543.      The Accused were charged with the crime of murder as a crime against humanity under Count 3 of the Mugonero Indictment and Count 4 of the Bisesero Indictment. The Trial Chamber acquitted Elizaphan Ntakirutimana of these counts; [933] Gérard Ntakirutimana was found guilty of the murders of Charles Ukobizaba, Esdras and the wife of Nzamwita. [934] Count 3 of the Mugonero Indictment alleged the massacre of civilians during the month of April 1994 in Gishyita commune, Kibuye Prefecture, and Count 4 of the Bisesero Indictment alleged the massacre of civilians during the months of April through June 1994 in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture.

544.      The Prosecution contends that the Trial Chamber erred in law in its determination of the elements required for murder as a crime against humanity as applied to both the Mugonero Indictment and the Bisesero Indictment. Specifically, it alleges that the Trial Chamber erred in paragraphs 803 (Mugonero) and 843 (Bisesero) in finding that one of the elements of the crime of murder (crime against humanity) is that the perpetrator personally killed the victim(s). [935] According to the Prosecution, this error invalidates the Judgement when the Trial Chamber did not find Elizaphan Ntakirutimana and Gérard Ntakirutimana guilty of murder as a crime against humanity for their participation in the hundreds of killings at the Mugonero Complex and the thousands of killings in Bisesero. [936] The Prosecution requests that the Appeals Chamber reverse the verdict and enter convictions for Gérard Ntakirutimana and Elizaphan Ntakirutimana based on Count 3 of the Mugonero Indictment and Count 4 of the Bisesero Indictment. [937] This request is submitted, however, in the event that the Appeals Chamber does not convict Gérard Ntakirutimana and Elizaphan Ntakirutimana of extermination. [938]

545.      At the Appeals hearing the Prosecution requested that the Appeals Chamber, even if it granted the Prosecution’s fourth ground of appeal, clarify the law with respect to the material element of murder as a crime against humanity by including a finding in the Judgement that it is not a requirement for responsibility under Article 3(a) of the Statute that the accused personally commits the killing. Having found that the Trial Chamber erred in relation to the elements of the crime of extermination, the Appeals Chamber clarifies the law on the material element of murder as a crime against humanity.

546.      Murder as a crime against humanity under Article 3(a) does not require the Prosecution to establish that the accused personally committed the killing. Personal commission is only one of the modes of liability identified under Article 6(1) of the ICTR Statute. All modes of liability under that Article are applicable to the crimes defined in Articles 2 to 4 of the Statute. Similarly, an accused can also be convicted of a crime defined in Articles 2 to 4 of the Statute on the basis of his responsibility as a superior according to Article 6(3) of the ICTR Statute.