paras. 137, 140, 261 and 408 of the Judgment as illustrative of this approach. See also TA(A), 1 November 2000, pp. 113 and 114.

[239] Akayesu’s Brief, Chapter 8, para. 23. Akayesu submits that resort to prior statements accords with the presumption of innocence. This includes the right to evaluate evidence and witnesses by reference to their prior statements in order to consider both the strengths and weaknesses of testimony and prior statements, together with any reasons or explanations as to discrepancies between them. This is something which should be done on a case-by-case basis. Akayesu’s Brief, Chapter 8, paras. 8 and 23. He submits: “By adopting a rule which, for all intents and purposes, establishes a presumption of veracity of live testimony even where the witness concerned had offered differing accounts, the Tribunal disregarded the principles of presumption of innocence and of reasonable doubt operating in favour of the accused. The Tribunal should have adopted a rule in consonance with the rule laid down in the Kayishema case where a discrepancy between testimonies before the Tribunal and statements to investigators should raise a doubt as to evidence of the fact in issue, and where the discrepancy is considerable, it should raise a doubt as to the witness’s entire evidence.”

[240] Prosecution’s Response, para. 9.18. The Prosecution submits that Akayesu misconceives the Trial Chamber’s reasoning and findings and that in fact “the Trial Chamber … analyses all the inconsistencies and contradictions (alleged by both the Defence and the Prosecution throughout the proceedings) on a case by case basis. In doing so, the Trial Chamber makes it clear that it is the credibility of the witnesses that is at stake”. Prosecution’s Response, para. 9.11. The Prosecution proceeds to give examples as to when this was done. Prosecution’s Response, paras. 9.12 to 9.18. It submits that contrary to Akayesu’s allegations “The Trial Chamber treated the prior statements of both Prosecution and Defence witnesses in the same way.” Prosecution’s Response para. 9.19. In fact, the Prosecution submits in the same para. that a number of Prosecution witnesses wered declared unreliable due to contradictions between their prior statements and their testimony before the Trial Chamber”.

[241] See also Akayesu’s Brief, Chapter 8, para.30.

[242] Decision by the Tribunal on its request to the Prosecutor to submit the written witness statements, dated 28 January 1997.

[243] Prosecution’s motion to reconsider and rescind the order of 28 January 1997 for the disclosure of witness statements, filed on 4 February 1997.

[244] Decision on the Prosecutor’s motion to reconsider and rescind the order of 28 January 1997, dated 6 March 1997. The Trial Chamber found that “it is mainly because the Defence, during its cross-examinations, would frequently contend that there were contradictions between the statements made by the witnesses for the Prosecutor to the investigators of the Office of the Prosecutor and those made in court, that the Tribunal asked the Prosecutor to submit to the Tribunal copies of written witness statements already disclosed to the Defence so as to enable the Tribunal to better follow the arguments put forward by the parties and to monitor any possible contradictions”. The Trial Chamber found that this decision “specifies clearly that the order of 28 January 1997 could only be interpreted with respect to written witness statements already disclosed to the Defence” (Decision of Trial Chamber I of March 1997, p. 5). This decision was also cited within the context of Akayesu’s allegation, made in the eighth Ground of Appeal, that the Trial Chamber had ordered the disclosure of all Defence witness statements. The Appeals Chamber has already explained how it intends to proceed with this ground of appeal.

[247] Trial Judgment, para. 137 (emphasis added).

[249] Aleksovski Appeal Judgment, para. 63; Tadic Appeal Judgment, para. 64; Furundzija Appeal Judgment, para. 37: “The reason the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known; the Trial Chamber has the advantage of observing witness testimony first-hand, and is, therefore, better positioned than this Chamber to assess the reliability and credibility of the evidence”; See also Celebici appeal Judgment, para. 491.

[251] Rule 90(A) of the Rules governs witness testimony.

[252] See the sixth Ground of Appeal relating to hearsay evidence.

[253] Kayishema/Ruzindana Judgment, para. 77. See Archbold 2000, para. 8-130: “In criminal proceedings, the inconsistency goes to credit and the earlier statement cannot be treated as evidence of the truth of its contents.”

[254] Tadic, Appeals Judgment, para. 317. The Appeals Chamber notes that the analysis carried out by the Appeals Chamber in this case concerned primarily the disclosure of prior statements of defence witnesses after examination-in-Chief. However, this principle concerns equally the disclosure of Prosecution witness statements, which enables a Trial Chamber to “fulfill its mandate to ascertain the credibility of the evidence brought before it.” See, Tadic Appeals Judgment, para. 321. The Appeals Chamber also notes that Akayesu relies on the reasoning in this decision in his submissions in this ground of appeal, and in the Kayishema and Ruzindana Judgment, paras. 76 to 80. Akayesu’s Brief, Chapter 8, para. 9 and 10.

[255] The factual findings are found in Trial Judgment, paras. 157 to 460. In general, see also the third sub-ground of the fourth Ground of Appeal.

[257] This is contrary to Akayesu’s allegation that in fact the Trial Chamber treated prior statements unfairly, as between Defence witnesses and Prosecution witnesses. Akayesu’s Brief, Chapter 8, para. 30. He submits that: “the Chamber applied its rule of assessing prior statemens unfairly, often taking defence witnesses to task for having made different statements on another occasion”. Akayesu’s Brief, Chapter 8, para. 30.

[259] See Trial Judgment, para. 185, where the Trial Chamber held that concerning contradictions between Witness R’s prior statements and live testimony, Witness R’s prior statement, “rather it was a matter for the evaluation of the credibility of the witness in question”. It held that despite the said contradictions, “taken in the light most favourable to the accused, it corroborates the accused’s account”.

[260] See Trial Judgment, para. 261, where the Trial Chamber stated that it “ accepts [Prosecution Witness] Karangwa’s explanation for the inconstant prior statement and notes that his evidence that this brother died of injuries inflicted by gunshots is consistent throughout his testimony an is corroborated by the testimony of Witness S”. In the next para. 262, it found that “[W]itness S confirmed Karangwa’s evidence in all material respects”; para. 266, where it found Witness S’s explanation for the omission of a particular detail as being reasonable; paras. 454 and 455, where the Trial Chamber found that the inconsistencies raised by the defence as to the witnesses to the crimes of sexual violence, were “unfounded or immaterial”. In para. 454, it found that “[t]he Chamber considers that the inconsistencies are not of material consequence and that they are not substantial enough to impeach the credibility of the witnesses.”

[262] The Trial Chamber stated that “…the credibility of each witness must be assessed on its merits, taking into account the witness’s demeanour and the consistency and credibility or otherwise of the answers given by him or her under oath”. Trial Judgment para. 47.

[265] Akayesu’s Brief, Chapter 8, para. 30, T(A), 1 November 2000, p. 82.

[266] 266 Akayesu’s Brief, Chapter 8, paras. 5 and 30. Akayesu gives examples of inconsistencies between the testimonies of Prosecution witnesses and their prior statements, concerning Witnesses A, W,Z, V, G, E, J, R, Q, S, D (Ephrem Karangwa), U, A, JJ, OO, KK, NN and PP.

[267] T(A), 1 November 2000, p.108, pp. 224 to 227. Akayesu also makes a brief reference to the statement of Witness D (Akayesu’s Brief, Chapter 8, paras. 5 and 30) even if he puts forward no argument.

[268] As the Prosecutor explained, Akayesu “ought to have used all these examples to establish that there was any failure on behalf of the Trial Chamber in the assessment of the evidence. He has not done so”. T(A), 1 November 2000, p.148.

[269] Akayesu’s Brief, Chapter 8, para. 30.

[271] Kayishema and Ruzindana Judgment, para. 77, as relied on by Akayesu in Akayesu’s Brief, Chapter 8, para. 23. As specified in the Celebici Judgment, para. 496 (during the discussion on contradictions in statements in general): “inconsistency is a relevant factor ‘in judging weight but need not be, of [itself], a basis to find the whole of a witness’ testimony unreliable.’ ”

[272] Aleksovski Appeal Judgment, para. 63; Tadic Appeal Judgment, para. 64; Furundzija Appeal Judgment, para. 37.

[273] See, in general, Celebici Appeal Judgment, paras. 496 and 498.

[274] Akayesu’s Brief, Chapter 8, paras. 6 and 29. He submits: “Simple logic would ascribe prima facie greater accuracy to statements before the investigators as being closer in time. It is erroneous to give precedence to live testimonies for the reason given by the Tribunal”. See also Akayesu’s Reply, para. 93(d).

[275] Akayesu’s Brief, Chapter 8, para. 7. He also alleges that the Trial Chamber ought to have considered the possibility of collusion between witnesses, which is all the more likely to take place before or during court appearances, than before statements are given to investigators. The Appeals Chamber notes that these are wholly unsubstantiated allegations. Akayesu has put forward no reason as to why the Trial Chamber should have taken these factors into consideration.

[276] Akayesu’s Brief, chapter 8, para. 27.

[277] Akayesu’s Brief, Chapter 8, paras. 7, 27 and 28; Akayesu’s Reply, para. 93(a).

[279] Trial Judgment, para. 140. See also para. 455.

[281] As stated above, the Prosecutor put forward no argument on these issues.

[283] Akayesu’s Brief, Chapter 8, para. 4. He submits that these statements were “incomplete and did not include the questions asked”.

[285] Akayesu’s Brief, chapter 8, paras. 5 and 11. In the latter para., Akayesu submits that “Counsel for the Defence, for his part, must demand that the witnesses who made the statements be called to testify to their authenticity”(sic). In the instant case, he submits that the veracity of statements should have been tested since discrepancies between the testimony at trial and prior statements are material to the issue of witness’s credibility. Akayesu’s Brief, Chap 8, para. 13. See also paras. 24 and 25 and T(A), 1 November 2000, p. 112.

[286] Akayesu’s Brief, Chapter 8, para. 11. Akayesu also submits that “[t]he only solution is that described in Chapter 8, paragraph 25 of the Appellant’s [Akayesu’s] Brief, requiring that the Chamber painstakingly verify the statement in the presence of the person who recorded it and with the help of the transcript of the statement, which includes the questions asked”. Akayesu’s Reply, para. 94.

[287] Akayesu’s Brief, Chapter 8, para. 25. Akayesu refers in particular to precedent which regulates the cross-examination of witnesses as to prior inconsistent statements, the production to witnesses of their prior statements, and the production of “extrinsic evidence” as to the fact that there was a prior inconsistent statement. Akayesu’s Brief, Ch. 8, paras. 12 –18. He submits that from this review, it is clear that firstly prior statements are an important tool in the evaluation of the credibility of witnesses and secondly, that when a witness denies having made a prior statement, it is both permissible and desirable to have extrinsic evidence of the prior declaration in order to establish the truth. Such a verification is effected on a case-by-case basis. Akayesu’s Brief, Chapter 8, para. 18. See also Akayesu’s Reply, para. 94.

[292] T(A), 31 October 1996, pp. 6 – 7, 10, 12 – 16, 22 – 25, 33 – 34, 39 – 41, 46, 47, 59, 61, 64 – 65 (English).

[293] T(A), 31 October 1997, para. 45 (French).

[294] T, 31 October 1996, pp. 56 et seq.(French).

[297] T, 31 October 1996, pp. 82 to 86 (French).

[298] The Appeals Chamber notes that throughout this hearing, Akayesu persisted in asking in particular for the disclosure of the tape recordings of interviews with witnesses for the Prosecution. The Trial Chamber did not rule either way but simply repeated that there is an obligation upon the Prosecution to disclose all documents that will enable the Defence to prepare. It found that if Akayesu felt it had not properly complied, it should raise the matter before the Trial Chamber. T, 31 October 1996, pp. 82 to 86 (French).

[299] Following the hearing of 31 October 1996, the Appeals Chamber has been directed to no instance where Akayesu made a subsequent precise request to the Trial Chamber to e provided with further disclosure or clarification regarding the statement of a witness. The Trial Chamber had stated that if Akayesu found that he did not have all materials necessary, he should notify the court. Akayesu did not indicate when his Counsel made any such notification. On 29 November 1996, first appearance of Akayesu’s new Counsel, the Trial Chamber again directed the Prosecution to comply with the disclosure obligations and directed the Defence to apply to the court if it should find out that any items were lacking. Even if this new Counsel were not to be expected to lodge an application for the documents at this status conference (having received them only on the eve), the Trial Chamber stated clearly that should he request it, or encounter difficulties with the disclosed documents, it would hold another status conference before commencement of the trial on 9 January 1997. T(A) 29 November 1996, pp. 24-25 and 27. Akayesu has failed to indicate to the Appeals Chamber any motion he filed after that date.

[300] Akayesu’s Brief, Ch. 8, para. 24. See also Akayesu’s Reply, para. 93(b).

[301] Akayesu’s Brief, Ch. 8, para. 24. Citation from Trial Judgment, para. 137.

[303] Akayesu states: “For example, a witness denied having made a statement whereas he confirmed it during his testimony”. Akayesu’s Brief, Chapter 8, para. 5. In the footnote, Akayesu makes reference to Witness D and transcripts of his testimony of 6 February 1997. No reason was given as to why such evidence should have been sought concerning this witness.

[304] Kayishema and Ruzindana Judgment, para. 77, as relied on by Akayesu in Akayesu’s Brief, Ch. 8, para. 23.

[305] Akayesu acknowledges that a Trial Chamber would make such a decision on a case-by-case basis. Akayesu’s Brief, Chapter 8, para. 18. He submits: “… when a witness denies having made a certain statement, it is permissible and desirable to lead extrinsic evidence of the statement in order to establish the truth. Such a verification is on a case-by-case basis, depending on the circumstances of the statement”.

[306] Akayesu’s Brief, Chapter 8, para. 17.

[307] When discussing this duty to call the investigator to give evidence, Akayesu refers in a footnote to the testimony of Witness D (Ephrem Karangwa), who he alleges denied making a previous statement to an investigator. In so doing, he appears to suggest that an investigator should have been called to verify his testimony. Akayesu’s Brief, Ch. 8, para. 5. No application was made at the time to do so and other than the general reasoning discussed in the text, no reasons have been set out to establish why one should have been called.

[308] The Appeals Chamber reproduces here the wording used by Akayesu in his Brief. In the understanding of the Chamber Akayesu was referring to the non-application of the standard of proof beyond a reasonable doubt, resulting in substantive factual errors.

[310] The arguments in question are: The Tribunal distorted the testimonies of several witnesses, for example, by concluding that the Appellant was looking for Tutsis whereas, according to the evidence, he was looking for RPF infiltrators; the Chamber made erroneous findings in the Judgment due to a lack of knowledge of the geography of Taba commune. Moreover, it failed to take into account the numerous improbabilities in the Accused’s schedule, such as presented by the Prosecution witnesses; the Chamber based its Judgment solely on the evidence given by Prosecution witnesses, while rejecting, a priori, that given by the Defence witnesses. The Chamber contradicted itself on several points of fact.

[311] Akayesu, in fact, explains that “The Chamber erred in law with respect to the burden of proof. In order to arrive at its findings, the Chamber at times relied on facts which contradicted the evidence, thus occasioning incurable prejudice to the Accused.” Akayesu’s Brief, Chapter 10, para. 2.

[312] Akayesu’s Brief, Chapter 10, para 3. Akayesu’s Brief, Chap. 15, para. 3.

[316] Indeed, Akayesu argues that: “The Appellant’s requests in this chapter are not a contention of unreasonableness of the factual findings, as discussed by the Appeals Chamber in its Judgment of 15 July in The Prosecutor v. Dusko Tadic. or in the 24 March 2000 Judgment in The Prosecutor v. Aleksovski IT-95-14/1-A. The Courts’s factual findings referred to in this chapter are erroneous because of the substantive errors of fact and law committed within the meaning of Article 24 of the Statute”, Akayesu’s Brief, Chapter 10, para. 8.

[317] Rule 87 (A) provides: “After presentation of the closing arguments, the Presiding Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in private. A finding of guilty may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt. (Emphasis added).

[318] “Tadic Decision (Additional Evidence), para. 41. ICTY Appeals Chamber further held in its Judgment rendered in the Furundzija case: “The Appeals Chamber finds no merit in the Appellant’s submission which it understands to mean that the scope of the appellate function should be expanded to include de novo review. This Chamber does not operate as a second Trial Chamber. The role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice.” See Furundzija Judgment, para. 40.

[320] Celebici Appeal Judgment, paras. 434 and 435; see also Tadic Appeal Judgment, para. 64; Aleksovski Appeal Judgment, para. 63; Furundzija appeal Judgment, para. 37.

[322] Akayesu’s Brief, Chapter 10, para 9.

[324] Para. 12 (A) of the Indictment: “Between April 7 and the end of June 1994, hundreds of civilians (hereinafter “displaced civilians”) sought refuge at the bureau communal. The majority of these displaced civilians were Tutsi. While seeking refuge at the bureau communal, female displaced civilians were regularly taken by armed local militia and /or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings.”

Para. 12(B) of the Indictment: “Jean-Paul Akayesu knew that acts of sexual violence, beatings and murders were being committed and was at times present during their commission. Jean-Paul Akayesu facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and murders to occur on or near the bureau communal premises. By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean-Paul Akayesu encouraged these activities”.

[325] Akayesu’s Brief, Chapter 10, para. 12; Akayesu’s Reply, para. 103.

[327] Prosecution’s Response, paras. 11.13 and 11.16.

[328] In the top right-hand corner of the cover page of the Judgment is written (OR:ENG), showing that the Trial Chamber is of the opinion that only this version is authoritative.

[329] On this point, the Appeals Chamber notes the disparity between the Judgment and the Indictment. Indeed, the Trial Chamber indicated with respect to the “substantial disparity between the French and English versions of para. 14 of the Indictment”, that […] “the French version should be accepted in this particular case, because the Indictment was read to the Accused in French at his initial appearance, because the Accused and his Counsel spoke French during the hearings and, above all, because the general principles of law stipulate that, in criminal matters, the version favourable to the Accused should be selected”. Cf. Judgment, para. 319.

[330] The approach taken by the Trial Chamber is crystal clear. The Chamber takes stock of the testimonies that it heard (and on which it commented earlier in the Judgment, in paras. 416 to 448) and ends its factual findings (paras. 449 to 459) by indicating that the “findings of the Chamber are based on the evidence which has been presented in trial.”

[331] See the first and third sentences of para. 460.

[332] Para. 32 of the Judgment is worded as follows: “As for acts of sexual violence, the Defence case is somewhat different from that for killings and beatings, in that, whereas for the latter the Defence does not contest that there were killings and beatings, it does deny that there were acts of sexual violence committed, at least at the Bureau communal. During his testimony the Accused emphatically denied that any rapes had taken place at the Bureau communal, even when he was not there. The Chamber notes the Accused’s emphatic denial of facts which are not entirely within his knowledge”.

[333] Akayesu’s Brief, Chapter 10, para. 14; Akayesu’s Reply, para. 104.

[334] Prosecution’s Response, paras. 11.17 to 11.23.

[336] Akayesu repeated the adverb “never” more than five times. Cf. Transcript of the hearing of 12 March 1998, pp. 215 and 216.

[341] Akayesu’s Brief, Chapter 10, para. 15.

[342] Akayesu’s Reply, para. 105. Akayesu’s stand concerning the acceptance (or non acceptance) of this ground of appeal is not clear. In his reply, he states that he “[…] partially accepts the Prosecutor’s view but asserts that Judge Pillay had no cause whatsoever for raising such an issue at the beginning of the trial, given that sexual violence was not part of the charges brought against the Appellant, nor had it been raised by any witness before 17 January 1997.” (para. 105). The Appeals Chamber further notes that during the Appeal hearings, Akayesu’s Counsel said: “We made a comment about Judge Pillay which the Prosecutor clarified us on and we accept the correction”. Cf. Transcript of the Appeal hearing of 1 November 2000, p. 93.

[343] Prosecution’s Response, paras. 11.24 to 11.32.

[345] In this particularly case, Judge Pillay’s question was part of a more general question put to Witness Zacharia concerning crimes against humanity committed in Rwanda. She explained: [“Doctor, the Office of the Prosecutor informed us that you came here to give testimony on crimes against humanity, in accordance with Article 3. I am therefore going to read this Article with you to see whether you witnessed the said events. You spoke about all these crimes against humanity in your testimony, but there are some aspects that you did not talk about[…] We shall therefore go through the list of crimes against humanity, such as murder. Did you hear people talk about murder?”] A few minutes later, after mentioning murder and torture, Judge Pillay logically asked the witness to say something about the occurrence of rapes. Cf. Transcript of the hearing of 17 January 1997 pp. 64 to 65.

[346] Akayesu’s Brief, para. 106. During the hearing on appeal, Akayesu submitted that “ [..] Judge Kama had, at this time, decided in his head that these people were telling the truth, and so in this case I think he decided in advance, and this is before Akayesu’s testimony. So, we submit to the Court that he made up his mind in advance.” Transcript of the hearing of 1November 2000, p. 66.

[347] Prosecution’s Response, paras. 11.33 to 11.36.

[348] Rule 14 (A) of the Rules concerning the solemn declaration provides: “ Before taking up his duties each Judge shall make the following solemn declaration: I solemnly declare that I will perform my duties and exercise my powers as a judge of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other serious Violations of International Humanitarian Law committed in the Territory of Rwanda and Rwandan citizens responsible for Genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, honourably, faithfully, impartially and conscientiously.” Rule 15 (A) of the Rules further provides: “A judge may not sit at a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in any such circumstance withdraw from that case. Where the judge withdraws from the Trial Chamber, the President shall assign another Trial Chamber Judge to sit in his place. Where a Judge withdraws from the Appeals Chamber, the Presiding Judge of that Chamber shall assign another Judge to sit in his place”.

[349] Indeed, this duty is in fact laid down in the Statute. Article 12 (1) of the Statute provides that “The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices […]”.

[351] Akayesu explains: “The Judge affirmed that it was a painful experience for the Witness, that she was raped so many times that the court could move on to another matter. Evidently, he believed her. Which informed observer who is familiar with the circumstances of the instant case, including the duty of the judges to be impartial, would not believe that Judge Kama was already satisfied with the veracity of the statements made by Witness JJ, before the Defence presented its case? […] Rather, the Judge had decided that he believed the Witness and wanted to protect her from questions that might have embarrassed her. This error vitiates the assessment of Witness JJ’s testimony, which was deemed credible well before the presentation of evidence by the Defence.” Akayesu’s Reply, para. 107.

[356] Indeed, Rule 90 (F) provides that: “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence […]”.

[357] Akayesu’s Brief, Chapter 10, para. 17; Akayesu’s Reply, para. 108.

[359] Prosecution’s Response, para. 11.37 to 11.39.

[361] Indeed, the Chamber, devoted a para. to translation difficulties. In para. 145, it explains in fact that “most of the testimony of witnesses at trial was given in Kinyarwanda. The Chamber notes that the interpretation of oral testimonies of witnesses from Kinyarwanda into one of the official languages of the Tribunal has been a particularly great challenge due to the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English. These difficulties affected the pre-trial interviews carried out by investigators in the field, as well as the interpretation of examination and cross-examination during proceedings in Court. Most of the testimony of witnesses at trial was given in Kinyarwanda, first interpreted into French, and then from French into English. This process entailed obvious risks of misunderstandings in the English version of words spoken in the source language by the witness in Kinyarwanda. For this reason, in cases where the transcripts differ in English and French, the Chamber has relied on the French transcript for accuracy. In some cases, where the words spoken are central to the factual and legal findings of the Chamber, the words have been reproduced in this Judgment in the original Kinyarwanda.”

[362] Para. 14 of the Indictment reads as follows: “The morning of 19 April 1994, following the murder of M. Karera, Jean-Paul Akayesu led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvère Karera and urged the population to eliminate accomplices of RPF, which was understood by those present to mean Tutsis. Over 100 people were present at the meeting. The killing of Tutsis in Taba began shortly after the meeting.”

[363] Akayesu’s Brief, Chapter 10, para. 32.

[364] Transcript, 1 November 2000, p. 70. Akayesu specifies that para. 14 of the Indictment refers to the crime of incitement to commit genocide. According to him, “it is […] the key factual determination for the finding of genocide”, Transcript of the hearing 1 November 2000, p. 71.

[365] Akayesu’s Brief, Chapter 10, para 23.

[366] Prosecution’s Response, paras. 11.41 to 11.44.

[369] Akayesu’s Brief, Chapter 10, para. 29. He explains, in fact, that “the testimonies were not adequately consistent to warrant the conclusion that the Appellant explicitly called for the killing of the Tutsi.” Akayesu’s Reply, para. 112.

[371] The ICTY Appeals Chamber held that: “[..] the standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a conclusion which no reasonable person could have reached.”

[373] The Trial Chamber had indeed used the expression “as it was confirmed by the accused”. See Judgment, para. 362. See Akayesu’s Brief, Chapter 10, paras 30 and 31; Akayesu’s Reply, para. 116.

[375] Tadic Appeal Judgment, para. 64. See also Celebici Appeal Judgment, para. 435.

[376] Akayesu’s Brief , Chapter 10, para. 29.

[377] On the basis of consistent testimonies heard throughout the trial and the information provided by Ruzindana, appearing as an expert witness on linguistic issues, the Chamber is satisfied beyond a reasonable doubt that the population construed the Accused’s call as a call to kill the Tutsi.

[378] Transcript, 13 March 1998, pp. 147-149.

[380] Para. 18 of the Indictment reads: “On or about April 19, 1994, the men, who, on Jean-Paul Akayesu’s instructions, were searching for Ephrem Karangwa destroyed Ephrem Karangwa’s house and burned down his mother’s house. They then went to search the house of Ephrem Karangwa’s brother-in-law in Musambira commune and found Ephrem Karangwa’s three brothers there. The three brothers – Simon Mutijima, Thaddée Uwanyiligira and Jean-Chrysostome Gakuba – tried to escape but Jean-Paul Akayesu blew his whistle to alert local residents to the attempted escape and ordered the people to capture the brothers. After the brothers were captured, Jean-Paul Akayesu ordered and participated in the killings of the three brothers.

[382] Ibid, paras. 38 to 40. In his Reply, Akayesu further submits that: “Here, the Chamber had to consider two different versions of a murder incident, but it was mistaken about the evidence by finding that Karangwa had denied his statement. Since the Chamber should have known that Karangwa had made a statement in November 1995 to the effect that he saw Akayesu first at this brother and that the two other s had been killed with machetes as they tried to flee, it should have questioned the statement made by this police inspector who is supposed to be capable of testifying correctly. ” (para. 123).

[385] Taking note of the figure differences between the English and French versions of Witness D’s testimony, Akayesu concludes finally that: “the distance mentioned by Karangwa from his hiding place to the house was not 150 metres but rather approximately 500 metres or more.” (Unofficial Translation). See Akayesu’s Reply, para. 126.

[387] In this case, the Trial Chamber stated “corroboration of evidence is not a legal requirement to accept a testimony.” See “Judgment”, The Prosecutor vs. Clément Kayishema and Obed Ruzindana, paras. 76 to 80.

[388] Prosecution’s Response, para 11.70 and 11.71.

[389] Prosecution’s Response, para. 11.75 to 11.76.

[391] During his testimony of 6 February 1997, Karangwa explained that as he saw Akayesu carrying a gun and having heard Akayesu say “You should shoot at the – at them”, and “I drew the conclusion that it was Akayesu who had shot the gun”. See Transcript of the hearing of 6 February 1997, pp. 65 to 68 and pp. 117 and 178. He asserts that his three brothers were shot. In his previous statement, on the contrary, Ephrem Karangwa had stated: "“I could see from the place where I was hidden, that Akayesu killed my brother Jean-Chrysostome with his gun. I saw, that my other two brothers tried to escape but they were caught by Akayesu’s men and were killed by them with machetes.” (Exhibit No. 105) According to this statement, only one of his brothers was shot. The Defence raised this contradiction during cross-examination. When the witness was asked if he remembered his prior statement, he confirmed having made it to the investigators (“Yes, I said that”). See Transcript of the hearing of 6 February 1997, p. 170.

[392] On this point, Akayesu criticizes the Trial Chamber for incorrectly recording Karangwa’s cross-examination, in which it states in para. 260 that during his cross-examination “Karangwa denied stating this to the Office of the Prosecutor” and “reaffirmed his testimony that all three of his brothers were shot.” It is true that the witness did not explicitly deny his statements to the investigators when Defence Counsel reminded him of the contents of his statement. He even confirmed having said that. Nevertheless, the witness immediately explained the reasons for this contradiction, and he did not take over the substance of his testimony before the Trial Chamber.

[393] The Witness testified that “During that time when people were being killed, after they were killed, they would make- they would made them. They would fortune their bodies. Let me tell you that they would even – they would even cut out people’s bones. They would do this to mock them simply because they were Tutsi.” Transcript, 6 February 1997, pp. 170 and 171.

[396] Akayesu’s Brief, Chapter 10, para. 44.

[397] Transcript, 5 February 1997, p. 22 (Witness S) and Transcript, 6 February 1997 (Witness Karangwa), p. 59.

[398] Transcript , 5 February 1997, p. 23 (Witness S) and T, 6 February 1997 (Witness Karangwa), p. 64.

[399] Transcript, 5 February 1997, p. 31 (Witness S) and T, 6 February 1997 (Witness Karangwa), p. 66.

[400] Transcript, 5 February 1997, p. 49 (Witness S) and T, 6 February 1997 (Witness Karangwa), p. 67.

[401] Transcript, 5 February 1997, p. 53 (Witness S) and T, 6 February 1997 (Witness Karangwa), p. 67.

[402] On 17 February 1998, the Trial Chamber held in a decision on a Defence motion for forensic analysis of the three bodies that : “[…] considering the ancientness of the acts which allegedly occurred four years ago, and in light of the fact that a number of the purported mass graves, including, without a doubt, those supposedly in the vicinity of the Taba ‘bureau communal’, have been the subject of previous exhumations and reburials, the Tribunal finds that a new forensic analysis would not be appropriate nor, in any case, instrumental in the discovery of the truth. Rather, the Tribunal feels that the arguments raised by the Defence Counsel in support of his motion are pertinent mainly to evaluating the credibility of certain witness testimonies and not to showing the necessity for an exhumation and forensic analysis, as requested.” See “Decision on “Defence Motion Requesting an Inspection of the Site and the Conduct of a Forensic Analysis,” 17 February 1998.

[405] Transcript, 6 February 1997, pp. 43 to 53.

[406] Transcript, 6 February 1997, pp. 162 to 168.

[407] See Annex B. In the Decision of 24 May 2001, the Appeals Chamber granted Akayesu leave to amend his Notice of Appeal. In the same Decision, the Chamber granted leave to admit certain pages of the transcripts from the hearing held on 14 October 1997 in the case of The Prosecutor vs. Georges Rutaganda, Case No. ICTR-96-3-T, but denied several other applications including a Request to Admit an Affidavit into the Record. By its Decision of 12 July 2000, the Appeals Chamber granted the Prosecution leave to admit into evidence other extracts from the hearing of the same date in the same case. See Annex A.

[408] Akayesu’s Brief, Chapter 11, para. 2.

[409] Ibid, para 26, Ibid, Chapter 15, para. 1 and Akayesu’s Reply, paras. 13 and 135. The Appeals Chamber notes that Akayesu asserts in the last paragraph that: “Alternatively, the Appeals Chamber could quash the Judgment rendered by the Trial Chamber and order a re-trial.” However, the Appeals Chamber stresses that such statements contradict other arguments put forward by Akayesu with respect to the remedy sought by him. Akayesu’s Brief, Chapter 15, para. 2 where Akayesu submits that “such a remedy is not sought by the Appellant as an appropriate cure under the circumstances”.

[410] Akayesu’s Brief, Chapter 11, para. 1

[412] Ibid, Ch. 11, para. 23 (footnote omitted).

[413] In the case of Rutaganda, Trial Chamber I was composed of the same judges as in the case of Akayesu: Judge Laïty Kama (Presiding), Judge Lennart Aspegren and Judge Navanethem Pillay.

[416] Akayesu’s Brief, Chapter 1, paras. 9 and 10 “requests the Prosecutor to indicate, where, if at all, in the transcript of the Georges Rutaganda trial the points raised by the Presiding Judge […] are to be found”, i.e. generally this alleged change in attitude. Should the Prosecutor fail to provide such information, the Appellant submits that the Appeals Chamber must infer that the questions put to the expert, Reyntjens, concerned the Appellant’s trial, the only other ongoing trial before the Tribunal at the time. Akayesu’s Brief, Chapter 11, para. 12. See also Akayesu’s Reply, para. 133 and Transcript, 1 November 2000, p. 83.

[417] Akayesu’s Brief, Chapter 11, paras. 10 to 12. Akayesu submits that the presiding judge’s interventions during the Expert Witness’s testimony, in particular when he referred to “une question qui est revenue de manière récurrente dans le procès” (a question which has been recurring throughout the trial) of Georges Rutaganda, related not to that trial, but to his own.

[418] Akayesu submits that the argument of the Prosecutor (accepted by the Trial Chamber) was that the Appellant did a lot to protect the Tutsi minority until 18 April 1994. Thereafter, the Appellant allegedly changed and sought to exterminate the Tutsis.” Akayesu’s Brief, Chapter 11, para. 14.

[419] Akayesu’s Brief, Chapter 11, para. 14.

[421] Akayesu submits that pursuant to Rule 80 of the Rules (regulating “Control of Proceedings”), he had the right to be present while the Expert Witness was testifying in relation to his case. Akayesu’s Brief, Chapter 11, paras. 17 and 18.

[422] Akayesu’s Brief, Chapter 11, para. 15.

[423] Ibid, paras. 15 and 17 to 20, Akayesu states that “[..] in the instant case, the conduct of the trial by the Chamber amounted to a hearing of evidence in closed session, in the absence of the accused.” Akayesus’s Brief, Chapter 11, para. 22. See also Akayesu’s Reply, para. 135 and Transcript, 1 November 2000, p. 116.

[426] Akayesu’s Brief, Chapter 11, para. 25.

[427] Prosecution’s Response, para. 12.4. It submits that “the accused in that case was active throughout April and early May. The Presiding Judge was entitled to ask whatever questions he felt relevant to place the acts of that accused within the unfolding of the genocide in Rwanda during April 1994.”

[428] Prosecution’s Response, paras. 12.4 – 12.12. In para. 12.9, it is submitted that: “There is nothing on the Record supporting the contention that the Presiding Judge in Rutaganda began questioning the expert witness for the purposes of obtaining evidence in the Akayesu trial.”

[433] Prosecution’s Response, para. 12.16. The Prosecution also submitted that the English transcript in Rutaganda was wrong and that according to it, that transcript should clearly reflect that the Presiding Judge had asked a question regarding the issue which the Presiding Judge stated had arisen “throughout our trials” as opposed to only in his (Akayesu’s ) trial. (Prosecution’s Response, paras. 12.6 to 12.8). The Prosecution has clearly failed to make a distinction between arguments put forward by Akayesu in his Brief, in support of this ground of appeal, and those which were included in his motion to amend this ground of appeal.(“Motion for Extension of Time-Limits on Appeal for the Admission of New Evidence on Appeal pursuant to Rules 115 and 116 of the Rules of Procedure and Evidence.”) It is clear that Akayesu had abandoned this particular argument pursuant to the Decision of 24 May 2000 in which Akayesu’s application to amend his Notice of Appeal was dismissed (See Akayesu’s Reply, para. 134).

[434] The right to cross-examine a witness is of course subject to the exceptions to the principle of live, in court testimony which are discussed above with regard to hearsay evidence. In the case envisaged here, however, these exceptions do not apply, as the evidence concerned was allegedly provided in the course of the live testimony of a witness. There is also no suggestion by the Prosecution that it sought the admission of the testimony of the Expert Witness in the case of Rutaganda as for example, hearsay evidence.

[435] For example, Prosecution’s Response, paras. 12.4 to 12.5 (relying on the English transcript), paras. 12.11 – 12.13 (relying on the French transcript). Akayesu’s Brief (relying generally on the French transcripts), Akayesu’s Reply, paras. 133 and 134.

[437] See also Akayesu’s Reply, para. 133.

[439] Akayesu’s Brief, Chapter 11, para. 8.

[440] Akayesu submits that the Presiding Judge “suddenly changed the course of the proceedings by venturing into a line of questioning outside of Rutaganda’s case. […] and he made an assessment of evidence tendered during the trial of Jean-Paul Akayesu.” Akayesu’s Brief, Chapter 11, para. 8.

[441] Transcript, Rutaganda, 14 October 1997, p. 73 (English) and 84 (French).

[443] Transcript, Rutaganda, 14 October 1997, p. 73.

[444] Transcript, Rutaganda, 14 October 1997, p. 73.

[445] Akayesu’s Brief, Chapter 11, para. 12; Akayesu’s Reply, para. 132.

[446] Akayesu’s Reply, para. 132; Transcript (A), 1November 2000, pp. 114 to 115 (see in particular the English version of the transcript, pp. 83 and 84).

[447] Akayesu’s Brief, Chapter 11, para. 8.

[448]In this regard, the Appeals Chamber notes the remark made by the Presiding Judge at the conclusion of the Expert Witness’s testimony, to the effect that : “Et il me plaît de vous dire que votre interrogatoire a été plein d’enseignements pour nous parce qu’il nous a permis, au-delà du procès dirigé contre Georges Rutaganda, de connaître, d’avoir une vue de la situation d’ensemble de ce pays.” (I can tell that your testimony was very informative to us. It has allowed us, in the context of the trial of Georges Rutaganda, it has allowed us to have an overview of the general situation in the country) Transcript, Rutaganda, 14 October 1997, p. 115. The Appeals Chamber notes that as pointed out by Akayesu (Akayesu Reply, para. 133), the English translation of this remark differs in the sense that the record indicates that the Presiding Judge observed that the testimony allowed the Trial Chamber “in the context of the trial of George Rutaganda…to have an overview of the general situation in the country.” (p. 115). As the Presiding Judge spoke in French, the Appeals Chamber relies, as pointed out earlier, on the French transcript and construes this remark as expressing the Trial Chamber’s intention to have an overview of the historical context and background to the situation

[449] Transcript, Rutaganda, 14 0ctober 1997, p. 115.

[450] Prosecution’s Response, para. 12.14.

[451] Transcript, Rutaganda, 14 October 1997, p. 74.

[453] He testified that he could simply confirm that the meeting did occur and that “according to the facts before us, there were not all but some burgomasters who made, who changed after this meeting”, Transcript, Rutaganda, 1 October 1997, p. 74.

[454] Akayesu’s Brief , Chapter 11, paras. 14 and 15.

[456] The relevant passage reads as follows: “[...] Although he had the authority and responsibility to do so, Jean-Paul Akayesu never attempted to prevent the killing of Tutsis in the commune in any way or called for assistance from regional or national authorities to quell the violence.”

[458] Trial Judgment, paras. 184 to 186 and 192.

[462] A principle which is subject to exceptions under Rule 80 of the Rules.

[463] Having taken note, in this regard, of Akayesu’s argument that “The conduct of the Trial Chamber is prejudicial to a pillar in the administration of justice or to the incontrovertible requirement ‘of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’” Akayesu’s Brief, Chapter 11, para 24 (footnote omitted).

[464] Furundzija Appeal Judgment, para. 197, referring to the case of President of the Republic of South Africa and Others v. South African Rugby Football Union and Others, Judgment on Recusal Application, 1999 (7) BCLR 725 (CC), 3 June 1999, para. 48.

[465] Furundzija Appeal Judgment, para. 196: “In the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge.” See also Celebici Appeals Judgment para. 683 and 697 Article 12 (1) of the Statute.

[466] “Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge, Prosecutor v. Radoslav Brdanin and Momir TalićCase No. IT-99-36-PT, 18 May 2000, para. 17, reference Čelebići Appeal Judgment, para. 700.

[467] Akayesu’s Brief, Chapter 11, para. 16.

[468] Transcript, Rutaganda , 14 October 1997, p. 110.

[469] Transcript, Rutaganda, 14 October 1997, pp. 122 and 113.

[470] Akayesu’s Brief, Chapter 11, paras. 2 and 16.