C.        Application to the facts of this case

72.       Musema submits that the Trial Chamber’s misapplication of the principles discussed above led to errors of fact invalidating the Trial Judgement with respect to each count on which he was convicted.[125]  He submits that the Trial Chamber

continually and consistently failed to apply the correct burden and standard of proof to the evidence. It placed a burden of proof on the Defence, and in many instances required the Defence to prove matters to a higher standard than the Prosecution.[126]

73.       Musema’s allegation is two-fold.  First, he challenges the Trial Chamber’s findings with regard to the credibility of Prosecution witnesses,  and, secondly, takes issue with the Trial Chamber’s rejection of the alibi he raised at trial.  Thus, Musema challenges all the findings made by the Trial Chamber and thereby calls into question the entire Trial Judgement, including the guilty verdict.

1.         Background to the findings made by the Trial Chamber

74.       Musema was charged with: genocide (or, alternatively, with complicity in genocide); conspiracy to commit genocide; crimes against humanity; and serious violations of Article 3 common to the Geneva Conventions and of additional Protocol II, based on events or acts which occurred at several locations in Kibuye préfecture. The findings of the Trial Chamber in relation to each site, including those in dispute, are set out below:

75.       The Trial Chamber summed up the Defence case and concluded that it revolved around three general arguments to wit:  the Prosecution did not discharge its burden of proving his guilt;  the Prosecution did not present sufficient evidence to satisfy the Chamber beyond reasonable doubt of his guilt; and the Prosecution did not rebut his alibi.[127]  Musema was found guilty of genocide (Count 1), of crimes against humanity: extermination (Count 5) and of crimes against humanity: rape (Count 7). The first two guilty verdicts were entered based on the totality of the events and acts that the Chamber found to have been proven, as indicated above.

2.         Challenge to the credibility of Prosecution witnesses

76.       Musema challenges the credibility of Witnesses M, R, F, T, N, AC, D, H, S and I who testified in relation to massacres at several sites and to sexual crimes.  Save for the testimony of Witness I,[128] the Trial Chamber relied on the testimony of these witnesses to convict Musema on Counts 1, 5 and 7.  Musema articulated his arguments by focussing on the various sites and findings on sexual crimes. The Prosecution has presented its response following the order in which Musema’s arguments have been presented in the Appellant’s Brief.  The Appeals Chamber will thus examine Musema’s allegations in that same order.

(a)        Gitwa Hill, 26 April 1994

77.       Relying on the testimony of Witness M, the Trial Chamber found, beyond reasonable doubt, that an attack occurred at Gitwa Hill on 26 April 1994; that Musema led and participated in the attack; that he arrived aboard one of the Gisovu Tea Factory Daihatsus; that he and other persons, some of whom wore Imihurura belts and banana leaves, participated in a large-scale attack against the refugees and that Musema, who carried a firearm, shot into the crowd of refugees.[129]

78.       In challenging the testimony of Witness M on this site, namely, Gitwa Hill, Musema questions the findings of the Trial Chamber in relation to an incident which took place on 18 April 1994 at another site, namely Karongi Hill FM Station ("Karongi Hill") in respect of which Witness M had also testified. In relation to Karongi Hill, although the Trial Chamber found Witness M’s evidence to be credible, it was of the opinion that the alibi cast doubt on Musema’s presence at the site. Consequently, the Trial Chamber held that the sole testimony of Witness M on the matter was insufficient to prove beyond reasonable doubt that Musema had participated in the events at Karongi Hill.[130] Musema submits that this finding should, quite logically, give rise to the plausible argument that Witness M was mistaken or lying with regard to Karongi Hill and,  hence the probability that Witness M was also mistaken or lying in relation to the events on 26 April 1994 at Gitwa Hill.[131]  In this regard, Musema also alleges that the Trial Chamber committed errors of fact in finding Witness M’s testimony to be credible, whereas reasonable doubt had been cast on his testimony concerning Karongi Hill.[132]  Lastly, Musema alleges that the Trial Chamber did not exercise "extra caution" when evaluating the uncorroborated testimony of a single witness.[133]

79.       In response, the Prosecution submits inter alia; (i) that Musema’s arguments ignore the difference between a failure of "proof finding" against the Prosecution and a credibility determination in relation to a specific witness; (ii) that Witness M’s credibility remained intact throughout his testimony regarding both the Karongi Hill and Gitwa Hill incidents and, furthermore,  that Musema fails to mount a direct attack on M’s evidence on the Gitwa Hill incident; (iii) that in any event, the Trial Chamber was entitled to rely on the credible portions of Witness M’s testimony; (iv) that the Trial Chamber considered the factors raised by Musema allegedly casting doubt on Witness M’s credibility and explicitly rejected them; (v) that the testimony of a single witness, if relevant and credible, can sustain a conviction; and (vi) that no corroboration is required.[134]

80.       The principal argument advanced by Musema is centred on allegations of the improbability of Witness M’s testimony with respect to Karongi Hill. He concludes by raising obvious doubt as to the credibility of the witness in respect of Gitwa Hill.  Such doubt, according to Musema, must be resolved in his favour. The Appeals Chamber is of the view that Musema’s submissions on this matter are unfounded.  The Trial Chamber found Witness M’s testimony regarding Karongi Hill to be credible,  since he was consistent throughout his testimony.[135]  Musema’s allegations whereby he challenged the credibility of the witness were specifically considered in the Trial Judgement[136] and the Chamber found that they did not raise doubt about Witness M’s credibility. These Defence arguments were raised in their closing brief[137]  and submitted during closing arguments.[138] Having considered all the arguments, the Trial Chamber was careful to identify certain issues that Musema also raises on appeal and concluded,  in paragraph 655 of the Trial Judgement as follows:

[t]he Chamber does not find it inherently improbable that his presence at the hut would not have been discovered. The witness clearly described his movements from one room to another within the hut to avoid detection. He gave two reasons as to why the meeting should be held at the top of Karongi hill - firstly that the assailants could get the guns there and secondly because from this vantage point they could see the refugee camp which was subsequently attacked. In the opinion of the Chamber, for the witness to have waited five years before making a statement is not significant because he only made the statement in response to an approach from the Office of the Prosecutor at that time.[139]    

Musema simply repeated his submissions made during the closing arguments,  and failed to provide any arguments to support his allegations that the Trial Chamber erred in its assessment of Witness M’s credibility in respect of Karongi Hill.  Consequently, Musema has failed to show that the finding of the Trial Chamber is one that could not have been reached by any reasonable tribunal.

81.       Having found Witness M’s evidence in relation to Karongi Hill to be credible, the Trial Chamber nonetheless acquitted Musema on the count relating to the attack at this site, because the alibi raised doubt as to Musema’s presence at Karongi Hill on 18 April 1994. In the circumstances, the fact that the Trial Chamber found that the single testimony of Witness M, although credible, was not sufficient to prove guilt beyond a reasonable doubt, does not, in itself, lead to the conclusion that it erred in evaluating the witness’ credibility. Although a witness may be found to be credible, the validity of a conviction based solely on his testimony may yet be affected by other factors that cast a doubt on the Prosecution case. Notwithstanding the finding that Witness M was credible, it was still open to the Trial Chamber to conclude that doubt was raised as to Musema’s presence at Karongi Hill.  In such a case, the doubt must be resolved to the benefit of the accused, the credibility of Witness M remaining intact. The Appeals Chamber can see no reason to find that the Trial Chamber was in error.

82.       Musema calls into question Witness M’s testimony  in respect of Gitwa Hill, without addressing any aspect of the said testimony.  Musema relies solely on his arguments relating to Karongi Hill.  As stated above, the Appeals Chamber is satisfied that the Trial Chamber did not err in finding the evidence of Witness M to be credible in relation to Karongi Hill.  Therefore, the question as to whether there was a reasonable possibility that Witness M was mistaken or lying with regard to the events at Gitwa Hill, does not arise. In any event, a court may accept portions of a witness’ testimony which are reliable for a given set of facts, whilst finding other parts of said evidence not credible with regard to another set of facts.[140]  Therefore, supposing even that the credibility of Witness M  in respect of Karongi Hill was in issue, the mere fact that the Trial Chamber relied on his testimony in relation to Gitwa Hill does not per se disclose an error on the part of the Trial Chamber.

83.       Musema also submits that the Trial Chamber was in error as it failed to exercise "extra caution" in finding him guilty of the acts that occurred at Gitwa Hill on the basis of the sole uncorroborated testimony of Witness M. The Appeals Chamber recalls its earlier findings that there is no legal requirement that the testimony of a single witness on a material fact be corroborated before it can be accepted in evidence. What matters is the reliability and credibility accorded to the testimony. The Trial Chamber, after seeing Witness M and hearing his testimony, after observing him under cross-examination and noticing that he was not evasive, found his testimony to be credible and consistent.[141] The Appeals Chamber fails to see why it should find that, in doing so, the Trial Chamber was obliged to exercise "extra caution" in its evaluation of the entire testimony of the witness. A Trial Chamber assesses the credibility of a witness in the ordinary manner, taking into account the circumstances of the case.

84.       For the foregoing reasons, the Appeals Chamber finds that Musema has failed to demonstrate that the Trial Chamber erred in its assessment of the credibility of Witness M for its factual findings concerning the attack on Gitwa Hill.  Accordingly, the Appeals Chamber rejects this argument challenging the credibility of Witness M.

(b)        Rwirambo Hill (end of April – beginning of May)

85.       Relying on the testimony of Witness R, the Trial Chamber found that an attack had been perpetrated at Rwirambo Hill on 27 April and on 3 May 1994.[142] It found that it had been proven beyond reasonable doubt that Musema participated in the attack; that he arrived at the scene in a red Pajero, followed by four Daihatsu pick-ups from the Gisovu Tea Factory which were carrying persons that Witness R recognized as Interahamwe; that Witness R recognized those persons from their blue uniforms which had the name "Usine à thé de Gisovu" printed on the back and that Musema was armed with a rifle. [143] The Trial Chamber also found that while trying to flee, Witness R was injured from a bullet which came from Musema’s direction.[144]

86.       In challenging the testimony of Witness R with respect to this site namely, Rwirambo Hill, Musema puts forward the following main arguments which allegedly show that Witness R is unreliable:

-         There were inconsistencies between the testimony given by Witness R in the instant case and his testimony in the Kayishema and Ruzindana trial;[145]

-         The identification of Musema by Witness R was suspect in view of the fact that Musema was a "long distance away" when Witness R saw him, and that the sighting was nothing more than a fleeting glance.[146] The Prosecution failed to elicit the details necessary for a proper identification to be established.

87.       Musema further relies on the observations made by Judge Aspegren in his separate opinion appended to the Trial Judgement where he states that the "contradictions raised by the Defence are serious and important enough to cast doubt on R’s credibility in the present matter, and that he is not, therefore, reliable enough."[147] 

88.       As to the inconsistencies, the Appeals Chamber first of all notes that the arguments raised by Musema are not directed to those parts of Witness R’s testimony which related specifically to the involvement of Musema in the attack. The focus of his allegations is the Trial Chamber’s failure to take sufficient account of the inconsistencies concerning the treatment of Witness R’s gunshot wound. Witness R testified before the Trial Chamber that he had treated the wound he sustained with cow butter whereas, in the Kayishema and Ruzindana trial, he told the court that at that time some kind-hearted Hutus could still be found, from whom one could purchase penicillin, and that he had the wound treated in Rwirambo.[148]  The Trial Chamber noted the fact that Witness R had previously testified in the Kayishama and Ruzindana trial and that the Defence had raised a number of apparent contradictions in his testimony as regards the treatment he received for his gunshot wound.[149] 

89.       At paragraph 402[150] of the Trial Judgement, the Trial Chamber took note of the inconsistencies now being raised by Musema and it later concluded at paragraph 684 as follows:

Having considered the arguments of the Defence as to these discrepancies and the answers of the witness thereon, the Chamber finds Witness R to be credible. The questions raised by the Defence relating to the date of his injury and the manner in which it was treated did not elicit inconsistencies between the witness’ testimony in this trial and his earlier testimony of the trial of Kayishema and Ruzindana.  He clarified that he had obtained penicillin not soon after the injury, which is when it was treated with cow butter, but much later. With regard to dates, the Chamber notes that 29 April falls within the time period 27 April to 3-4 May. While the specific date testimony is clearly more precise, the two testimonies are not inconsistent. [151]

It is clear from the above findings of the Trial Chamber, that the alleged inconsistency between Witness R’s testimony that he treated his wound with cow butter and his earlier testimony that he treated it with penicillin was satisfactorily explained to the Trial Chamber.[152] There remains the allegation of inconsistency as to whether Witness R had the wound treated in Rwirambo or not.  In the opinion of the Appeals Chamber,  this allegation is not such as would cause a reasonable Trial Chamber to reject Witness R’s testimony.  Considering Witness R’s testimony, when taken as a whole and specifically in relation to Musema’s involvement in the attack, the Appeals Chamber holds that the Trial Chamber had the discretion to find the alleged inconsistency inadequate to substantially cast doubt on Witness R’s testimony. Thus, although not specifically mentioned in the Trial Judgement, it was not unreasonable for the Trial Chamber to find Witness R credible.

90.       With regard to Musema’s challenge to his identification by Witness R,[153]  the Appeals Chamber first recalls that neither the Statute nor the Rules oblige the Trial Chamber to require evidence of any particular kind for purposes of identification. Pursuant to Rule 89 of the Rules, a Chamber "may admit any relevant evidence which it deems to have probative value".  The Appeals Chamber has previously acknowledged that a Trial Chamber is best placed to assess the evidence presented at trial; whether it will rely on a single witness testimony as proof of a material fact will depend on various factors that have to be assessed in the circumstances of each case.[154]  In the same vein, it is for the Trial Chamber to assess the evidence of identification given by witnesses and to determine whether it is reliable in the light of the circumstances of the case. Unless it is shown that the Trial Chamber’s assessment was wholly erroneous, the Appeals Chamber will defer thereto.

91.       In this regard, the Appeals Chamber notes that, while stating that he was at a "rather lengthy distance" from Musema, the witness also testified that he had known Musema previously;[155] that before the attacks of 1994, he had often seen Musema on the road which passes by his house;[156]and that he had seen Musema during meetings at the communal office of Gisovu prior to the 1994 attacks.[157]  Lastly, Witness R also testified that the attack occurred in the morning[158] and, therefore, in daylight.  In his Appellant’s Brief, Musema has not addressed the fact that Witness R had prior knowledge of his physical appearance or the circumstances actually taken into account by the Trial Chamber in its assessment of Witness R’s identification of him.  The Appeals Chamber is of the opinion that Musema has failed to show any flaw in the Trial Chamber’s evaluation of the evidence.

92.       After seeing Witness R and hearing his testimony, and having observed him under cross-examination,  the majority of the Trial Chamber decided to find his testimony reliable. Clearly,  the decision is based on its overall evaluation of the testimony.  The Appeals Chamber fails to see any cause for concluding that in doing so, the Trial Chamber erred.  Musema further adopts the observations by Judge Aspegren[159] in support of his contention that the Trial Chamber was unreasonable in accepting the testimony of Witness R.  The Appeals Chamber finds no merit in this argument and recalls the view expressed by the Appeals Chamber of ICTY in the Tadic Appeal Judgement that "two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence".[160]  Holding the view that the conclusions by Judge Aspegren were reasonable does not mean that the findings of the majority were unreasonable.  It is for Musema to show that the testimony of Witness R could not have been accepted by any reasonable person, that the majority of the Trial Chamber was wholly in error and that, therefore, the Appeals Chamber should substitute its own finding for that of the Trial Chamber.  This, he has failed to do.

93.       For the foregoing reasons, the Appeals Chamber finds that Musema has failed to demonstrate that the Trial Chamber erred in its assessment of the credibility of Witness R, for its factual findings concerning the attack on Rwirambo Hill.  Accordingly,  the Appeals Chamber dismisses the argument challenging the credibility of Witness R.

(c)        Muyira Hill, 13 May 1994

94.       Musema challenges the credibility of Witnesses F, T and N with respect to the Trial Chamber’s factual findings concerning the 13 May 1994 attack on Muyira Hill.  His allegations regarding these witnesses focus essentially on (i) inconsistencies between their in-court testimony and their prior statements (Witnesses F, T and N); (ii) insufficient identification (Witnesses F, T and N); (iii) the implausible nature of testimony (Witness N); and (iv) violation of the right to an effective cross-examination (Witness F).

95.       The Trial Chamber found (on the basis of the numerous corroborating testimonies of several witnesses)[161]  that it was established beyond reasonable doubt that on 13 May 1994 a largescale attack was launched at Muyira Hill against 40,000 Tutsi refugees.[162] The Trial Chamber was also satisfied beyond reasonable doubt that Musema was among the leaders of the attack; that he arrived at the location in his red Pajero; that he was armed with a rifle which he used during the attack; and that thousands of Tutsi men, women and children were killed during the attack, while others were forced to flee for their lives.[163] 

(i)         Inconsistencies between in-court testimony and prior statements

96.       Musema submits that the in-court evidence given by Witnesses F, T and N was marred by inconsistencies vis à vis the previous statements made by the witnesses.  In considering these allegations, the Appeals Chamber notes that the Trial Chamber had particularly addressed the question of the assessment of prior statements.  The Trial Chamber noted that a significant problem arises where the oral testimony of a witness contradicts, or is inconsistent with, prior statements made by the witness.[164]  In this regard, the Trial Chamber went on to consider various classes[165] of prior testimony submitted as documentary evidence, which the Appeals Chamber will consider in the light of the allegations made by Musema.

a.        Witness statements and non-judicial testimony given by Witnesses F, T and N

97.       Musema submits that the Trial Chamber failed to properly take into account the following inconsistencies:

-         Witness F had not mentioned Musema’s name in the attack of 13 May in his prior statements;[166]

-         Witness T gave an interview to Radio Rwanda on 27 January 2000 in which he stated that he saw Musema only once, and not twice as he had stated in his testimony;[167]

-         Witness N had made two previous statements,  to wit, "on 20^th March 1986[sic][168] and 14^th and 16^th February 1998.  In neither of these had he named Musema as someone who was involved in the May attacks, and in neither of these had he mentioned the rape."[169] In addition, Musema submits that, the lapse of time that preceded Witness N’s mentioning of sexual crimes in his statement of 13 January 1999 (nearly five years later) casts doubt on the reliability of his testimony.[170]

98.       The Prosecution gave a general response, stating that "some, if not most, of the alleged prior inconsistent statements which are now advanced by the Appellant were addressed by the Chamber in its Judgement".[171] The Prosecution further submits that, in order to render a witness’ testimony unreliable, the inconsistencies therein must be material and substantial enough, and that Musema has failed to show that such inconsistencies were material.[172]

99.       The Appeals Chamber notes that, contrary to Musema’s allegations, the Trial Chamber specifically dealt with the issue of prior inconsistent statements and noted that a large number of witnesses who appeared before it had previously made statements which included witness declarations and, in one case, a radio interview.[173] The Trial Chamber went on to state as follows:

The Chamber has evaluated the probative value of such testimonies in light of the circumstances in which they were made, and in view of other factors pertaining to the reliability of the testimonies.  The circumstances it has taken into consideration include such matters as: the language in which the testimony was made or in which the interview was conducted; the access of the Chamber to transcripts of the testimonies or the interviews, and its corresponding ability to scrutinize the nature of the questions put to a witness; the accuracy of interpretation and transcription; the time lapse between the prior testimonies and the testimony at trial; the difficulties of recollection; the use or non-use of solemn declarations; and the fact of whether or not a witness had read or reviewed the statement at the time at which it was made.[174]

In light of these factors, it is the Chamber’s opinion that the probative value of such prior witness statements is, generally, lower than the probative value of positive oral testimony before a Court of law, where such testimony has been subjected to the test of cross-examination.[175]

The Appeals Chamber holds that it was within the Trial Chamber’s discretion to proceed in that manner;[176] as a trier of fact, the Trial Chamber is best placed to hear, assess and weigh the evidence presented at trial. The above-mentioned factors, which were taken into account by the Trial Chamber in assessing the testimonial evidence of the witnesses in question are, in the opinion of the Appeals Chamber, valid and reasonable.[177]  The Appeals Chamber recalls that "[i]t 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."[178]  Thus, it falls to Musema to show that the alleged inconsistencies are material to the main issue of his participation in the attack of 13 May 1994, at Muyira Hill, and that the Trial Chamber erred in failing to take them into consideration.

100.     In the case of Witness F, the Trial Chamber noted the explanation elicited in his cross-examination with respect to the alleged discrepancy raised in his testimony,[179] and further noted that, in addition to the said explanation,  Witness F’s testimony in the Kayishema and Ruzindana trial confirmed that he had seen Musema during the 13 May 1994 attack.[180] Having considered the circumstances surrounding the inconsistency and the subsequent explanation therefor,  the Trial Chamber concluded that the evidence of Witness F was reliable.  The Appeals Chamber can see no reason to question this evaluation by the Trial Chamber as it has not been shown that no reasonable tribunal could have reached such a conclusion.

101.     Musema further submits that the in-court testimony of Witness T contradicts what the Witness said during an interview with Radio Rwanda on 27 January 2000.  The Appeals Chamber notes that Musema has sought to include the transcript of this interview together with the original audio cassette as part of the record on appeal.[181]  However, it appears to the Appeals Chamber that those items of evidence are not part of the record on appeal and, furthermore, that Musema has not requested, in accordance with Rule 115 of the Rules, to present them before the Appeals Chamber.  As a result, the Appeals Chamber will not entertain this argument. Counsel for Musema, who is familiar with appellate procedure, should not have made reference to such evidence in the Appellant’s Brief or the "Appellant’s Appeal Book" without first having sought leave to present the same.

102.     As regards Witness N, Musema refers to two previous statements which were made by the Witness, and in neither of said statements does Witness N name Musema as being involved in the May attacks nor make mention of rape.  Musema alleges that the Trial Chamber failed to take sufficient account of this fact. Having reviewed the trial transcripts[182]  on the testimony of Witness N, the Appeals Chamber notes that the alleged previous statements of "20 March 1986" and "14^th and 16^th February 1998" were never shown to Witness N at trial. Throughout the cross-examination[183] of Witness N by the Defence, only the previous statement given during an interview on 13 January 1999 and signed by Witness N on 14 January was called into question.  The Appeals Chamber further notes that the said previous statements do not form part of the record on appeal.  Moreover,  Counsel for Musema  failed to follow the applicable procedure for presenting them before the Appeals Chamber.  Consequently, they cannot be considered in support of Musema’s submissions on this point.

103.     Regarding Musema’s other allegation concerning the lapse of five years before Witness N made his statement of 13 January 1999 on the sexual crimes, the Appeals Chamber notes that the Trial Chamber considered the explanation given by Witness N. According to the Trial Judgement, the witness explained that "he had been approached by two investigators to do so and that he had already brought charges in 1997 against Musema at the Prosecutor’s office of Kibuye. He indicated that when one knows somebody has committed a crime, it is one’s duty to report it."[184]  Witness N gave this explanation during cross-examination and the Trial Chamber, finding it satisfactory, concluded that Witness N was reliable.[185]  Consequently, the Appeals Chamber is satisfied that it was within the discretion of the Trial Chamber, which saw the witness, heard his testimony and observed him under cross-examination to reach this conclusion. Musema has failed to demonstrate any material impact that the alleged delay might have had on Witness N’s testimony.

b.        Statements given by Witness T to Swiss investigators

104.     In relation to prior statements made during the Swiss investigations, referred to in the Trial Judgement,[186] the Appeals Chamber first notes that the Trial Chamber assessed their probative value in conformity with the general principles discussed above, taking into account the circumstances and conditions in which the documents were produced.  Musema submits that the Trial Chamber failed to take into account the following inconsistencies:

-         In his previous statement to the Swiss investigators, Witness T mentioned Musema as a person whom he knew, and whom he had seen two or three days after the French[187] arrived, but he did not name Musema as a person who had participated in the attack of 13 May.[188]  Musema contends that it was unreasonable for the Trial Chamber to find that the witness’ explanation in this respect was satisfactory;[189]

-         Witness T’s statement dated 20 November 1995 in which he said: "I did not see very much of what transpired on those two days (14 and 15 May) because I was in hiding," is inconsistent with his in-court testimony in which he gave a detailed account of what happened on 14 May.  Witness T was unable to provide a satisfactory explanation for this inconsistency.[190]

105.     Regarding the allegation that Witness T did not mention Musema as a person who participated in the attack of 13 May, the Trial Chamber noted as follows:

[i]n cross-examination, the witness was questioned by the Defence as to his previous statements and the lack of mention therein of Musema in relation to the above attack. Witness T explained that at the time he had not been asked specific questions about Musema save whether he knew him and could identify him, and whether he had seen him after the arrival of the French. The Chamber is satisfied with this explanation […][191]

106.     The Appeals Chamber notes that when cross-examined by the Defence on this issue, Witness T repeatedly stated that his previous statements were dictated by the questions actually put to him.[192]  The Appeals Chamber refers, in particular, to the following exchange, resulting from the Defence questions on this point:

Q.              I am not going to ask you any detail about this statement but merely to say that in here, again there is no mention of Mr. Musema, when you were questioned on this occasion?

A.             If I had been asked to say anything about him. I should have said so, just like I am saying now before the court. You asked me questions about Bagaragaza, Munyenzi and so on, if I had been asked questions about Musema I think I should have talked about him also.[193] 

Having regard to the consistency with which Witness T responded to the questions put to him on this issue, the Appeals Chamber is not of opinion that the Trial Chamber acted unreasonably in finding the explanation given by Witness T satisfactory.

107.     Musema then raises another inconsistency which was not explained satisfactorily, namely the contradiction between Witness T’s statement dated 20 November 1995 and his testimony in court.  Basically, Witness T stated on 20 November 1995 that he did not witness much of what transpired on those two days (reference in this context is to 14 and 15 May 1994) because he was in hiding.  When cross-examined by the Defence on this issue, Witness T responded as follows:

…[W]ell, what I wanted to say is that I didn’t see all the events that occurred during the two days unless I want to state again here before the court …that I witnessed the events of 14^th May and on each occasion I said what I was able to see personally at the beginning of the attacks because later on when the attacks continued, we ran away in all directions.  With regard to 15^th May, I think in that regard I was indeed very tired and I did state that.[194]

108.     The trial transcript of Witness T’s testimony at the examination-in-chief shows that he mentioned two large-scale attacks on Muyira Hill and, although unsure of the dates, he believed that they occurred on 13 or 14 May.[195]  Witness T stated two times that after the two major attacks everyone dispersed in order to try to hide.[196]  The Appeals Chamber considers that Witness T’s testimony in court and his previous statement are not necessarily contradictory.  Witness T’s evidence is clear, with respect to the material facts relating to Musema’s participation in the attacks.  The Trial Chamber was right to accept the explanation given by Witness T.

109.     In the opinion of the Appeals Chamber, Musema has failed to demonstrate that the Trial Chamber erred in failing to take account of alleged discrepancies between the in-court testimony and prior statements of Witnesses F, T and N.  Consequently the argument on this point must fail.

(ii)        Insufficient identification by Witnesses F, T and N

110.     In challenging the reliability of his identification by Witnesses F, T and N, Musema raises the following points: (i) the absence of evidence elicited from Witnesses F and T to establish the circumstances under which the identification was made; and (ii) the fact that the Trial Chamber apparently failed to consider the testimony of Defence Investigator, Gillian Higgins, concerning visibility from Muyira hilltop.  Musema asserts that said testimony casts doubt on his identification by Witnesses N and T, who testified to the events they witnessed from the hilltop. 

a.        Circumstances of identification

111.     Musema submits that Witness F only saw him on three occasions prior to the events and that it is therefore unlikely that Witness F could recognize and identify him.[197] Furthermore, Musema argues that since Witnesses F and T did not produce any evidence  of the circumstances in which he was purportedly identified, the testimony of identification fails to meet the evidentiary requirements for it to be considered by the Trial Chamber.[198] 

112.     In the Prosecution’s view, the testimonies of Witnesses F and T reveal that they knew Musema physically, and that therefore, Musema’s arguments on this point are without merit;  moreover, Musema has not discharged the burden of proof that lies on him as an appellant.[199]

113.     On whether Witness F could easily recognize Musema, the Appeals Chamber finds that Musema’s arguments are not sufficient to raise doubt as to the reliability of the contested identification testimony.  The Appeals Chamber notes that during a meeting convened by the bourgmestre of Gisovu commune, which was one of the three occasions where F had seen Musema prior to the events, F was able to observe Musema for a period of 30 minutes.[200]  Musema gives the impression that an identified suspect needs to be personally well known to the witness.[201]  This is not the case. Prior knowledge of an identified suspect is a factor that a Trial Chamber may take into account when assessing the reliability of a witness’ testimony,[202]  but that is not a sine qua non; identification may be based on other factors. In any event, the Appeals Chamber is of the opinion that it was within the discretion of the Trial Chamber to accept, in support of the evidence of identification before it, the fact that Witness F had met Musema on several occasions.

114.     Regarding the lack of evidence showing the circumstances of identification,[203] the Appeals Chamber refers to its observations, supra, concerning a similar argument in relation to identification by Witness R (see para. 90 of this Judgement),  namely that for questions of identification, the Trial Chamber is not obliged to require that the witness produce evidence of any particular kind. It is for the Trial Chamber to assess the evidence of identification and its reliability in the light of the facts of the case. It appears from the Trial Judgement that, in reaching its conclusion,  the Trial Chamber took into consideration the following points:

-         Both Witnesses F and T saw Musema during the attack, bearing a firearm;[204]

-         Witness N testified to having seen Musema aboard his vehicle arriving at the site of the attack together with other attackers;[205]

-         Although Witness P did not personally see Musema during the attack, he saw Musema’s red Pajero, which led him to conclude that Musema must have been present.[206]

Although corroboration is not a necessary requirement, the Appeals Chamber notes that there were corroborative accounts from Witnesses F, T and N of Musema’s participation in the attack.  Moreover, in their respective testimonies, Witnesses F,[207] T[208] and N[209]  testified to having seen Musema arrive at the scene of the attack in a red vehicle, and to the fact that he was carrying a firearm. 

115.     In addition, the Trial transcripts reveal the following points concerning identification by Witnesses F and T:

-         Both Witnesses F[210] and T[211] testified to having prior knowledge of Musema before the attack;  

-         Witness F testified that the attackers arrived at 8.00 a.m. on 13 May,[212] thus in daylight, and that he was at the top of Muyira Hill when he saw Musema arriving, but did not see him again during that day;[213]

-         Witness T testified that the attacks started around 10 a.m. and lasted until 3.30 p.m.;[214] that he was at the top of Muyira Hill so that he could see the attackers arriving,[215]and that Musema was dressed in a military shirt and an ordinary pair of trousers.[216]

In the circumstances, the Appeals Chamber finds no error in the Trial Chamber’s treatment of the evidence of identification given by Witnesses F and T, and notes that, in any event, there was sufficient corroboration of Musema’s participation in the attack of 13 May 1994.  All in all, it was reasonable for the Trial Chamber to hold that it was satisfied with the evidence on the identification of Musema as given by Witnesses F and T.  Consequently, the Appeals Chamber finds that Musema has failed to show that the Trial Chamber erred in failing to take account of the alleged insufficiency of identification by Witnesses F and T.   Accordingly, this ground of appeal must fail.

b.        Testimony of Defence Investigator, Gillian Higgins, concerning visibility from the top of Muyira Hill (Witnesses N and T)

116.     Musema submits that the testimony of both Witnesses T and N, who testified to having seen him in his car while they were at the top of Muyira Hill, is contradicted by the evidence proffered by the Defence Investigator, Gillian Higgins.[217]  He asserts that on the basis of exhibit D96, a photograph and exhibit D100,  a video, Gillian Higgins testified that the road where the Witnesses claimed to have witnessed the arrival of vehicles was not visible from the top of Muyira Hill.  Consequently, Musema concludes, the Trial Chamber erred in failing to address this issue in its Judgement.

117.     The Prosecution argues that, other than the requirement under Article 22(2) of the Statute that a judgement be accompanied by a "reasoned opinion" in writing, the Trial Chamber is not bound to mention every aspect of its assessment of testimonial evidence.  Therefore, it must be presumed that the Trial Chamber considered all of the evidence, including photographic exhibits and the testimony of Gillian Higgins, and that the fact that reference is not made to this or that piece of evidence does not constitute an error on its part.[218]

118.     A reading of the Trial Judgement shows that no reference is made to the evidence of Gillian Higgins or exhibits D96 and D100.  The presumption can therefore be made that the Trial Chamber did not rely on the said evidence. Consequently, the Appeals Chamber is of the view that the issue is not so much whether the Trial Chamber erred by not addressing this matter, but rather, whether the Trial Chamber erred in not relying on the evidence in question.

119.     The exhibits and evidence of the Defence Investigator, Gillian Higgins, were produced by Musema’s Defence on 28 May 1999, whilst the testimonies of Witnesses N and T were given,  as part of the Prosecution case,  on 28 April 1999 and 3 February 1999 respectively.  It follows that the issues raised during the testimony of Gillian Higgins were not put to either Witness N or T for the simple reason that they had not yet been raised by the time N and T testified. However, the Trial Chamber may have decided not to take into consideration the testimony of Gillian Higgins,  because it found the said testimony less credible.  Although both photographic exhibit D96 and video exhibit D100 are mentioned in the Appellant’s Brief, the parts of the Trial transcripts on Gillian Higgins’ evidence, which were referred to by Musema deal exclusively with Gillian Higgins’ testimony in relation to photographic exhibit D96. 

120.     Having reviewed the trial transcripts of Gillian Higgins’ testimony, the Appeals Chamber notes the following relevant parts thereof:

The photos that were made that you see that form part of this panorama were all taken from the top of Muyira Hill. It represents a 360 degree view and the left-hand side of the panorama can effectively be joined up to the right hand side […].[219] 

Starting at the left-hand side of the panorama, you can see Lake Kivu is here. There is a sunken road which travels along the top here which is not visible from the top of Muyira Hill, but it is nonetheless indicated by the line of houses that you can follow around the top […].[220]

Gillian Higgins was then shown Defence exhibit D7A by Counsel for the Defence and the following exchange took place:

Q.              Now, can you tell the court, Ms. Higgins, what you see here?

A.             I am looking at Defence exhibit 7A. This is a picture of the Bisesero Memorial site and it is taken from the road which eventually if you follow it up towards the memorial site will lead you to the Gisovu tea factory. And to put it into context, Muyira hill would  be found somewhere on the left-hand side of this picture.

Q.              Thank you. So this is the sunken road one cannot see from the point you have just pointed out to us from the panorama?

A.             It is not possible from the view at the top of Muyira Hill to see this road, no.[221]

The Appeals Chamber also notes that, on cross-examination by the Prosecution, Gillian Higgins confirmed that she did not have "fully qualified techniques for investigating"; that her acquaintance with criminal investigation is due to her professional activity as an attorney;[222] that the camera lens used to take the panoramic photographs was a normal lens and not the appropriate panoramic one;[223] that she did not visit all the roads in Bisesero and Gishyita and the roads in all the other communes;[224] and that she was not accompanied by a native of Kibuye when the visited the various scenes.[225]

121.     The Appeals Chamber finds of particular relevance the statements elicited from Witness N when shown photograph exhibits D7A and B[226] during cross-examination by Counsel for the Defence.[227]  Witness N stated: "[o]n this photograph I can see houses which were not there before."[228] Gillian Higgins, who was also shown exhibit D7A,  as mentioned above, testified about the sunken road that was not visible, but which was indicated by a line of houses.  Given the fact that the panoramic photograph (exhibit D96) was taken in March 1999, it is possible that it did not depict the conditions existing on 13 May 1994, and that on the date, the road in question could be seen from the top of Muyira Hill as the view was not obstructed by houses.

122.     In the light of  the various factors discussed above, the Appeals Chamber is satisfied that the Trial Chamber acted reasonably in not taking into consideration the evidence of Defence Investigator, Gillian Higgins.  Having had the opportunity to hear Witnesses N and T and to observe them under cross-examination,  the Trial Chamber chose to find their testimonies reliable. Furthermore, the corroborated accounts by Witnesses F, N, T and P, as noted above, support the Trial Chamber’s conclusions on Musema’s participation in the attack of 13 May 1994. The Appeals Chamber has to defer to the Trial Chamber’s findings, and the Appeals Chamber fails to see how the Trial Chamber acted unreasonably in not taking account of Gillian Higgins evidence.

123.     Consequently, the Appeals Chamber finds that Musema has failed to prove that the Trial Chamber erred, in not taking into account the evidence produced by Gillian Higgins when  considering testimony on identification given by Witnesses N and T.  Accordingly, the argument on this point must fail.

(iii)       The improbable nature of Witness N’s testimony

124.     Musema argues that certain aspects of Witness N’s testimony are improbable and implausible.  He maintains that, given the number of people on the hill and the dangerous situation in which N was at the time, it is extremely unlikely that he would have been able to get close enough to the attackers to hear what they were saying, even if, as N stated, the refugees were speaking softly and the attackers loudly.[229] Secondly,  he asserts that the situation described by N when recounting how rape was perpetrated in the open while fighting was still going on in the vicinity, is highly improbable.[230]

125.     As mentioned earlier (para. 15 of this Judgement), the task of the Appeals Chamber, as defined by Article 24 of the Statute, is to hear appeals from the decisions of Trial Chambers on the grounds of an error on a question of law invalidating the decision or of an error of fact which has occasioned a miscarriage of justice.  The onus is on the Appellant to show that the Trial Chamber committed such an error, and his arguments before the Appeals Chamber must be directed to that end.  With respect to an error of fact, the Appellant has a two-pronged burden: first he must show that the Trial Chamber actually committed such an error, and secondly that the error has occasioned a miscarriage of justice.[231]  It is established case-law that an appeal is not a trial de novo;[232] an appealing party must establish an error pursuant to the principles outlined above. In the present case,  the Appeals Chamber is satisfied that Musema has failed to put forward arguments in support of his assertion that certain aspects of Witness N’s testimony were "implausible" or "improbable".  Consequently, this argument is dismissed.

(iv)       Violation of the right to effective cross-examination of Witness F

126.     Musema submits that Witness F had been cross-examined before his Defence conducted its investigation at the locus in quo in Rwanda. The Defence therefore had no opportunity to show him photographs thereof during cross-examination.[233]

127.     The Appeals Chamber finds that this argument lacks merit.  Musema has not indicated at all that he raised this point at trial[234]  and, if so, whether the Trial Chamber acted in a manner prejudicial to his case. The Appeals Chamber recalls that, as a general principle, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, only to raise it in the event of an adverse finding against that party. Thus, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party "has waived his right to adduce the issue as a valid ground of appeal."[235]  Accordingly, this argument cannot prosper.

128.     For the foregoing reasons, the Appeals Chamber finds that Musema has failed to demonstrate that the Trial Chamber erred in its assessment of the credibility of Witnesses F, T and N for its factual findings concerning the 13 May 1994 attack on Muyira Hill. The Appeals Chamber thus rejects the argument challenging the credibility of Witnesses F, T and N.

(d)        Muyira Hill, 14 May 1994

129.     In challenging the credibility of Witnesses AC, T and D,  Musema submits that their evidence does not sustain the Trial Chamber’s factual findings concerning the 14 May 1994 attack on Muyira Hill.  Regarding Witness T, Musema reiterates the arguments he advanced earlier to cast doubt on the credibility of his testimony with respect to the 13 May 1994 attack. The Appeals Chamber thus recalls its findings concerning Witness T,  supra and will therefore only consider Musema’s arguments concerning Witnesses AC and D.

130.     In relation to the 14 May 1994 attack on Muyira Hill, the Trial Chamber found, on the basis of the testimonies of Witnesses AC, F, T and D, that it had been proven beyond reasonable doubt that another large-scale attack took place on Muyira Hill on 14 May 1994 against Tutsi civilians; that the attackers, who numbered about 15,000, were armed with traditional weapons, firearms and grenades; that they chanted slogans; and that Musema, who was armed with a rifle, was one of the leaders of that attack.[236]  

(i)         Witness AC

131.     In challenging the testimony of Witness AC, Musema puts forward the following arguments:

-         The Trial Chamber accepted the testimony of Witness AC only to the extent that it was corroborated by other evidence. However, Musema submits that Witness AC’s testimony is wholly unreliable and, even in part, was not improved by the testimony of other witnesses.[237]

-         Several features of AC’s testimony before the Trial Chamber,  in particular, contradictions as to when he first saw Musema before the May 1994 attack,  the fact that he could not provide certain details when compared to his testimony at the Kayishema and Ruzindana trial and his evasiveness when asked questions about anything other than the matters on which he believed he had come to testify, show that the Trial Chamber erred in finding that Witness AC was credible.[238]  In addition, AC gave the impression of a witness who had fabricated his evidence.[239]

132.     The Prosecution argues that the Trial Chamber had the discretion to accept any part of  Witness AC’s testimony with or without corroboration,  or to accept only these parts which were corroborated.[240]

133.     The Appeals Chamber first of all notes that the Trial Chamber was cognizant of the "many confusing elements" in Witness AC’s testimony. At paragraph 713 of the Judgement, the Trial Chamber stated as follows:

The Chamber notes that there was no cross-examination of this witness specific to this attack. Other issues raised on cross-examination, however, raise questions as to the reliability of the witness’ testimony. There are many confusing elements in the testimony. It is unclear, for example, whether or not he attended the meeting in Kibuye. It is also unclear why he had such difficulty remembering names of gendarmes, whose names he was able to recall during his testimony in the Kayishema and Ruzindana case. When asked to explain these divergences in his testimony he was willing to provide them in this case. The Chamber considers that the Defence did not establish that the testimony of Witness AC was untruthful in any material respect. However, in light of the confusion which emerges from the cross-examination, the Chamber is willing to accept the evidence of this witness only to the extent that it is corroborated by other testimony. 

Furthermore, upon review of the Trial Judgement on this issue, the Appeals Chamber also notes that most of the matters raised in Musema’s arguments concerning the credibility of Witness AC were noted by the Trial Chamber.[241]

134.     The Trial Chamber’s factual findings[242] based, though not entirely, on Witness AC’s testimony reveal that a large-scale attack occurred on 14 May 1994 on Muyira Hill; that AC saw Musema arrive in his red Pajero; that the attack was led by Musema and Ndimbati; that Musema, who was carrying a firearm and a belt of ammunition, fired gunshots, which, according to AC, hit an old man by the name of Ntambiye and another called Iamuremye,[243] that, on being attacked by the assailants led by Musema and Ndimbati, the refugees defended themselves with stones, but that the military fired tear gas at them; and that the attackers left the scene at 18:00hrs.  As was observed by the Trial Chamber on two occasions, there was no cross-examination of Witness AC specific to this attack.[244] Various aspects of Witness AC’s testimony were also corroborated by the testimony of Witnesses F, T and D in material respects.[245] On the question of corroboration of testimony, the Appeals Chamber recalls its earlier statements with regard to the Trial Chamber’s discretion to assess the evidence and testimony before it. Thus, although not bound to do so, a Trial Chamber may require that the testimony of a witness be corroborated. The Appeals Chamber finds that it was within the discretion of the Trial Chamber to accept the evidence of AC to the extent that it was corroborated by other testimony.  In this regard, the Appeals Chamber also recalls that "a tribunal of fact must never look at the evidence of each witness, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear to be of poor quality, but it may gain strength from other evidence of the case."[246]

135.     Consequently, the Appeals Chamber finds that the Trial Chamber did not err in accepting the evidence of Witness AC on condition that it was corroborated by other testimony. Furthermore, Musema’s submissions on the alleged unreliable features of Witness AC’s testimony do not, in the view of the Appeals Chamber, directly challenge the material aspects of AC’s evidence. Thus, notwithstanding Musema’s arguments, Witness AC’s evidence concerning Musema’s participation in the 14 May 1994 attack which is corroborated by the evidence of Witnesses F, T and D, remains credible.

136.     Regarding the allegation that Witness AC gave the impression of being a witness who had concocted his evidence, the Appeals Chamber notes that at the trial, Musema’s Defence had, on several occasions, alleged that Witness AC was lying.[247]  However, the Appeals Chamber notes that, apart from putting this to the witness in cross-examination, Musema did not pursue this matter at all. On appeal, Musema merely alleges that Witness AC is unreliable, without providing any examples and arguments in support.  Considering therefore the principle that the onus is on the appealing party to prove that the Trial Chamber erred, the Appeals Chamber finds that Musema has not discharged this burden.

(ii)        Witness D

137.     Musema’s alleges that Witness D did not properly identify him. In his submission, Musema argues that the Trial Chamber failed to take sufficient  account of the following:

-         Witness D’s limited knowledge of Musema, as she had only seen him on two occasions before the attacks and had never spoken to him.[248]

-         It is not possible, from Witness D’s testimony, to establish the circumstances of identification, whereupon the Trial Chamber could not validly rely on such testimony.[249]  When Witness D testifies that she fled as soon as she saw the attackers, it can be assumed that she only took a fleeting glance at the attackers. Furthermore, she stated that she was five minutes’ walk from the attackers on Muyira Hill; she could therefore not have identified Musema from that distance.[250]

-         Witness D did not mention Musema in the first two statements she made to investigators.[251]

138.     The Appeals Chamber recalls its observations in paragraph 113,  supra, concerning a witness’s prior knowledge of the persons identified. Prior knowledge is a factor that may be taken into account by the Trial Chamber, but it is not a sine qua non; identification may be based on other factors.  In this regard, the Appeals Chamber notes that the second prior occasion (the first one lasting for only a few minutes)[252]  where Witness D saw Musema,  was a meeting that lasted one hour, at which meeting Musema was seated behind a table with other officials.[253]  In the circumstances, the Appeals Chamber holds that it was within the discretion of the Trial Chamber to take into consideration the fact that Witness D had met Musema on previous occasions in order to give more weight to his testimony on Musema’s identification.

139.     Regarding the lack of evidence which would make it possible to establish the circumstances in which identification was made, the Appeals Chamber refers to its previous observations concerning a similar argument in relation to identification by Witnesses R, F and T (paras. 90 and 113, supra). Hence,  in issues of identification, the Trial Chamber is not obliged to require that a witness provide evidence of any particular kind. It is for the Trial Chamber to consider the evidence of identification given by a witness and to assess its credibility in light of the circumstances of the case. In its judgement, the Trial Chamber pointed out that in cross-examination, Witness D was careful to explain what she was able to see in relation to the attack of 14 May 1994. She explained that she only saw the attackers (Musema being one of the leaders) once they had disembarked from their vehicles and were making their way to the refugees,  after which she fled.[254]  Still, with regard to the identification of the Accused by Witness D, the Trial transcripts reveal as follows:

-         Witness D testified that she was on Muyira Hill on 8 a.m. when the attackers arrived.[255] Thus, it was during daylight;

-         When cross-examined as to the distance between her and the attackers, Witness D replied: "it was a distance that I could see and identify people".[256]

Upon further cross-examination by Counsel for the Defence, the following exchange took place:

Q.              How many of the attackers were there when you decided it was better for you to run away?

A.             I saw several of them.

Q.              You have told us that you saw several of them. Are you able to put this in numbers at all to help us with what you said?

A.             They were very many and a figure that I can advance is, would be let us [sic]  about 15 thousand.

Q.              And the distance between you and these attackers if you were to walk it, would take how long?

A.             Not more than five minutes.[257]

Q.              Because of everything that was happening it must have been very difficult for you to identify people within that group isn’t that right?

A.             Yes.

Q.              And when you have told this court that you saw Alfred Musema in the middle of that group of about 15 thousand people that is not true is it?

A.             Yes, it is true it was difficult to identify or to see all the people present but I was able to see him personally because he was in the group that was in front.[258]

It is apparent that the distance of five minute’s walk given by the witness was an estimate. Therefore, it is plausible that Musema, being in the group that was in front, was close enough for the witness to be able to identify him. Lastly, the Appeals Chamber also notes that Musema’s participation in the attack of 14 May 1994 was further corroborated by the accounts given by Witnesses AC, F and T. Consequently, the Appeals Chamber fails to see how the Trial Chamber erred in its treatment of the identification of Musema by Witness D.  On the basis of Witness D’s evidence and the corroborative accounts given by other witnesses, it was reasonable for the Trial Chamber to be satisfied that Witness D had identified Musema. The Appeals Chamber emphasizes that the law does not require that evidence be corroborated, but that where it is corroborated, that fact may be taken into account in assessing the credibility of the evidence in question.

140.     The Defence also submits that Witness D had not mentioned Musema in two previous statements made to investigators.  The Appeals Chamber notes that this allegation is made in a general manner, without demonstrating any material bearing it may have on the reliability of Witness D’s in-court testimony.  Moreover, it appears that in his arguments Musema fails to mention the fact that, in a third previous statement, Witness D did in fact make mention of him.[259]  Consequently, the Appeals Chamber finds this argument unfounded.

141.     For the foregoing reasons, the Appeals Chamber finds that Musema has failed to demonstrate that the Trial Chamber erred in its assessment of the credibility of Witnesses AC and D in relation to its factual findings concerning the 14 May 1994 attack on Muyira Hill. Furthermore, as Musema repeats his previous arguments on the credibility of Witness T,  in connection with the 13 May 1994 attack, the Appeals Chamber reiterates its findings on these aspects concerning the credibility of Witness T.  Accordingly, the Appeals Chamber rejects the argument challenging the credibility of Witnesses AC, T and D.

(e) Mid-May attacks (Muyira Hill and Mumataba Hill) and Nyakavumu cave (end-of-May attack)

142.     In challenging the credibility of Witnesses H and S, Musema submits that their evidence does not sustain the Trial Chamber’s factual findings concerning two mid-May (between 10 and 20 May 1994) attacks on Muyira Hill and Mumataba Hill respectively.  He also challenges the credibility of Witnesses AC, H, S and D,  arguing that their evidence does not sustain the Trial Chamber’s factual findings concerning the end-of-May attack at Nyakavumu cave. With regard to Witnesses AC and D, Musema puts forward arguments he had previously advanced to cast doubt on the credibility of both Witnesses in connection with the 14 May 1994 attack at Muyira Hill. The Appeals Chamber thus reiterates its findings earlier made with respect to Witnesses AC and D (para. 141, supra), and will therefore only consider Musema’s arguments concerning Witnesses H and S.

143.     The Appeals Chamber first of all notes the following findings of the Trial Chamber concerning these sites:

(i)            On the sole basis of Witness H’s testimony,  the Trial Chamber found that it had been established beyond reasonable doubt that Musema participated in the mid-May 1994 attack on Muyira Hill against Tutsi refugees and that he led the attackers,  including Interahamwe and employees of the Gisovu Tea Factory; that Musema’s red Pajero and  Gisovu Tea Factory vehicles were seen at the scene of the attack; that he launched the attack with a gunshot; and that he personally shot at refugees. It was not established, however, that anyone was hit by Musema’s gunshot.[260]  

(ii)           On the sole basis of Witness S’s testimony, the Trial Chamber found that it had been proven beyond reasonable doubt that Musema participated in an attack on Mumataba Hill in mid-May 1994; that among the attackers, who numbered between 120 – 150, were employees of the Gisovu Tea Factory armed with traditional weapons, and communal policemen; that in the presence of Musema,  tea factory vehicles transported attackers to the location; that the attack, which targeted some 2 000 to 3 000 Tutsis who had sought refuge in and around a certain Sakufe’s house, was launched by the blowing of whistles; that Musema was present and he remained next to his vehicle, with others, during the attack, and that he left the location with the attackers.[261] 

(iii)          On the basis of the evidence of four[262] witnesses, AC, H, S and D, the Trial Chamber found beyond a reasonable doubt that Musema participated in the end-of-May attack on Nyakavumu cave; that he was aboard his Pajero in a convoy, which included tea factory Daihatsus with tea factory workers on board, travelling towards the cave;  that he was armed with a rifle and that he was present at the attack during which assailants closed off the entrance to the cave with wood and leaves, and set fire thereto, and that 300 Tutsi civilians who had sought refuge in the cave died as a result of the fire.[263]  

(i)         Witness H

144.     Musema submits that the Trial Chamber failed to take sufficient account of several factors with regard to Witness H’s testimony concerning the mid-May 1994 attack on Muyira Hill and the end-of-May 1994 attack on the Nyakavumu cave. The Appeals Chamber will first of all consider Musema’s allegations which are specific to each location, and then proceed to consider the allegations generally calling into question Witness H’s credibility.

a.        H’s testimony in relation to the mid-May 1994 attack on Muyira Hill

145.     Musema challenges the following parts of Witness H’s testimony: 

-         There were inconsistencies in Witness H’s in-court testimony regarding the location of Musema’s vehicle[264] and the location where he sustained the injury to his right thigh.[265] Furthermore, his in-court testimony that he recognized the tea factory workers at the Muyira Hill attack by their blue uniforms contradicts his previous statement that they were wearing civilian clothes.[266]

-         Witness H was evasive when asked how he knew that the Interahamwe were living with Musema in Gisovu, though it became clear that this was hearsay.[267]

-         Witness H’s identification of the tea factory vehicles from the top of Muyira Hill is questionable in the light of the evidence of Defence Investigator Gillian Higgins and of the related exhibits.[268]

-         Witness H’s account to the effect that the attackers were chased right down the hill is not corroborated by any other witness, and is improbable. It is possible that he fabricated this story in order to relate it to Musema.[269]

146.     The Appeals Chamber notes right away that it is apparent from the Trial Judgement[270] that the Trial Chamber was cognizant of some of the above issues raised by Musema. In this regard, the issue of inconsistency as to the location of Musema’s vehicle and Witness H’s evidence concerning the fact that the Interahamwe were living with Musema in Gisovu were noted by the Trial Chamber when recalling the testimony of the Prosecution witnesses. However, these matters were not referred to in the Trial Chamber’s factual findings in respect of this attack.[271] In addition, Musema’s submissions concerning the inconsistency as to the location where Witness H sustained the injury to his right thigh[272] were not referred to in the Trial Chamber’s findings.  The Appeals Chamber is of the view that these matters are not central to Witness H’s evidence on Musema’s participation in the said attack. The facts  that are germane to Musema’s participation in the mid-May 1994 attack on Muyira Hill, to which Witness H testified, are that Musema led attackers, including Interahamwe and tea factory workers in blue uniforms, from Gisovu; that Musema’s red Pajero and four tea factory vehicles stopped at Kurwirambo; that the witness gave a detailed description of the clothes the attackers were wearing and the weapons they were carrying; that Musema launched the attack with a gun-shot and personally shot at refugees, although Witness H could not say whether he actually hit anyone; and that, at some point during the attack, the refugees were able to drive back the assailants and attempted to grab Musema but were prevented from doing so by other attackers. [273]

147.     A Trial Chamber is not obliged in its judgement to sum up and justify its findings in relation to every argument.[274]  After seeing Witness H, hearing his testimony and observing him under cross-examination, the Trial Chamber was best placed to assess the reliability of his testimony. Clearly, this is what it did,  bearing in mind its overall evaluation of the entire testimony.  It may be assumed that the Trial Chamber regarded these matters as being less probative and insufficient to substantially impair Witness H’s evidence. The Appeals Chamber is of the view that the Trial Chamber acted properly, since Musema failed to show that these matters were material to the overall evaluation of Witness H’s evidence.  The Appeals Chamber will therefore defer to the Trial Chamber’s assessment.

148.     Regarding the question of identification of the tea factory vehicles from the top of Muyira Hill, the Appeals Chamber reiterates its earlier finding that the Trial Chamber acted reasonably, in the light of the circumstances of the case, in not taking into consideration the evidence of Defence Investigator, Gillian Higgins.  Consequently, the Appeals Chamber holds that it was within the discretion of the Trial Chamber to accept the evidence of Witness H’s identification of the tea factory vehicles from his vantage point at the top of Muyira Hill.[275]

149.     There is also the issue of the inconsistency between Witness H’s testimony and his previous statement as to the clothes the tea factory workers were wearing during the attack on Muyira Hill.  It emerges from trial transcripts,[276]  that when asked about the said inconsistency on cross-examination, Witness H explained that some of the tea factory workers were indeed wearing blue uniforms, but that there were also others who were not wearing blue uniforms, but rather blue overalls. Witness H went on to state that his previous statement was the result of the questions put to him. The Appeals Chamber notes that the previous statement in question was given by Witness H on 19 November 1998 to Tribunal investigators, and recognizes the difficulty a witness may have recollecting precise details or recounting them with the same accuracy and in the same manner whenever they are asked to relate them. The Trial Chamber relied on oral testimony given in the courtroom,[277]  and not on prior statements,  as it was in a position to directly observe the demeanour of the witness and place him in the context of all the other evidence before it.  The Appeals Chamber finds no cause to say that, in so doing, the Trial Chamber erred.

150.     With regard to the "improbable" nature of Witness H’s testimony that the attackers were chased down the hill, the Appeals Chamber reiterates that an appeal is not a de novo review,[278] and that the onus is on Musema to establish the error which resulted in a miscarriage of justice.  Merely alleging that this aspect of Witness H’s evidence is "improbable" does not suffice to establish that the Trial Chamber erred in its assessment of the evidence. Further, the allegation that Witness H fabricated the evidence to bring himself closer to Musema is unsupported. Musema has not adduced additional evidence before the Appeals Chamber in order to substantiate his claim. The Appeals Chamber accordingly finds this argument to be without merit.

b.               H’s testimony in relation to the end-of-May attack on Nyakavumu cave

151.     Musema challenges the following parts of Witness H’s testimony:

-         In his previous statement taken on 19 November 1998, Witness H said that the attack in the cave took place in April, and that he lost 4 of his children in it. However, in his oral testimony in court,  he stated that the attack took place at the end of May or beginning of June, and that none of his children died in it;[279]

-         Witness H’s evidence concerning what he saw at Nyakavumu cave was questionable in view of the fact (i) that he was 30 minutes’ walk from the cave; (ii) that, although he allegedly saw Musema 40 metres away from the cave, it was not established what distance it was between Witness H and Musema; and (iii) that Witness H admits that, at the cave incident, he gave no more than a "quick look" at Musema.[280]

152.     Having noted the overwhelming evidence of Witnesses AC, H, S and D, all of whom presented consistent testimony as to the attack on the cave, the Trial Chamber found that it had been established beyond reasonable doubt that Musema participated in the said attack.[281] Those parts of Witness H’s testimony referred to in the Trial Judgement’s factual findings indicate that sometime around the end of May or early June, Witness H saw Musema briefly prior to the attack, in a convoy moving in the direction of the cave, and presumed that he must have been present at the cave; that within the convoy was Musema’s Pajero and tea factory vehicles; that Witness H, observing from a nearby hill, saw assailants destroy houses in the vicinity for firewood and set light to the entrance of the cave; and that only one person survived the fire.[282]

153.     With respect to the inconsistency between Witness H’s previous statement of 19 November 1998 and his oral testimony, the Appeals Chamber reiterates its earlier observation, supra, and finds that it was within the discretion of the Trial Chamber to give probative value to the testimony primarily because the said testimony was given before the Chamber, as opposed to prior statements.  In addition, a reading of the Trial transcripts[283] reveals that, during the examination-in-chief and cross-examination on this issue, Witness H was careful to repeatedly explain that the investigators who took the previous statement in question misunderstood him and therefore misinterpreted what he said.  For instance, when Counsel for the Defence cross-examined Witness H about his having signed and certified the said statement as true, Witness H answered as follows:

To error[sic] is human. I think whether the error be from those who put down what I said or whether the error comes from me anyway, [anywhere][sic] somebody made an error in any case I did not say that my children died in the attack at the cave because I know very well that this is not the case. They died in mid-May. This was in 1994.[284]

The error that was committed, is that they said that the persons in question were killed in April whereas, this is not what I said.[285]

Although the Trial Chamber made no reference in its findings to the alleged inconsistency,  the Appeals Chamber finds, having regard to the consistency with which Witness H responded to the questions on this issue, that it may nevertheless be assumed that the Trial Chamber considered the explanation given by Witness H as satisfactory.

154.     With regard to the allegations concerning Witness H’s testimony as to what he saw at Nyakavumu cave and his identification of Musema, the Appeals Chamber notes that Witness H was asked to explain the same matters during his testimony before the Trial Chamber.[286]  The Appeals Chamber further notes that Witness H had known Musema prior to 1994.[287] Musema makes no mention in his Appellant’s Brief of the explanations given by Witness H or of the fact that the Witness had prior knowledge of him.  In conformity with the principle that an appeal is not a trial de novo, the onus is on Musema to establish the error occasioning a miscarriage of justice. Failing such a showing, it was not unreasonable for the Trial Chamber to consider the explanations given by Witness H as satisfactory.  Moreover, it was within the discretion of the Trial Chamber to consider Witness H’s prior knowledge of Musema as strengthening his evidence of identification.  Consequently, and although the Trial Chamber did not specifically mention these issues in its factual findings, it is reasonable to assume that the Trial Chamber took them into account in its overall assessment of Witness H’s evidence.  In any event, there was sufficient corroboration of Musema’s participation in the attack on Nyakavumu cave from witnesses AC, S and D. On the basis of Witness H’s testimony and the corroborative accounts given by other witnesses, it was reasonable for the Trial Chamber to be satisfied that Witness H had identified Musema.

155.     Musema submits that the Trial Chamber failed to take sufficient account of the fact, (i) that Witness H did not remember the names of his own children;[288] and (ii) that Witness H had problems with his eyesight which started five years ago although he stated that his problem with seeing things at a distance began about two years ago.[289]

156.     The Appeals Chamber notes right away that Witness H was consistent in his explanation regarding his eyesight problem during cross-examination. He stated that, although the problem started five years ago, it was not really serious, and that his eyesight only became poor two years ago.[290]  The Appeals Chamber also holds that the argument that Witness H cannot remember the names of his children does not impair his credibility to the extent of vitiating his testimony on all other issues.[291]  Thus, it was for the Trial Chamber to determine whether the Witness was reliable and his evidence credible in its entirety.  Consequently, the Appeals Chamber must always give a margin of deference to the Trial Chamber’s finding of fact unless it can be demonstrated that the Trial Chamber erred in its assessment.  Musema has failed to do so.

157.     Musema also argues that, both in respect of Muyira Hill and Nyakavumu cave, Witness H was unable to identify anyone else in Musema’s group, despite the fact that he knew many Hutus in Gisovu commune,  which ironically casts doubt on his account.[292]  In support of this argument, Musema refers to the Trial transcripts on Witness H’s cross-examination in relation to the attack on Nyakavumu cave.[293]  Thus, Musema has not substantiated his argument in relation to Muyira Hill. With regard to Nyakavumu cave, the Appeals Chamber first notes that for Musema to say that Witness H "knew many Hutus in the Gisovu commune" is a misrepresentation of facts.  In response to the question whether he knew Hutu people within Gisovu commune, Witness H replied, "[t]hose who I knew, are those who were living in the place or the location I was working. Some members of the local population."[294] The Appeals Chamber also notes that the witness explained this on cross-examination[295] and upon further questions by Judge Pillay on this issue.[296]  Musema has not mentioned these explanations nor demonstrated their unreasonableness in his Appellant’s Brief.  Consequently, the Appeals Chamber finds this allegation unfounded.

(ii)        Witness S

158.     Musema submits that the Trial Chamber failed to take sufficient account of several factors with regard to Witness S’s testimony concerning the mid-May 1994 attack on Mumataba Hill and the end-of-May 1994 attack on the Nyakavumu cave.

159.     Firstly, Musema challenges Witness S’s identification of him and submits that there is no evidence to show that the Witness knew him before the events in question.  Therefore, his identification must be deemed unreliable.[297] Secondly, there was little detail elicited to establish the conditions surrounding Witness S’s identification of Musema during the events in question, and thus little to help the Trial Chamber to evaluate the reliability of the identification.[298]

160.     The Appeals Chamber recalls what it had earlier stated, to wit,  that there is no requirement that an identified suspect be personally known to the witness. Prior knowledge of the person identified is a factor which, though not a sine qua non, may be taken into consideration by the Trial Chamber when assessing the reliability of a witness’ testimony;[299]  identification may be based on other factors. In addition, the Appeals Chamber has observed that under Rule 89 of the Rules,  a Chamber "may admit any relevant evidence which it deems to have probative value" and is not obliged to elicit evidence of any particular kind from a witness concerning a given identification. It is for the Trial Chamber to  determine if the evidence of identification given by a witness is reliable in light of the circumstances of the case. The Trial Chamber is best placed to assess the evidence. In this regard, Musema alleges that because of his being a "considerable distance" away, it is simply not credible that Witness S could have (i) read inscriptions on vehicles and uniforms at the mid-May 1994 Mumataba Hill incident; or (ii) heard the orders given to the attackers at the end-of-May 1994 Nyakavumu cave incident.[300]

161.     With regard to the mid-May 1994 Mumataba Hill attack, the Trial Chamber noted in its Judgement that in cross-examination, Witness S provided a detailed description of the area of the attack by reference to Prosecution photo exhibits 20.1 and 20.2,[301] and that the vehicles were parked less than one kilometre from where the Witness was hiding.[302] The Trial Chamber then noted that, that notwithstanding, the Defence still called into question the witness’ assertion that he was able to read the inscription on the tea factory vehicles.[303] On appeal, Musema repeats this allegation but does not provide further argument to demonstrate that it was implausible that Witness S could have been able to read inscriptions on vehicles or uniforms from such a distance.  Furthermore, the Appeals Chamber notes that Witness S testified to having seen the vehicles at 10:00hrs, in the morning; [304] that from where he was at the summit of Mpura Hill, he could look downwards and recognize someone; that, in fact, he saw Musema and vehicles carrying people;[305] and that he was also able to recognize the vehicles not only by the inscriptions but also by their colour including Musema’s red Pajero.[306]  The Trial Judgement also noted that Witness S testified that Musema stayed by his car during the attack in the company of persons dressed in white and that Musema left the site around 17:00hrs.[307] In light of the foregoing, the Appeals Chamber is of the view that Musema’s arguments do not suffice to demonstrate an error by the Trial Chamber in its evaluation of Witness S’s testimony concerning the mid-May 1994 attack on Mumataba Hill.

162.     As to whether it was plausible that Witness S could have heard the orders given to the attackers at the end of May 1994 Nyakavumu cave incident, the Appeals Chamber is of the view that this is an isolated allegation that must be considered from the broader perspective of the Trial Chamber’s findings on the cave incident as a whole.  The orders referred to by Musema were given by the assailants who were with him, and who shouted three times to call back those attackers who had gone beyond Nyakavumu cave.[308]  Witness S testified that he saw Musema, through trees, carrying a long rifle and following the assailants who blew whistles and shouted out the said orders three times.[309]  Although the Trial Judgement did not mention the distance from which Witness S was able to hear the orders, it is plausible that Witness S, being close enough to identify Musema and hear the assailants blowing whistles, was also able to hear the orders being shouted out.  Moreover, Musema does not dispute the other aspects of Witness S’s evidence, relied on by the Trial Chamber[310] in relation to what he saw.  More particularly, there was sufficient corroboration of Musema’s participation in the attack on Nyakavumu cave from Witnesses AC, H and D.  In light of Witness S’s evidence and the corroborative accounts given by other witnesses, the Appeals Chamber fails to see why it was unreasonable for the Trial Chamber to rely on the evidence of Witness S.

163.     For the foregoing reasons, the Appeals Chamber finds that Musema has failed to show that the Trial Chamber erred in its assessment of the credibility of Witnesses H (concerning the mid-May 1994 attacks on Muyira Hill) and S (concerning the mid-May 1994 attack on Mumataba Hill),  and dismisses the argument challenging the credibility of Witnesses H and S.

164.     Similarly, with regard to the end-May 1994 attack on Nyakavumu cave, the Appeals Chamber finds that Musema has failed to show that the Trial Chamber erred in its assessment of the credibility of Witnesses H and S.  Furthermore, as Musema repeats his previous arguments on the credibility of Witnesses AC and D put forward in connection with the 14 May 1994  attack on Muyira Hill, the Appeals Chamber reiterates its findings on these aspects concerning the credibility of Witnesses AC and D.   Accordingly, the Appeals Chamber rejects the argument challenging the credibility of Witnesses AC, H, S and D.

(f)        Sexual Crimes

(i)         Rape and murder of Annunciata Mujawayezu on 14 April 1994

165.     In challenging the Trial Chamber’s findings on this incident, Musema questions the credibility of Witness I, who, with Witnesses, L and PP, gave evidence concerning the rape and murder of Annunciata Mujawayezu on 14 April 1994.  While calling into question the testimony of Witness I, Musema alleges that the majority of the Trial Chamber failed to take into account several factors regarding her evidence.[311]  Musema further argues that the Trial Chamber erred in its treatment of the inconsistencies between her oral testimony and her pre-trial statements regarding this incident.[312] Consequently, Musema submits that the majority of the Trial Chamber erred in law and in fact in finding him guilty of the said incident.[313]

166.     Before deciding whether or not it should proceed to consider the merits of Musema’s arguments on this issue, the Appeals Chamber must first of all address the Prosecution’s submission that, with regard to this particular incident,  Musema cannot in any way appeal against the counts on which he was found guilty, namely, Counts 1, 5 and 7.[314]  The Prosecution maintains that the Trial Chamber did not convict Musema of the alleged rape and killing of Annunciata Mujwayezu nor did it rely on such in determining the sentence to be imposed on Musema.[315]

167.     Paragraphs 4.7 to 4.10 of the Amended Indictment[316] set out the factual allegation with respect to the rape charges and, in particular, paragraph 4.8 states:

On 14 April 1994, within the area of the Gisovu Tea Factory, Twumba cellule, Gisovu commune, Alfred Musema, in concert with others, ordered and encouraged the raping of Annunciata, a Tutsi woman and thereafter, ordered, that she be killed together with her son Blaise.[317]

The majority of the Trial Chamber (Judge Aspegren dissenting)[318] made the factual finding that it had been established beyond reasonable doubt that Musema ordered the rape of Annunciata Mujawayezu and the cutting off of her breast to be fed to her son.[319] However, despite this finding, the majority of the Trial Chamber went on to observe that no evidence had been introduced to indicate that Musema ordered that she be killed, nor was there conclusive evidence that she was raped, or that her breast was cut off.[320] At paragraph 889 of the Trial Judgement, the Trial Chamber set out its legal findings concerning,  inter alia,  Count 1(Genocide) and noted as follows:

Firstly, regarding the allegations presented under paragraph 4.8 of the Indictment, according to which Musema, in concert with others, ordered and abetted in the rape of Annunciata, a Tutsi, and thereafter ordered that she and her son be killed, the Chamber holds that even if it is proven that Musema ordered that Annunciata be raped, such order, by and of itself, does not suffice for him to incur individual criminal responsibility, given that no evidence has been adduced to show that the order was executed to produce such result, namely the rape of Annunciata. Nor has it been proven that Musema ordered that she and her son be killed.[321] (emphasis added)

When making its legal findings on Count 7 (Crime against Humanity - rape), the Trial Chamber only relied on its factual findings (with respect to the allegations in para. 4.10[322] of the Amended Indictment) concerning the rape of a Tutsi woman named Nyiramusugi.[323] The Trial Chamber subsequently found Musema individually criminally responsible for the rape of Nyiramusugi pursuant to Articles 3(g) and 6(1) of the Statute.[324] This finding does not include the incident of the rape of Anunciata Mujawayezu.

168.     The Appeals Chamber also notes that, in the section of the Trial Judgement on Sentencing,[325] no reference is made to the rape of Annunciata Mujawayezu.  The Trial Chamber did not take into account this rape incident in the determination of the sentence.

169.     It is the understanding of the Appeals Chamber that, although the Trial Chamber made the factual finding that Musema ordered the rape of Annunciata Mujawayezu,[326] it held that the order in itself was not sufficient for him to incur individual criminal responsibility. Consequently, the Trial Chamber did not take account of this incident, either as a basis for a conviction on the count in question, or in determining the sentence passed.

170.     Witness I, whose testimony Musema challenges, gave evidence only with respect to the rape of Annunciata Mujawayezu.  Therefore, the testimony of this Witness has no bearing on the counts on which Musema was eventually convicted and sentenced, nor on the factual findings made by the Trial Chamber.

171.     Consequently, the Appeals Chamber finds that Musema’s challenge to the credibility of Witness I is misguided and, accordingly, dismisses the argument on this point.

(ii)        Rape of Nyiramusugi  on 13 May 1994

a.         Introduction

172.     In his Appellant’s Brief, Musema submits that the Trial Chamber committed an error of fact in finding that the statements of Witness N were "clear and consistent"[327] As a remedy, Musema requests that he be acquitted on Count 7 of the Amended Indictment, namely rape as a crime against humanity.[328]   The Trial Chamber found Musema guilty of this crime on account of his rape of Nyiramusugi on 13 May 1994, based on Witness N’s oral testimony.[329] 

173.     During the proceedings on appeal, the Appellant was granted leave to file additional evidence in relation to the rape of Nyiramusugi, namely the out-of-court statements of Witnesses CB and EB.[330] The Appeals Chamber heard these witnesses at a hearing held at The Hague on 17 October 2001("Hearing of 17 October 2001").  The parties presented arguments on the same day, in respect of the testimonies of Witnesses CB and EB before the Chamber.

174.     The Appeals Chamber will first consider the ground of appeal raised by Musema in his Appellant’s Brief, and then examine the impact of the statements of Witnesses CB and EB on the Trial Chamber’s factual findings.

(b)        Factual error alleged in Appellant’s Brief

175.     In his Appellant’s Brief, Musema submits that the Trial Chamber committed an error of fact in finding that Witness N’s testimony on the rape of Nyiramusugi was "clear and consistent".[331] However, the Appellant did not advance any specific arguments in that regard; he simply refers to his arguments on Witness N’s testimony regarding the attack  on Muyira Hill.[332]

176.     Since the Appellant did not advance specific arguments regarding the ground of appeal in respect of the rape, the Appeals Chamber has no valid reason to review its  factual findings in paragraph 128 of the instant Appeal Judgement.  The Appellant has failed to establish that the Trial Chamber committed an error of fact in finding that the testimony of Witness N on the rape of  Nyiramusugi was "clear and consistent". Accordingly, this ground of appeal is dismissed.

177.     The Appeals Chamber will now address the impact of the statements of Witnesses CB and EB on the factual findings of the Trial Chamber.

(c)                Errors of fact revealed by the additional evidence[333]

(i)                 Arguments of the parties

178.     At the hearing on appeal held on 17 October 2001, the Appellant  submitted that the statements of Witnesses CB and EB show that the conviction for rape, as a crime against humanity, constitutes a miscarriage of justice.[334] 

179.     With respect, specifically, to the judicial testimony of Witness CB, the Appellant submitted that the said witness’s account of events contains a number of points  that were "entirely irreconcilable" with Witness N’s account before the Trial Chamber, especially in terms of locations and time.[335]  The accounts of Witnesses N and CB are allegedly "totally contradictory" as to the identity of the person who raped Nyiramusugi since CB testified that the rape was committed by one "Mika".[336] The testimonies of   Witnesses N and CB give no indication that Musema raped Nyiramusugi after Mika had raped her on 13 May 1994.[337]   The Appellant alleges that the circumstances of the rape, as described by Witness CB, show that Witness N did not tell the truth before the Trial Chamber.[338]

180.     Regarding the judicial testimony of Witness EB, the Appellant asserts that the
Witness testified to events that are not covered in the Amended Indictment. Witness EB describes the rape of Nyiramusugi allegedly committed by Musema between 15 May and 15 June 1994,[339] whereas Count 7 of the Amended Indictment – one of the bases of the Appeal- charges the Appellant with the rape of Nyiramusugi on 13 May 1994.[340]  In any case, the Appellant submits that he had raised an alibi that covered a greater part of the period between 15 May and15 June 1994.[341]   

181.     For its part, the Prosecution argues that there is no reason to believe that the Trial Chamber’s verdict or its assessment of the credibility of Witness N’s testimony would have been affected if the statements of Witnesses CB and EB been produced before the Trial Chamber. [342]

182.     The Prosecution contends that the fact that Witness CB imputes responsibility for the rape of  Nyiramusugi on 13 May 1994 to one "Mika" does not mean that Nyiramusugi could not have been subsequently raped again, on the same day, by Musema.[343]Although details as to the precise time of the rape do not tally, the Prosecution asserts that the fact that Nyiramusugi was found and brought to Musema in the afternoon of 13 May 1994, after the attack on Muyira Hill, had not been challenged by the evidence of Witness CB.[344]

183.     Regarding Witness EB’s statement, the Prosecution is of the view that it is the account of the rape of Nyiramusugi by the Appellant on a day other than 13 May 1994. Thus, there is no inconsistency between the statement of Witness EB and that of  Witness N produced before the Trial Chamber.[345]  In any case, the Prosecution submits that, pursuant to the Decision of 28 September 2001, the depositions by Witness EB can only be used to verify the testimony of Witness CB and not that of Witness N.[346] 

(ii)               Discussion

184.     As recalled earlier in paragraph 14 of this Appeal Judgement, Article 24 of the Statute provides that the Appeals Chamber shall hear appeals on "an error of fact which has occasioned a miscarriage of justice."[347]  Rule 118(A) of the Rules provides that "The Appeals Chamber shall pronounce judgement on the basis of the record on appeal and on any additional evidence as has been presented to it."[348]

185.     In Kupreskic, the Appeals Chamber of ICTY stated the role of the Appeals Chamber in cases where the factual findings of a Trial Chamber are likely to be reviewed in light of new evidence.  ICTY Appeals Chamber held in the above-mentioned case that:

"Where additional evidence has been admitted, the Appeals Chamber is then required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion amiscarriage of justice."[349] 

"[…] A miscarriage of justice may […] be occasioned where the evidence before a Trial Chamber  appears to be reliable but, in the light  of additional evidence presented upon appeal, is exposed as unreliable.  It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time […] but, in reality, is incorrect."[350]

"[…] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is : has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings."[351]

186.     It is the Appeals Chamber’s view that such principles are also applicable before ICTR when the admission of new evidence entails a review of the Trial Chamber’s factual findings.  The Appeals Chamber finds this to be the case in this instance.

187.     The Trial Chamber found the Appellant guilty of the rape of Nyiramusugi, based on evidence given by Witness N, the sole Prosecution Witness who testified, in respect of Count 7 of the Amended Indictment, which states that:

On 13 May 1994, within the area of Bisesero, in Gisovu and Gishyita communes, Kibuye préfecture, Alfred Musema, acting in concert with others, raped Nyiramusugi, a Tutsi woman and encouraged others accompanying her to rape and kill her.[352]   

In the Section of the Judgement entitled "Factual findings", the Trial Chamber found beyond reasonable doubt, based on the testimony of Witness N, "that Musema, acting in concert with others raped Nyiramusugi, and by his example encouraged the others to rape her on 13 May 1994."[353]  The facts in Witness N’s testimony, relied on by the Trial Chamber to make the above findings, are set out in paragraphs 847 to 856 of the Judgement:[354]

847.         Witness N, a 39 year old Tutsi, testified that he sought refuge in the Bisesero area from 26 April to 13 May 1994. He stated that there were many attacks on Muyira Hill on 13 May 1994 and that he stayed on Muyira hill until that date, after which he had to flee again. He testified that he knew Musema. He saw Musema arrive at Muyira Hill aboard his red vehicle on 13 May 1994.  He said that this was the first time that he had seen Musema during the attacks. He explained that he was able to hear Musema once the group moved to within a few metres of him.

848.         The witness testified that Musema spoke to a policeman named Ruhindura, and asked him whether ayoung woman called Nyiramusugi was already dead, to which the policeman answered "no". He stated that Musema then asked that before anything, this girl had to be brought to him. He and the bourgmestre fired the first shots so the others would start shooting. Ruhindura while fighting and looking for the young woman caught her. The Witness stated that he knew Nyiramusugi. He used to see her when she walked to school and he used to take his cows to graze in front of her parents’ house. He said that she was a young unmarried teacher.

849.         Witness N testified that Nyiramusugi was caught around 15.30hrs. He said that he saw Ruhindura with four youths drag the young woman on the ground and take her to Musema. He said that Musema was carrying a rifle which he then handed to Ruhindura. The four people holding Nyiramusugi brought her to the ground. They pinned her down, two holding her arms and two holding her legs. The two holding her legs then spread them, and Musema placed himself between them. The witness saw Musema rip off Nyiramusugi’s clothes and underclothes and then took off his own clothes. The witness stated that Musema said aloud "Today, the pride of the Tutsi shall end" and then raped the young woman. Witness N said that Nyiramusugi was a very well known Tutsi girl who was very beautiful[…].

851.         The witness affirmed that the victim was Tutsi and explained that Musema took her by force. He stated that during the rape, Nyiramusugi struggled until Musema grabbed one of her arms and held it against her neck. The four assailants who initially held down the victim watched from nearby while the policeman, Ruhindura, stood further away. Witness N stated that after the rape, which he estimated lasted forty minutes, Musema walked over to Ruhindura, took his rifle back and left with him.

852.         Witness N also testified that the four other men, who initially pinned down the victim, went back to the girl and took turns raping her. She was struggling and started rolling down toward the valley. He was able to see them rape Nyiramusugi until they were out of sight. During the rape, he heard the victim scream and say "the only thing that I can do for you is only to pray for you."

853.         Witness N added that he later saw the four attackers on the rise of the other side of the valley and saw that Nyiramusugi had been left for dead in the valley. That night, the witness and three other people went to the victim and found her badly injured. She was cut all over her body, covered with blood and nail scratches around her neck. He stated that they took her to her mother. The witness testified that the mother died the next day and that he learnt from Nyiramusugi’s brother that she had been shot [....].

188.     In paragraph 176 of the instant Judgement, the Appeals Chamber found that the Appellant had failed to show that the Trial Chamber erred in its assessment of the testimony of Witness N.  In the light of new evidence, it should now be determined whether the Trial Chamber’s findings were, indeed, incorrect.

189.     First of all, with respect to Witness CB, the Appeals Chamber notes that the circumstances described by this Witness differ on various points from the evidence given by Witness N at trial.  Indeed, it emerges from the evidence given by Witness CB on 17 October 2001 that:

-         Nyiramusugi was raped by one "Mika" at the foot of Muyira Hill between 11a.m. and 12 noon on 13 May 1994;[355]

-         Witness CB observed the incident from a bush located about 10 metres from the bush where Mika found Nyiramusugi;[356]

-         After the rape, Mika told Nyiramusugi to go and that he would be killed by other people;[357]

-         Witness CB left the bush in which he had taken refuge around 16.00 hours, that is, when the attack on Muyira Hill ceased, and found Nyiramusugi in the bush where she had gone to hide;[358]

-         At that time, Witness CB told   Nyiramusugi that he had witnessed the rape and Nyiramusugi told him: "Mika raped me";[359]

-         Witness CB saw no one else rape Nyiramusugi on 13 May 1994[360] and asserted that it was indeed Mika that he had seen raping Mika on that day;[361] 

-         Witness CB saw Nyiramusugi again on 13 May 1994 after 16.00 hours and again on the morning of 14 May 1994.[362]

190.     With respect to Witness EB, the Appeals Chamber notes that the parties admitted that the Witness related the circumstances in which Musema raped Nyiramusugi on a day other than 13 May 1994 and that those facts do not appear in the Amended Indictment.[363] Witness CB insisted on the fact that his sister Nyiramusugi had been raped and killed by Musema "between 15 May and 15 June [1994]."[364]    

191.     The Appeals Chamber is of the opinion that the evidence presented by Witness CB is hardly reconcilable with Witness N’s evidence at trial.  Indeed, paragraph 852 of the Trial Judgement states that Musema raped Nyiramusugi on 13 May 1994 on Muyira Hill.  For his part, Witness CB asserts that he witnessed a rape by Mika at the foot of that same hill on that same day.  It is stated in paragraphs 849 and 851 of the Trial Judgement that Nyiramusugi was captured and brought to Musema around 15.30 hours on 13 May 1994 and that she was raped for about 40 minutes. Yet, Witness CB testified that he left his hiding place at 16.00 hours on 13 May, and that at that time, he found Nyiramusugi who told him:  "Mika raped me"[365]  Witness CB did not see anyone else rape Nyiramusugi on that day and affirmed that it was, indeed, Mika that he saw.

192.     Regarding the testimony of Witness EB, the Appeals Chamber notes that the facts narrated by the Witness do not appear in the Amended Indictment. The Appeals Chamber notes, nonetheless, that it emerges from the said witness’s testimony that Nyiramusugi was alive, at least until 15 May 1994, whereas it is stated in paragraph 853 of the Trial Judgement that Nyiramusugi was shot dead on 14 May 1994.

193.     Having considered the additional evidence admitted into the record on appeal, the Appeals Chamber finds that if the testimonies of Witnesses N, CB and EB had been presented before a reasonable tribunal of fact, it would have reached the conclusion that there was a reasonable doubt as to the guilt of Musema in respect of Count 7 of the Amended Indictment.  Consequently, the Trial Chamber’s factual and legal findings in relation to the rape of Nyiramusugi are incorrect and occasioned a miscarriage of justice.

194.     In accordance with the standard laid down in Kupreskic, the Appeals Chamber finds that the appropriate remedy in the instant case is to quash the conviction handed down by the Trial Chamber in respect of Count 7 of the Amended Indictment.  Accordingly, the Appeals Chamber finds the Appellant not guilty of rape as a crime against humanity.    

3.         Challenge to the Trial Chamber’s assessment of Musema’s alibi

195.     The Appellant submits that the Trial Chamber shifted the burden of proof in requiring him to prove his innocence (error on a point of law).  He also submits that the Trial Chamber committed an error of fact in holding that the alibi raised by Musema did not cast a reasonable doubt on the Prosecution evidence (error of fact).[366]

(a)        Introduction

196.     Musema was Director of the Gisovu Tea Factory in Kibuye préfecture. The allegations contained in the Amended Indictment concerned massacres that occurred generally in the region of Bisesero in Gisovu and Gishyita communes, Kibuye préfecture. In its Judgement, the Trial Chamber summarized Musema’s alibi as follows:[367]

Thus, with regard to the findings now contested on appeal, Musema denies having been present at Gitwa Hill (26 April 1994); Rwirambo Hill (end of April, beginning of May 1994); Muyira Hill (13 and 14 May 1994);  and having participated in the two mid-May 1994 attacks on Muyira Hill and Mumataba Hill and in that of Nyakavumu cave (end of May 1994).

 (b)       General allegations of the parties and general findings of the Appeals Chamber

197.     Musema challenges in a general manner the standard and burden of proof applied by the Trial Chamber in assessing his alibi. He submits that although the Trial Chamber at one point set out the applicable law with respect to the assessment of an alibi, it erred when applying it to the case at bar.[368]  He submits, moreover, that the Trial Judgement shows that the Trial Chamber made an incorrect assessment of the evidence and that merely stating the correct legal standards does not suffice to cure the erroneous applications thereof in the Trial Judgement.[369]  He submits that the Trial Chamber erred in requiring him to prove his alibi beyond a reasonable doubt, thus applying a higher standard of proof to him than that imposed on Prosecution witnesses.[370]

198.     Musema relies in particular on paragraphs 677, 740 and 795 of the Trial Judgement to show that the Trial Chamber placed such a burden on him, as it required him to "convince" the Chamber of his alibi.[371]  He contends that "no burden is placed on the Defence to prove absence from a particular place at a particular time; [that] the burden is on the Prosecution to prove presence of the accused at a particular place,  [and that] the only role of the Defence is to cast reasonable doubt on the allegations made."[372]

199.     The Prosecution submits that an analysis of the Trial Judgement reveals that "not only did the Trial Chamber articulate the proper legal standard regarding the defence of alibi, it applied that standard correctly."[373]  The Prosecution further submits that the Trial Chamber has a wide discretion with respect to the assessment of evidence, and therefore contends that "in a case involving the defence of alibi, the Trial Chamber did not err in considering defence evidence in determining whether the charges against the Appellant had been proven or not proven."[374]  Similarly, the Trial Chamber did not err in considering Defence evidence to determine if it cast a reasonable doubt on allegations made by the Prosecution.[375]

200.     The Appeals Chamber recalls that the burden of proof rests with the Prosecution to prove its case beyond reasonable doubt. The sole purpose of an alibi, when raised by a defendant, is only to cast a reasonable doubt on the Prosecution case. In The Prosecutor v. Kayishema and Ruzindana, the Appeals Chamber endorsed the opinion expressed by the Appeals Chamber of ICTY[376] and held that the defence of alibi implies that the person who raises it should establish before the Trial Chamber that objectively he was not in a position to commit the crime.[377] Still, the onus is on the Prosecution to establish the facts alleged in the Indictment.

201.     In other words, when the alibi has been properly raised, the onus is on the Prosecution to disprove it beyond a reasonable doubt failing which the Prosecution case would raise a reasonable doubt as to the accused’s responsibility. However,

"it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove alibi."[378]

The strategy adopted by the person who raises an alibi may have an impact on a trial judge in reaching his or her conclusion.  Thus, a judge must be satisfied beyond reasonable doubt that the alibi raised casts a reasonable doubt on the Prosecution case.

202.     An accused does not bear the burden of proof.  He must simply produce the evidence tending to show that he was not present at the time of the alleged crime.[379]  That is, the Prosecution must establish beyond a reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[380]

203.     The question before the Appeals Chamber is whether the relevant law as to the burden and standard of proof was correctly stated, and subsequently applied by the Trial Chamber. The Appeals Chamber is cognizant of its primary role, which is to exercise judicial control over the impugned findings of the Trial Chamber, in accordance with Article 24 of the Statute.  According to the tests applicable in case of an error of law and of fact, recalled in paragraphs 15, 16 and 17, supra, the onus is on Musema to show that the Trial Chamber committed an error.

204.         As stated in paragraph 17 supra, with respect to errors of fact, the standard to be applied by the Appeals Chamber is that of reasonableness. It should be added, however, that in the opinion of the Appeals Chamber, this standard is extremely relative.  Thus, reasonableness must be assessed on a case-by-case basis in the light of the specific circumstances of the case.

205.     In setting out its general findings in the Section entitled "Evidentiary Matters," the Trial Chamber stated as follows:

In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.[381]

206.     Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.

207.     Certain portions of the Trial Judgement reveal that the Trial Chamber assessed the evidence before it in conformity with the principles governing the standard and burden of proof as set forth above, particularly in paragraphs 22 to 71 of the present Appeal Judgement. For example, as regards the meeting on Karongi Hill, the Trial Chamber expressed the opinion that the evidence adduced in support of the alibi, "creates doubt in the facts as alleged by the Prosecutor…"[382]  Similarly, with regard to the attack on Biyiniro Hill, the Trial Chamber found that the alibi was "such as to cast doubt on the allegations of the Prosecutor."[383]  And concerning the attack of 5 June, the Trial Chamber found that the alibi was "such as to cast a reasonable doubt on the allegation of the Prosecutor as to the involvement of Musema" in the [said] attack.[384]

208.     However, Musema relies on several parts of the Trial Judgement to show that the Trial Chamber misapplied the burden and standard of proof. He gives the following examples:

• In rejecting the alibi relating to Gitwa Hill, the Trial Chamber stated as follows:

  The Chamber has considered the alibi and the Defence witnesses. The Chamber finds that the documentary evidence, read in conjunction with the testimony of Musema, raised a number of contradictions many of which were addressed by the Prosecutor….The Chamber moreover considered the answers given by Musema to explain these discrepancies. However, the Chamber was not convinced by the relevant explanations, and, as such, must reject the alibi for this period.[385]

• In rejecting the alibi in respect of the attacks in May, the Trial Chamber stated:

• In the opinion of the Chamber, the receipt, and the letter of 14 May 1994, which Musema says he wrote in Butare, are by themselves, insufficient to refute the possibility that on the same day, yet at a different time, Musema was in the Bisesero region.[386] And,

  …the Chamber must reject the alibi of Musema as regards 13 May, 14 May and mid-May 1994, as it is not supported by evidence sufficient to cast any doubt on the overwhelming reliable evidence for this period presented by the Prosecutor.[387]

• In accepting the alibi in respect of Nyarutovu cellule on 22 June, the Trial Chamber stated that,

  the Chamber finds that Musema’s alibi for this date, heavily scrutinized by the Chamber, supported by documentary evidence and oral testimony, is such as to cast doubt on the allegation of the Prosecutor as to the involvement of Musema in the events alleged of 22 June 1994.[388]

• And finally, in rejecting the alibi with regard to Nyakavumu cave, the Trial Chamber noted that:

  […] the alibi does not specifically refute the presence of Musema at the cave[…].[389]

209.          In considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.

210.          It is apparent from the above examples that, prima facie, the Trial Chamber appears to have used, on several occasions, different terms in relation to the question of alibi. The issue is whether, in doing so, the Trial Chamber applied a burden and/or standard of proof that was inconsistent with its own statement of the relevant law.  The Appeals Chamber will therefore seek to discover the Trial Chamber’s intention when it used such wording.

211.     Hence, the Appeals Chamber will carry out below an in-depth analysis of the findings of the Trial Chamber with respect to each location. The consequences of any erroneous application of the law or unreasonable interpretation of a fact must be considered on a case-by-case basis.

(c)        Errors in the assessment of the alibi with regard to specific locations

212.     Having found that the Trial Chamber did not err in its findings as to the credibility of each of the witnesses on whose testimonies it relied to convict, the Appeals Chamber will now consider whether the Trial Chamber erred in rejecting Musema’s alibi and, as a result, failed to acquit him.

213.     However, before considering each of the locations in question, the Appeals Chamber notes that although, for reasons stated in the Trial Judgement, the Trial Chamber rejected the alibi raised by Musema in relation to the sites considered, it has found, in relation to four incidents, that the alibi was such as to cast doubt on the Prosecution’s allegations.

214.     First, with regard to Karongi Hill (18 April 1994),  the Trial Chamber expressed the opinion that, taking into account Musema’s alibi (the testimonies of Musema and Claire Kayuku), the documentary evidence (Exhibit D45), and the arguments of the Prosecution on this point, the sole testimony of Witness M was insufficient to prove beyond reasonable doubt that Musema was present at the location.[390]  Second, with regard to Biyiniro Hill (31 May 1994), the Trial Chamber found that the alibi (Musema’s testimony) and the documents tendered in support thereof (Musema’s passport, Exhibit D56, entitled "Autorisation de sortie de fonds" and Exhibit D54, cast doubt on the Prosecution’s allegations.[391] Third, with regard to the attack of 5 June 1994, near Muyira Hill, the Trial Chamber found that the alibi (the testimonies of Musema and Claire Kayaku, together with Exhibits D57, 58 and 59) cast a reasonable doubt on the Prosecution’s allegations.[392]  Lastly, with regard to Nyarutovu cellule (22 June 1994), the Trial Chamber found that the alibi (the testimonies of Musema and Claire Kayuku) and the documentary evidence relating thereto (Exhibits D65, 90 and 91) cast doubt on the Prosecution’s allegations.[393]

215.     In particular, the Appeals Chamber notes that although, with regard to each of the aforementioned locations, the Trial Chamber found the evidence of Prosecution witnesses to be consistent,[394] it appears nevertheless to have accepted the evidence of Musema and Claire Kayuku when it was corroborated or otherwise supported.

i.          Gitwa Hill (26 April 1994)

a.         Musema’s alibi at trial

216.     Musema alleges that at the time of this attack,  he was on mission to several tea factories far from the scene of the massacre.[395]  He testified that on 18 and 21 April in Gitarama, he ran into ministers who told him that he would be sent on mission.  On 21 April, the authorization to sign the ordre de mission was given.  In support of his alibi, Musema produced: the Ordre de mission detailing his mission and places to be visited (Exhibit D10); the Déclaration de créances (Exhibit D28); an interim report or the mission which he had prepared (Exhibit D29); his own testimony; and the testimony of his wife, Claire Kayuku.

217.     The Trial Chamber (Judge Aspegren dissenting) found as follows: "Witness M was overall "credible and consistent, without at any time being evasive during his testimony";[396] the alibi was not specific as to the date of the massacre, but was linked to the mission order and travel consequent thereto;[397] the alibi was doubtful and raised a number of material contradictions (relating, inter alia, to the plausibility of chance meetings, the date the mission actually started, the array of ministry stamps on the mission order [including the fact that according to Musema it had been signed in Gitarama, whereas, in fact, it was stamped as if written in Kigali] and the content of the interim report prepared by Musema;[398] and lastly, Musema’s explanations for the contradictions and inconsistencies were unconvincing. As a result, the alibi was rejected.[399]

b.         Musema’s allegations and the Prosecution’s response

218.     Musema has divided his allegations in this section into four categories, focusing essentially on the four discrepancies which the Trial Chamber noted in his alibi at trial, and in relation to which it found that Musema’s "relevant explanations" were "not convincing."[400] Musema submits that the Trial Chamber "erred in law and in fact in its assessment of the evidence with regard to this matter."[401] In particular, he submits that the Trial Chamber erred in its findings concerning: the implausibility of chance meetings; the date the mission actually started; the array of ministry stamps on the mission order; and the content of the interim report prepared by Musema.

219.     As in its response to the allegations referred to in the preceding section relating to the credibility of witnesses, the Prosecution for its part, focuses essentially on the arguments presented in purely general terms.  The Prosecution simply states that although Judge Aspegren gave a dissenting opinion with regard to the Trial Chamber’s rejection of the alibi for this period, two judges both acting reasonably may reach different conclusions based on the same evidence.[402]  The Prosecution avers that "[m]ere dissatisfaction with conclusions made by the Trial Chamber does not make out a case of unreasonable findings of fact,"[403] while with regard to Claire Kayuku it states that a Trial Chamber is not required to detail its reasoning in accepting or rejecting any piece of evidence in a case.[404]  Finally, the Prosecution submits that Musema has failed to demonstrate that the Trial Chamber acted unreasonably in rejecting his defence of alibi for this period.[405]

c.         Discussion

220.     The issue here is whether the Trial Chamber erred in its evaluation of the testimonies of Musema, Claire Kayuku and Witness BB, the mission order (Exhibit D10), the Déclaration de créances (Exhibit D28) and the interim report (Exhibit D29). In particular, was it reasonable for the Trial Chamber to conclude "that the documentary evidence, read in conjunction with the testimony of Musema, "raised a number of contradictions, many of which were addressed by the Prosecutor" and that it was not convinced by Musema’s relevant explanations ?[406]

221.     Moreover, it should be recalled that the Trial Chamber noted several contradictions that had been raised, including the four addressed by Musema. That is to say, the Trial Chamber considered the evidence in detail, including Musema’s explanations.

222.     Turning to the allegations in question, although Musema submits that the Trial Chamber committed errors of fact, what he, in fact, appears to dispute is its evaluation of the evidence and arguments put forward by both parties. The Prosecution does not provide a detailed response to any of the allegations. Consequently, in considering the Prosecution case, the Appeals Chamber will, in the main, examine the relevant parts of the Trial Judgement.

223.     As stated above,[407] Musema’s alibi for the entire period under consideration can be summarized as follows: from 14 April  to early 17 April, he was at the Gisovu Tea Factory.  On 17 April at 3a.m., he left Gisovu for Butare, having been woken and informed of attacks on the factory, and proceeded to Rubona on the same day. From 17 to 22 April, Musema stated that he remained in Rubona, save for two trips to Gitarama on 18 and 21 April. From 22 April to 7 May, Musema stated that he was on mission to tea factories located in Gisenyi (the Pfunda tea factory, from 22 to 25 April; Kibati, from 28 April, and stayed in Rubona from 26 to 29 April).

224.     It emerges from the Trial Judgement that during the trial, the Prosecution referred to "numerous previous interviews and a calendar prepared by Musema in 1996, all of which tend to suggest that Musema left Gisovu two days before that date, namely on 15 April."[408] Nevertheless, the Trial Chamber concluded that :

[a]lthough there appears to be some doubt as to the exact date of departure of Musema, in the opinion of the Chamber, the submissions of the Prosecutor on this issue, the testimony of Musema and of Claire Kayuku and the other evidence, all tend towards demonstrating not that Musema was at or in the vicinity of Karongi hill FM Station on 18 April, but rather that he had actually left Gisovu on a date earlier than that which he indicated in his testimony during the trial. No evidence, save the testimony of Witness M, places Musema at Karongi FM station on that day. The Prosecutor has not demonstrated how and when Musema may have traveled from Rubona to Kibuye Préfecture to lead the meeting. This, in the opinion of the Chamber, creates doubt in the facts as alleged by the Prosecutor as pertains to the participation of Musema in a meeting convened at Karongi hill FM Station on 18 April 1994.[409]

225.     Musema stated that on 18 and 21 April 1994, he travelled to Gitarama. He stated that on 21 April, he received the ordre de mission from the Minister of Industry, Trade and Handicraft and that he went on mission on 22 April.

226.     In the Trial Judgement, the Trial Chamber set out in some detail Musema’s testimony as to meetings with ministers on both 18 April and 21 April.  Musema also relies on documentary evidence (the ordre de mission) in support of his case. This issue will be considered in greater detail below. However, with regard to the chance meetings, the Trial Chamber recorded that Musema testified having travelled to Gitarama on 18 April to look for the heads of service of OCIR-thé and for relatives who might have been among the refugees.  The Trial Chamber stated:

According to Musema, he did not meet anyone from OCIR-thé, but spoke with the Minister of Industry, Trade and Handicraft, Justin Mugenzi, to whom he reported the events and situation at the Gisovu Tea Factory, and asked for protection for the factory. According to Musema, the Minister appeared shocked at the news and assured him that he would take the appropriate measures to ensure the security of the factory. Musema testified that it was on this day that the Minister had indicated to him that he would be sent on mission to contact the Director-General of OCIR-thé to start up the factories. Musema returned the same day to Rubona where he stayed until 22 April 1994, although he did visit Gitarama on 21 April 1994, again to look for relatives among the refugees. [410]

227.     Concerning the meetings of 21 April 1994, the Trial Chamber considered the circumstances of Musema’s "chance" encounters with Ministers Justin Mugenzi and Hyacinthe Nsengiyumva at the FINA petrol station at the entrance of Gitarama. The Trial Chamber stated :

According to the alibi, Musema, who during this period was staying in Rubona, returned to Gitarama on 21 April 1994 where again he ran into Justin Mugenzi and also the Minister of Public Works, Water and Energy, this time at a FINA petrol station. Mugenzi told Musema of the security measures he had taken for the factory, and informed him that he had been unable to contact Mr Baragaza the Director-General of OCIR-thé. As such, Musema was to go to the north of the country to find him. The minister said he would prepare the necessary paperwork which Musema should pick up from the residence of Faustin Nyagahima, a director within the Ministry of Industry, Trade and Handicraft. During the meeting at the FINA station, Mugenzi authorized the Minister of Public Works, Water and Energy to sign the eventual mission order.[411]

228.     The Trial Chamber recalled the Prosecution’s contention that "chance encounters with ministers, as described by Musema, were hardly convincing as the basis of the mission."[412]

229.     The Appeals Chamber recalls that it falls primarily to the Trial Chamber to weigh and assess evidence.[413]

230.     After careful consideration of the Trial Chamber’s assessment of the evidence, the Appeals Chamber is of the opinion that the Trial Chamber’s finding of the implausibility of the chance meetings being the basis of the mission was reasonable.

231.     Musema’s second argument concerns the Trial Chamber’s findings as to the date the mission actually started. He submits that his explanation at trial regarding the date the mission to the tea factories started was adequate. In particular, he points out the Trial Chamber’s reference to the fact that on the first stamp on the ordre de mission is mentioned "arrivée à Pfunda le 21:04:1994" (See Annex B to the Trial Judgement). Musema submits that this date is incorrect, and should instead read 22 April. He contends that given the "prevailing conditions" and the supporting material, this explanation was adequate.[414]

232.     The Trial Chamber recalled the following:

On 22 April, Musema picked up the mission order (exhibit D10) from Faustin Nyagahima. The order was stamped by the Minister of Foreign Affairs, who, according to Musema, was the only minister at that time in Gitarama to possess a stamp. Musema was given two gendarmes from the military camp in Gitarama and then traveled up to the factory of Pfunda where he stayed until 25 April. With reference to exhibit D10, where Musema wrote "arrivée à Pfunda le 21/04/1994", Musema attributed this date to an error, and affirmed that he arrived at the factory in Pfunda on 22 April. Exhibits in support of this contention include exhibit D28, a "Déclaration de Créances" for expenses incurred by OCIR-thé (Gisovu Tea Factory) for the use of two gendarmes from 22 April 1994 up to 2 May 1994, which is signed by the Chief accountant of the Gisovu tea factory.[415]

233.     Musema submits that the explanation he gave at trial was adequate. At the time, he stated the following:

Q.         Right now let us then turn back to page 20, and the stamps on the back of the ordre de mission and we in fact see there arriviée à Pfunda  le 21st of April, 1994 with a stamp and a signature. First of all was this document stamped when you arrived at Pfunda Tea Factory to show your arrival?

A.         The stamp was affixed on the document at the Pfunda Tea Factory.

Q.         Who stamped?

Q.         It is the secretary of the factory.

Q.         The signature in the middle of the stamp whose signature is it?

A.         It is the signature of the director of the factory.

Q.         The date, the 21st of April, 1994, is that a correct date or an incorrect date?

A.         There is an error, it should be the 22.

Q.         Can you explain why the wrong date was put on the document?

A.         This date, this error was due to inattention, consultation timetable of course considering the time, the crisis period in which we were, but I personally know that it was the 22nd and with regard to the Tea factory or at the level of the tea factory in Gisovu this error was corrected but it was not corrected in the main document on the understanding that all these stamps in fact would only be of accounting relevance rather than as concerns the itinerary or route, it is more of an accounting document, this document.

[….]

Q.         Who actually wrote the date?

A.         I do not remember whether it was the director or the secretary in any case all I know is that the error is there and we had noticed it at the administrative level and we corrected it from an accounting standing point.

Q.         Did you check the date and the information written upon it when you handed it to  be stamped at Pfunda?

A.         No, I did not check the date, definitely it would be some other explanations but I cannot certify that it was the good explanation and that is that the person who put the date considered the date of the mission order, the mission order was established on the 21st but I personally having participated in the mission, I know that I arrived on the 22nd, I did not arrive on the 21st and I did not check the date when I was reading this document.[416]

234.     The Appeals Chamber notes that Musema did not challenge the Trial Chamber’s finding that it was he who wrote the date and signed the ordre de mission.  The Appeals Chamber further notes that the evidence produced includes exhibit D28, a "Déclaration de Créances" for expenses incurred by OCIR-thé (Gisovu Tea Factory) for the use of two gendarmes from 22 April 1994 up to 2 May 1994, which is signed by the chief accountant of the Gisovu tea factory.

235.     The Appeals Chamber takes up in this section, Musema’s submissions on the authenticity of the ordre de mission.[417]  Musema argues as follows:

–          The majority appears to state that the ordre de mission is a forgery, albeit it was discovered by Swiss investigators and not brought out of Rwanda by the Accused;[418]

–          The ordre de mission was supported by a number of documents which were discovered by Defence Investigators in Rwanda, at a different time, and which provided details to the same effect – this discovery strongly supports the authenticity of the original ordre de mission;[419]

–          If it were a forgery, it would have been unlikely that the Accused should include the stamps and names of four different ministers. Rather, he submits that it would have been more likely that he create a document in accordance with the usual practice;[420]

–          The Trial Chamber failed to take into account the fact that Prosecution Witness BB confirmed the authenticity of the document, stating that he recognised the signature of his accountant.  Although the Trial Chamber refers to this fact, no conclusions are drawn as to how this impacts on the authenticity of the document.[421]

236.     First, with regard to the stamps of the different ministries, the Trial Chamber summarised Musema’s testimony as follows:  The Trial Chamber recalled that Musema had stated that he was told by Faustin Nyagahima, a director within the Ministry of Industry, Trade and Handicraft, "that the Ministry of Foreign Affairs was the only ministry at that time which possessed a stamp/seal and that consequently it is this stamp which appears at the bottom of the mission order."[422]  Concerning the stamp of the Ministry of Defence, the Trial Chamber stated:

According to Musema’s testimony, the mission extension on the document was typed on at a later stage, around 7 to 10 May 1994 in Gitarama. Musema explained that more ministries had stamps by then, thus the stamp of the Minister of Defence, Augustin Bizimana, and his signature appear on the document. Musema conceded that to have the stamp of the Minister of Defence as authority for the extension of his mission was not usual practice, though he recalled that, during that whole period, the situation in Rwanda was not normal, which would explain why the Minister of Defence had signed the extension.

Musema further specified that he happened to meet the Minister of Defence in Gitarama. The Minister was an agronomist, originally from Byumba, and he and Musema had begun discussing the situation of finding relatives and about the past four years’ conflict. The situation was still very unstable and although Musema’s mission had come to an end he still had to visit a number of factories to establish inter-factory contacts. The stamp was to serve as a travel document. It did not extend his original mission with OCIR-thé but came into the context of the visits he wanted to make to other factories, to facilitate his movements and so as to provide him with more personal security. He added that there was no need for him to have the stamp of his ministry as the extension did not have any administrative value but only practical value. Musema was unable to explain why the Minister of Defence had not just given him a travel document for safe passage.

Musema conceded that it was a mistake that there was no indication as to the date on which the extension was issued. He testified that he would not have gone on the mission had the minister not guaranteed his security, and that he had to respect the mission order from a superior.[423]

237.     Lastly, the Chamber recorded that Musema testified that he had been told by the Minister of Industry, Trade and Handicraft that he had authorised the Minister of Public Works, Water and Energy to sign the mission order on his behalf as he had to take care of other business.[424]

238.     At trial, the Prosecution did not accept the explanations given by Musema in relation to the stamps on the mission orders of the Ministry of Foreign Affairs and the Ministry of Defence and contended that the documents and stamps were complete fabrications. The mission order, in the mind of the Prosecutor, was designed simply to mislead the Chamber and to conceal the extent of Musema’s involvement in the massacres.[425]

239.     As regards the Prosecution’s submission that the ordre de mission was forged and that the stamps of the ministries were fabrications, the Appeals Chamber recalls that although Exhibit D10 (a document which Musema must have deemed essential to his alibi in case of a possible investigation or trial) was discovered by Swiss investigators and not brought out of Rwanda by Musema, he did not mention its existence when he was interrogated in 1995 by the Swiss authorities in relation to his missions.[426]

240.     The Appeals Chamber notes also that the Trial Chamber draws no conclusions on the evidence of Claire Kayuku, which corroborated Musema’s account that he returned to Rubona from his mission on 26 April, and stayed there overnight.  The Appeals Chamber recalls, however, that the Trial Chamber did refer[427] to the evidence of Claire Kayuku and considered it.[428]

241.     In the opinion of the Appeals Chamber what the Trial Chamber is saying in paragraph 677 of its Judgement is that it is not convinced that the alibi regarding the massacres at Gitwa Hill on 26 April 1994 casts reasonable doubt on the Prosecution evidence.[429]

242.          Upon careful examination of the Trial Chamber’s approach to the assessment of the evidence, the Appeals Chamber is not inclined to hold that the wording in paragraph 677[430] reflects a shifting of the burden of proof.  Consequently, the Appeals Chamber finds that Musema failed to establish that the Trial Chamber committed any error of law.  The Appeals Chamber further holds that the Trial Chamber did not err in fact and that it correctly assessed the evidence before it concerning the attack on Gitwa Hill.

(ii)        Rwirambo Hill (end of April, beginning of May 1994)

a.        Musema’s alibi at trial

243.     Musema testified that during the period in question his movements were as follows:  He stated that on 27 April, he was in Rubona, from where he left for a day trip on 28 April to Kibati factory.  The Prosecution did not dispute these movements.  On 29 April, he left for Gisovu with two gendarmes, arriving later in the afternoon. He stated that he remained at this factory until 2 May, on which date he left for Shagasha between 10 a.m. and 11 a. m., arriving there before 7p.m.  He stated that he left the next day, 3 May.

244.          The Trial Chamber found that: Witness R’s testimony, which was consistent and reliable, sufficed to prove this allegation,  and that the "alibi does not cast doubt on the testimony of Witness R"; (although it noted that there was "ambiguity" in Witness R’s testimony as to the exact date of the attack, the Trial Chamber was satisfied that it occurred between 27 April and 3 May and on this basis concluded that the allegation was proven).[431]  Moreover, Musema admitted to being in Gisovu between 29 April and 2 May;  consequently, it is not excluded,  in view of the distance between Gisovu and the location of the attacks,  that he could have been both at the tea factory and taking part in the attacks, although at different times.[432]  Lastly, the Trial Chamber found that to have visited Kibuye on 30 April does not rule out Musema’s involvement in an attack that may have occurred on the same day.[433]

b.        Musema’s allegations and the Prosecution’s response

245.     Musema’s allegation concerning the attack on Rwirambo Hill is quite specific. He states the following:

The majority of the Trial Chamber failed to deal with the difficulties experienced by a Defendant who is required to present an alibi for a date which is not certain. It is much easier to cast a doubt on allegations when the time of the allegation is known than when it is an unknown period in the course of seven days. This should have been taken into account in assessing the evidence of alibi presented by the Defendant.

In failing to take this into account the majority of the Trial Chamber failed to apply the correct burden and standard of proof.

The Defence submits that if the Prosecution cannot give a definite date but only a period of time, the Defence must succeed if it can cast reasonable doubt as to presence on any of the days in question. If this were not the case, the Defence would be prejudiced as a result of the imprecision of the witness.[434]

246.     In response, the Prosecution states that although Musema challenges the Trial Chamber’s assessment of his alibi,  what essentially underlies his argument is the allegation that the Indictment did not state the exact date of the attack.  The Prosecution maintains that under the law, the Indictment is specific as to the date of the attack and that therefore, Musema’s  "derivative claim (i.e., that the Chamber was required to take the vagueness into account when considering evidence of his alibi) must fail".[435] It asserts that both the Indictment and the evidence adduced at trial were legally specific with regard to date.[436]  The Prosecution further asserts that the Tribunal has confirmed Indictments covering time periods much like that in the instant case, with the difficulties of determining the exact times and places of acts having been acknowledged.  It contends that "[u]nless the date or time of an offence is a material element of the offence, such proof is ‘clearly not’ a prerequisite for entry of conviction."[437]

247.     The Prosecution submits that since neither date nor time was an essential element to the crimes perpetrated in this attack, the one-week period (established during trial) "meets the requirements of legal specificity."[438]  Finally, the Prosecution avers that as the Indictment was legally sufficient with regard to date, all other alleged errors must fail, namely, the allegation of error by the Trial Chamber in failing to consider vagueness in the Indictment when considering defence evidence, and the allegation that by failing to take account of the alleged vagueness, it misapplied the burden and standard of proof.[439]

c.        Discussion

248.     Musema’s argument centres on the question of specificity of the allegation as to the date.  The manner in which he has presented this argument is, however, unclear. Essentially, he maintains that failure by the Trial Chamber to consider the vagueness of the Indictment in turn impacted on its overall assessment of the evidence.

249.     As will be seen,  there were three Indictments in this case.  The trial began on 25 January 1999, based on the Second Indictment filed on 20 November 1998. The Prosecution was granted leave to amend this Indictment on 6 May 1999 and the trial ended on 28 June 1999.  Neither the Second Indictment nor the Amended Indictment contain particulars as to either the said attack in general or its date; they are only confined to a general allegation of attacks at various locations in the area of Bisesero in April, May and June. The "Prosecutor’s Pre-Trial Brief"[440] is similarly imprecise, and neither of the closing briefs refers to this particular allegation (this observation also applies to the allegations concerning the mid-May attacks considered below).[441]  The Prosecution appears to have simply relied on the testimony of one witness, Witness R, to prove this attack, stating now on appeal, that it is "of significance…that the Prosecution convinced the Trial Chamber beyond a reasonable doubt that the attack occurred within a one-week period."[442] Musema has put forward no evidence tending to show that he raised this issue at trial, even though the Prosecution fails to state that the fact that Musema only raises the issue on appeal gives rise to the question as to whether his silence does not amount to a waiver.

250.     The Trial Chamber stated as follows:

As regards Witness R, who testified to Musema’s participation in an attack which occurred around the end of April and the beginning of May, the Chamber notes that there also existed ambiguity during this testimony as to the exact date of the attack. Notwithstanding this, while testifying in the Kayishema and Ruzindana case, the witness was clear that he was injured on 29 April, the date of the attack. Thus, the Chamber is satisfied that it has been established beyond reasonable doubt that an attack occurred between 27 April and 3 May 1994 on Rwirambo hill.[443]

251.     It would appear therefore that the attack took place at some time during a one-week period, from 27 April to 3 May. In considering Musema’s alibi for this period, the Trial Chamber stated as follows:

Musema stated that on 27 April he was in Rubona. On 28 April, he said he visited Kitabi factory, the stamp and date of arrival appearing on exhibit D10, and then returned to Rubona. These dates and movements were not contested by the Prosecutor. On 29 April he travelled to Gisovu with two gendarmes via Butare, Gikongoro and Gasaranda, arriving in Gisovu late in the afternoon. Exhibit D10 carries the stamp of Gisovu Tea Factory and the date of arrival, namely, 29 April 1994. Musema remained at the factory until 2 May taking care of business. A number of exhibits, including reports of minutes of meetings held on 29 and 30 April, and correspondence, were tendered by the Defence to support this. On 30 April he visited the Préfet of Kibuye who issued Musema with an "Autorisation de Circulation", in which reference is made to the mission order. On 2 May, Musema said he left for Shagasha, departing between 10:00hrs and 11:00hrs and arriving there before 19:00hrs. Musema explained that he visited the Shagasha Tea Factory the next day which would explain why the date of 3 May 1994 appears on D10 as the date of arrival at this factory.[444]

252.     Lastly, having found the testimony of Witness R to be credible, the Trial Chamber stated as follows:

Musema admits to being in Gisovu from 29 April to 2 May attending to factory business. Thus, in the opinion of the Chamber, it is not excluded, considering the distance between Gisovu and the locations of the attacks, that Musema was both at the tea factory working and taking part in attacks, although at different times. Also, to have visited Kibuye on 30 April does not rule out that an attack involving Musema may have occurred on the same day.[445]

253.     The Appeals Chamber notes that there is imprecision as to the exact date of the attack. However, the Appeals Chambers notes also that the witnesses were reliable and that it was proven beyond reasonable doubt that the attack did in fact occur during the period between 28 April and 3 May.  Therefore, the fact that there was imprecision as to the exact date of the attack does not mean that the allegation has not been established.  Furthermore, the Appeals Chamber subscribes to the Trial Chamber’s finding as articulated in the paragraph quoted above.[446]  Accordingly, the Appeals Chamber rejects Musema’s allegation as to the lack of specificity of the date and finds that he failed to show that no reasonable trier of fact could have made a finding of guilt beyond reasonable doubt; nor has he shown that any such error occasioned a micarriage of justice.

(iii)    The two mid-May 1994 attacks at Muyira Hill and Mumataba Hill, and the Muyira Hill massacre on 13 and 14 May1994

a.        Musema’s alibi at trial

254.     In support of his alibi for the period from 5 May to 19 May, Musema asserted that he was in Rubona for the duration of that period, with visits to Gitarama and Butare on several occasions.  He further submitted that his car had broken down between 7 and 19 May while he was in Butare, and that he remained in this region until the car was repaired.  In support of this assertion, Musema refers to the minutes of a meeting held on 19 May which mention delays resulting from the breakdown of his car.  Consequently, he submitted that he could not have been in Gisovu at the time of the attacks.

255.     The Trial Chamber decided to first of all consider the Prosecution’s evidence with respect to each massacre, to determine "if there is a case to answer".  It found that on the whole, the evidence presented by the Prosecution was reliable.

b.               Musema’s allegations and the Prosecution’s response

256.     Musema submits that the Trial Chamber erred in its evaluation of the testimony of four witnesses: Witness MH, Claire Kayuku, Nicole Pletscher and Musema himself.  In particular, he alleges that the manner in which the Trial Chamber dealt with the alibi "provides a striking illustration of the way in which a higher burden of proof was placed on the Defence than the Prosecution."[447]

257.     In its response, the Prosecution argues that if no error is found as regards the burden and/or standard of proof applied by the Trial Chamber in assessing Musema’s alibi for this period, then his "derivative and/or subsidiary claim of error (i.e., erroneous factual findings) must fail."[448]  The Prosecution submits that Musema must demonstrate that the Trial Chamber committed an error of law in the exercise of its discretion, albeit the Appeals Chamber may step in and, for other reasons, find that the Trial Chamber has erred.  The Prosecution further contends that a review of Musema’s arguments  shows that he has not discharged the burden of proof placed on him.[449]  It also submits that at no time did the Trial Chamber shift the burden of proof onto the Defence as evidenced by paragraphs 726 to 745 of the Trial Judgement which detail the Trial Chamber’s consideration of the alibi.  The Prosecution is of the view that Musema seeks to re-litigate the issues raised at trial by advancing an insufficiency-of-evidence argument couched in the form of a misapplication of the burden or standard of proof.  The Prosecution declines to re-litigate the issues in this way.[450]

c.        Discussion

258.     The Appeals Chamber will consider Musema’s allegations seriatim.

i.          Witness MH

259.     Musema submits that the Trial Chamber’s assessment of Witness MH’s testimony was inappropriate, in requiring in particular, that other direct evidence should support MH's testimony.[451] Musema submits that the Trial Chamber has, in other contexts, allowed itself to be persuaded of his guilt on allegations based on the uncorroborated evidence of a single witness.  Moreover, Musema contends that "[t]he implication that Defence evidence must be supported by other direct evidence before it can be deemed to have any probative value is not in accordance with the burden of proof, the standard of proof or the presumption of innocence."[452]  Musema claims that in any event, the testimony of Witness MH was corroborated by his own testimony, and that the Trial Chamber stated no other reason for disbelieving it.[453]  He asserts that there is nothing to show that the witness was lying or had any reason to lie.  Musema further asserts that the Prosecution did not put the issue of lying to the witness and that the witness was not evasive in his testimony.[454]  Although the Trial Chamber referred to the fact that the date the witness stated he last used his passport was different from that on the document, Musema contends that no conclusion that the witness was unreliable was clearly drawn.  Moreover, Musema asserts that any such conclusion would have been inappropriate, as it was a mistake that was inconsequential and easy to make after a time period of over four years.[455]

260.     The Prosecution maintains that there is no error in the Trial Chamber’s evaluation of the testimony of Witness MH.[456]  Given the Trial Chamber’s discretion in the evaluation of evidence, the Prosecution is of the opinion that the Trial Chamber did not commit any error in requiring that the evidence be corroborated.[457]

261.     Musema submits that Witness MH supported the alibi by stating that he had seen Musema at the residence of the Kayuku family in Rubona on 13 May 1994.[458]  The Trial Chamber recorded MH's testimony as follows:

Defence Witness MH said he saw Musema on 10 May and 13 May 1994.  On 10 May, the witness saw Musema in Gitarama.  He talked with him but did not remember asking him where he had come from or what he was doing.  Musema had arrived in a vehicle, but Witness MH could not remember the type of vehicle it was, nor the colour of the vehicle.  He recalled that these events dated back five years which may account for his inability to remember such details.

MH added that, on 13 May 1994, he was fleeing on his own to Burundi and had left Gitarama in the afternoon between 12:00hrs to 13:00hrs, travelling in his vehicle from Gitarama to Butare, towards the Kanyaru-Haut border post.  After 45 minutes to an hour, he stopped at Rubona where he spent no more than 20 minutes.  In Rubona, the witness went to the residence of the Kayuku family, being the family of Musema’s mother-in-law, to say goodbye to them and to inform them that he was leaving Rwanda for Burundi, in transit to Kenya.  He saw and spoke with Musema.  Although he was unable to specify exactly when he met with Musema, he estimated it to have been around 14:00hrs, roughly one hour after leaving Gitarama.

A copy of Witness MH’s passport with the entry stamp for Burundi on 13 May 1994 was introduced by the Defence as exhibit D102.  On the same page as this stamp is a stamp issued at the Bujumbura airport showing the exit of Witness MH from Burundi territory on 15 May 1994.[459]

262.     Later in its Judgement, the Trial Chamber considered the testimony of MH in the context of his cross-examination by the Prosecution as follows:

Witness MH remembers meeting Musema in Gitarama on 10 May and in Rubona on 13 May 1994.  In direct examination, Witness MH stated that he met Musema only once in Gitarama, most probably on 10 May 1994, although he was unable to provide the Chamber with details as to the length or subject of the conversation he had with Musema on this day, save that he believed they may have discussed the situation in Rwanda.  The Chamber notes that in cross-examination, he indicated that they did not speak about why Musema had come to Gitarama and that he could not remember five years later the type and colour of the vehicle driven by Musema.  In support of the alibi for this date, the Defence presented exhibit D46, a letter 18 May 1994, and a note entitled "A qui de droit" dated 10 May 1994 in Gitarama.  Musema testified to receiving this note from the Minister of Defence on 10 May 1994, and contended that, had he been in Gisovu, he would not have waited eight days to transmit it.

As regards 13 May 1994, Witness MH, who on this day was fleeing to Burundi, stated that he saw Musema on 13 May 1994 for approximately 20 minutes in Rubona at the residence of the Kayuku family.  He confirmed this in cross-examination.

The Chamber notes that the witness testified that he had last used his passport in 1994, when in fact it was evident from the document that it had been used in 1995.[460]

263.     The Trial Chamber concluded:

[…] as regards the meeting of 10 May with Musema, the witness was unable to provide any specific details, this contrasting with his testimony on the meeting of 13 May 1994, which is detailed and specific in a number of ways. The Chamber notes however that the latter testimony is uncorroborated by other Defence evidence, including Musema’s testimony.  Claire Kayuku testified that Musema returned to Gisovu during the middle of May to pay the employees, whereas the handwritten calendar drafted by Musema …and his statements to the Swiss juge d’instruction of 16 March 1995, similarly place Musema in Gisovu between 4 – 14 May.  The testimony of MH is thus of little probative value as it is unsupported by any other direct evidence.[461]

264.     With respect to Witness MH’s testimony, the Appeals Chamber notes that a Trial Chamber may require in certain circumstances that the testimony of a particular witness be corroborated, but that this does not in itself support the general allegation that the Trial Chamber always required defence evidence to be corroborated.  The Trial Chamber drew this conclusion based on the circumstances of the witness’s testimony and on contradictions raised in the evidence that had been adduced in this case.  Musema submits that this evidence was in fact supported by his testimony in which he stated that he was in Rubona from 7 to 19 May.  Clearly, such a general assertion does not support the evidence given by Witness MH that they met at a meeting on 13 May.  Musema does not indicate where he met Witness MH on 13 May.

ii.         Claire Kayuku

265.     Musema submits that the Trial Chamber’s assessment of Claire Kayuku’s testimony was incorrect.  The Trial Chamber noted that in her testimony this witness indicated that Musema returned to Gisovu in mid-May to pay the employees,[462]  which suggests that he was there during the massacres of 13 and 14 May.  However, Musema maintains that elsewhere in the Trial Judgement, the Chamber notes that the expression ‘mid-May’ would seem to indicate a date between 10 and 20 May.[463]  On this basis, he submits that the witness’s evidence is equally consistent with his own, namely, that he paid the employees on 19 May.[464]

266.     In the Prosecution’s opinion, Musema seems to argue that the Trial Chamber failed to draw certain inferences from this testimony.  It is the Prosecution’s submission that the Trial Chamber is not required to state its opinion on each and every aspect of a witness’s testimony, nor is it required to provide details of its findings in respect of the testimony.  The Prosecution further submits that the Trial Chamber was not required to draw conclusions that are in accord with Musema’s view and that "Musema’s displeasure with this does not give rise to a legitimate claim of error."[465]

267.     The Trial Chamber recorded Claire Kayuku’s testimony as follows:

Defence witness Claire Kayuku, Musema’s wife, declared she remembered that he returned to Gisovu at some time around the middle of May to pay the tea factory employees.  She recalled that at the beginning of the month of May, Musema’s red Pajero spent one or two weeks in a garage in Butare for repairs.[466]

[….]

According to Claire Kayuku, Musema returned to Gisovu around the middle of May to pay the tea factory employees.  She added that, in the beginning of May, Musema’s Pajero spent one or two weeks in a Butare garage undergoing repairs.  Musema had explained that he had developed car problems on 7 May while in Mata, and that he remained in the Butare region until the car was repaired.  A replacement car from the factory only reached him on 19 May by which time his Pajero was roadworthy.[467]

268.     As stated above,[468] in analysing the testimony of Witness MH with regard to the meeting on 13 May 1994, the Trial Chamber noted that it was uncorroborated, while other testimony including that of Claire Kayuku, "place Musema in Gisovu between 4 and 14 May".  The Trial Chamber also stated that "[o]ther evidence would suggest that Musema was indeed in Gisovu during this period."[469]  However, Musema alleges that the Trial Chamber erred, as previously in the Trial Judgement it had found that the expression mid-May referred to a date between 10 and 20 May.

269.     With regard to what has been labelled the mid-May attacks, Witnesses S and H (the only two witnesses who made reference to these attacks) stated at trial that the attacks took place some time in the middle of May.  It is apparent from the Trial Judgement that the Trial Chamber interpreted this testimony to mean that the mid-May attacks took place at some time between 10 and 20 May.[470]  It stated as follows: "The Chamber notes that, in its opinion, the expression mid-May would seem to indicate a day between 10 and 20 May, and shall thus consider the testimonies of Witnesses H and S with this in mind."[471]

270.     Turning to Claire Kayuku, the Trial Chamber recorded her testimony in three ways.  The Chamber noted that she had testified that Musema returned to Gisovu "some time around the middle of May", that he returned "around the middle of May" and that he returned "during the middle of May". The witness testified that between 13 April and 26 May, she stayed with her family in Rubona.[472]  She testified as follows:

Q.         You mentioned that your husband had visited various place (sic) Shagasha, Kitabi, Gisakura, are those all places where there are tea factories?

A.         These are places where there are tea factories.

Q.         In those places, sorry, I'll split this up by asking you another question.  You mentioned that your husband was staying with you but there were periods when he was away during this time. Are you able to help us at all during that period as to when it was that he was visiting the tea factories that you told us about; Shagasha, Kitabi, Gisakura?

A.         I cannot give precise dates but I know that it must have been at the end of the month of April and beginning of the month of May and later on, at the end of the month of May when we arrived in Shagasha, he also went to the Shagasha tea factory and Kitabi and Gisakura.

Q.         You said that he also visited Gisovu during this period.  Can you recollect when that was, what period it would have been and if you can remember the date?

A.         It must have been ‑‑ in fact, I do not remember the date, it must have been around mid May.  What I know is that he went to pay the employees but I do not remember the exact date.[473]

271.     Musema emphasizes that the Trial Chamber has not, in the course of the trial, always taken the same position as to what is meant by "mid-May".  Nevertheless, after reviewing the submissions of the parties and the trial transcripts, the Appeals Chamber finds that the Trial Chamber’s variant understanding of the expression "mid-May" does not constitute an error or necessarily even an inconsistency.  For instance, 13 and 14 May do fall between 10 and 20 May.  This is not an inconsistency.  Whether or not Musema paid his employees on 19 May is of little consequence in determining if he could have participated in the culpable events of 13 and 14 May at Muyira Hill.  Moreover, it was open to the Trial Chamber to weigh and reconcile the conflicting defence evidence by Musema’s wife, Claire Kayuku, that she was staying with her family in Rubona from 13 April to 26 May with Musema’s admission that he was absent from Rubona on several occasions between 5 and 19 May, and also with Musema’s previous statement to the Swiss Authorities that he clearly remembered being in Gisovu between 4 and 14 May 1994.  Consequently, the Appellant has failed to illustrate any inconsistency that would justify a finding that no reasonable tribunal of fact could have, in the circumstances, reached a conclusion of guilt beyond a reasonable doubt.  Finally, Musema has not shown that the discrepancies to which he alludes have occasioned any miscarriage of justice.[474]

iii.        Nicole Pletscher

272.     Musema submits that the Trial Chamber made no finding on the testimony of Nicole Pletscher, who stated that she had received a letter from Musema dated 14 May, Butare.  This testimony was confirmed by Musema who stated that he had written the letter in Butare on that date.  Musema submits that this is clear evidence that he was not in Gisovu on 14 May, and is something the Trial Chamber should have taken into account in determining whether it had been established beyond reasonable doubt that Musema participated in the Muyira Hill attacks on that date.[475]

273.     In the Prosecution’s opinion, Musema seems to argue that the Trial Chamber failed to make certain findings on Ms. Pletscher’s testimony.  Again, the Prosecution submits that the Trial Chamber is not required to state its opinion on each and every aspect of a witness’s testimony, nor is it required to provide details of its findings in respect of the testimony.  The Prosecution further submits that the Trial Chamber was not bound to draw conclusions that are in accord with Musema’s view and that "Musema’s displeasure with this does not give rise to a legitimate claim of error."[476]

274.     The Trial Chamber stated:

Exhibit D36, a letter, was tendered to demonstrate that Musema was a man not taking part in the events but just watching the events unfold and that by being in Butare on 14 May 1994, he could not have been in Muyira as alleged.

According to Musema, this letter was written by him on 14 May 1994 in Butare and addressed to a Swiss friend called Nicole Pletscher.  He gave it to a person going to Burundi on 14 May 1994, and hoped that it would be posted in Bujumbura.  Musema had known Nicole Pletscher since 1986 and his family and hers had become friends.  The last time he saw her was on 3 April 1994 in Kigali.  The next time he saw this letter was during his testimony in this case.[477]

275.     The Trial Chamber does not mention the fact that the witness testified to having received a letter from Musema.  Similarly, later in the Trial Judgement, when recalling the evidence relied upon by Musema for this period, the Trial Chamber made no mention of this witness at all.[478]  Indeed, no reference is made to her testimony in the entire Trial Judgement.

276.     Nicole Pletscher testified on 28 May 1999 and, when shown the letter marked "Butare 14 May", stated that she had received it from Musema during the month while in Lucerne.[479] On cross-examination, the Prosecution presented a letter to the witness, which she identified as having personally written (Exhibit P77).[480]  She confirmed that the letter was dated 25 April 1994 and also testified to having received a letter in Alfred’s handwriting bearing a Burundi stamp.  When asked to explain whether she had in fact received his letter before 25 April, she first stated that she had probably received the letter before then, and later that: "I… what should I say to affirm that I received this letter? I certify that I receive the letter, I replied another letter, there are, there are other letters it is not the answer I have given it is not related to this letter";[481]  After the cross-examination, she was not re-examined by Musema.

277.     With respect to Musema’s claims that the Trial Judgement did not directly refer to all aspects of the Defence evidence tendered, the Appeals Chamber reiterates that a Trial Chamber is not required to articulate in its judgement every step of its reasoning in reaching a particular finding.[482]  Although no particular evidence may have been referred to by a Trial Chamber,  it may nevertheless be reasonable to assume in the light of the particular circumstances of the case, that the Trial Chamber had taken it into account.[483]  Hence, where a Trial Chamber did not refer to any particular evidence in its reasoning, it is for the appellant to demonstrate that both the finding made by the Trial Chamber and its failure to refer to the evidence show that the evidence had been disregarded.[484] 

278.     The Appeals Chamber finds that Musema has shown that Ms Pletscher’s testimony was not referred to by the Trial Chamber.  However, Musema has failed to show that no reasonable tribunal of fact, after taking full account of Ms Pletscher’s testimony, could have reached a conclusion of guilt beyond a reasonable doubt.[485]  Thus, Musema has not demonstrated that an error of fact has been committed, nor has he shown that if such an error did occur, it occasioned a miscarriage of justice.

iv.        Musema’s evidence

279.     The Trial Chamber noted discrepancies in Musema’s evidence, particularly in relation to the information found in the handwritten calendar and to the statement given before the Swiss juge d’instruction on 16 March 1995, both of which place him in Gisovu between 4 and 14 May 1994.  It is Musema’s contention that the manner in which the said discrepancies were examined by the Trial Chamber illustrates that its assessment of the evidence was predicated on the assumption that Musema was guilty and that he had to prove his innocence.[486] As discussed below, Musema raises several specific arguments in support of his contention that the Trial Chamber considered the evidence in this way.

280.     In contrast, the Prosecution submits in a general fashion that the Trial Chamber did not shift the burden of proof nor err in any manner whatsoever in rejecting the evidence offered by Musema in support of his alibi.[487]  According to the Prosecution, "the contradictions and inconsistencies which abound in Appellant’s testimony (some of which he readily acknowledges on appeal) are considered in detail in the Trial Judgement, review of which explicates the propriety of the Chamber’s findings in respect of his evidence."[488]  It further submits that Musema’s alibi rests on a claim that he was not present in Kibuye between 1 – 19 May 1994 and, in support of said claim, relies on his own testimony, that of his wife and of Witness MH and also on a number of documents.  The Trial Judgement contains details of the Chamber’s consideration of Musema’s testimony in support of his alibi.[489]  The Prosecution asserts that Musema "now seeks to re-litigate the evidence on appeal by couching and advancing an insufficiency of the evidence argument in the form of a misapplication of the burden/standard of proof challenge."[490]  As stated earlier, the Prosecution refuses to re-litigate on appeal evidence already produced at trial and submits that Musema’s allegations of error concerning his testimony should be rejected.

281.     Musema contends that the Trial Chamber’s treatment of the following issues illustrates his point: resumption of operations at the tea factory; petrol receipt; breakdown of vehicle; other documentation; and inaccuracies in prior statements.

Resumption of production at the tea factory

282.     Musema maintains that the Trial Chamber relied on the fact that he testified to being present in the tea factory on the date operations resumed on 9 May (which date is confirmed in the hand-written calendar, mission report and Exhibit P56).  Musema submits that he did not accept this date and repeatedly asserted that production started on 2 May.  According to Musema, the Trial Chamber states that the mission report bears the date 9 May, whereas,  in fact, it is 2 May that is mentioned on it, and that attached to it is a letter dated 8 May indicating that all tea factories were operational.  Furthermore, Musema refers to a letter addressed to Bitihuse, which confirmed that work would resume on 2 May.  Musema submits that the Trial Chamber did not consider the accuracy of this date.  If it turns out that it is or could be the correct date, then it is Musema’s submission that the Trial Chamber erred.  Musema affirms that he never denied being present when the tea factory resumed production, but that he was simply mistaken as to the exact date on which this occurred.  As the documentary evidence referred to above supports his assertion, he submits that said assertion is definitely correct.[491]

283.     The hand-written calendar and statement made before the Swiss authorities on 16 March 1995 both place Musema in Gisovu between 4 and 13 May.  Musema submitted that both of these were inaccurate.  The Trial Chamber records this evidence as follows:

In the handwritten calendar, Musema clearly indicates that on 9 May 1994, the tea factory re-started production.  This date is confirmed in his mission report.  Moreover in exhibit P56 Musema states that "[o]n 3 May, I once again visited the factories in the South West, that is, Gisakura and Shagasha.  I then returned to Butare.  On 7 or 8 May, I returned to Gisovu and on 9 May, I supervised the resumption of operations of the factory.  I remained there until 19/20 May and travelled to Butare to join my family."[492]

284.     The Trial Chamber consequently relied on three items of evidence to show that Musema was in Gisovu at that time, namely the mission report, the calendar and the Swiss statement.[493]  The Trial Chamber further stated:

Musema, throughout his testimony, affirmed that his handwritten calendar and the Swiss statements were inaccurate, and that any errors therein were subsequently corrected as documents were uncovered during investigations from, amongst other places, Gisovu Tea Factory.  In some instances, such an explanation is valid.  However, as regards the present period, the Chamber cannot accept such an explanation.  In the said calendar and the 16 March 1995 Swiss statement, Musema clearly remembers being in Gisovu between 4 and 14 May 1994, and recalls that he was present the day the tea factory started up production.  To remember such an occasion and one’s presence thereat, is not, in the opinion of the Chamber, something one forgets and recalls only after seeing newly uncovered documents.  Rather, it is an event which, as Director of the tea factory, Musema would beyond any doubt not have forgotten.[494]

285.     At trial, Musema stated that production resumed on 2 May.  He also submits at present that, contrary to the Trial Chamber’s findings, the mission report also confirms this fact and that annexed to it is a letter dated 8 May indicating that production had resumed in all the tea factories.  In addition, he refers to a letter to Bitihuse, which states that work would resume on 2 May.  Musema affirms that he was at the factory when production resumed, but that he was simply mistaken as to the exact date. 

286.     The Appeals Chamber will not lightly disturb findings of fact reached by a Trial Chamber, but rather, will always give the Trial Chambers a margin of deference with respect to findings of fact.[495] Given the Prosecution evidence on record which, in the view of the Trial Chamber, established beyond reasonable doubt that Musema committed the culpable acts at such locations as charged, it was open to any reasonable Trial Chamber to reject Musema’s defence of alibi as not being reasonably and possibly true.[496]  Consequently, Musema has demonstrated neither that no reasonable tribunal of fact could have reached the conclusion of guilt beyond a reasonable doubt, nor that any such error occasioned a miscarriage of justice.

Petrol receipt

287.     In support of evidence of his movements on 14 May, Musema produced a petrol receipt dated 14 May, from a FINA filling station in Gitarama, for a cash payment made by him for fuel for the Pajero, and the letter written on 14 May in Butare (discussed above in relation to Nicole Pletscher).  The Prosecution relied on the hand-written calendar and Swiss statements to establish that Musema was in Gisovu from 4 to 14 May.

288.     The Trial Chamber found that Musema had claimed that his vehicle was broken down from 9 and 19 May.[497]  However, based on the petrol receipt, the Trial Chamber found that Musema’s car was in fact in working condition during the period in question.

289.     In spite of these findings, Musema maintains that the fact that he purchased fuel in Gitarama on this day casts doubt on the allegation that he participated in the attacks on Muyira Hill, which is over 1 hour and 20 minutes away from Gitarama.[498] As he produced two documents whose authenticity was not contested (the receipt and letter of 14 May), he submits that he cast reasonable doubt on the Prosecution evidence.[499]  Musema contends that the Trial Chamber failed to consider not only the fact that there is considerable distance between the two locations, but also that the attacks are alleged to have started at 8 a.m. and to have continued all day.  Musema submits that the Trial Chamber failed to ask itself how, if this was the case, he could not have had time to write the letter, get petrol from Gitarama and still participate in the attacks.[500]

290.     As will be seen below, Musema asserts that with regard to the breakdown of his car, he did not state at trial that it was out of action, but rather that it was breaking down on and off.  He submits that if he was in Gitarama on 14 May, he could not have made it to Muyira Hill to participate in the attacks and that the Trial Chamber failed to take this into account.

291.     The Trial Chamber stated as follows:

Exhibit D45 contains a copy of a receipt dated 14 May 1994 from a FINA petrol station in Gitarama for a cash payment made by Musema for fuel for the Pajero, registration number A7171.  This document, contends the Defence, strikes at the Prosecutor’s case by placing Musema elsewhere than at the scene of the massacres in Bisesero.[501]

292.     It later concluded:

Whereas, if the Chamber accepts the handwritten calendar and the said Swiss statement, the FINA receipt would support the dates therein by confirming that Musema travelled on 14 May 1994.  In the opinion of the Chamber, the receipt, and the letter of 14 May 1994 which Musema says he wrote in Butare, are by themselves, insufficient to refute the possibility that on the same day, yet at a different time, Musema was in the Bisesero region.[502]

293.     Musema argues that he did not have to refute any possibilities, but that it was simply sufficient for him to cast reasonable doubt on the Prosecution case.  This, he submits, was done by producing two items of documentary evidence, the authenticity of which is not contested.  He submits that the Trial Chamber failed to consider evidence that would justify the possibilities.

294.     The Appeals Chamber notes that the Trial Judgement does not fully address the issue as to whether it was possible for Musema to travel from Gitarama to Muyira Hill on the same day.

295.     The wording "are by themselves, insufficient to refute the possibility" used by the Trial Chamber[503] with respect to alibi evidence might be an error on a point of law, had Musema’s evidence been sufficient to sustain a potential alibi.  However, since the Trial Chamber implicitly found that Musema could possibly be in more than one location, at different times, on the same day, establishing the authenticity of these two documents was not essential to determining whether an alibi existed.[504]  It was therefore open to the Trial Chamber to conclude that these two documents did not constitute a defence of alibi because they did not refute the Prosecution's theory of the case.  In other words, it mattered not whether this documentary evidence was authentic, since the Trial Chamber held that it was possible for Musema to be in more than one place on the same day. This was a finding of fact, not of law.

296.     Two questions then ensue, namely, whether this finding constitutes an error of fact and, if so, whether the Appeals Chamber should intervene to correct that error.  Musema has not really advanced any additional arguments in the instant appeal to challenge the Trial Chamber’s factual finding as to distance and time. The Appeal Chamber concludes that Musema has demonstrated neither that the conclusion of guilt beyond a reasonable doubt is one which no reasonable tribunal could have reached, nor that any such error, if committed, would have occasioned a miscarriage of justice.  Therefore, the appeal cannot prosper on this point.

Breakdown of vehicle

297.     Musema submits that at trial, he stated that it would not have been possible for him to travel to Bisesero region in mid-May 1994, as the car was undergoing repairs,[505]  an assertion which, in his opinion, was corroborated by the testimony of Claire Kayuku and the minutes of a meeting held at the factory on 19 May.  He contends that the Trial Chamber incorrectly assessed his evidence as to the breakdown of his vehicle and the fact that he travelled to Gitarama on 18 May.  With respect to the Trial Chamber’s finding that there was no explanation given, Musema submitted that he had in fact explained that each time he drove a few kilometres, the car would break down (that is, the breakdown was not continual), that when he drove to Gitarama on 18 May, it was an "attempt" and that he did not want to take the risk to go to Gisovu.  He avers that the Trial Chamber "has failed to address its mind to this part of the Defence evidence, and has come to a conclusion to the disadvantage of the Defendant without giving any consideration to the Defence case."[506]  Therefore, the finding that there was no breakdown should, in his opinion, be dismissed as being unreasonable.[507]

298.     Musema contends that the Trial Chamber unfairly blamed him for failing to produce documentary evidence of the repairs carried out from 7 to 19 May.  He avers that in view of the circumstances that prevailed in the country at the time, he could not have obtained any more documentary evidence than he had offered.  Musema also states that when the Defence team visited the garage at which the car had been repaired, it found that it had changed hands and no documentation remained.[508]  In light of this, he submits it was unreasonable to hold against him the Defence’s failure to obtain a receipt for the said repairs.[509]

299.     The Trial Chamber stated the following:

According to Claire Kayuku, [….]  in the beginning of May, Musema’s Pajero spent one or two weeks in a Butare garage undergoing repairs. Musema had explained that he had developed car problems on 7 May while in Mata, and that he remained in the Butare region until the car was repaired.  A replacement car from the factory only reached him on 19 May by which time his Pajero was roadworthy.  Exhibit D47, the minutes of a 19 May 1994 meeting at the factory, refers to Musema’s broken down car and the resultant delay in returning to the factory.[510]

300.     The Trial Chamber found that this evidence raised certain discrepancies in his alibi:

The Chamber notes other discrepancies in the alibi as regards his vehicle, registration A7171, which he says developed problems on 7 May 1994 and was not repaired until 19 May 1994 in Butare, being the date on which he finally returned to Gisovu.  Exhibit D45, dated 19 May 1994, includes a bill for repairs to the vehicle in April 1994 and a petrol receipt from a FINA petrol station in Gitarama dated 14 May 1994.  The Chamber must raise a number of issues as regards this exhibit.  If the Chamber were to follow Musema’s version of the events, the Pajero, registration A7171, could not have been fit enough to drive from Butare, where he says it was being repaired, to Gitarama before 19 May 1994.  Thus, notes the Chamber, the above mentioned petrol receipt puts into doubt Musema’s testimony.

[….]

Moreover, the Chamber notes that Musema advanced no details, namely with which vehicle or other mode of transport, as to how he travelled to Gitarama on 18 May 1994 to collect the passports of his sons.  The Chamber finds this at odds with his alibi, as, to have indicated such details would have given support to his testimony.

The Chamber notes that Musema kept his receipt for car repairs dated 19 April 1994, and the petrol bill of 14 May 1994, yet kept no such receipts for the repairs, which according to the Appellant, occurred between 7 and 19 May 1994.[511]

301.     Musema submits that these findings wrongly reflect his testimony.  At trial, Musema stated as follows:

When I returned from the mission at the Mata factory around the 7th, the vehicle the A7171, the Pajero vehicle I was using started causing me a lot of problems.  First of all, I took it to the garage.  It was inspected.  First I had thought that there were problems related to combustion, fuel combustion, carburetor problems and so on but whenever I withdrew the vehicle, I would drive a few kilometres and the breakdown would reoccur.  Another attempt was made to repair it, I asked another inspection and in the final analysis it was realized that there was a problem on one of parts, a key, a part in the gear box.  The chief of garage did everything to solve the problem and a part had to be taken away from another vehicle which had an accident.  In the meantime, I tried to send a message through someone who was going to Mata because there was the agrarian engineer called Kabiraki James.  K‑A‑B‑I‑R‑A‑K‑I, who was living in Mata but was working in Gisovu.  He was returning to his family.  I sent a message to him asking him that at the‑‑, I should be sent another vehicle from the Gisovu Tea Factory so that I should have a means of transport from Butare to Gisovu.  This message was given to Kabiraki because I saw the messenger or the person through whom I sent the message later on, but there was no follow up.  Therefore I stayed in the Butare region and I had to travel again to Gitarama but I could not take the risk of leaving Gisovu or going to Gisovu because we could have a break down which would not be repaired.  That is the situation which marked this period.  When for an example I went to Gitarama on the 18th, it was an attempt, the chief of Garage (sic) had told me, " Try but I do not guarantee anything."  I made an attempt, later on moreover, the Tea Factory sent a vehicle on that day the 19th when I returned to Gisovu, we had two vehicles.  We were accompanied by another vehicle belonging to the tea factory, but the vehicle at that time, the Pajero, had been repaired.  I didn't have the same problems later on.  I had other problems, not the same problems regarding the gear box transmission system.[512]

302.     Based on the above testimony by Musema, it is in fact clear that, although his car was breaking down, this was happening sporadically.  It is Musema’s submission that the Trial Chamber did not fully grasp this fact when it found that no explanation had been given.

303.     The Appeals Chamber will not lightly disturb the findings of fact reached by a Trial Chamber, but rather will always give the Trial Chamber a margin of deference with respect to findings of fact.[513]  In the light of the Prosecution evidence on record, the Appeals Chamber is of the view that a reasonable Trial Chamber, having had the opportunity to assess the evidence at first instance, could have rejected Musema's explanation of the inaccuracies contained in his statement to Swiss authorities together with those apparent on the face of his hand-written calendar.  Consequently, Musema has demonstrated neither that the conclusion of guilt beyond a reasonable doubt is one which no reasonable tribunal could have reached, nor that the error committed occasioned a miscarriage of justice.

304.     On the basis of the Prosecution evidence, the Trial Chamber was satisfied beyond reasonable doubt that Musema was present at the crime scenes at the times in question.  In the light of such evidence, a reasonable Trial Chamber could have validly held against Musema the fact that he failed to produce a receipt for repairs carried out on his vehicle.  Thus, the Appeals Chamber concludes that it was open to the Trial Chamber to find that the alibi could not reasonably be true.[514]  Musema has not established that either an error of law was committed or that such error is one which invalidated the decision of the Trial Chamber.[515]

Other documentation

305.     Musema submits that the Trial Chamber erred in relying on other documentary evidence tending to suggest his presence in Gisovu in mid-May.  With regard to the letter on Gisovu Tea Factory headed notepaper, Musema stated that it was typed at ISAR offices in Rubona, whereas the Trial Chamber found that it had been written in Gisovu.  According to him, there is nothing in the letter to suggest this, nor was there anything unusual for him to write a letter on a tea factory headed notepaper when carrying out official business, regardless of where he happened to be at the time.  Any response to the letter would then have been sent to Gisovu.  Musema submits that it would be far more unlikely that a tea factory director would have written business documents headed with his home address.[516]

306.     Concerning the minutes of the meeting of 27 May, Musema submits that the Trial Chamber’s reasoning conveys the Chamber’s error in assessing the burden and standard of proof.  He contends that there is nothing to suggest that the fact that he was now dealing with the vehicle breakdown meant that he must have given the original instructions.  In any event, he submits that it is not for the Trial Chamber to make assumptions to the disadvantage of the defendant, and that in light of the above, there is nothing to show that he was in Gisovu on 9 May.[517] 

307.     In general, Musema contends that the assumptions made by the Trial Chamber were wrong and that "what is most notable about the documentation concerning this period" is that there were no documents placing him in Gisovu during the middle of May.[518]  In his opinion, the documents produced (petrol receipt, minutes of the meeting of 19 May stating that the tea factory director had been on a "tournée" and had been unable to return due to the fact that his car had broken down) suggest that he was absent from Gisovu during the period in question.  Musema argues that if he "had indeed been acting as "a dedicated director of the tea factory (para. 737) during this period, it is inconceivable that there would not be a single document generated by him, or minutes of a meeting attended by him, to show that he was there."[519] He states that there are many documents indicating his presence at the factory at other times and submits that the "fact that the Prosecution has been unable to produce a single piece of documentary evidence to this effect, despite their access to the Tea Factory archives, casts strong doubt on their assertion that the Defendant was in Gisovu during this period."[520]

308.     With regard to the letter of 8 May 1994, the Trial Chamber stated:

A number of documents were tendered by the Defence to demonstrate that Musema was absent from Gisovu Tea Factory between 7 and 19 May 1994.  Exhibit D35 is a letter dated 8 May 1994 from Musema to the Director-General of OCIR-thé in Kigali, annexed to which is the mission report, which Musema says was typed by the secretarial services of ISAR at Rubona.  Musema explained that he made ten copies of the report for transmission to the directors of the visited tea factories and handed over a copy for the Director-General of OCIR-thé on 10 May 1994 to the Commercial Bank in Gitarama which had a convoy going to Gisenyi.  The Chamber notes that this letter, signed by Musema, is on Gisovu Tea Factory headed paper and moreover would appear to have been written in Gisovu.[521]

309.     Musema wonders how the Trial Chamber reached a conclusion that the letter would appear to have been written in Gisovu, based solely on the fact that it was written on Gisovu headed paper.

310.     With regard to the minutes of the meeting of 27 May, the Trial Chamber stated as follows:

According to Musema, a meeting with eight participants and chaired by himself was held at the factory 27 May.  The report of such a meeting was tendered as exhibit D51.  The report refers to the meetings of 29 April, 30 April and 19 May.  The atmosphere at the tea factory was tense due to news of the war and the ongoing massacres in the Bisesero region.  The meeting addressed a number of issues pertaining to the security and production of the tea factory, including losses incurred due to a breakdown which had not been repaired.  This breakdown had occurred ten days before 19 May.  This, concludes the Defence, demonstrates that Musema was not in the vicinity of the tea factory during these ten days, i.e. 10 - 19 May 1994.[522]

311.     The Trial Chamber concluded:

The Chamber finds Musema’s supposed absence from the factory on this occasion irreconcilable with his evidence during this case, evidence which tends to portray Musema as a dedicated director of the tea factory who at all times shared equivalent concerns for the safety of his family and for the factory, often, according to him, leaving the former to rejoin the latter, for example in April, May, June and July 1994, despite threats to his safety.  Moreover, in exhibit D51, the report of the meeting of 27 May 1994, recalls the minutes of the meeting of 19 May 1994, and states "[t]he meeting of 19 May 1994 also discussed the breakdown that the manager had asked the Agronomist Benjamin KABERA to repair and which was not done in good time (after 10 days) giving rise to heavy loses (sic);[...]".  This would presuppose that the Agronomist had received instructions on 9 May 1994.  The Chamber also presupposes that as it was now Musema himself dealing with this breakdown, as the Director of the tea factory, he must have either directly or indirectly given the original instructions.[523]

312.     Given that Musema’s own statement to Swiss authorities and his hand-written calendar contradict his contention regarding his absence from Gisovu, the Appeals Chamber cannot find that no reasonable tribunal of fact could have reached the conclusion of guilt beyond a reasonable doubt.  Thus, Musema has demonstrated neither that an error of fact has been committed nor that if such an error did occur, it occasioned a miscarriage of justice.

Inaccuracies in prior statements

313.    Musema maintains that the explanation given at trial for the inaccuracies in the Swiss statements and hand-written calendar was plausible and probable, that is, he did not have access to them at the time the statements were given and was relying on his memory, which is why his statements were inaccurate. He avers that it is difficult for any witness to recall dates with accuracy and that once he had access to the documents, he could fit his movements together. [524]  He avers that it is difficult for any witness to recall dates with accuracy and that once he had access to the documents, he could fit his movements together.[525]

314.     Musema submits that the Trial Chamber’s explanation that he should have been able to recall the specific dates of the attacks of 13 and 14 May, given their scale, was illogical, as it is based on the assumption that Musema was present at the massacre sites or thereabouts.  He contends that it is perfectly possible that a witness can recall where he was when an incident occurred without, however, recalling the date of the incident.  Musema submits that the Trial Chamber failed to address an obvious point, namely that if these attacks and their dates were so well known to him and if he fabricated an alibi to escape responsibility, why would he state in the calendar and interviews with the Swiss authorities that he was in Gisovu on those dates.  He maintains that the fact that he did so suggests that he did not know the dates in question and that "[t]he logic employed by the Trial Chamber is therefore circular."[526]

315.     The Trial Chamber found:

Musema, throughout his testimony, affirmed that his handwritten calendar and the Swiss statements were inaccurate, and that any errors therein were subsequently corrected as documents were uncovered during investigations from, amongst other places, Gisovu Tea Factory.  In some instances, such an explanation is valid.  However, as regards the present period, the Chamber cannot accept such an explanation.  In the said calendar and the 16 March 1995 Swiss statement, Musema clearly remembers being in Gisovu between 4 and 14 May 1994, and recalls that he was present the day the tea factory started up production.  To remember such an occasion and one’s presence thereat, is not, in the opinion of the Chamber, something one forgets and recalls only after seeing newly uncovered documents.  Rather, it is an event which, as Director of the tea factory, Musema would beyond any doubt not have forgotten.[527]

316.     The Appeals Chamber reiterates that, the task of weighing and assessing the evidence lies primarily with the Trial Chamber.  Furthermore, it is for the Trial Chamber to determine whether a witness is credible or not.  The Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber, but rather will always accord the Trial Chambers a margin of deference with respect to findings of fact.[528]  Musema has failed to show that no reasonable tribunal of fact could have reached the conclusion of guilt beyond a reasonable doubt.  Hence, Musema has demonstrated neither that an error of fact has been committed nor that if such an error did occur,  it occasioned a miscarriage of justice.  Therefore, the appeal must fail on this point.

General conclusion

317.     Given that the Trial Chamber, in its analysis, referred to the appropriate standard and burden of proof for the evaluation of alibi evidence,[529]  and given also that it was careful to summarize Musema’s alibi evidence with respect to each crime scene and that a trial judgement must be read holistically rather than as a series of independent watertight compartments,  the Appeals Chamber has come to the conclusion that the alibi evidence was insufficient to cast reasonable doubt on the Prosecution case.  Consequently, Musema’s attempts to establish a defence of alibi failed in the face of the Prosecution case which, prima facie,  proved beyond reasonable doubt that the Accused was present at the Muyira Hill and Mumataba Hill crime scenes at all relevant times in mid-May.

318.     The Appeals Chamber concludes that Musema has failed to establish that the Trial Chamber erred by either shifting the burden of proof or by placing a higher burden on the Defence than upon the Prosecution.  For these reasons, the ground of Appeal with respect to the alibi evidence tendered in relation to the mid-May attacks is dismissed.

(iv)       Nyakavumu Cave (late May, early June 1994)

a.        Musema’s alibi at trial

319.     According to the alibi, Musema’s whereabouts were as follows:  between 27 – 28 May, he was at the Gisovu Tea Factory (documentary evidence and testimony of Musema and Claire Kayuku). On 29 May, he traveled to Shagasha. Between 30 May and 10 June, he was absent from the Gisovu Tea Factory, making a visit to Shagasha on 30 May. He rejoined a mission in Cyangugu and spent the day in Zaire on 31 May (passport and border stamps). On 1 June, he went to Shagasha and stayed there until 10 June (two exhibits to be checked). Claire Kayaku confirmed that Musema stayed with her until 7 or 10 June, all of the above being corroborated by the hand-written calendar.

320.     With regard to Musema’s alibi, the Trial Chamber found as follows: the attack at the cave occurred at some point between the end of May and early June and the alibi does not specifically refute Musema’s presence at the cave; although the exact date of the attack was unclear "the witnesses all provided an overall consistent account of the events" at the cave; the alibi was rejected based on the "overwhelming evidence of four Prosecution witnesses" and the Trial Chamber found that it was established beyond reasonable doubt that Musema had participated in the attacks.

b.        Musema’s allegations and the Prosecution’s response

321.     Musema submits that the finding that the alibi did not "specifically refute" the presence of Musema at the cave constitutes a serious flaw in the Trial Judgement and that said finding is either incorrect or based on a false premise that places the burden of proof on Musema.[530] He maintains that this finding is, in any event, erroneous, as the alibi shows where Musema was during the period in question and, therefore, refutes his presence.[531] He contends that he has always denied being present at the cave and,  therefore, the alibi specifically refutes his presence.  However, he submits that if, by this finding, the majority meant that the alibi does not prove that Musema was not at the cave, then they would be seen as placing the burden of proof on him.[532]

322.     Musema refers to the separate opinion of Judge Aspegren who disagrees with the finding reached by the majority of the Trial Chamber, on the basis of lack of precision in witness testimonies as to the date of the attack.

323.     Musema prays the Appeals Chamber to:

[…] consider the position with regard to a Defendant who is raising an alibi Defence when the Prosecution is unable to establish the date on which events are alleged to have occurred. If it is assumed that the majority of the Trial Chamber has already found that the witnesses to the events are reliable and support a finding of guilt in the absence of other evidence, the Defence submits that it is put in an unfair position if a finding of guilt can be made on the basis that the Defence cannot show that he was elsewhere on every day during a period in question. It is submitted that if an event is alleged to have occurred on a day in a period of e.g. seven days, the Defence should succeed if it can show that the Defendant was elsewhere during a part of that period.

….The Prosecution must prove the case beyond reasonable doubt. It cannot do so if the events it alleges occur on a day within a period, and for part of that period there is a doubt as to the presence of the Defendant. Of course, there is a possibility that the events occurred on a day on which the Defendant cannot raise a doubt as to his presence. But there is also a possibility that the events alleged occurred on the day on which the Defendant can raise a doubt as to his presence. The possibility must be a reasonable one, and the Defendant is therefore entitled to the advantage of it.[533]

324.     Musema submits that the Trial Chamber did not make any specific findings as to the alibi for the period in question, but simply noted that it had considered it.  He contends that the alibi for this period was irrefutable and supported by documentary evidence, his own testimony and that of Claire Kayuku.[534]  He further contends that the evidence produced substantially raises a reasonable doubt as to Musema’s presence at the cave during the period in question and that the "fact that this evidence was not considered by the majority of the Trial Chamber shows that it erred in failing to apply the correct burden and standard of proof to Defence evidence."[535]

325.     For its part, the Prosecution argues that contrary to Musema’s assertions, the Trial Chamber carefully examined his alibi and that the Chamber’s conclusion that his presence had been established beyond reasonable doubt does not constitute an abuse of discretion.  The Prosecution submits that Musema has failed to establish that the Trial Chamber was unreasonable in rejecting his alibi, noting in particular, the fact that he was inconsistent in numerous portions of his testimony,  which casts doubt on his credibility.  The Prosecution further submits that the Trial Chamber did not place a burden on Musema but simply noted the inconsistencies in his testimony and went on to find that Musema’s explanation was unconvincing.  Finally, the Prosecution submits that mere dissatisfaction with a Trial Chamber’s findings does not make out an allegation of error.

c.        Discussion

326.     The Trial Chamber found as follows:

The Chamber has considered the alibi for this period.

The alibi places Musema in Gisovu on 27 and 28 May 1994, at the Gisovu Tea Factory, and is supported by documentary evidence and the testimonies of Claire Kayuku and of Musema. Musema travelled to Shagasha with his family on 29 April 1994. Then, according to the alibi, on 30 May 1994 until 10 June 1994, Musema was away from the Gisovu Tea Factory, having traveled on 30 May to Shagasha. He rejoined a technical mission in Cyangugu and spent the day in Zaïre on 31 May. Copies of his passport and the pertinent border stamps were filed in support of this alibi.

On 1 June 1994, according to the alibi, Musema went to Shagasha where he stayed with his family until returning to Gisovu on 10 June. Exhibit D57, issued in Cyangugu, was produced to support the alibi of Musema for 3 June, and exhibit D58 for 6 June 1994.

Claire Kayuku confirmed that Musema stayed with her and the family until 7 or 10 June 1994. The Chamber notes that all of the above evidence is corroborated by Musema’s handwritten calendar (P68), which indicates that he left Gisovu on 29 May with his family and returned to Gisovu only on 10 June..[536]

327.     Musema refers to four documents which, he submits, were not considered by the Trial Chamber. In his view, this illustrates that the Trial Chamber failed to apply the correct burden and standard of proof to defence evidence.  It should be noted, however, that Musema is incorrect in this assertion, for when recounting the facts of Musema’s alibi from 28 May to 10 June, the Trial Chamber did refer to each of the four documents pointed out.[537]

328.     The Appeals Chamber notes that the possible time of the attack at Nyakavumu cave, as indicated by Witnesses H, S, D and AC is defined rather approximately.  The witnesses referred to it in turn as the "end of May", "early June", and "sometime in June".[538]  Clearly, there is imprecision.  However, the Appeals Chamber notes that these witnesses were reliable and that it was proven beyond reasonable doubt that the attack occurred.  In the light of the foregoing, the fact that there was an imprecision as to the exact date of the attack does not warrant a conclusion that it was not proven.  Thus, in the opinion of the Appeals Chamber, the Trial Chamber correctly stated that:

Although the exact date of the attack is unclear from the testimonies, the Chamber notes that the witnesses all provided an overall consistent account of the events at Nyakavumu cave throughout their testimonies. The fact that the date of the attack is unclear does not, in the opinion of the Chamber, impair on the reliability of the witnesses.[539]

329.     As regards the Trial Chamber’s statement that:

(…)the alibi does not specifically refute the presence of Musema at the cave(…),[540]

The Appeals Chamber recalls that it falls to the accused to point to the existence of sufficient evidence in order that the issue of their existence may be raised.  The Appeals Chamber, after careful consideration of the Trial Chamber’s overall approach, finds that in so stating, the Trial Chamber wanted to stress that Musema’s alibi did not cast a reasonable doubt on the Prosecution evidence.

D.   Conclusion

330.     For the foregoing reasons, the Appeals Chamber dismisses Musema’s first ground of Appeal, as set out in his Appellant’s Brief.

-                 AC made no mention of Musema in the Kayishema and Ruzindana trial in which he gave evidence. In addition, AC did not testify to having seen Prime Minister Jean Kambanda at Nyakavumu cave, a fact which is also uncorroborated;

-                 AC contradicted himself during his testimony before the Trial Chamber while giving his testimony concerning the circumstances in which he had met Musema before the May 1994 attack;

-                 While giving evidence about his wife, AC could not remember her name and also stated that he could not remember the names of his children;

-                 When asked questions relating to an incident concerning Bagosora, he repeatedly refused to answer; and

-                 AC’s testimony stating that he did not participate in a meeting in Kibuye, contradicts the account given in his previous statement of 12 June 1996. See Appellant’s Brief, paras. 193 to 207.