Ntakirutimana

510. Elizaphan Ntakirutimana and Gérard Ntakirutimana were found not guilty by the Trial Chamber of a crime against humanity (extermination) under Count 4 of the Mugonero Indictment and Count 5 of the Bisesero Indictment. [868] Count 4 alleges the massacre of civilians during the month of April 1994 in Gishyita commune, Kibuye Prefecture, and Count 5 alleges the extermination of civilians during the months of April through June 1994 in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture.

512. In its appeal, the Prosecution argues that the Trial Chamber erred in law at paragraphs 813 and 851 of the Trial Judgement when, in addition to the element of mass killing or mass destruction, it held that “victims be named or described persons” in order to impute liability for extermination. The Prosecution argues that this element does not exist in customary international law, [869] and that the ICTR jurisprudence does not establish that “killing certain named or described persons” is an element under Article 3(b). [870] Furthermore, it argues that the Trial Chamber’s addition of the requirement that victims be named or identified could lead to undesirable consequences, such as rendering many prosecutions impossible when mass graves are discovered years after the killings are perpetrated and identification of victims is difficult. [871] In the alternative, the Prosecution argues that the Trial Chamber erred in law in paragraphs 814 and 852 of the Trial Judgement by interpreting this requirement too narrowly to the facts of the case and inconsistently with the Tribunal’s case law. [872] It argues that the victims at the Mugonero Complex and in Bisesero were adequately described according to the case law of the International Tribunal. [873] At the Appeal hearing the Prosecution argued that, had the Trial Chamber not included the element of killing certain named or described persons, or given the narrow interpretation that it gave to this element, the Trial Chamber would have come to the inescapable conclusion that the mass element required for the crime of extermination was established. The Prosecution argued that the mass element was met because at the Mugonero Complex, hundreds of people were killed, and in Bisesero, thousands of people were killed. [874]

513. In response, Gérard Ntakirutimana argues that the Trial Chamber’s acquittal on the charge of extermination reflects a lack of evidence regarding the killing of a large number of individuals as a result of the Accused’s actions. [875] Therefore, the additional definitional element is irrelevant to Trial Chamber’s decision. He argues that the requirement that victims be “named or described” serves as proof that a certain number of people actually died as a result of the Accused’s conduct. However, if the Appeals Chamber admits that such element is not a component of the crime of extermination, the matter must be remitted to the Trial Chamber for a new determination. [876]

515. The acquittal on the charge of personal commission of extermination was motivated by the fact that the Trial Chamber was not convinced, on the evidence, that Elizaphan Ntakirutimana personally killed anyone and that Gérard Ntakirutimana personally killed more than one victim at Mugonero and more than two victims at Bisesero. The basis for their further acquittal on the charge of planning, instigating, ordering or otherwise aiding and abetting in the planning preparation and execution of the crime of extermination is less clear. In light of the Trial Chamber’s other findings, [879] it is conceivable that the Trial Chamber reached this conclusion considering that the requirement that the mass killing be of named or described individuals was not met.

516. In its Judgement, the Trial Chamber followed the Akayesu Trial Judgement in defining extermination as “a crime which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder.” [880] The Appeals Chamber agrees with the Trial Chamber that the crime of extermination is the act of killing on a large scale. [881] The expressions “on a large scale” or “large number” do not, however, suggest a numerical minimum. [882] As a crime against humanity, for the purposes of the ICTR Statute, the act of killing must occur within the context of a widespread or systematic attack [883] against the civilian population for national, political, ethnic, racial or religious grounds.

517. In finding that an element of the crime of extermination was the “killing of certain named or described persons” [884] the Trial Chamber purported to be following the Akayesu Trial Judgement, [885] which it found had since been followed in Rutaganda and Musema. [886] More recently, this element was also stated in the Niyitegeka Trial Judgement. [887] In other judgements issued by ICTR Trial Chambers “certain named or described persons” has not been considered to be an element of the crime of extermination. [888] Further, none of the judgements of the ICTY which have considered the charge of extermination has identified killing “certain named or described persons” to be an element of the crime of extermination. [889]

518. The Appeals Chamber agrees with the Prosecution that customary international law does not consider a precise description or designation by name of victims to be an element of the crime of extermination. There is no mention of such an element in Article 6(c) of the Statute of the Nuremberg International Military Tribunal, nor was extermination interpreted by that Tribunal as requiring proof of such an element in judgements rendered. The International Law Commission Draft Code of Crimes against the Peace and Security of Mankind also does not consider a precise description or designation of the victims by name to be an element of the crime of extermination:

“Extermination is a crime which by its very nature is directed against a group of individuals. In addition, the act used to carry out the offence of extermination involves an element of mass destruction which is not required for murder. […] In this regard, extermination is closely related to the crime of genocide in that both crimes are directed against a large number of victims. However, the crime of extermination would apply to situations that differ from those covered by the crime of genocide. Extermination covers situations in which a group of individuals who do not share any common characteristics are killed […]” [890]

519. Incidentally, that the victims be “certain named or described persons” is not identified as an element of the crime of extermination under Article 7(1)(b) of the Statute of the International Criminal Court. [891]

520. In the Rutaganda, Musema and Niyitegeka Trial Judgements, from which the Trial Chamber purported to derive this element, the majority of victims were identified by the Trial Chamber as civilians of Tutsi origin, without designating them by name or describing them with greater precision. [892] The interpretation they placed upon the requirement that the victims be “certain named or described persons” was met by the identification of civilians of a particular origin. In these cases, the requirement to designate the victims by name or to give a precise description of the victims killed was not extended to embrace the literal meaning, but seems rather to have been understood as expressing the fact that all crimes against humanity under the ambit of the ICTR Statute must be committed because of a victim belonging to a national, political, ethnic, racial or religious group.

521. It is not an element of the crime of extermination that a precise identification of “certain named or described persons” be established. It is sufficient that the Prosecution satisfy the Trial Chamber that mass killings occurred. In this case that element was satisfied by the Trial Chamber’s findings that hundreds of people were killed at the Mugonero Complex and that thousands of people were killed in Bisesero. To require greater identification of those victims would, as the Prosecution argued, increase the burden of proof to such an extent that it hinders a large number of prosecutions for extermination.

522. Accordingly, the Appeals Chamber finds that the crime of extermination requires proof that the accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death, and that the accused intended by his acts or omissions this result. Applying this definition, the Trial Chamber erred in law by interpreting the requirement of “killing of certain named or described persons” to be an element of the crime of extermination.

523. The Prosecution argues that the Trial Chamber’s legal error led to acquittal of Elizaphan Ntakirutimana and Gérard Ntakirutimana on the charges of extermination. The Trial Chamber concluded that “[t]here is insufficient evidence as to a large number of individuals killed as a result of the Accused’s actions” to establish the criminal liability of the Accused pursuant to Article 6(1) of the Tribunal’s Statute. The issue to be examined next by the Appeals Chamber is whether this factual conclusion reached by the Trial Chamber was based upon its legal error that an element of the crime of extermination is that the victims must be “named or described persons”.

524. On appeal, the Prosecution argues that both Elizaphan Ntakirutimana and Gérard Ntakirutimana should be found guilty of extermination as participants in a joint criminal enterprise to exterminate predominantly Tutsi civilians who had sought refuge at the Mugonero Complex and in Bisesero. [893] Alternatively, the Prosecution argues that Gérard Ntakirutimana and Elizaphan Ntakirutimana should be found guilty as aiders and abettors of extermination. [894] In its Notice of Appeal, the Prosecution did not advance the ground that the Accused acted as participants in a joint criminal enterprise to exterminate. This ground of appeal was developed in the Prosecution Appeal Brief and argued at the Appeal hearing. [895] The Appeals Chamber has already rejected the Prosecution’s argument that this mode of liability should have been considered by the Trial Chamber in relation to the crime of genocide and those same considerations apply here. Moreover, the Prosecution’s failure to specify this ground of appeal in its Notice of Appeal is not rectified by the Prosecution’s development of that argument in its Appeal Brief. Upon this basis, the Appeals Chamber considers that it has not been properly seized of this ground of appeal, and will therefore limit its consideration to other forms of individual criminal liability, namely direct commission and aiding and abetting the commission of the crime of extermination.

525. In support of its argument that the Trial Chamber erred in finding that Elizaphan Ntakirutimana and Gérard Ntakirutimana were not responsible for the taking of a large number of lives, and that the element of mass destruction had not been met, the Prosecution points to the factual findings made by the Trial Chamber. The Trial Chamber found that, on 16 April 1994, a massacre occurred at the Mugonero Complex, which “claimed hundreds of lives”. [896] It also found that, from April to June 1994, there were widespread attacks in Bisesero and that Gérard Ntakirutimana and Elizaphan Ntakirutimana intentionally participated in them. [897] On 13 May 1994, Gérard Ntakirutimana was found to have participated in the attack on Muyira Hill. This attack, the Prosecution argues, was considered to constitute extermination in the Kayishema and Ruzindana, Musema and Niyitegeka Trial Judgements. [898]

526. The Prosecution argues that the Trial Chamber erroneously removes from its consideration the large number of persons whose killings were aided and abetted by the two Accused. [899] The Trial Chamber found that Elizaphan Ntakirutimana was guilty of aiding and abetting genocide for the killings of hundreds of Tutsis identified at the Mugonero Complex [900] but that he was not liable for extermination because there was insufficient evidence as to the large number of persons killed as a result of his actions. [901] According to the Prosecution, these findings are irreconcilable and the Trial Chamber erred in failing to consider that Elizaphan Ntakirutimana’s intentional aiding and abetting of massacres satisfies the mass destruction element of extermination. [902] In addition, the Prosecution argues that the Trial Chamber found that Gérard Ntakirutimana provided assistance and participated in the attack at the Mugonero Complex with the requisite genocidal intent. That attack resulted in killings committed in addition to those that Gérard Ntakirutimana personally committed. Because Gérard Ntakirutimana substantially assisted in killings, the Prosecution argues that the mass destruction element was proven and a conviction for extermination should have been entered. [903]

527. It clearly appears from the Mugonero and Bisesero Indictments, from the Prosecution’s Pre-Trial Brief [904] and from the Prosecution’s Closing Brief, [905] that the individual criminal responsibility of Elizaphan Ntakirutimana and Gérard Ntakirutimana was founded on Article 6(1) of the Statute of the Tribunal. [906] Consequently, the form of responsibility pleaded by the Prosecution for both Accused embraces “having either 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 Statute. [907]

528. As mentioned earlier, the Trial Chamber acquitted the Accused on the charge of personal commission of extermination because it was not convinced, on the evidence, that Elizaphan Ntakirutimana personally killed anyone or that Gérard Ntakirutimana personally killed more than one victim at Mugonero and more than two victims at Bisesero. Why the Trial Chamber failed to consider whether the acts of aiding and abetting which supported the conviction for genocide could also form the basis for a conviction for aiding and abetting the crime of extermination is unclear.

529. One possibility is that the Trial Chamber pronounced these acquittals based solely on its legal error that an element of the crime of extermination required proof that the Accused were responsible for the mass killing of precisely “named or described individuals”. The second possibility is that, when the Trial Chamber stated that “there is insufficient evidence as to a large number of individuals killed as a result of the Accused’s actions”, it meant that aiding and abetting the crime of extermination requires that the acts of assistance provided by the Accused to the main perpetrators effectively resulted in the killing of a large number of people. This interpretation of aiding and abetting would also constitute a legal error.

530. The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime. This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. If it is established that the accused provided a weapon to one principal, knowing that the principal will use that weapon to take part with others in a mass killing, as part of a widespread and systematic attack against the civilian population, and if the mass killing in question occurs, the fact that the weapon procured by the accused “only” killed a limited number of persons is irrelevant to determining the accused’s responsibility as an aider and abettor of the crime of extermination.

531. The Appeals Chamber will next determine whether the above error invalidates the verdict. As already stated, the Appeals Chamber has quashed a number of the Trial Chamber’s factual findings for lack of notice. [908] Accordingly, the Appeals Chamber must determine whether the remaining factual findings are sufficient to support a finding of criminal responsibility of the Accused for the crime of extermination.

532. With respect to Elizaphan Ntakirutimana, the remaining findings are: one day in May or June 1994, he transported armed attackers who were chasing Tutsi survivors at Murambi Hill, [909] ; one day in the middle of May 1994, he brought armed attackers in the rear hold of his vehicle to Nyarutovu Hill, and the group was searching for Tutsi refugees and chasing them; on 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”; [910] one day on May or June 1994 Elizaphan Ntakirutimana was seen arriving at Ku Cyapa in a vehicle followed by two buses of attackers, and he was part of a convoy which included attackers; [911] and sometime between 17 April and early May 1994, Elizaphan Ntakirutimana was in Murambi within the area of Bisesero, and he went to a church in Murambi where many Tutsi were seeking refuge and ordered attackers to destroy the roof of the church. [912]

533. These findings are sufficient to sustain the Trial Chamber’s finding of criminal responsibility on the part of Elizaphan Ntakirutimana for aiding and abetting the crime of genocide. The Appeals Chamber is satisfied that in carrying out these acts Elizaphan Ntakirutimana assisted, encouraged or lent moral support to the perpetration of genocide by others, and that his acts had a substantial effect upon the perpetration of that crime, and that he knew that these acts and conduct assisted the commission of genocide by others.

534. The Appeals Chamber finds that in carrying out these acts of participation Elizaphan Ntakirutimana knew that the intent of the actual perpetrators was the extermination of the Tutsi refugees and that he was making a substantial contribution to the acts of mass killing of the Tutsi victims that occurred at Murambi. Accordingly, the Appeals Chamber holds that these factual findings support the mass killing element of the crime of extermination, that Elizaphan Ntakirutimana had the required mens rea for aiding and abetting extermination and accordingly finds that Elizaphan Ntakirutimana incurred individual criminal responsibility for aiding and abetting the extermination of the Tutsi as a crime against humanity.

535. With respect to Gérard Ntakirutimana, the remaining factual findings under the Bisesero Indictment are his participation 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; [913] and his participation in an attack at Mubuga Primary School in June 1994, where he shot at Tutsi refugees. [914] In relation to the Mugonero Indictment the remaining factual findings are his killing of Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994 during an attack at the Mugonero Complex; [915] and his attendance at a meeting with the commander of the Kibuye gendarmerie camp and Obed Ruzindana in Kibuye town on the afternoon of 15 April 1994 and his procurement of gendarmes and ammunition for the attack on Mugonero Complex on 16 April 1994. [916]

536. The Appeals Chamber has already determined that 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, where he shot at Tutsi refugees, under the Bisesero Indictment, and procuring gendarmes and ammunition for the attack on Mugonero Complex on 16 April 1994, under the Mugonero Indictment.

537. The Appeals Chamber finds that in carrying out these acts Gérard Ntakirutimana knew that the intention of the other participants was the extermination of the Tutsi refugees and that by his acts and conduct he was making a substantial contribution to the acts of mass killing of the Tutsi victims that occurred at Gitwe Hill, Mubuga Primary School and at the Mugonero Complex. The Appeals Chamber holds that these factual findings support the mass killing element of the crime of extermination, that Gérard Ntakirutimana had the required mens rea for aiding and abetting extermination, and accordingly finds that Gérard Ntakirutimana incurred individual criminal responsibility for aiding and abetting the extermination of the Tutsi as a crime against humanity. The Appeals Chamber is satisfied that Gérard Ntakirutimana shared the intent to exterminate. However, as pleaded in the Indictment, the actions of Gérard Ntakirutimana alone do not satisfy the mass scale killing element for the Appeals Chamber to be able to enter a conviction for extermination. [917]

538. Elizaphan and Gérard Ntakirutimana argued that extermination charges are reserved for persons exercising power and authority or who otherwise had the capacity to be instrumental in the large scale killings. [918] The Accused noted that the Trial Chamber rejected charges under Article 6(3) of the Statute because it found that Gérard Ntakirutimana had no effective control over any persons during the applicable period. [919]

539. The argument put forward by both Elizaphan Ntakirutimana and Gérard Ntakirutimana stems from an erroneous interpretation of the Vasiljević Trial Judgement. In that case, Trial Chamber II of ICTY did not consider that the accused had to be in a position of authority for the crime of extermination. [920] The paragraph of the Vasiljević Trial Judgement on which they rely is a simple outline of the policy for the crime of extermination as practised by tribunals after World War II, and has no impact on the definition of the crime. [921] There was no finding in Vasiljević that extermination charges are reserved for persons exercising power and authority or who otherwise had the capacity to be instrumental in the killings of large numbers. As Elizaphan Ntakirutimana and Gérard Ntakirutimana have identified no other authority in support of their argument that the crime of extermination should be reserved for this category of individuals alone, and authorities of this Tribunal and that of the ICTY have established otherwise, this ground of appeal is dismissed as unfounded.

540. Elizaphan Ntakirutimana and Gérard Ntakirutimana also argue that cumulative convictions for genocide and extermination based on the same facts are prohibited. [922] Gérard Ntakirutimana argues that the Krstić Trial Judgement establishes that when facts support a conviction for both extermination and genocide, the verdict of genocide should be upheld because it is more specific. [923] Gérard Ntakirutimana further submits that an extermination conviction, as well as convictions for the murders of Charles Ukobizaba, Esdras and Nzamwita’s wife, would be impermissibly cumulative on the basis of the Rutaganda Trial Judgement. Gérard Ntakirutimana argues, therefore, that if a conviction for extermination is entered, the murder conviction should be vacated. [924] As the Appeals Chamber has already reversed Gérard Ntakirutimana’s conviction for the murders of Esdras and Nzamwita’s wife it will only consider the above argument in relation to the murder of Charles Ukobizaba.

541. In response the Prosecution argues that, in Musema, the Appeals Chamber found that convictions for both genocide and extermination based on the same conduct are permissible. [925] Furthermore, the Prosecution argues that Musema overruled the Krstić Trial Judgement because Musema was rendered later. [926] However, the Prosecution agrees with Gérard Ntakirutimana that an extermination conviction cannot stand cumulatively with the murder conviction if they emanate from the same events because murder is subsumed within the crime of extermination.

542. Following the principles established in Čelebići, the Appeals Chamber in Musema held that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. [927] An element is materially distinct from another if it requires proof of a fact not required by the other. [928] Applying this principle, the Musema Appeals Chamber held that the crime of genocide under Article 2 of the Statute and the crime of extermination under Article 3 of the Statute each contained a materially distinct element not required by the other. The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The materially distinct element of extermination, as a crime against humanity, is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population. [929] Upon this basis, the Appeals Chamber held that convictions for genocide and extermination as a crime against humanity, based on the same facts, are permissible. [930] This conclusion has recently been confirmed by the ICTY Appeals Chamber in the Krstić case. [931] Conviction for murder as a crime against humanity and conviction for extermination as a crime against humanity, based on the same set of facts, however, cannot be cumulative. [932] Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves killing within the context of a widespread or systematic attack against the civilian population, and the only element that distinguishes these offences is the requirement of the offence of extermination that the killings occur on a mass scale.

[868] Trial Judgement, paras. 814, 852.
[869] Prosecution Appeal Brief, paras. 3.17-3.18, 3.20, 3.22.
[870] Id., paras. 3.24-3.33.
[871] Id., para. 3.16.
[872] Id., paras. 3.37-3.46.
[873] Prosecution Appeal Brief, para. 3.47.
[874] Appeal Hearing, T. 8 July 2004, p. 71.
[875] Response (G. Ntakirutimana), para. 80.
[876] Id., para. 83.
[877] Trial Judgement, para. 814.
[878] Trial Judgement, para. 852.
[879] See in particular, Trial Judgement, paras. 785, 788-790, which establish that Elizaphan Ntakirutimana was guilty of aiding and abetting genocide for the killings of hundreds of Tutsis identified at the Mugonero Complex.
[880] Trial Judgement, para. 813 citing Akayesu Trial Judgement, para. 591. This position has been endorsed in all the ICTR Trial Judgements: Kayishema and Ruzindana Trial Judgement, para. 142; Rutaganda Trial Judgement, para. 82; Musema Trial Judgement, para. 217; Bagilishema Trial Judgement, para. 86; Semanza Trial Judgement, para. 340; Niyitekega Trial Judgement, para. 450; Kajelijeli Trial Judgement, para. 890; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, para. 691. See also, ICTY, Krstić Trial Judgement, para. 503; Vasiljević Trial Judgement, para. 227; Stakić Trial Judgement, para. 639.
[881] Trial Judgement, para. 813 citing Vasiljevi} Trial Judgement, para. 232.
[882] Kayishema and Ruzindana Trial Judgement, para. 145; Bagilishema Trial Judgement, para. 87; Kajelijeli Trial Judgement, para. 891; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, para. 692.
[883] While the English version of the ICTR Statute reads “widespread or systematic”, the French version of Article 3 reads “généralisée et systématique”, the French version containing an error in the translation of the English text.
[884] Trial Judgement, para. 813 citing Akayesu Trial Judgement, para. 592.
[885] Akayesu Trial Judgement, para. 592.
[886] Trial Judgement, n. 1154. It must be noted that this definition was not challenged on appeal in Rutaganda and Musema.
[887] Niyitekega Trial Judgement, para. 450.
[888] Kayishema and Ruzindana Trial Judgement, paras. 142-147; Bagilishema Trial Judgement para. 89; Semanza Trial Judgement, paras. 340-463; Kajelijeli Trial Judgement, paras. 891-893; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, paras. 691-695.
[889] Krstić Trial Judgement, paras. 495-505; Vasiljević Trial Judgement, paras. 216-233; Stakić Trial Judgement, paras. 638-661. Although the definition in the Akayesu Judgement is mentioned in the Krstić Judgement, it should be noted, however, that the Trial Chamber in Krstić did not endorse this definition and preferred to make its own assessment to determine the underlying elements of extermination. It seems, moreover, that the Trial Chamber in Krstić decided on the need for identification of the victims (para. 499) as a mere requirement of identification of the victims as civilians.
[890] Commentaries on the ILC Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session, 6 May - 26 July 1996, Official Documents of the United Nations General Assembly’s 51st session, Supplement no. 10 (A/51/10), Article 18, p. 118.
[891] Report of the Preparatory Commission for the International Criminal Court, Finalized draft text of the Elements of Crimes, PCNICC/2000/1/Add.2, 2 November 2000. The Appeals Chamber notes that with respect to the state of customary international law in 1994, the time at which the crimes were committed, the legal instruments coming into effect after that date are of less legal significance.
[892] Rutaganda Trial Judgement, para. 416; Musema Trial Judgement, para. 949; Niyitegeka Trial Judgement, para. 454.
[893] Prosecution Appeal Brief, paras. 3.57-3.58; Appeal Hearing, T. 8 July 2004, p. 79.
[894] Prosecution Appeal Brief, para. 3.59.
[895] Prosecution Amended Notice of Appeal, Ground 5, pp. 3-4.
[896] Prosecution Appeal Brief, para. 3.8 citing Trial Judgement, para. 785.
[897] Prosecution Appeal Brief, para. 3.8 citing Trial Judgement, paras. 446, 447.
[898] Prosecution Appeal Brief, para. 49 citing Niyitegeka Trial Judgement, paras. 451, 413.
[899] Prosecution Reply, para. 3.12.
[900] Prosecution Reply, para. 3.13 citing Trial Judgement, paras. 788-790.
[901] Id., para. 3.13.
[902] Id., paras. 3.13, 3.14.
[903] Id., para. 3.14.
[904] Prosecution’s Pre-Trial Brief, paras. 23-39.
[905] Prosecution’s Closing Brief, paras. 1085, 1086, 1088, 1109, 1112.
[906] Gérard Ntakirutimana was also prosecuted pursuant to Article 6(3) of the Statute of the Tribunal.
[907] Prosecution’s Closing Brief, para. 1112.
[908] Supra, section II. A.1.(b).
[909] Trial Judgement, para. 579.
[910] Id., para. 594.
[911] Id., para. 661.
[912] Id., para. 691.
[913] Id., paras. 552-559, 832(iii).
[914] Id., paras. 628, 832(vii).
[915] Id., paras. 384, 791.
[916] Id., paras. 186 and 791.
[917] Id., para. 524.
[918] Response (G. Ntakirutimana), para. 84 citing Vasiljević Trial Judgement, para. 222; Response (E. Ntakirutimana), p. 16.
[919] Trial Judgement, paras. 819-822.
[920] Vasiljević Trial Judgement, para. 229.
[921] Id., para. 222.
[922] Response (G. Ntakirutimana), para. 86; Response (E. Ntakirutimana), p. 16.
[923] Response (G .Ntakirutimana), paras. 87-89.
[924] Id., para. 96.
[925] Prosecution Reply, para. 3.24, citing The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-A, Decision of the Appeals Chamber, 31 May 2000, para. 92.
[926] Prosecution Reply, para. 3.25.
[927] Musema Appeal Judgement, paras. 358-370.
[928] Čelebići Appeal Judgement, para. 412. The standard was clarified in the Kunarac et al. Appeal Judgement, para. 168. See also Vasiljević Appeal Judgement, paras. 135, 146; Krstić Appeal Judgement, para. 218.
[929] Musema Appeal Judgement, para. 366.
[930] Musema Appeal Judgement, para. 370.
[931] Krstić Appeal Judgement, paras. 219-227.
[932] See Kayishema and Ruzindana Trial Judgement, paras. 647-650; Rutaganda Trial Judgement, para. 422; Musema Trial Judgement, para. 957; Semanza Trial Judgement, paras. 500-505.