Ntakirutimana

440. Gérard Ntakirutimana was found guilty of genocide, under Count 1 of the Mugonero Indictment and under Count 1 of the Bisesero Indictment pursuant to Article 6(1) of the Tribunal’s Statute. Elizaphan Ntakirutimana was found guilty of aiding and abetting genocide under Count 1 of the Mugonero Indictment, though the Appeals Chamber has quashed this conviction, and under Count 1 of the Bisesero Indictment, for aiding and abetting the killing and causing of serious bodily or mental harm to Tutsi in Bisesero pursuant to Article 6(1) of the Statute.

441. The Prosecution’s first, second and third grounds of appeal [742] allege three errors of law related to the genocide convictions of Elizaphan and Gérard Ntakirutimana. The issues raised in these grounds of appeal overlap and the Prosecution has treated them together in the first part of its Appeal Brief. For the sake of clarity, the Appeals Chamber will follow the same approach.

442. First, the Prosecution alleges that the Trial Chamber erred in not applying joint criminal enterprise liability to determine the criminal responsibility of Gérard and Elizaphan Ntakirutimana. [743] Second, the Prosecution claims that the Trial Chamber erred in confining Gérard Ntakirutimana’s conviction for genocide to acts of killing or serious bodily harm that he personally inflicted on Tutsi at the Mugonero Complex and Bisesero. [744] Third, the Prosecution challenges the Trial Chamber’s finding at paragraph 787(iii) of the Trial Judgement regarding the mens rea requirement for aiding and abetting the crime of genocide. [745]

443. The Appeals Chamber will address each of the three alleged errors successively. Before considering the arguments of the Prosecution, the Appeals Chamber will consider an argument raised by both Gérard Ntakirutimana and Elizaphan Ntakirutimana that these three grounds of appeal are inadmissible.

444. Gérard Ntakirutimana challenges the admissibility of the Prosecution’s first three grounds of appeal arguing that the Prosecution does not claim that the errors alleged would invalidate the Trial Chamber’s verdict of conviction for genocide as required by Article 24 of the Statute as well as Article 4(b)(iii) of the Practice Direction on Formal Requirements for Appeals from Judgement. Rather, he says, these grounds challenge the “bases” for this conviction, [746] and are not appealable. [747] Elizaphan Ntakirutimana joins in these arguments. [748]

445. In reply the Prosecution claims that with one partial exception – that is the error related to the correct mens rea for aiding and abetting genocide – its first three grounds of appeal raise errors that do have a direct impact on the Trial Chamber’s decisions as to the nature and extent of Gérard Ntakirutimana’s and Elizaphan Ntakirutimana’s responsibility and are also matters of general importance. [749] Its argument is that the Trial Chamber erred in its application of the law to the facts and therefore understated the nature and extent of culpability attributable to Gérard Ntakirutimana and Elizaphan Ntakirutimana. [750] The Prosecution argues that the Defence advances an unduly restrictive interpretation of Article 24 of the Statute that is unfair to all parties and is contrary to the existing jurisprudence. It argues that the phrase, “an error on a question of law invalidating the decision”, is sufficiently broad to cover grounds of appeal alleging errors that invalidate an aspect of the decision that impacts upon the nature or extent of the accused’s culpability. [751]

446. Article 24(1) of the Statute refers only to errors of law invalidating the decision, that is legal errors which, if proven, affect the verdict. If the first alleged error of law (failure to apply joint criminal enterprise liability to determine the responsibility of Gérard and Elizaphan Ntakirutimana) is established and the related ground of appeal is successful, Gérard Ntakirutimana could be held responsible as a co-perpetrator of killings and infliction of serious bodily harm to members of the Tutsi group physically committed by others. Likewise, Elizaphan Ntakirutimana could be held responsible as a co-perpetrator of genocide, and not as a mere aider and abettor of genocide as found by the Trial Chamber. If the second alleged error of law (confining Gérard Ntakirutimana’s conviction for genocide to the acts of killing or serious bodily harm that he personally inflicted) is established a conviction could be entered against Gérard Ntakirutimana for killings and infliction of serious bodily harm to members of the Tutsi group physically committed by others, alternatively Gérard Ntakirutimana could be held responsible for aiding and abetting the main perpetrators of genocide.

447. The Appeals Chamber is satisfied that, with the exception of the alleged error of law related to the mens rea for aiding and abetting genocide, the first three grounds of the Prosecution’s appeal will, if successful, affect the verdict. As to the alleged error of law related to the mens rea for aiding and abetting genocide, the Appeals Chamber considers the ground to raise an issue of general importance for the case law of the Tribunal and will consider it on that basis.

448. The Prosecution argues that the Trial Chamber erred in not applying joint criminal enterprise liability to determine the criminal responsibility of Gérard and Elizaphan Ntakirutimana for their participation in the genocide committed at Mugonero and Bisesero. [752] In making this argument the Prosecution acknowledges that it did not expressly raise this argument at trial, [753] but claims that the Mugonero and Bisesero Indictments, the Prosecution’s Pre-Trial Brief and the Prosecution’s Closing Brief provide sufficient notice for the Prosecution to raise it on appeal. [754]

449. The Prosecution argues that it is not necessary to specify the precise mode of liability alleged against the accused in an indictment as long as it makes clear to the accused the nature and cause of the charge against him. [755] It argues that the Indictments put the Accused on notice that the case against them included allegations of participation in crimes involving a number of persons [756] and that it was clear from the Indictments that the criminal purpose alleged was to kill and wound Tutsis as part of a genocidal plan. [757] As such, it claims that the absence of an express reference to joint criminal enterprise liability in the Indictments did not create any confusion or ambiguity about the nature and cause of the charges alleged against Gérard and Elizaphan Ntakirutimana. [758]

450. The Prosecution also argues that its Pre-Trial Brief, which did not specify a particular mode of responsibility, left it to the Trial Chamber’s discretion to find the Accused guilty on the basis of “any action encompassed by Article 6(1) of the Statute of the Tribunal”. [759] It says that the factual allegations in the Pre-Trial Brief revealed the collective nature of the crimes with which Gérard and Elizaphan Ntakirutimana are charged and the common criminal plan Gérard and Elizaphan Ntakirutimana shared with the other attackers. It says that, taken together, the Indictments and Pre-Trial Brief were sufficient to put the accused on notice that the crimes alleged against them were collective in nature and that joint criminal enterprise liability could be applied. [760]

451. At the Appeal hearing, the Prosecution stressed that there is no requirement that express modes of liability must be pleaded in an indictment and that this was clear from several Appeals Chamber’s decisions such as Aleksovski, Čelebi}i and more recently Krnojelac. In Krnojelac, the Appeals Chamber stated quite clearly that the Prosecution’s obligation to address modes of liability is expressed as an obligation to make clear whether Article 7(1), or in the context of the ICTR Statute Article 6(1), is relied upon or whether Article 7(3) or, in the context of the ICTR Statute, Article 6(3) is relied upon. [761]

452. The Prosecution also argues that it is common practice in the jurisprudence of the ICTY for accused to be found liable as participants in a joint criminal enterprise without that mode of liability being expressly pleaded in the indictment. Following this practice, it says it relied on Article 6(1) in general terms and that the reference to commission in Article 6(1) is broad enough to encompass the notion of joint criminal enterprise. It argues that this has been confirmed by the Appeals Chamber on a number of occasions, such as in the Ojdanić Joint Criminal Enterprise Appeal Decision. [762] Further, in its Pre-Trial Brief, it made it clear that the Trial Chamber had the authority to rely on any mode of liability, even if different to that expressly advanced by the Prosecution. It argues that the Appeals Chamber cannot allow an error in the classification of the responsibility of the Accused to stand on the basis that the Prosecution did not expressly label the joint criminal enterprise to describe their responsibility. The Trial Chamber’s duty to apply the law correctly exists independently of the Prosecution’s approach. [763]

453. At the Appeal hearing, the Prosecution also reiterated its argument that the application of joint criminal enterprise liability by the Appeals Chamber would not result in any unfair prejudice in the relevant sense of rendering the trial unfair. [764]

454. At the Appeal hearing, the Prosecution also repeated arguments made in its Appeal Brief that no prejudice would be suffered by the Accused by the application of joint criminal enterprise liability at this stage of the proceedings. It stressed that both Elizaphan Ntakirutimana and Gérard Ntakirutimana advanced a defence of alibi making it difficult to see how the defence would have been conducted differently if the Prosecution had referred specifically to joint criminal enterprise liability. In these circumstances, the Prosecution says that the onus is on the Defence to demonstrate how the Accused would be unfairly prejudiced by the application of joint criminal enterprise liability by the Appeals Chamber. [765] It argued that the Aleksovski, ^elebi}i and Krnojelac appeal judgements support the argument that it is only where a failure to expressly plead a theory of liability causes ambiguity or impacts upon the ability of the accused to prepare a defence that a problem arises. It says that this is not the case here. The Accused made no complaint at trial of the Prosecution’s pleading of Article 6(1) in its entirety and they cannot now complain that the Indictments were inadequate to advise them that all such forms of liability were alleged. [766]

455. In his response, Gérard Ntakirutimana argues that the failure of the Prosecution to raise joint criminal enterprise liability at trial precludes it from being raised on appeal. He submits that the Prosecution is asking the Appeals Chamber to decide the issue de novo on appeal and that this amounts to requesting a new trial, which is not within the scope of the appellate function. [767] Further, and contrary to the Prosecution’s arguments that he had sufficient notice that a joint criminal enterprise case was being presented, Gérard Ntakirutimana argues that joint criminal enterprise liability is not specifically mentioned in the Indictments, pleadings, or the Opening and Closing Statements, and therefore that no notice was given of such an argument. [768] He claims further that, as this mode of liability is rarely addressed by the ICTR, he was not on notice that joint criminal enterprise liability could be an issue. [769]

456. Gérard Ntakirutimana also submits that the Indictments do not meet the standard enunciated in the Milutinović Decision regarding the facts that must be pleaded with respect to allegations of individual responsibility arising from participation in a joint criminal enterprise. [770] Also, in his view, the Mugonero and Bisesero Indictments do not meet the “test for sufficiency of indictments” set out in Article 17(4) of the Statute and enunciated in the Kupreškić et al. Appeal Judgement. [771] Moreover, Gérard Ntakirutimana claims that the Prosecution’s invitation, in its Pre-Trial Brief, to the Trial Chamber to choose the most appropriate form of liability under Article 6(1) of the Statute, contradicts the position it is now arguing in its Appeal Brief. [772]

457. For these reasons, Gérard Ntakirutimana argues that the Defence could not have anticipated that the Prosecution intended to rely on joint criminal enterprise liability. Therefore, he says that the Prosecution is estopped from raising joint criminal enterprise liability on appeal. [773] He asserts that the Prosecution’s new plea of joint criminal enterprise is prejudicial to him because his investigation, questioning of prosecution witnesses and presentation of evidence would have been different if this mode of liability had been raised at trial. [774]

458. Elizaphan Ntakirutimana also argues that the Prosecution cannot seek new findings to be made in relation to a form of responsibility never alleged in the Indictments or the Pre-Trial Brief, never placed in evidence or argued in the Closing Brief. He distinguishes the present case from the Ojdanić Joint Criminal Enterprise Appeal Decision in which the accused had notice that he was being charged as a participant in a joint criminal enterprise. Similar to his Co-Accused, Elizaphan Ntakirutimana interprets the Prosecution’s argument based on joint criminal enterprise as a request for new findings of fact that were neither suggested to nor addressed by the Trial Chamber. [775]

459. In reply, the Prosecution claims that the jurisprudence of the Tribunal makes clear that specific modes of responsibility do not have to be pleaded in the indictment. It claims that the Accused acknowledged that the Prosecution’s Pre-Trial Brief put them on notice that the Trial Chamber was at liberty to consider all modes of liability encompassed under Article 6(1) of the Statute [776] and questions the Defence’s reason for not seeking clarification in the pre-trial or trial phases if it considered this approach to be prejudicial. [777] The Prosecution submits further that, regardless of the argument presented by the parties, the Trial Chamber has a duty to apply the law concerning the appropriate characterization of the responsibility of the Accused to the facts of the case. [778] Therefore, the two Accused have no legal basis to assume that a reference in the Indictment to superior responsibility precludes the application of joint criminal responsibility. [779]

460. Applying factors identified in the Milutinović Decision, the Prosecution argues that the Indictments contained the underlying material facts relating to the joint criminal enterprise, namely the timeframe, the participants, the role of the accused and the purpose of the enterprise. [780] It argues that technical defects in the pleadings will not be fatal if the material facts have been pleaded and the accused suffers no prejudice. [781] Here, the two Accused suffered no prejudice due to lack of notice because, in its closing address at trial, the Prosecution declared that both Accused “participated in one form or the other in the attacks that took place […]”. This was noted by the Trial Chamber in the Judgement. [782] Additionally, Elizaphan Ntakirutimana and Gérard Ntakirutimana did not articulate what prejudice they claim to have suffered.

461. Article 6(1) of the Statute sets out the forms of individual criminal responsibility which apply to all the crimes falling within the International Tribunal’s jurisdiction. It reads as follows:

1. 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.

462. This provision lists the forms of criminal conduct which, provided that all other necessary conditions are satisfied, may result in an accused incurring individual criminal responsibility for one or more of the crimes provided for in the Statute. A mirror provision is found in Article 7(1) of the ICTY Statute. The ICTY Appeals Chamber has previously held that the modes of liability identified under Article 7(1) of the ICTY Statute include participation in a joint criminal enterprise as a form of “commission” under that Article. [783]

463. In the jurisprudence of the ICTY three categories of joint criminal enterprise have been identified as having the status of customary international law. [784] The first category is a “basic” form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention. [785] An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill. This form of joint criminal enterprise is the only one relevant to the present case and will be the focus thereafter. [786]

464. The second category is a “systemic” form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment. [787] An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise.

465. The third category is an “extended” form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose. [788] An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians.

466. For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure. [789] There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. [790] The accused’s participation in the criminal enterprise need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common purpose. [791]

467. The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). [792] The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment. [793] Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or, in any event, to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk” [794] – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.

468. The Appeals Chamber notes that while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue. [795] Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.

469. Article 17(4) of the Statute provides that the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.

470. As stated earlier in this Judgement, [796] the Prosecution’s obligation to set out a concise statement of the facts in the indictment must be interpreted in the light of the provisions of Articles 20(2), 20(4)(a) and 20(4)(b) of the Statute, which provide that in the determination of charges against him or her the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature of the charges against him or her and to have adequate time and facilities for the preparation of his or her defence. In the case law of both the ICTR and the ICTY, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven. [797] The question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.

471. As the Appeals Chamber discussed above, [798] the Kupreškić et al. Appeal Judgement addressed the degree of specificity required to be pleaded in an indictment. It stressed that it is not acceptable for the Prosecution to omit material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. [799] It also considered that a defective indictment may, in certain circumstances, cause the Appeals Chamber to reverse a conviction. The ICTY Appeals Chamber, however, did not exclude the possibility that, in a limited number of instances, a defective indictment may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges. [800] In the Rutaganda case, the Appeals Chamber found that, before holding that an alleged fact is not material or that differences between the wording of the indictment and the evidence adduced are minor, a trial chamber should generally ensure that such a finding is not prejudicial to the accused. [801] An example of such prejudice would be vagueness capable of misleading the accused as to the nature of the criminal conduct with which he is charged. [802]

472. At the Appeal hearing, the Prosecution sought to argue that a recent decision of the Appeals Chamber in Nyiramasuhuko and Ntahobali [803] had expanded the Kupreškić holding. It claimed that, following that decision, in all circumstances a defective indictment can be cured by the provision in another form of timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. The Appeals Chamber does not accept this reading of that decision. Accordingly, the applicable law has not changed since the Kupreškić et al. Appeal Judgement.

473. While the Appeals Chamber accepts that it has been the practice of the Prosecution to merely quote the provisions of Article 6(1), and in the ICTY Article 7(1), the Prosecution has also long been advised by the Appeals Chamber that it is preferable for it not to do so. For example, the ICTY Appeals Chamber in the Aleksovski case stated that “the practice by the Prosecution of merely quoting the provisions of Article 7(1) in the indictment is likely to cause ambiguity, and it is preferable that the Prosecution indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.” [804] The Appeals Chamber endorses this statement.

474. In the present case, the Trial Chamber does not appear to have considered joint criminal enterprise liability at any time in determining the responsibility incurred by Gérard and Elizaphan Ntakirutimana for their participation in the massacres committed at Mugonero and Bisesero. [805] As such the Appeals Chamber does not accept that the authorities relied upon by the Prosecution lend the assistance the Prosecution claims. In the Tadić Appeal Judgement, the ICTY Appeals Chamber found the accused liable under the third form of joint criminal enterprise for the killing of five men from the village of Jaskići, even though neither this form of liability nor any other form of joint criminal enterprise was expressly pleaded in the indictment. [806] However, in that case and, unlike here, the trial chamber had considered joint criminal enterprise liability [807] and, on appeal, the Prosecution was actually arguing that the trial chamber had misdirected itself as to the application of that doctrine. [808] In the Furundžija case, also relied upon by the Prosecution, although the indictment did not expressly include joint criminal enterprise or even co-perpetration as to the charge of torture, the Prosecution pleaded at trial that liability pursuant to Article 7(1) of the Statute can be established by showing that the accused had the intent to participate in the crime, that his acts contributed to its commission and that such contribution did not necessarily require participation in the physical commission of the crime. The Furundžija Trial Chamber found that two types of liability for criminal participation “appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other” [809] and found that Furundžija was responsible as a co-perpetrator. [810] This was upheld by the ICTY Appeals Chamber. [811] Further, the Appeals Chambers notes that in both of these cases the defence does not appear to have raised the issue of lack of notice before the Trial Chamber or the Appeals Chamber.

475. More recently, in the Krnojelac Appeal Judgement, where the Prosecution was specifically challenging the trial chamber’s conclusion that the accused could not be held liable under the third form of joint criminal enterprise set out in the Tadić Appeal Judgement with respect to any of the crimes alleged unless an “extended” form of joint criminal enterprise was pleaded expressly in the indictment, the ICTY Appeals Chamber held that:

[…] The Appeals Chamber reiterates that Article 18(4) of the Statute requires that the crime or crimes charged in the indictment and the alleged facts be set out concisely in the indictment. With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.

The Appeals Chamber observes that paragraph 86 of the Judgment, cited in paragraph 137 above, shows that the Trial Chamber reached the conclusion it did precisely because the Prosecution failed to amend the Indictment after the Chamber had unambiguously interpreted the second amended indictment as not pleading an extended form of joint criminal enterprise. Given these circumstances, the Trial Chamber decided “in the exercise of its discretion” that it would not be fair to the Accused to allow the Prosecution to rely upon this extended form of joint criminal enterprise to establish his liability.

The Appeals Chamber further notes that, while the Prosecution’s Pre-Trial Brief of 16 October 2000, that is subsequent to the decision of 11 May 2000, pleads an extended form of joint criminal enterprise for the first time, the Indictment is silent on the matter.

It must be noted that these circumstances left the Defence in some uncertainty as to the Prosecution’s argument. Therefore, even though it is apparent from Krnojelac’s Final Trial Brief that he did take the three forms of joint criminal enterprise described in the Tadi} Appeals Judgement into consideration before concluding that he had not taken part in a joint criminal enterprise, the Appeals Chamber holds that, in view of the persistent ambiguity surrounding the issue of what exactly the Prosecution argument was, the Trial Chamber had good grounds for refusing, in all fairness, to consider an extended form of liability with respect to Krnojelac. (footnotes omitted). [812]

476. Thus, the Appeals Chamber is satisfied that the present case is distinguishable from the authorities relied upon by the Prosecution, in that in those cases joint criminal enterprise liability was a mode of liability considered at trial. Nevertheless, for the sake of completeness, the Appeals Chamber will consider whether the Accused had sufficient notice that that mode of liability was being alleged.

477. The Prosecution acknowledges that it submitted in its Closing Brief that Elizaphan Ntakirutimana’s responsibility regarding the Mugonero Indictment was only for aiding and abetting the attackers at the Mugonero Complex. [813] Accordingly, the Prosecution has waived the right to allege on appeal that the Trial Chamber erred in omitting to consider joint criminal enterprise liability when determining his criminal responsibility with respect to the events under the Mugonero Indictment. In the following discussion, the Appeals Chamber will limit its review of the content of the Indictments and related parts of the Pre-Trial Brief in order to determine whether Gérard Ntakirutimana and Elizaphan Ntakirutimana had sufficient notice from these sources that the case alleged against them included criminal responsibility as participants in a joint criminal enterprise. For Elizaphan Ntakirutimana, this review shall be limited to events alleged in the Mugonero Indictment.

478. Gérard and Elizaphan Ntakirutimana were charged as follows under Count 1A of the Mugonero Indictment:

For all the acts outlined in the paragraphs specified in each of the counts, the accused persons named herein, either planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of the acts, or knew or had reason to know that persons acting under their authority and control had committed or were about to commit the said acts and they failed to take necessary and reasonable measures to prevent the said illegal acts or punish the perpetrators thereof.

Count 1A: By their acts in relation to the events referred to in paragraphs 4.4-4.10 above, Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo are individually responsible for the crimes alleged below, pursuant to Article 6(1) of the Statute of the Tribunal.

By their acts in relation to the events referred to in paragraphs 4.4-4.12 above, Gérard Ntakirutimana & Charles Sikubwabo are individually responsible for the crimes alleged below, pursuant to Article 6(3) of the Statute of the Tribunal.

Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo, during the month of April 1994, in Gishyita commune, Kibuye Prefecture, in the Territory of Rwanda, are responsible for the killings and causing of serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group as such, and have thereby committed GENOCIDE in violation of Article 2(3)(a) and punishable in reference to Articles 22 and 23 of the Statute of the Tribunal.

By their acts in relation to the events referred to above, each of the accused are individually responsible for the crimes alleged below pursuant to Article 6(1) of the Tribunal Statute.

Count 1: Elizaphan Ntakirutimana & Gérard Ntakirutimana during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, in the Territory of Rwanda, are responsible for the killings and causing of serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group as such, and have thereby committed GENOCIDE in violation of Article 2(3)(a) and punishable in reference to Articles 22 and 23 of the Statute of the Tribunal;

479. Review of the Indictments reveals that no express reference was made by the Prosecution to joint criminal enterprise, common plan or purpose – or even to the fact that it intended to charge the Accused for co-perpetration of genocide, i.e., not only for physically committing genocide but also for assisting those who physically committed it while sharing the same genocidal intent. The only express reference to joint criminal enterprise is to be found in the Prosecution’s Pre-Trial Brief (para. 37) and is repeated in the Prosecution’s Closing Brief (page 188). Interestingly however, this reference appears under the section “Requisite Mens Rea under Article 6(1)” and illustrates the Prosecution’s submission that all forms of criminal participation under Article 6(1) may be performed with direct or indirect intent (dolus eventualis). [814] In the Closing Brief, the Prosecution states that “for a joint criminal enterprise, the Appeals Chamber has found that the required mens rea for each co-participant is satisfied when a member of the group is able to predict the result.” [815] Although the Pre-Trial and Closing Briefs are silent as to what form of joint criminal enterprise it refers to, the Appeals Chamber understands that it can only be the third one – that is the extended form of joint criminal enterprise. In the Appeals Chamber’s view, the mere reference by the Prosecution to the joint criminal enterprise illustrating the “dolus eventualis” doctrine in its Pre-Trial and Closing Briefs cannot be understood as an unambiguous pleading of participation in the first form of joint criminal enterprise which is the form the Prosecution advances on this appeal.

480. The Appeals Chamber notes further that the Prosecution simply reproduced the text of Article 6(1) and part of Article 6(3) of the Statute in paragraph 5 of the Mugonero Indictment, while paragraph 5 of the Bisesero Indictment only referred to Article 6(1) without even using the word “committing”.

481. Both Indictments alleged acts and conduct not limited to killings and causing harm to the Tutsi victims, but included for Gérard Ntakirutimana: separating Tutsi patients from non-Tutsi patients, [816] procuring of arms for the attacks, [817] searching Tutsi survivors [818] and conveying attackers; [819] and for Elizaphan Ntakirutimana: refusing to protect them after receiving Pastor Sehibe’s letter, [820] searching for Tutsi survivors, [821] conveying attackers to the killing sites, [822] being present at killing sites, pursuing survivors and inciting attackers to perpetrate killings. [823] The Indictments also charged Gérard Ntakirutimana and Elizaphan Ntakirutimana for planning, instigating genocide as well as aiding and abetting genocide, complicity in genocide and conspiracy to commit genocide. In this context it is not obvious that reference to the above-mentioned acts in the Indictments were intended to be the material facts underpinning a responsibility for co-perpetration in a joint criminal enterprise to commit genocide. In any event, the Appeals Chamber is of the view that the wording used by the Prosecution was ambiguous.

482. Additionally, and contrary to the Tadić and Furundžija cases relied upon by the Prosecution, the Trial Chamber obviously did not understand the Indictments to mean that the Accused committed genocide by way of participation in a joint criminal enterprise. As such, the Appeals Chamber considers that the Prosecution did not plead joint criminal enterprise liability, or even its various elements, with sufficient clarity in the Indictments. Further, the Prosecution did not put the Trial Chamber and the Defence on notice that the mode of liability, which it now believes best describes the criminal liability of Gérard and Elizaphan Ntakirutimana, was as participants in a joint criminal enterprise. On the contrary, the Prosecution expressly limited the scope of “committing” to direct commission by the Accused or their agents. In these circumstances, the Appeals Chamber is of the view that the Prosecution left the Trial Chamber and the Defence in some uncertainty as to the case it was advancing at trial.

483. The Appeals Chamber has also reviewed the Prosecution’s Closing Brief, which describes the elements of the various forms of liability envisaged under Article 6(1) of the Statute. [824] From that review the Appeals Chamber concludes that the Prosecution only alleged commission by the Accused through personal perpetration of all elements of the actus reus of the crime or through use of an agent to perform the relevant conduct. [825] The Appeals Chamber finds that this pleading precludes the Prosecution from relying on joint criminal enterprise liability on appeal. In any case, having reviewed the content of the Indictments and the Pre-Trial Brief, the Appeals Chamber is satisfied that it was too ambiguous to put the Trial Chamber or Elizaphan and Gérard Ntakirutimana on notice that they were charged for their participation in the first form of joint criminal enterprise.

484. In view of the persistent ambiguity surrounding the issue of what exact theory of responsibility the Prosecution was pleading, the Prosecution has not established that the Trial Chamber erred in omitting to consider whether the liability of the Accused was incurred for their participation in a joint criminal enterprise of genocide. This ground of appeal is dismissed.

485. The Appeals Chamber will now turn to the second error alleged by the Prosecution in relation to Gérard Ntakirutimana’s conviction for genocide.

486. The Prosecution argues that the Trial Chamber erred in confining 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. In doing so, the Prosecution claims that the Trial Chamber ignored its prior factual findings regarding the other acts he performed in furtherance of the genocidal campaign. [826] In support of this ground of appeal the Prosecution lists the Trial Chamber’s findings regarding Gérard Ntakirutimana’s participation in the 16 April 1994 attack on the Mugonero Complex and in Bisesero between April and June 1994. [827]

487. The Prosecution says that, despite these factual findings, the Trial Chamber referred in its legal findings only to “killing Charles Ukobizaba and shooting at the refugees” at the Mugonero Complex as the basis of Gérard Ntakirutimana’s conviction for genocide pursuant to the Mugonero Indictment. Similarly, his conviction under the Bisesero Indictment was limited to his role in the killing of Esdras and the wife of Nzamwita, as well as the harm caused to the Tutsi refugees that he shot at during the attacks at Bisesero. [828] Therefore, in the Prosecution’s submission, the Trial Chamber erred in law in basing Gérard Ntakirutimana’s liability for genocide on acts that he personally carried out and ignored its prior factual findings regarding other acts in furtherance of the genocidal campaign. [829]

488. In response, Gérard Ntakirutimana claims that the Prosecution does not accurately present the Trial Chamber’s findings. He argues that the Prosecution’s position is based on misstatements of or omissions from the Trial Chamber’s findings. [830] As an alternative argument, he argues that the evidence relating to his participation in preparatory acts is from witnesses whose credibility is questionable (Witness UU’s testimony). [831] Gérard Ntakirutimana secondly argues that, if accurately presented, these findings do not support the conclusion that he is guilty. He claims that in order to satisfy the argument of the Prosecution new findings are necessary and argues that making new findings is not the function of the Appeals Chamber. [832]

489. In reply, the Prosecution maintains its argument in relation to the Trial Chamber’s erroneous omission from his criminal responsibility a range of acts that Gérard Ntakirutimana performed to facilitate the killings and injuries inflicted by other attackers at Mugonero and Bisesero. [833] It also addresses Gérard Ntakirutimana’s attacks on Witness UU’s credibility. [834]

490. From the Trial Judgement it is apparent to the Appeals Chamber that the Trial Chamber having found that Gérard Ntakirutimana physically committed genocide by killing and causing harm to Tutsi refugees did not go on to consider whether the acts of assistance it found to be established also constituted a basis for a conviction of genocide either as a co-perpetrator or as an aider and abettor. Indeed, the Trial Chamber expressly found that the alternative Count 1B of the Mugonero Indictment and Count 2 of the Bisesero Indictment for complicity to commit genocide ceased to apply with respect to both Accused in light of its findings in relation to the Count 1A of the Mugonero Indictment and Count 2 of the Bisesero Indictment for genocide.

491. The Trial Chamber found 1) in relation to the Mugonero Indictment that, in addition to killing Charles Ukobizaba and shooting at Tutsi refugees at the Complex, Gérard Ntakirutimana’s participation in the attacks included procuring ammunition and gendarmes for the attack on the Complex [835] and participating in the attack on Witness SS; [836] and 2) in relation to the Bisesero Indictment that, in addition to killing Esdras and the wife of Nzamwita, pursuing and shooting at the refugees, he transported attackers at Kidashya, [837] headed a group of armed attackers at Muyira Hill in June 1994, [838] was at Mutiti Hill in June 1994 with Interahamwe where they shot at refugees in a forest by a church, [839] and participated in attacks in Bisesero during the period April to June 1994. [840] The Trial Chamber only considered the above acts and conduct of Gérard Ntakirutimana other than killing and shooting at Tutsi in order to determine that he had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group. [841] The wording used by the Trial Chamber at paragraphs 794-795 and 835-836 of the Judgement shows that the Trial Chamber limited its finding of guilt of genocide to the killings and harm that Gérard Ntakirutimana had personally inflicted:

794. The Chamber finds that in killing Charles Ukobizaba and shooting at the refugees, Gérard Ntakirutimana is individually criminally responsible for the death of Charles Ukobizaba, pursuant to Article 6(1) of the Statute.

795. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of genocide as charged in Count 1A of the Mugonero Indictment.

835. In shooting at the refugees and participating in the attacks, Gérard Ntakirutimana is individually criminally responsible for the death of Esdras and the wife of Nzamwita and the harm caused to these Tutsi refugees, pursuant to Article 6(1) of the Statute.

836. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of genocide as charged in Count 1 of the Bisesero Indictment.

492. In doing so, the Trial Chamber omitted to determine Gérard Ntakirutimana’s liability as to the killings and harm inflicted by others to Tutsi, although he was clearly charged under Count 1 of the Bisesero Indictment and Count 1A of the Mugonero Indictment for acts and conducts not limited to killing and causing serious bodily harm but also including acts of assistance to others who physically committed genocide. This, in the Appeals Chamber’s view, constitutes an error on the part of the Trial Chamber.

493. As the Appeals Chamber has already determined that the Prosecution should not be allowed to plead joint criminal enterprise for the first time on appeal, the issue to be determined is whether the Trial Chamber’s findings, which have not been reversed on appeal, support a conviction for aiding and abetting genocide. Before doing so it is necessary to turn to the third error alleged by the Prosecution in relation to the genocide conviction of Elizaphan Ntakirutimana regarding the mens rea required for aiding and abetting genocide.

494. The Prosecution submits that the Trial Chamber erred in finding that aiding and abetting genocide, within the meaning of Article 6(1) of the Statute, requires proof that the accused “had the intent to destroy, in whole or in part, an ethnic or racial group, as such”. [842]

495. According to the Prosecution, the test adopted by the Trial Chamber is drawn from the Akayesu Trial Judgement, which has generally not been followed by other cases before the ICTR or the ICTY. It argues that the Akayesu test has been expressly rejected by the Semanza Trial Chamber and that, in light of ICTR and ICTY jurisprudence, the proper mens rea for aiding and abetting genocide under Article 6(1) of the Statute is “knowledge”, not intent. [843] The Prosecution further contends that the Trial Chamber’s adoption of this mens rea requirement for aiding and abetting pursuant to Article 6(1) of the Statute contradicts the one it applied for complicity to commit genocide under Article 2(3)(e) of the Statute, which includes aiding and abetting, since it found that the mens rea standard for complicity in genocide is knowledge. [844] Furthermore, it points out that a survey of the International Law Commission’s work and of domestic legislation on the crime of genocide confirms that “knowledge” is the mens rea for aiding and abetting irrespective of the underlying offence of the perpetrator. [845] The Prosecution also points out that, because no distinction is made in the language of Article 6(1) of the Statute between genocide and other crimes within its jurisdiction, the specific intent requirement of Article 2(2) should not disturb the general application of Article 6(1) regarding genocide. [846]

496. In response, Gérard Ntakirutimana argues that adoption of the Prosecution’s theory on mens rea for aiding and abetting would have the adverse effect of significantly lowering the threshold of liability for genocide, extermination and murder, and thereby potentially prejudice future litigants by affecting convictions. [847] Elizaphan Ntakirutimana contends further that the Security Council does not have the power to add “aiding and abetting” to the list of acts punishable under Article 2. [848]

497. In its Reply, the Prosecution submits that neither Elizaphan Ntakirutimana nor Gérard Ntakirutimana analyzes the mens rea standard for aiding and abetting genocide. In response to Gérard Ntakirutimana’s assertion that the Prosecution’s “knowledge” standard would lower the threshold of liability for genocide, the Prosecution argues that the Accused ignores ICTY jurisprudence; “knowledge” has already been adopted by the ICTY for serious crimes (such as persecution). [849] Contrary to the Accused’s suggestion, this standard does not extinguish the specific intent requirement of genocide. To convict an accused of aiding and abetting genocide based on the “knowledge” standard, the Prosecution must prove that those who physically carried out crimes acted with the specific intent to commit genocide. [850]

498. At the Appeal hearing the Prosecution argued that the term complicity as included in the Genocide Convention included the term “aiding and abetting”. It claimed that this was clear from the report of the ad hoc Committee on genocide. It argued that this understanding was consistent with both civil and common law domestic jurisdictions and was reflected in the jurisprudence of the Tribunal. The Prosecution referred to the recent Krstić Appeal Judgement which it says clearly establishes that aiding and abetting requires a knowledge standard. [851]

499. In its Judgement, the Trial Chamber followed the approach adopted by the Akayesu Trial Chamber that the dolus specialis required for genocide was required for each mode of participation under Article 6(1) of the Statute, including aiding and abetting. Surprisingly, when considering the mens rea requirement for complicity under Article 2(3)(e) of the Statute, the Trial Chamber in Akayesu considered that it “implies in general that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly”. [852] “Knowingly” in the context of genocide means knowledge of the principal offender’s genocidal intent. The Trial Chamber in Akayesu summarized its position as follows:

In conclusion, the Chamber is of the opinion that an accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. [853]

The Trial Chamber in Semanza took a similar approach holding that: “In cases involving a form of accomplice liability, the mens rea requirement will be satisfied where an individual acts intentionally and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime. The accused need not necessarily share the mens rea of the principal perpetrator: the accused must be aware, however, of the essential elements of the principal’s crime including the mens rea.” [854]

500. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime. [855] More recently, as the Prosecution argued at the Appeal hearing, in the Krstić case the ICTY Appeals Chamber considered that the same principle applies to the Statute’s prohibition of genocide and that “[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.” [856] In reaching this conclusion, the Krstić Appeals Chamber derived aiding and abetting as a mode of liability from Article 7(1) of the ICTY Statute, but also considered that aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting, based on the same mens rea, while other forms of complicity may require proof of specific intent.

501. The Appeals Chamber endorses this view and finds that a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal. Accordingly, the Trial Chamber erred in determining that the mens rea for aiding and abetting genocide requires intent to commit genocide. It is not disputed that the above-mentioned error did not invalidate the Trial Chamber’s verdict in the present case.

502. It is now possible to go back to the Prosecution’s allegation that the Trial Chamber erred in confining Gérard Ntakirutimana’s conviction for genocide to the acts of killing or serious bodily harm that he personally inflicted on Tutsi at the Mugonero Complex and Bisesero. The issue before the Appeals Chamber is whether the Trial Chamber’s findings which have not been reversed on appeal support a conviction for aiding and abetting genocide.

503. In the part of the Judgement dealing with Gérard Ntakirutimana’s legal errors the Appeals Chamber has upheld a number of his grounds of appeal arguing that he and Elizaphan Ntakirutimana were given insufficient notice of the material facts of the Prosecution’s case and that the Trial Chamber erred in basing a conviction on those material facts.

504. As a result of the errors committed by the Trial Chamber, the Appeals Chamber has quashed the findings of the Trial Chamber supporting Gérard Ntakirutimana’s convictions under the Bisesero Indictment that: “on or about 18 April 1994 Gérard Ntakirutimana was with Interahamwe in Murambi Hill pursuing and attacking Tutsi refugees” and “in the last part of April or possibly in May, Gérard Ntakirutimana was with attackers in Gitwe Hill where he shot at refugees;” [857] “sometime between April and June 1994, Gérard Ntakirutimana was in Kidashya Hill transporting armed attackers, and he participated in chasing and shooting at Tutsi refugees in the hills;” [858] “sometime in June 1994, Gérard Ntakirutimana was in an attack at Mutiti Hill with Interahamwe, where they shot at refugees;” [859] “one day in June 1994, Gérard Ntakirutimana headed a group of armed attackers at Muyira Hill. He carried a gun and shot at refugees;” [860] “sometime in mid-May 1994, at Muyira Hill, Gérard Ntakirutimana took part in an attack on Tutsi refugees;” [861] “Gérard Ntakirutimana participated in the attack against Tutsi refugees at Muyira Hill on 13 May 1994 and that he shot and killed the wife of one Nzamwita, a Tutsi civilian;” [862] and that Gérard Ntakirutimana killed a person named “Esdras” during an attack at Gitwe Hill at the end of April or the beginning of May 1994. [863]

505. The following factual findings made by the Trial Chamber concerning Gérard Ntakirutimana in relation to two separate events under the Bisesero Indictment are upheld, namely: that Gérard Ntakirutimana participated in an attack at Gitwe Hill, near Gitwe Primary School, at the end of April or the beginning of May 1994, where he pursued and shot at Tutsi refugees (a finding based on the testimony of HH); [864] and that Gérard Ntakirutimana participated in an attack at Mubuga Primary School in June 1994 and shot at Tutsi refugees (finding based on the testimony of SS). [865]

506. Additionally, the Trial Chamber’s factual finding concerning Gérard Ntakirutimana’s involvement in relation to two separate events under the Mugonero Indictment are upheld, namely that whilst participating in the attack at the Mugonero Complex, Gérard Ntakirutimana killed Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994, [866] and that Gérard Ntakirutimana attended a meeting with the commander of the Kibuye gendarmerie camp and Obed Ruzindana in Kibuye town on the afternoon of 15 April 1994, and that he procured gendarmes and ammunition for the attack on Mugonero complex on 16 April 1994. [867]

507. Under the Bisesero Indictment, the factual findings supporting Gérard Ntakirutimana’s conviction for aiding and abetting genocide consist of pursuing Tutsi refugees at Gitwe Hill, near Gitwe Primary School, at the end of April or the beginning of May 1994, and participating in an attack at Mubuga Primary School in June 1994 and shooting at Tutsi refugees; under the Mugonero Indictment, a conviction of aiding and abetting genocide is supported by the procurement of gendarmes and ammunition for the attack on Mugonero Complex on 16 April 1994.

508. As established above, intent to commit genocide is not required for an accused to be found guilty for aiding and abetting genocide. However, a finding by the Trial Chamber that the accused had the intent to commit genocide and did so by killing and causing harm to members of the group does not per se prevent a finding that he also knowingly aided and abetted other perpetrators of genocide. Accordingly to establish that Gérard Ntakirutimana aided and abetted genocide requires proof that (i) by his acts and conduct Gérard Ntakirutimana assisted, encouraged or lent moral support to the perpetration of genocide by others which had a substantial effect upon the perpetration of that crime, and (ii) Gérard Ntakirutimana knew that the above acts and conduct assisted the commission of genocide by others.

509. It is clear from the Trial Chamber’s findings at paragraphs 785 and 826 of the Trial Judgement that it found that the attacks were carried out with intent to destroy, in its whole, the Tutsi population at the Mugonero Complex and in Bisesero. It results further from the Trial Chamber findings at paragraphs 793 and 834 that it found that by his conduct and participation in the attacks Gérard Ntakirutimana had the intent to destroy, in whole, the Tutsi ethnic group. The only reasonable inference from the circumstances described by the Trial Chamber to support the above findings is that Gérard Ntakirutimana had knowledge that his acts and conduct had a substantial effect upon the commission of genocide by others. Accordingly, the Appeals Chamber finds that by the other acts of assistance identified by the Trial Chamber Gérard Ntakirutimana incurred criminal responsibility as an aider and abettor to genocide.

[741] Appeal Brief (E. Ntakirutimana), CC, pp. 37, 76; DD, pp. 53, 76; MM, pp. 5, 76, 79.
[742] Prosecution’s Notice of Appeal, 21 March 2003.
[743] Prosecution Appeal Brief, para. 2.83.
[744] Prosecution amended Notice of Appeal, Grounds 1 and 2 and Prosecution Appeal Brief, para. 2.18.
[745] Prosecution amended Notice of Appeal, p. 3 and Prosecution Appeal Brief, para. 2.84.
[746] Response (G. Ntakirutimana), paras. 1-6.
[747] Id., para. 22, which refers to para. 2 of the Declaration of Judge Shahabuddeen in the Akayesu Appeal Judgement (“Declaration”) distinguishing an “appealable ground” from a “non-appealable issue” in that the former being “an error on a question of law invalidating the decision” while the later “may well raise an error on a question of law, but the error is not one which invalidates the decision. If the Trial Chamber committed an error in stating a proposition of law but the error did not affect the result of the decision, the error does not invalidate the decision; such an error is not an appealable ground.” It further refers to para. 4 of the Declaration which states with respect to non-appealable issues “although the Appeals Chamber cannot proceed as if it were allowing an appeal, it may take notice of the erroneous proposition of law and state its own view as to what is the correct proposition.” According to the Prosecution, Judge Shahabuddeen’s concern was to exclude appeals where the error alleged “did not affect the result of the decision” at all which is not the case here (Prosecution’s Reply, para. 1.12).
[748] Response (E. Ntakirutimana), p. 3.
[749] Prosecution Reply, paras. 1.2-1.4.
[750] Id., paras. 1.7-1.10.
[751] Id., paras. 1.11-1.24. The Prosecution relies in particular on the Furundžija Appeal Judgement (paras. 115-121, 216 and 250-257) and the Kupreškić et al. Appeal Judgement (para. 320).
[752] Prosecution Appeal Brief, paras. 2.24 and 2.83.
[753] Id., para. 2.57.
[754] Id.
[755] Prosecution Appeal Brief, para. 2.58.
[756] Id., para. 2.65.
[757] Id., para. 2.64 citing Mugonero Indictment paras. 4.7-4.10 and 5.
[758] Prosecution Appeal Brief, para. 2.66. See also id., para. 2.77, where the Prosecution stresses that the acts to be attributed to both Accused as participants in a joint criminal enterprise are the same that form part of Elizaphan Ntakirutimana’s conviction for aiding and abetting. That is, responsibility which arises for killing and serious bodily harm inflicted by the attackers with which both Accused acted in concert with at the Mugonero Complex and Bisesero between April and June 1994. Therefore, the Prosecution is not alleging that both Accused should be held responsible for different or new acts but, rather, that another classification of responsibility should be contemplated.
[759] Prosecution Appeal Brief, para. 2.69.
[760] Id., para. 2.73.
[761] Appeal Hearing, T. 8 July 2004, pp. 50-51.
[762] Id., p. 51.
[763] Appeal Hearing, T. 8 July 2004, pp. 50-54. In support of its argument the Prosecution refers to the Furund‘ija Trial Judgement, para. 189; Kupreškić Trial Judgement, para. 746; the Staki} Trial Judgement; the Semanza Trial Judgement, para. 397; and the Aleksovski Appeal Judgement, paras. 171-172.
[764] Appeal Hearing, T. 8 July 2004, pp. 55-56. In support the Prosecution referred to the Tadić Appeal Judgement; the Furundžija Appeal Judgement; and the Kayishema and Ruzindana Trial Judgement.
[765] Prosecution Appeal Brief, para. 2.76.
[766] Appeal Hearing, T. 8 July 2004, p. 57.
[767] Response (G. Ntakirutimana), paras. 29-30.
[768] Id., paras. 32-33.
[769] Id., para. 36. In response to the Prosecution’s argument based on the Ojdanić case, Gérard Ntakirutimana contends that the Ojdanić indictment specified that each of the accused participated in a joint criminal enterprise.
[770] Id., para. 37 citing The Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-PT, Decision on Defence Preliminary Motion Filed by the Defence for Nikola [ainović, 27 March 2003 (Milutinović Decision), p. 4.
[771] Id., para. 38.
[772] Id., para. 39. Gérard Ntakirutimana contends that having stressed in its Pre-Trial Brief that although there was no substantial difference as to the Accused’s culpability under the different forms of participation the degree of such participation may be considered as a factor in determining an appropriate sentence, the Prosecution is now seeking to frame the case against the Accused pursuant to a particular form of liability.
[773] Id., para. 41.
[774] Response (G. Ntakirutimana), para. 42.
[775] Response (E. Ntakirutimana), p. 9.
[776] Prosecution Reply, para. 2.50 (citing Response (G. Ntakirutimana), para. 39 (iii)).
[777] Id., para. 2.50.
[778] Id., para. 2.52.
[779] Id., para. 2.53.
[780] Id., para. 2.54-2.55.
[781] Id., para. 2.56.
[782] Id., para. 2.59.
[783] See Tadi} Appeal Judgement, para. 188 and para. 226, which provides that “[t]he Appeals Chamber considers that the consistency and cogency of the case law and the treaties referred to above, as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation, warrant the conclusion that case law reflects customary rules of international criminal law.” To reach this finding the Appeals Chamber interpreted the Statute on the basis of its purpose as set out in the report of the United Nations Secretary-General to the Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993. It also considered the specific characteristics of many crimes perpetrated in war. In order to determine the status of customary law in this area, it studied in detail the case law relating to many war crimes cases tried after the Second World War (paras. 197 et seq.). It further considered the relevant provisions of two international Conventions which reflect the views of many States in legal matters (Article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombings, adopted by a consensus vote by the General Assembly in its resolution 52/164 of 15 December 1997 and opened for signature on 9 January 1998; Article 25 of the Statute of the International Criminal Court, adopted on 17 July 1998 by the Diplomatic Conference of Plenipotentiaries held in Rome) (paras. 221-222). Moreover, the Appeals Chamber referred to national legislation and case law to show that the notion of “common purpose”, as it then referred to it, was recognised in many national systems, albeit not all of the countries had the same notion of common purpose (paras. 224-225). The Tadi} Appeals Chamber used interchangeably the expressions “joint criminal enterprise”, “common purpose” and “criminal enterprise”, although the concept is generally referred to as “joint criminal enterprise”, and this is the term used by the parties in the present appeal. See also Ojdani} Joint Criminal Enterprise Appeal Decision, para. 20 regarding joint criminal enterprise as a form of commission.
[784] See in particular Tadi} Appeal Judgement, paras. 195-226, describing the three categories of cases following a review of the relevant case-law, relating primarily to many war crimes cases tried after the Second World War. See also Krnojelac Appeal Judgement, paras. 83-84.
[785] Tadi} Appeal Judgement, para. 196. See also Krnojelac Appeal Judgement, para. 84, providing that, “apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent.”
[786] For a description of the second and third, respectively “systemic” and “extended”, forms of joint criminal enterprise, see Tadi} Appeal Judgement, paras. 202-204 and Vasiljevi} Appeal Judgement, paras. 98-99).
[787] Tadić Appeal Judgement, paras. 202-203. Although the participants in the joint criminal enterprises of this category tried in the cases referred to were most members of criminal organizations, the Tadić case did not require an individual to belong to such an organization in order to be considered a participant in the joint criminal enterprise. The Krnojelac Appeal Judgement found that this “systemic” category of joint criminal enterprise may be applied to other cases and especially to serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, para. 89. See also Vasiljević Appeal Judgement, para. 98.
[788] Tadić Appeal Judgement, para. 204, which held that “₣cğriminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.” See also Vasiljević Appeal Judgement, para. 99.
[789] Tadi} Appeal Judgement, para. 227, referring to the Essen Lynching and the Kurt Goebell cases.
[790] Id., where the Tadi} Appeal Chamber uses the terms, “purpose”, “plan”, and “design” interchangeably.
[791] Ibid.
[792] Tadi} Appeal Judgement, paras. 196 and 228. See also Krnojelac Appeal Judgement, para. 97, where the Appeals Chamber considers that, “by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadi} case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers - the principal perpetrators of the crimes committed under the system - to commit those crimes.” See also Vasiljević Appeal Judgement, para. 101.
[793] Tadić Appeal Judgement, paras. 202, 220 and 228.
[794] Id., para. 228. See also paras. 204 and 220.
[795] See Prosecutor v André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004.
[796] See supra section II.A.1(b).
[797] See also Niyitigeka Appeal Judgement, para. 193 and Kupre{ki} et al. Appeal Judgement quoting the Furund`ija Appeal Judgement, para. 147.
[798] See supra section II.A.1.(b).
[799] Kupre{ki} et al. Appeal Judgement, para. 92.
[800] Id., paras. 89-114.
[801] Rutaganda Appeal Judgement, para. 303.
[802] Id., quoting the Furund`ija Appeal Judgement, para. 61.
[803] Appeal Hearing, T. 7 July 2004, p. 71, referring to Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, case No. ICTR-97-21-AR73, Decision on the Appeals of Arsène Shalom Ntahobali and Pauline Nyiramasuhuko against the “Decision on Defence Urgent Motion to declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible”, 2 July 2004.
[804] Aleksovski Appeal Judgement, n. 319.
[805] The only express reference to join criminal enterprise is to be found in the Prosecution’s Pre-Trial Brief (para. 37), and is repeated in the Prosecution’s closing brief. The Prosecution submits under the section “Requisite mens rea under Article 6(1)” that the intent can be direct or indirect and that for a joint criminal enterprise, the required mens rea is satisfied when each co-participant is able to predict the result.
[806] Tadić Appeal Judgement, paras. 230-233.
[807] Tadi} Trial Judgement, paras, 681-692.
[808] Tadi} Appeal Judgement, paras. 172-173.
[809] Furundžija Trial Judgement, para. 216.
[810] Id., paras. 268, 269.
[811] Furundžija Appeal Judgement, paras. 115-121.
[812] Krnojelac Appeal Judgement, paras. 138-144.
[813] Prosecution Appeal Brief, para. 2.81, referring to its Closing Brief, p. 219. Regarding the Bisesero Indictment, the Prosecution argues that it “made a broader submission, namely that Elizaphan Ntakirutimana acted with intent to destroy the Tutsi group […] which resulted in the death of thousands”, thereby implying that such submission encompasses joint criminal enterprise liability (Prosecution Appeal Brief, para. 2.82, referring to its Closing Brief, p. 227).
[814] Pre-Trial Brief, para. 36; Closing Brief, p. 187.
[815] Closing Brief, p. 188.
[816] Pre-Trial Brief, para. 12. Bisesero Indictment, para. 4.6; Mugonero Indictment, para. 4.6.
[817] Pre-Trial Brief, para. 11.
[818] Mugonero Indictment, para. 4.8; see also Bisesero Indictment paras. 4.9 and 4.15 for a similar account of the facts.
[819] Pre-Trial Brief, para. 16; Bisesero Indictment, para. 4.15; Mugonero Indictment, para. 4.8.
[820] Bisesero Indictment, para. 4.5 and Pre-Trial Brief, paras. 10, 13.
[821] Bisesero Indictment, paras. 4.8, 4.9.
[822] Pre-Trial Brief, paras. 16, 20-21; Bisesero Indictment, para. 4.15.
[823] Pre-Trial Brief, paras. 15-16 and 20-21; Bisesero Indictment, para. 4.15.
[824] Prosecution’s Closing Brief, pp. 191-202.
[825] The relevant part of the Prosecution’s Closing Brief reads as follows : “The elements of participation through ‘commission’ through individual perpetration are as follows : 1. Actus reus: The accused performed all elements of the actus reus of the crime. 2. Mens rea: The accused had all elements of the mens rea of the crime, or was aware of the substantial likelihood that a crime would occur as an adequate consequence of his or her conduct. This is the most straightforward form of criminal participation, e.g., for willful killing, the specific actus reus is ‘conduct resulting in the death of the victim, in the sense that the conduct is a substantial cause of the death of the victim’ …. The conduct of the accused will satisfy the actus reus for willful killing if it substantially contributed to the victim’s death. (…) An accused could be regarded as having personally performed the elements of the actus reus, even though the accused used an agent to perform the relevant conduct [here footnote 1500 of the Closing Brief refers to perpetration by means or intermediate perpetration as well as commission through another person (as per Article 25(3) of the Rome Statute)]. The Appeals Chamber has clarified in the ^elebi}i Judgement that in the case of ‘primary or direct responsibility, where the accused himself commits the relevant act or omission, the qualification that his participation must directly and substantially affect the commission of the offence’ is an unnecessary one. That particular requirement rather applies to lesser degrees of directness of participation which will ordinarily give rise to accomplice liability (Prosecution’s Closing Brief, pp. 197-198).
[826] Prosecution Amended Notice of Appeal, Grounds 1 and 2 and Prosecution Appeal Brief, paras. 2.15.
[827] Prosecution Appeal Brief, paras. 2.15-2.16, 2.18.
[828] Id., para. 2.17.
[829] Id., para. 2.18.
[830] Response (G. Ntakirutimana), para. 66 (i)-(vii).
[831] Id., para. 65.
[832] Id., para. 28.
[833] Prosecution Reply Brief, paras. 1.7-1.9.
[834] Id., paras. 2.65-2.92.
[835] Trial Judgement, section II.3.7.3.
[836] Id., section II.4.11.3.
[837] Id., section II.4.21.3.
[838] Id., section II.4.21.3.
[839] Id., section II.4.22.3.
[840] Id., section II.4.24.3.
[841] Id., paras. 793, 834.
[842] Prosecution Amended Notice of Appeal, p. 3 and Prosecution Appeal Brief, paras. 2.13, 2.84.
[843] Prosecution Appeal Brief, paras. 2.90, 2.92, 2.103. The Prosecution also relies on the Ojdanić Joint Criminal Enterprise Appeal Decision, para. 20 (Prosecution Appeal Brief, para. 2.104 ) as well as on the Kvočka Trial Judgement and the Furundžija Trial Judgement (Prosecution Appeal Brief, paras. 2.106-2.108).
[844] Prosecution Appeal Brief, paras. 2.100-2.102.
[845] Id., para. 2.110.
[846] Id., para. 2.111.
[847] Response (G. Ntakirutimana), para. 17.
[848] Response (E. Ntakirutimana), p. 8.
[849] Prosecution Reply, para. 2.12.
[850] Ibid.
[851] Appeal Hearing, T. 8 July 2004, p. 68.
[852] Akayesu Trial Judgement, para. 538.
[853] Id., para. 545. See also para. 540: As far as genocide is concerned, the intent of the accomplice is thus to knowingly aid or abet one or more persons to commit the crime of genocide. Therefore, the Chamber is of the opinion that an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.
[854] Semanza Trial Judgement, para. 388 (references omitted). See also id., para. 395.
[855] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th₣atğ intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict ₣the accusedğ for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).
[856] Krstić Appeal Judgement, para. 140. It must be stressed that, in the Krstić case, the Appeals Chamber has considered at paragraph 134 of the Judgement that “As has been demonstrated, all that the evidence can establish is that Krstić was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstić possessed the genocidal intent. Krstić, therefore, is not guilty of genocide as a principal perpetrator.”
[857] Trial Judgement, para. 543, see also id. para. 832 (i)-(ii).
[858] Id., paras., 832(vi), see also id. para.586.
[859] Id., paras., 832(ix), see also id. para. 674.
[860] Id., para. 668; see also id., para. 832(viii).
[861] Trial Judgement, para. 832(v), see also id. paras 635-636.
[862] Id., paras. 642, see also id. para. 832(iv).
[863] Id., para. 832(iii), see also id. para. 559.
[864] Id., paras. 552-559, 832(iii).
[865] Id., paras. 628, 832(vii).
[866] Id., paras. 384, 791.
[867] Id., paras. 186, 791. Gérard Ntakirutimana’s conviction for committing genocide stands in relating to the killing of Charles Ukobizaba in Mugonero Hospital courtyard around midday on 16 April 1994 as well as shooting at refugees at Gitwe Hill, near Gitwe Primary School, at the end of April or the beginning of May 1994 and at Muguba primary school in June 1994.