I.    INTRODUCTION

A.    The Appellants

2. Elizaphan Ntakirutimana was born in 1924 in Ngoma secteur, Gishyita commune, Kibuye prefecture, Rwanda.He is married and has eight children, including Gérard Ntakirutimana. In the period April to July 1994, he was pastor and president of the West Rwanda Association of the Seventh Day Adventist Church based in the Mugonero Complex, Gishyita commune, Kibuye prefecture, Rwanda.

3. Gérard Ntakirutimana was born in 1958 in Ngoma secteur, Gishyita commune, Kibuye prefecture, Rwanda. From April 1993, Gérard Ntakirutimana was a medical doctor at the Seventh Day Adventist’s hospital at Mugonero Complex, Gishyita commune. He is married and has three children. [2]

B.    The Judgement and Sentence

4. Elizaphan Ntakirutimana and Gérard Ntakirutimana were jointly tried on the basis of two indictments, Indictment no. ICTR-96-10-I, as amended on 27 March 2000 and on 20 October 2000, in the case of Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana, and Charles Sikubwabo ("Mugonero Indictment"); and Indictment no. ICTR-96-17-I, as amended on 7 July 1998, in the case of Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana ("Bisesero Indictment"). The charges against Charles Sikubwabo, who was at large at the time of the trial, were severed from the Mugonero Indictment. [3] The Appeals Chamber notes that the Indictments, which form the basis of the convictions, do not charge the Appellants for the 1994 genocide in Rwanda in its entirety, but for their individual criminal responsibility relating to selected incidents.

5. The Trial Chamber found Elizaphan Ntakirutimana guilty of genocide (Count 1A of the Mugonero Indictment and Count 1 of Bisesero Indictment) and sentenced him to ten years’ imprisonment with credit for time spent in custody awaiting trial. Gérard Ntakirutimana was found guilty of genocide (Count 1A Mugonero Indictment and Count 1 Bisesero Indictment) and of murder as a crime against humanity (Count 3 of the Mugonero Indictment and Count 4 of the Bisesero Indictment). The Trial Chamber sentenced Gérard Ntakirutimana to 25 years’ imprisonment with credit for time spent in custody awaiting trial.

C.    The Appeals

6. The Appellants appeal from all of the factual findings against them and also allege a number of legal errors. They have indicated that they rely on each other’s appeals. Accordingly, where appropriate, the Appeals Chamber has considered many of the Appellants’ submissions as being relevant to the two of them.

7. Gérard Ntakirutimana submits that the Trial Chamber made errors of law invalidating the decision and errors of fact which occasioned a miscarriage of justice. [4] His Appeal Brief divides legal errors into six general categories: (a) errors relating to the Indictments; (b) errors relating to the burden of proof; (c) errors relating to the treatment of prior inconsistent statements; (d) indicia of witness coaching; (e) errors relating to the alibi; and (f) evidence relating to motive. In addition, Gérard Ntakirutimana asserts that none of the factual findings on which his convictions rest could have been made by a reasonable tribunal.

8. Elizaphan Ntakirutimana contends generally that the Trial Chamber committed a number of recurring legal and factual errors in relation to the Mugonero and Bisesero Indictments. [5] He has regrouped the errors into seven broad categories, relevant to (i) the burden of proof, (ii) the treatment of prior inconsistent statements, (iii) credibility evaluation, (iv) the Indictments, (v) procedure, (vi) the treatment of the alibi, and (vii) character evaluation. Each of these categories is then sub-divided into a number of legal errors. [6] In addition, Elizaphan Ntakirutimana presents the following grounds of appeal: (i) failure of the Prosecution to provide notice, (ii) that Defence testimony raised a reasonable doubt, (iii) that the Trial Chamber erred by failing to consider the Defence’s motion to dismiss, (iv) that there was insufficient evidence to establish that Tutsi refugees at the Mugonero Complex were targeted solely on the basis of their ethnicity, and (v) that punishment cannot be imposed for aiding and abetting in genocide. Finally, the Appellants present a joint ground of appeal on the existence of a political campaign against them.

9. The Prosecution filed a consolidated response to the appeals of Elizaphan Ntakirutimana and Gérard Ntakirutimana. [7]

10.  The Prosecution presents six grounds for appeal. [8] The Prosecution asserts that the Trial Chamber erred (i) by failing to apply the “joint criminal enterprise” doctrine to determine Elizaphan Ntakirutimana’s and Gérard Ntakirutimana’s respective responsibility for the crime of genocide, (ii) in restricting Gérard Ntakirutimana’s conviction for genocide to the acts of killing or serious bodily harm that he personally inflicted on Tutsis at the Mugonero Complex and in Bisesero, and (iii) in its definition of the mens rea requirement for aiding and abetting genocide. The Prosecution’s fourth and fifth grounds of appeal address issues relating to crimes against humanity (extermination) and crimes against humanity (murder). As a sixth ground of appeal, the Prosecution challenges the sentences imposed by the Trial Chamber. Elizaphan Ntakirutimana and Gérard Ntakirutimana filed responses to the Prosecution appeal. [9]

D.    Standards for Appellate Review

11.The Appeals Chamber recalls the requisite standards for appellate review pursuant to Article 24 of the Statute. Article 24 addresses errors of law which invalidate the decision and errors of fact which occasion a miscarriage of justice. Where a party alleges that there is an error of law, that party must advance arguments in support of the submission and explain how the error invalidates the decision. However, if the appellant’s arguments do not support the contention, that party does not automatically lose its point since the Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law. [10]

12. As regards errors of fact, as has been previously underscored by the Appeals Chamber of both this Tribunal and of the International Criminal Tribunal for the former Yugoslavia (ICTY), the Appeals Chamber will not lightly overturn findings of fact made by a trial chamber. Where an erroneous finding of fact is alleged, the Appeals Chamber must give deference to the trial chamber that received the evidence at trial as it is best placed to assess the evidence, including the demeanour of witnesses. The Appeals Chamber will only interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous. If the finding of fact is erroneous, it will be quashed or revised only if the error occasioned a miscarriage of justice. [11]

13. The Appeals Chamber emphasises that on appeal, a party cannot merely repeat arguments that did not succeed at trial, in the hope that the Appeals Chamber will consider them afresh. The appeals process is not a trial de novo and the Appeals Chamber is not a second trier of fact. It is incumbent on the party alleging the error to demonstrate that the Trial Chamber’s rejection of arguments constituted such an error as to warrant the intervention of the Appeals Chamber. Thus, arguments of a party which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits. [12]

14. Moreover, in its submissions, the appealing party must provide precise references to relevant transcript pages or paragraphs in the trial judgement to which the challenge is being made. [13] Failure to do so, or if the submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies, makes it difficult for the Appeals Chamber to assess fully the party’s arguments on appeal. [14]

15. Finally, it is within the inherent jurisdiction of the Appeals Chamber to select those submissions which merit a reasoned opinion in writing. Arguments which are evidently unfounded may be dismissed without detailed reasoning. [15]