297.      The Appeals Chamber now considers the issues raised on appeal by Elizaphan Ntakirutimana.

298.      In his Appeal Brief, 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 which violated his right to a fair trial, thereby occasioning a miscarriage of justice and invalidating the Trial Judgement. The Appeals Chamber notes that the submissions of the Appellant are at times unclear, with alleged legal errors being in reality complaints about the Trial Chamber’s factual findings. Nevertheless, the Appeals Chamber has endeavoured to consider all of the submissions presented by the Appellant.

A.    The Mugonero Indictment

299.      Elizaphan Ntakirutimana challenges the findings of the Trial Chamber made in paragraphs 281 to 283 of the Trial Judgement, and submits that the Trial Chamber erred in its finding that he “conveyed attackers to the Mugonero complex on the morning of 16 April 1994”. [513]

300.      As the Appeals Chamber found above in relation to the appeal of Gérard Ntakirutimana on the question of the sufficiency of notice, the allegation that Elizaphan Ntakirutimana conveyed attackers to the Mugonero Complex on 16 April 1994 was a material fact which the Prosecution failed to plead in the Indictment. In addition, as the Prosecution did not cure the resulting defect in the Indictment, the Appeals Chamber found the Trial Chamber to have erred in concluding that a conviction could be based on these un-pleaded facts. [514]

301.      In light of these findings, it is not necessary for the Appeals Chamber to consider the merits of Elizaphan Ntakirutimana’s submissions on the Trial Chamber’s assessment of the evidence of Prosecution Witnesses MM, FF, PP, QQ and UU for the Mugonero Indictment. Even were the Appellant’s arguments meritorious, they would have no impact on the findings against him in the Mugonero Indictment. However, the submissions of the Appellant against the Trial Chamber’s fact finding process for the Mugonero Indictment are considered, where relevant, in the context of the Appellant’s challenges for the Bisesero findings and to the extent that they concern Gérard Ntakirutimana’s appeal against his convictions for events in Mugonero and Bisesero.

B.    Insufficiency of Evidence to Establish That Tutsi Refugees at Mugonero Complex Were Targeted Solely on the Basis of their Ethnicity

302.      Elizaphan Ntakirutimana submits that the Trial Chamber erred in fact and law in finding that Tutsi refugees who were attacked at the Mugonero Complex on 16 April 2004 “were targeted solely on the basis of their ethnic group.” [515] Although the Appeals Chamber found that the Trial Chamber erred in concluding that a conviction could be based on the unpleaded fact that Elizaphan Ntakirutimana conveyed attackers to the Mugonero Complex, the Appeals Chamber shall nevertheless consider this ground of appeal as the issues raised also concern Gérard Ntakirutimana.

303.      The Appellant argues that “₣ağ finding that the overwhelming majority of the refugees killed and wounded at Mugonero were Tutsis cannot support a finding that Tutsi refugees were targeted solely on the basis of their ethnic group.” [516] In the view of the Appeals Chamber, the finding that the Tutsi seeking refuge at Mugonero were targeted on the basis of their ethnicity has not been shown to be unreasonable. The evidence included testimonies of Witnesses MM, HH, YY, and several others indicating that most of the refugees assembled at the Mugonero Complex were of Tutsi ethnicity. [517] The Trial Chamber was entitled to find from the evidence that these refugees were targeted on grounds of their ethnicity. [518]

304.      The Appeals Chamber need not consider whether the Trial Chamber erred in finding that the refugees were targeted “solely” for their Tutsi ethnicity because the definition of the crime of genocide does not contain such a requirement. [519] It is immaterial, as a matter of law, whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons.

305.      Accordingly, this ground of appeal is dismissed.

  C.    Bisesero Indictment

306.      In relation to the Bisesero Indictment, Elizaphan Ntakirutimana submits that the Trial Chamber erred in its findings that he was present or that he committed acts on six separate occasions in Bisesero during April through June 1994. The Appellant notes that five of the six findings are based on the uncorroborated testimony of single witnesses. [520] The Appeals Chamber will review the submissions of the Appellant on an event by event basis.

307.      As discussed above in the assessment of Gérard Ntakirutimana’s submissions on sufficiency of notice, the Appeals Chamber has found that the Trial Chamber erred in convicting Elizaphan Ntakirutimana for (i) his alleged participation in a convoy of vehicles carrying armed attackers to Kabatwa Hill at the end of May 1994, and his pointing out to attackers of the whereabouts of refugees on Kabatwa and Gitwa Hills, and (ii) his alleged participation in events at Mubuga primary school in the middle of May 1994. [521]

308.      It remains for the Appeals Chamber to consider the Appellant’s submissions on four events for which he was convicted, namely for his participation in events at (i) Nyarutovu cellule and Gitwa Hill, in the middle and second half of May 1994; (ii) Murambi Hill, in May or June 1994; (iii) Muyira Hill - Ku Cyapa, in May or June 1994; and (iv) Murambi Church, in the end of April 1994.

1.    Nyarutovu Cellule and Gitwa Hill (Witness CC)

309.      Elizaphan Ntakirutimana argues that the Trial Chamber erred by relying on the uncorroborated evidence of Witness CC to find that he participated in events at Nyarutovu cellule and Gitwa Hill in the middle and second half of May 1994. [522]

310.      In respect of Nyarutovu, the Trial Chamber found:

…that Elizaphan Ntakirutimana brought armed attackers in the rear hold of his vehicle to Nyarutovu Hill one day in the middle of May 1994, and that the group was searching for Tutsi refugees and chasing them. Furthermore, the Chamber finds that, at this occasion, Elizaphan Ntakirutimana pointed out the fleeing refugees to the attackers who then chased these refugees singing “Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests”. [523]

311.      Regarding Gitwa Hill, the Trial Chamber was satisfied beyond reasonable doubt that:

… Elizaphan Ntakirutimana was present among armed attackers at the occasion of an attack against Tutsi refugees at Gitwa cellule, and that his car was parked nearby. Although this evidence is limited in respect of the Accused’s exact role or conduct in connection with the attack, it corroborates other sightings of the Accused in Bisesero, in the company of attackers, during the time-period relevant to the Bisesero Indictment. [524]

312.      In relation to the events at Nyarutovu, Elizaphan Ntakirutimana argues that the Trial Chamber erred when it concluded that although this incident is not specifically mentioned in the Indictment it is summarized as part of Witness CC’s anticipated evidence in Annex B of the Prosecution’s Pre-trial Brief and is also described in Witness CC’s written statement of 12 June 1996. [525]

313.      These submissions have been discussed above in relation to the notice arguments presented by Gérard Ntakirutimana. The Appeals Chamber has concluded that the details in Annex B and the statement of Witness CC notified the Defence that the Prosecution would allege that Elizaphan Ntakirutimana transported attackers and pointed out Tutsi refugees near the Gishyita-Gisovu road. The Trial Chamber therefore committed no error in concluding that the Bisesero Indictment’s failure to allege these facts was cured. [526]

314.      Elizaphan Ntakirutimana submits that the Trial Chamber erred by disregarding inconsistencies between the witness’s written statement and his in-court testimony, by accepting the witness’s explanations for these, and by relying on the witness’s evidence despite the lack of details and despite the witness’s serious allegations against ICTR investigators. [527] These arguments, in the view of the Appeals Chamber, seem also to go to the credibility of the witness.

315.      In his submissions, the Appellant refers extensively to apparent discrepancies between the witness’s written statement and his in-court testimony in an attempt to demonstrate error in the fact-finding process. Most of these alleged inconsistencies were put to the witness during his testimony, raised in the Defence Closing Brief and considered by the Trial Chamber in its Judgement.

316.      The Appeals Chamber recalls that it will not lightly disturb findings of fact by a trial chamber, and will substitute the assessment of the trial chamber only if no reasonable trier of fact could have arrived at the same conclusion. The trial chamber has the advantage of observing witnesses in person and is, as such, better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. The Appeals Chamber emphasises that it is not a legal error per se to accept and rely on evidence that varies from prior statements or other evidence. However, a trial chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence. [528] Also, as previously noted, a trial chamber may find parts of a witness’s testimony credible and rely on them, whilst rejecting other parts as not credible.

317.      The Appellant argues that the Trial Chamber erred in stating that the list in Witness CC’s statement of 10 attackers whom the witness recognised during the events was not exhaustive. [529] He contends that, had the witness really seen him, his name would have been included in the list, and not at the end of the statement. According to the Appellant, this suggests that the witness “was prompted by the investigator to make allegations against him.” [530]

318.      The Appeals Chamber has reviewed the witness’s evidence, including his statement of 12 June 1996, and the witness’s explanations during cross-examination on the omission of Elizaphan Ntakirutimana from the list, and considers that the Trial Chamber was not unreasonable in concluding that the list was not exhaustive. The Trial Chamber’s conclusion finds additional support from the fact that the witness also mentioned in his statement seeing Clément Kayishema during the events yet does not include him in the list of 10 attackers at the beginning of the statement. The Appeals Chamber finds the Appellant’s allegation that the witness was improperly prompted by an investigator to make accusations to be wholly speculative and without foundation.

319.      Next, the Appellant submits that the Trial Chamber should have impeached the witness as he changed his evidence at trial to fit the Prosecution’s case. He adds that the Trial Chamber erred by disregarding discrepancies and by attempting to sanitize the evidence. In support, Elizaphan Ntakirutimana refers to the witness’s written statement, in which the witness mentioned seeing only armed civilians with him during the attack at Nyarutovu, whereas at trial the witness testified that there were also Interahamwe and soldiers in military uniforms. [531]

320.      The Appeals Chamber notes that during cross-examination the witness was asked by the Appellant and the Trial Chamber about the attackers he saw with the Appellant. Questioned as to the differences between his statement and his testimony, the witness explained that at his interview with the investigators he had clearly mentioned the presence of soldiers, as well as civilians, and that the statement was therefore incorrect. [532] The Trial Chamber observed the demeanour of the witness and itself questioned the witness on the differences between his testimony and his earlier statement. The Trial Chamber addressed this apparent discrepancy in its findings, concluding that it did not affect the witness’s credibility. It also noted that the witness statement included a general description of attackers in Bisesero, which included soldiers, civilians and Interahamwe. [533] Apart from reiterating that there exists an inconsistency in the witness’s evidence, the Appellant does not advance any argument of merit which would justify the Appeals Chamber disturbing the Trial Chamber’s findings.

[548] Moreover, in cross-examination, Elizaphan Ntakirutimana questioned the witness about his sighting of the Appellant’s vehicle, the distance from which he saw him, whether he was crossing the road, and the presence of the attackers. [549]

332.      In the view of the Appeals Chamber, the Appellant has not shown that the Trial Chamber erred in assessing the evidence of Witness SS. The Appellant does not directly address the findings of the Trial Chamber to show their unreasonableness, and merely repeats aspects of the evidence which he deems undermine the witness’s credibility. The issue as to the distance from which the witness observed the Appellant was developed by the Appellant during cross-examination and fully considered by the Trial Chamber. It is clear from the evidence that the witness initially saw the Appellant at a distance of approximately 8 meters, and observed him again as he was running to escape the attackers who had alighted from the Appellant’s car. [550] The questions as to Elizaphan Ntakirutimana driving his vehicle, and the presence of anyone else in the cabin of the vehicle, were not specifically put to the witness. [551] The fact that the witness’s evidence may have been limited on the event and not greatly detailed has not been shown to undermine its reliability.

333.      Elizaphan Ntakirutimana seems to submit that Witness SS’s credibility is undermined as his evidence on the delivery of the 16 April letter from the pastors to the Appellant contradicts the evidence of Witnesses GG, HH, YY and MM. [552]

334.      The Appeals Chamber notes that the Appellant’s submissions here are vague and unclear. He does not develop this argument. It is accordingly dismissed.

335.      Elizaphan Ntakirutimana submits that Witness SS’s credibility was undermined when he testified that he saw Gérard Ntakirutimana in Mugonero in 1992 and 1993 when, according to the Appellant, Gérard Ntakirutimana was in the United States from January 1991 until March 1993. He adds that the evidence suggests that the witness did not know either the Appellant or Gérard Ntakirutimana, having referred to the Appellant as a “minister” in the African Rights report and that he did not live in Mugonero prior to 1994. [553]

336.      During the examination and cross-examination, the witness was extensively questioned on the dates of his studies at the ESI Mugonero and on when he saw Gérard Ntakirutimana. The witness indicated that he observed Gérard Ntakirutimana on a number of occasions prior to April 1994, but that he was not sure of the exact date. Although there appears to have been some confusion during the examination, Elizaphan Ntakirutimana has not shown that this in any way taints the witness’s overall credibility or that the witness was not in Mugonero in 1993 and 1994. The fact that Gérard Ntakirutimana was in the United States until March 1993 is of little significance as, on the basis of the evidence, the witness was present in Mugonero from early 1993 until April 1994, and could therefore have seen Gérard Ntakirutimana after March 1993. [554] It should be noted that Elizaphan Ntakirutimana does not directly address this evidence in his submissions.

337.      Finally, the Appeals Chamber is of the view that the witness’s use of the title “minister” when speaking of the Appellant, who was a pastor, is immaterial in showing that the witness did not know the Appellant.

338.      The Appellant submits that there are too many inconsistencies and discrepancies in the witness’s prior statements to repeat in full, but that their frequency and nature reveal fabrication and coaching. [555]

339.      The Appellant’s arguments on this point are unsubstantiated and are accordingly rejected.

340.      With respect to events at Ku Cyapa near Muyira Hill, the Trial Chamber found, on the basis of the sole testimony of Witness SS, that:

… one day in May or June the Accused was seen arriving at Ku Cyapa in a vehicle followed by two buses of attackers. The Chamber is convinced that the Accused was part of a convoy which included attackers. The evidence establishes that these attackers among others participated in the killing of a large number of Tutsi. Witness SS declared: “On that day the killings were beyond comprehension, and that is the day most people were killed.” [556]

341.      The Appellant argues that the Trial Chamber erred in finding that he had sufficient notice of this event since it was not mentioned in the Prosecution’s Closing Brief or in any detail by the witness in his previous written statement. [557]

342.      The question of sufficiency of notice has been dealt with above in relation to Gérard Ntakirutimana’s arguments on notice. It has been found that the failure to allege the event at Ku Cyapa with specificity in the Bisesero Indictment was cured by subsequent information communicated to the Defence by the Prosecution. [558]

343.      Elizaphan Ntakirutimana contends that the Trial Chamber misapplied the burden of proof as its findings do not follow from the evidence. According to Elizaphan Ntakirutimana, the evidence of Witness SS lacks necessary details as to the road on which the witness saw the Appellant’s vehicle travelling and the direction in which the vehicle was going. The Appellant adds that there is insufficient evidence to establish that the buses the witness saw not far from his vehicle were those which transported the attackers to Ku Cyapa. [559]

344.      From a review of the evidence, it has not been shown that the Trial Chamber was unreasonable in concluding that the Appellant was part of a convoy of attackers at Ku Cyapa. Indeed, Witness SS testified that, at about noon on a day in May or June 1994, he saw the Appellant in his vehicle and the vehicle of Obed Ruzindana parking on the Gisovu-Gishyita road in the area of Ku Cyapa. The witness observed the Appellant from a distance of approximately 15 meters. He testified that he did not see “many other people” in the vehicles, and presumed that the persons he saw after having fled must have descended from the buses. Witness SS explained that he observed two green buses further behind with attackers aboard, driving up the hill towards Ku Cyapa. The witness immediately fled. He did not see Elizaphan Ntakirutimana again on that day. Witness SS stated that later in the day there was a massive attack in the Bisesero region. He did not see the Appellant on this occasion. [560]

345.      The Trial Chamber relied on the evidence of Witness SS to convict the Elizaphan Ntakirutimana of aiding and abetting in genocide by conveying armed attackers to Bisesero. [561] The evidence of Witness SS does not establish that the Appellant participated in the attack at Bisesero, and in the view of the Appeals Chamber it is insufficient to establish that the attackers the witness saw with the Appellant were later involved in a large scale attack at Bisesero. [562] Notwithstanding, the Appeals Chamber does not find that the Trial Chamber erred when it relied on the evidence of Witness SS to the extent that, when placed in context, it was consistent with other evidence in the case that vehicles were often followed by buses with attackers.

346.      On the basis of the testimonies of Witnesses YY, DD, GG and SS, the Trial Chamber found:

As for the involvement of Elizaphan Ntakirutimana in the removal of the church roof, the Chamber notes that Witnesses DD, GG and YY all identified him as having participated in the removal of the roof, and Witnesses DD and GG testified that he personally gave the order for the removal. Witness SS’s testimony regarding his sighting of Elizaphan Ntakirutimana’s vehicle supports the other witnesses’ testimonies. Witnesses GG and YY testified that the church was being used by Tutsi refugees as a shelter, and Witness DD testified that he was himself seeking refuge in the church at the time. The witnesses concur that this incident took place between 17 April 1994 and early May 1994. Witnesses GG and YY saw the iron sheets being removed and placed in Elizaphan Ntakirutimana’s car while Witness DD saw the sheeting being placed in one of the two cars. The Chamber finds that there is evidence, beyond a reasonable doubt, that sometime between 17 April and early May 1994, Elizaphan Ntakirutimana was in Murambi within the area of Bisesero, that he went to a church in Murambi where many Tutsi were seeking refuge and that he ordered attackers to destroy the roof of the church. [563]

347.      As for the reasons for the removal of the Church’s roof, the Trial Chamber found that this act left the Tutsis unprotected from the elements and visible to attackers, and that given the presence of the attackers “those taking part in these events, including Elizaphan Ntakirutimana, could not have had peaceful intentions”. It rejected other interpretations suggested by Elizaphan Ntakirutimana of the act of removal of the roof or of the transportation of the individuals involved. [564]

348.      In relation to Elizaphan Ntakirutimana’s involvement in shooting refugees at the church, the Trial Chamber concluded:

that neither the Pre-trial Brief nor Witness YY’s previous statement contains any explicit allegation that Elizaphan Ntakirutimana killed persons at Murambi Church. This was first raised by Witness YY during his testimony. Consequently, the defect in the Indictment was not cured by subsequent timely notice. [565]

349.      Although not convicted of the shooting of refugees at Murambi church, the Appellant contends that the Trial Chamber erred when it concluded that, despite the fact that Witness YY was the only witness to have testified about the shooting, this did “not render his account implausible, insofar as each witness observed the scene from a different vantage point and for a different length of time”. [566] The Appellant adds that the Trial Chamber’s finding “questions the ability of the Trial Chamber to find facts rationally”. [567]

350.      Three witnesses, namely Witnesses GG, DD and YY observed the Appellant at Murambi directing people to remove the roof sheeting. Witness SS saw the Appellant’s car and observed persons remove the roof. Witnesses DD, GG and SS did not observe or testify about any shooting at the church. Their testimony was consistent that the Appellant was only involved in the removal of the roof.

351.      Witness GG testified that that he was able to hear Elizaphan Ntakirutimana tell people to climb atop the church and remove the roofing. He testified that he was able to hear “everything they were saying”. [568] Witness DD also saw Elizaphan Ntakirutimana at the church order people to remove the metal sheeting of the roof. According to the Trial Chamber, the witness, who had an unobstructed view of the church, “observed the entire operation”. Although Witness DD testified that he left the church at the time the roof was removed, his testimony in essence is limited to the actions of Elizaphan Ntakirutimana, notably: “I saw him come up in the company of other people who came in his vehicle. He ordered them to take off the roofing sheet of the church, in his opinion, to prevent us from the rain. Then he took them away.” The witness was approximately 12 metres from the church at the time of his observations. He indicated that the removal and taking away of the sheeting did not take long. [569]

352.      Witness SS, from his vantage point on a small hill overlooking Murambi church, was in a position to observe individuals remove the roofing of the church, saw the Appellant’s car but was not able to identify individuals. [570] Witnesses DD, GG and SS did not testify to any gunfire, or that Elizaphan Ntakirutimana and other attackers shot refugees in the Church.

353.      By contrast, Witness YY testified that the shooting of the refugees occurred before the removal of the roof. The Trial Chamber found that Witness YY’s account was not “implausible” as each witness “observed the scene from a different vantage point and for a different length of time”. [571] Yet Witnesses DD, GG and SS who all saw the arrival of Elizaphan Ntakirutimana or of his vehicle and the removal of the roof, did not mention any shooting.

354.      Witness YY first spoke of the shooting of refugees during the trial. No specific mention is made of this allegation in his previous statement, in the Indictment or in the Prosecution’s Pre-Trial Brief. On the basis of the evidence, the Appeals Chamber is of the view that Witness YY’s account of the shooting at the Church is irreconcilable with the evidence of Witnesses DD, GG and SS. The Trial Chamber therefore erred in reasoning that Witness YY’s account was not “implausible”.

355.      However, the Appeals Chamber is not convinced by the Appellant’s argument that this error calls into question the overall “ability of the Trial Chamber to find facts rationally”, or that the whole fact-finding process is tainted. Although it is indeed unfortunate that the Trial Chamber referred to Witness YY’s account of the events as not being “implausible”, the Trial Chamber was nevertheless, very cautious in its assessment of the evidence and careful when making its findings. The Appeals Chamber, having reviewed extensively the evidence and findings of the Trial Chamber in assessing the Appellant’s numerous grounds of appeal, considers that the Appellant’s general proposition against the Trial Chamber, a proposition derived from a single finding of the Trial Chamber, about Witness YY, is devoid of merit.

356.      The Appellant also asserts that the evidence of Witnesses DD, YY, GG and SS is insufficient evidence that he was involved in the removal of the roof of Murambi church with the intent to facilitate the killing of the refugees in the church. He suggests that there is no basis for believing that the removal of the roof would make the church a lesser hiding place and suggests that “the walls, if anything, might make it a hiding place”. Elizaphan Ntakirutimana further adds that he had “the right and perhaps the duty to remove the roof, to protect church property.” [572]

357.      The Prosecution submits inter alia that the significance of the removal of the church roof cannot be viewed out of the context of frequent attacks, and that it was clearly one in a series of acts intended to worsen the conditions of the refugees, thereby weakening their resolve against further attacks. [573]

358.      The evidence before the Trial Chamber established beyond reasonable doubt that the Appellant and others removed the roofing of the church. The Appeals Chamber has reviewed the testimony of Witnesses DD, GG and SS, and finds that the Appellant has not shown that the evidence is insufficient to establish that he was involved in the removal of the Murambi Church roof.

359.      The Appeals Chamber likewise finds no merit in the argument of the Appellant that the Trial Chamber erred when it found that the roof was removed so that the church could no longer be used as a hiding place and that the roof was removed with the intent to facilitate the killing. The Trial Chamber’s finding was made not in the abstract but on the basis of a number of factors, including the context of the events, the witness’s description of “approaching attackers”, and that Interahamwe armed with machetes were aboard the Appellant’s vehicle. [574] Moreover, the Appeals Chamber notes that, by the end of April 1994, killings against Tutsis had already commenced in the region. For instance, the attack at the Mugonero Complex occurred on 16 April 1994. Placed in the context of the then prevailing massacres against the Tutsi, the Trial Chamber reasonably inferred that the removal of the roof was intended to deprive the Tutsi of hiding places and to facilitate their killing.

360.      Elizaphan Ntakirutimana challenges the findings of the Trial Chamber that the Appellants participated in the attacks at Bisesero with the intent to commit genocide. Specific reference is made to the conclusions of the Trial Chamber in paragraphs 826 and 830 of the Trial Judgement:

826. In Section II.4 above, the Chamber found that a large number of men, women and children, who were predominantly Tutsi, sought refuge in the area of Bisesero from April through June 1994, where there was widespread violence during that period, in the form of attacks targeting this population on an almost daily basis. Witnesses heard attackers singing songs referring to the extermination of the Tutsi. The Chamber concludes that these attacks were carried out with the specific intent to destroy in whole the Tutsi population in Bisesero, for the sole reason of its ethnicity. [575]

830. From his presence and participation in attacks in Bisesero, from the fact that at certain occasions, he was present when attackers he had conveyed set upon chasing Tutsi refugees nearby, singing songs about exterminating the Tutsi, Elizaphan Ntakirutimana knew that Tutsi in particular were being targeted for attack, and that by transporting armed attackers to Bisesero and pointing out Tutsi refugees to the attackers, he would be assisting in the killing of the Tutsi in Bisesero. The Chamber has also taken into account his act of conveying to the Mugonero Complex attackers who proceeded to kill Tutsi. Having considered all the evidence, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole, the Tutsi ethnic group.

361.      According to Elizaphan Ntakirutimana, the record does not support the Trial Chamber’s finding that the Appellants possessed the intent necessary to commit genocide, and contends that the Trial Chamber failed to make factual findings or provide supportive analysis of intent. Elizaphan Ntakirutimana also notes that the Trial Chamber omitted “in part” from its definition of intent, thus requiring a showing of an “ intent to destroy, in whole, the Tutsi ethnic group”. [576]

362.      Elizaphan Ntakirutimana contends that the Trial Chamber did not make factual findings or “supportive analysis” of the Appellants’ intent. [577] This contention is meritless. The Appeals Chamber notes that in paragraph 828 of the Trial Judgement, the Trial Chamber outlined the factual findings which led it to conclude, in paragraph 830, that Elizaphan Ntakirutimana had the requisite genocidal intent. Similarly, prior to finding that Gérard Ntakirutimana had the specific intent to commit genocide, the Trial Chamber recalled in detail the factual findings upon which this conclusion was based. [578] Consequently, it cannot be said that the Trial Chamber failed to make and analyze factual findings in respect of the Appellants’ intent relating to the genocide charge in the Bisesero Indictment.

363.      Elizaphan Ntakirutimana submits that the evidence established that the Appellants did not have the intent to destroy Tutsi “solely” because of their ethnicity. [579] As stated above, the definition of the crime of genocide in Article 2 of the Statute, which mirrors the definition set out in the Genocide Convention, does not require that the intent to destroy a group be based solely on one of the enumerated grounds of nationality, ethnicity, race, or religion. [580]

364.      In considering whether a perpetrator had the requisite mens rea, regard must be had to his mode of participation in the given crime. Under the Bisesero Indictment, Elizaphan Ntakirutimana was convicted of aiding and abetting genocide while Gérard Ntakirutimana was convicted of committing genocide. [581] The requisite mens rea for aiding and abetting genocide is the accomplice’s knowledge of the genocidal intent of the principal perpetrators. [582] From the evidence, the Trial Chamber found that the attackers in Bisesero had the specific genocidal intent. [583] Furthermore, in the view of the Appeals Chamber, it is clear that Elizaphan Ntakirutimana knew of this intent. The Trial Chamber found that Elizaphan Ntakirutimana was present during several attacks on refugees in Bisesero, including situations where the armed attackers sang: “Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests”, and “Let us exterminate them”, while chasing and killing Tutsis. [584] It is from this, as well as from his transporting the armed attackers and directing them toward fleeing Tutsi refugees that the Trial Chamber found that Elizaphan Ntakirutimana had the requisite intent to commit genocide, convicting him of aiding and abetting genocide. In the view of the Appeals Chamber, it is not necessary to consider whether the Trial Chamber correctly concluded that Elizaphan Ntakirutimana had the specific intent to commit genocide, given that it convicted him not of committing that crime, but rather of aiding and abetting genocide, a mode of criminal participation which does not require the specific intent. The Appeals Chamber finds that Elizaphan Ntakirutimana knew of the genocidal intent of the attackers whom he aided and abetted in the perpetration of genocide in Bisesero and, therefore, that he possessed the requisite mens rea for that crime.

365.      The Appeals Chamber also finds no error in the Trial Chamber’s conclusion that Gérard Ntakirutimana had the specific intent required to sustain his genocide conviction. In determining whether Gérard Ntakirutimana had the specific genocidal intent, the Trial Chamber properly considered his participation in numerous attacks on Tutsis, including his shooting and killing Tutsi individuals. [585] This finding is not undermined by the Trial Chamber’s conclusion that Gérard Ntakirutimana had the specific intent to destroy the Tutsi ethnic group “in whole”, rather than “in whole or in part” as Article 2 of the Statute prescribes. The record shows that Gérard Ntakirutimana possessed the requisite mens rea for committing the crime of genocide.

366.      Accordingly, this ground of appeal is dismissed.

367.      Elizaphan Ntakirutimana argues that aiding and abetting genocide was not included in the Genocide Convention and is not punishable under the Genocide Convention or Article 6(1) of the Statute of the Tribunal. According to the Appellant, the phrase “or otherwise aided and abetted” in Article 6(1) of the Statute relates only to common crimes, such as murder and rape, as included in Articles 3 (Crimes against Humanity) and Article 4 (War Crimes) of the Statute, of which aiding and abetting is “a frequent part”. [586]

368.      Elizaphan Ntakirutimana notes that Article 2 of the Statute (which reproduces Articles 2 and 3 of the Genocide Convention) includes in the acts punishable as genocide conspiracy, complicity, incitement, attempt to commit genocide and complicity in genocide, but not aiding and abetting. By contrast, neither Article 2 nor Article 4 addresses conspiracy or accessory liability, and it was thus necessary to supplement these articles with Article 6(1) of the Statute. The Appellant concludes that the Security Council had no power to enact or modify the Genocide Convention “or to create a criminal code” by adding aiding and abetting to acts punishable under Article 2 of the Statute. [587]

369.      The Prosecution responds that this argument was not raised in the Notice of Appeal, is vague and not in conformity with the Practice Direction on Formal Requirements for Appeals from Judgement, and cannot be raised for the first time in the Appeal Brief. The Prosecution submits that the argument should be dismissed without consideration. [588]

370.      The Appeals Chamber notes that the Prosecution correctly points out that the present argument was not raised in the Notice of Appeal. The Practice Direction on Formal Requirements for Appeals from Judgement requires an appellant to present in the Notice of Appeal the grounds of appeal, clearly specifying

(i)         any alleged error on a question of law invalidating the decision, and/or

(ii)        any alleged error of fact which has occasioned a miscarriage of justice;

(iii)       an identification of the finding or ruling challenged in the judgement, with specific reference to the page number and paragraph number;

(iv)       an identification of any other order, decision or ruling challenged, with specific reference to the date of its filing, and/or transcript page;

(v)        if relevant, the overall relief sought. [589]

In accordance with the Practice Direction, the Appeals Chamber may dismiss submissions that do not comply with the prescribed requirements. [590]

371.      In addition to Elizaphan Ntakirutimana’s failure to properly raise this ground of appeal in the Notice of Appeal, the Appeals Chamber notes that the present submission lacks merit. In essence, the Appellant argues that he could not have been charged and convicted of aiding and abetting genocide because aiding and abetting was not included in the Genocide Convention and is therefore not an act punishable under the Convention or under Article 6(1) of the Statute. The Appeals Chamber does not subscribe to such an interpretation of the Convention or the Statute. As recently held in the Krstić Appeal Judgement, the prohibited act of complicity in genocide, which is included in the Genocide Convention and in Article 2 of the Statute, encompasses aiding and abetting. [591] Moreover, Article 6(1) of the Statute expressly provides that a person “who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.” Accordingly, liability for the crime of genocide, as defined in Article 2 of the Statute, may attach on grounds of conduct characterized as aiding and abetting. [592]

372.      Consequently, this ground of appeal is dismissed.

386.      Elizaphan Ntakirutimana submits that thirteen Defence witnesses and the Appellants gave evidence in support of the alibi during the period he is said to have travelled almost daily to Bisesero to participate in attacks. He contends that the Trial Chamber disregarded Defence witnesses’ evidence because it was either not significant or exaggerated, yet accepted “exaggerated, improbable and unbelievable” testimony presented by Prosecution witnesses. Elizaphan Ntakirutimana additionally contends that, in evaluating the alibi, the Trial Chamber placed undue emphasis on the need for a precise accounting of the time. In conclusion, he asserts that if Defence evidence taken with all the evidence in the case succeeds in raising a reasonable doubt as to his guilt then he must be acquitted. [621]

387.      With regard to alibi evidence for the period from the end of April to mid-July 1994, the Trial Chamber evaluated separately the testimony of each Defence witness and then considered whether the evidence as a whole created an alibi for the Appellants. The Trial Chamber has held that the Defence witnesses’ evidence for this period did not create a reasonable possibility that the Appellants were not at locations outside Mugonero as alleged by Prosecution witnesses. [622]

388.      The Defence sought to establish that the daily routine of the Appellants was comprised of a rigid pattern of work and church. However, most of the thirteen witnesses, though testifying that they saw the Appellants on a frequent or daily basis, indicated in their testimonies that there were exceptions and deviations from this pattern. The Trial Chamber has found that the testimonies of the Defence witnesses drew a picture, in accordance with which the Appellants “were at their respective workplaces on weekdays, and at church on Saturday – except when they were not.” [623] This is a reasonable assessment of the record.

389.      In the view of the Appeals Chamber, it has not been shown that the Trial Chamber erred in assessing whether the alibi evidence created a reasonable possibility that the Appellants were not at the locations outside Mugonero as alleged by the Prosecution witnesses or that the Trial Chamber failed to assess this evidence even-handedly.

390.      Elizaphan Ntakirutimana contends that the Trial Chamber erred in law by drawing an adverse inference from the fact that the Appellants testified at the end of their trial. [624] Elizaphan Ntakirutimana submits that such inference is without foundation and necessarily implies that the Trial Chamber was of the view that the Appellants fabricated their evidence, thereby undermining their credibility. Elizaphan Ntakirutimana contends that this legal error resulted in a miscarriage of justice with respect to all the charges because the Appellants’ evidence was not fairly evaluated. [625]

391.      In assessing evidence, a trier of fact is required to determine its overall reliability and credibility. [626] Writing about a Trial Chamber’s assessment of documentary evidence tendered by an accused in support of his alibi, the Appeals Chamber in Musema stated the following:

It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document. Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it. [627]

392.      In the present case the Trial Chamber made the following general observation:

The Chamber also notes that the two Accused chose to testify at the very end of the case, and thus did so with the benefit of having heard the evidence presented by the other Defence witnesses. The Chamber has taken this factor into account in considering the weight to be accorded to the evidence given by the Accused. [628]

393.      The Appeals Chamber finds no error in such an approach. In weighing evidence, a trial chamber, must consider, inter alia, the context in which it was given, including, in respect of testimony, whether it was given with the benefit of having heard other evidence in the case. When an accused testifies in support of his or her alibi after having heard other alibi evidence, a trial chamber is obligated to take this into account when assessing the weight to be given to such testimony. Along this line, the ICTY Appeals Chamber stated the following during contempt proceedings against Mr. Vujin, a former counsel:

The Appeals Chamber also considers it right to say to Mr. Vujin that in case he decides to testify not at the beginning but at some later stage, then the Appeals Chamber, in evaluating his evidence, would have to take into account the fact that he had listened to the testimony given by all the Defence witnesses. [629]

394.      Accordingly, the appeal on this point is dismissed.

395.      The last allegation Elizaphan Ntakirutimana makes with regards to the 16 April 1994 findings is that the Trial Chamber shifted the burden of proof in assessing Gérard Ntakirutimana’s alibi for that morning. This is merely a repetition of an identical allegation made in Gérard Ntakirutimana’s Appeal Brief. [630] Elizaphan Ntakirutimana does, however, add one specific allegation, namely that the Trial Chamber failed to acknowledge testimony by Prosecution Witnesses XX and GG, which, in his view, tend to provide Gérard Ntakirutimana with an alibi.

396.      The Appellant does not provide sufficient detail to enable the Appeals Chamber to consider his contention that the Trial Chamber failed to acknowledge relevant testimony of Witness GG. Elizaphan Ntakirutimana’s brief states that “GG has Doctor Gerard at his father’s house after the whites left….” [631] However, the transcript reference given for this quotation in the brief is for a different witness, Witness DD. As has been repeatedly stated: “In order for the Appeals Chamber to assess the appealing party’s arguments on appeal, the appealing party is expected to provide precise references to relevant transcript pages … to which the challenge is being made.” [632] Absent a specific reference, the Appeals Chamber cannot be expected to consider the given submission. [633]

397.      The Appellant also argues that the Trial Chamber failed to acknowledge the testimony of Witness XX that Gérard Ntakirutimana began staying at his father’s house from 12 April 1994. [634] In the section dealing with the alleged denial of treatment of Tutsi patients, the Trial Chamber recalled the testimony of Witness XX that on 13, 14, and 15 April 1994 he did not see Gérard Ntakirutimana at the hospital and that “‘it was said that he was living at his father’s.” [635] The Appeals Chamber finds no error in the fact that the Trial Chamber did not expressly recall this testimony later in the Judgement when discussing Gérard Ntakirutimana’s alibi for 15 and 16 April, as it is clear that the Trial Chamber was aware of and has considered Witness XX’s evidence. Accordingly, this ground of appeal is dismissed.

398.      The Appellants submit that the Trial Chamber erred in denying their Pre-Trial Motion to Dismiss. [636] The Motion was predicated on the following grounds: (1) that the trial would violate the fundamental rights of the Accused to present their defence and confront witnesses against them; [637] (2) that the proceedings against the Accused would violate guarantees of equal protection and prohibitions on discrimination enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; [638] (3) that the proceedings would violate guarantees of independence and impartiality in criminal proceedings also guaranteed by the UDHR and the ICCPR; [639] and (4) that the Charter of the United Nations does not empower the Security Council to establish a criminal court such as the Tribunal. [640]

399.      The Appellants now contend that the Motion to Dismiss should be “continuously considered in light of the developing law and facts,” and so should be considered anew by the Appeals Chamber despite its denial at trial. [641] However, the Appellants do not point to any area of law or specific facts that have changed significantly since trial such that renewed consideration of the Motion would be warranted. Moreover, the Appeals Chamber finds that the Trial Chamber’s reasoning in the Motion was sound, and its decision to reject the Motion was in line with established jurisprudence of both the Tribunal and the ICTY. Therefore, this ground of appeal is dismissed.