VI. DISTRIBUTION OF WEAPONS
294.Under
this ground of appeal, the Appellant challenges his conviction for genocide and
extermination as crime against humanity, entered under Counts 1 and 2 of the
Indictment and in respect of which he was held responsible for having aided
and abetted in the preparation for and perpetration of killings of members
of the Tutsi group. It transpires from its Judgement that the Trial Chamber
accepted the evidence of Witnesses J, U, T and Q in finding, beyond a reasonable
doubt, that the Appellant aided and abetted in the killings of members of the
said group by distributing weapons to the Interahamwe on
8 and 15 April 1994, and on or about 24 April 1994. In his written submissions, the Appellant contends that
the Trial Chamber committed errors of law and fact in its interpretation of the Indictment, assessment of the alibi, and evaluation of the evidence presented at trial. He is therefore requesting that the Appeals Chamber set
aside the Trial Chamber’s finding on paragraph 10 of the Indictment.
295.
The
Appeals Chamber will examine seriatim the
Appellant’s arguments on appeal. The Appeals Chamber notes, nonetheless,
that unless other grounds of appeal are
accepted, the errors alleged under this ground of appeal are not such as to
lead to the setting aside of the convictions for genocide and extermination
as a crime against humanity. Indeed, even assuming that the Trial Chamber’s
factual findings in respect of paragraph 10 of the Indictment are reconsidered
or invalidated, the other findings under paragraphs 383 through 402 and 403
through 418 of the Trial Judgement suffice to establish beyond a reasonable
doubt the culpability of the Appellant.
A. Interpretation of
the Indictment and assessment of the alibi
296. In
this section, the Appeals Chamber will examine the Appellant’s arguments
concerning the interpretation of the Indictment and assessment of the alibi,
with respect to the facts alleged in paragraph 10 of the Indictment, which
reads as follows:
On
or about 6 April 1994, Georges RUTAGANDA distributed guns and other weapons
to Interahamwe members in Nyarugenge commune, Kigali.
297.
With
respect to the interpretation of the Indictment, the Appellant contends that the Trial Chamber committed
an error of law in finding that he distributed weapons on 8 and 15 April 1994,
and on or around 24 April 1994, whereas paragraph 10 of the Indictment averred a single
act of weapons distribution on or about 6 April 1994. The Appellant maintains that these dates are outside the
time frame referred to in the Indictment, and that the Trial Chamber erred, on the one hand, in misconstruing
the expression “on or about” and, on the other hand, in considering time not to be of
the essence in paragraph 10 of the Indictment.
298.Moreover,
the Appellant argues that he was prejudiced by the error, as he had relied
on the date set out in the indictment – namely 6 April 1994 – in preparing his defence. He submits
that he submitted an alibi notice for 6 and 7 April 1994, but the Trial Chamber found against him
for his failure to present alibi evidence for 8, 15 and 24
April 1994. The Appellant also alleges that the Trial Chamber erred
in rejecting, for no apparent reason, the Prosecution motion to amend the
Indictment pursuant to Rule 50 of the Rules, in order to substitute 6 April
with 15 or 16
April 1994. He argues that such a decision is incompatible with the
finding that he distributed weapons on three different dates alleged in the
Indictment.
299.
In
its Response, the Prosecution maintains, inter
alia, that paragraph 10 of the Indictment is framed in such a manner as
to include weapons distribution on several occasions within the general time
frame of April 1994. The Prosecution also contends that the Appellant did not
suffer prejudice in relation to the submission of his alibi, as he put forward evidence to establish his alibi for the
whole material period of April 1994.
300. Having
considered the totality of the Appellant’s arguments, the Appeals Chamber
is of the opinion that the relevant paragraphs of the Trial Judgement, which
the Appellant appears to contest, read as follows:
196. The Chamber notes
that the testimony of the Accused and Witness DDD indicates that the Accused
did leave his house on 8 April, and that he was in Kigali at the Amgar office on 15 April and on
24 April. His defence to the allegations set forth in paragraph 10 of the
Indictment is a bare denial. The Chamber notes that under cross-examination,
the Defence did not suggest to the Prosecution witnesses that the Accused
had not participated in the distribution of weapons, or that he was not present
at Nyarugenge Commune on 8, 15 and 24 April 1994. Further the Defence did not produce any
witnesses to confirm an alibi by testifying that the Accused was elsewhere
when the events described by the Prosecution witnesses took place, as he
does in respect of other allegations in the Indictment. A number of Defence
witnesses testified that the Accused was very busy selling beer after his
return to Kigali on 14 April, but the Chamber considers that selling beer
would not have precluded the Accused from also engaging in the distribution
of guns as alleged by the Prosecutor. For these reasons, the Chamber considers
that the Defence has not provided evidence which effectively refutes the
evidence presented by the Prosecutor in support of the allegations set forth
in paragraph 10 of the Indictment. (Emphasis added)
201.The
Chamber notes that the dates of the three incidents - 8 April, 15 April,
and 24 April - vary from the date on or about 6 April, which is set forth
in paragraph 10 of the Indictment (1). The phrase "on or about" indicates an approximate
time frame, and the testimonies of the witnesses date the events within the
month of April. The Chamber does not consider these variances to be material
or to have prejudiced the Accused. The Accused had ample opportunity to cross-examine
the witnesses. In reviewing the allegation set forth in this paragraph of
the Indictment, the Chamber finds that the date is not of the essence. The
essence of the allegation is that the Accused distributed weapons in this
general time period. (Emphasis added)
301.
An
Indictment is aimed at providing the accused with “a description of the
charges against him with sufficient particularity to enable him to mount his
defence.” Accordingly, the indictment must be sufficiently specific,
meaning that it must reasonably inform the accused of the material charges,
and their criminal characterisation. The materiality of an alleged fact depends,
above all, on the nature of the alleged criminal conduct charged to the accused. Before the ICTY, these principles derive from Articles 17(4),
20(2), 20(4)(a) and (b) of the Statute, and Rule 47(C) of the Rules.
302.Although, a
priori, the Prosecution is required to prove the facts alleged in the Indictment,
the Appeals Chamber holds the view that the Indictment cannot have the degree
of specificity of the evidence underpinning it. The Appeals Chamber therefore
considers that, in general, minor differences between the indictment and the
evidence presented at trial are not such as to prevent the Trial Chamber from
considering the indictment in the light of the evidence presented at trial.
Moreover, the Appeals Chamber notes that in Kunarac, the
ICTY Appeals Chamber held that “minor discrepancies between the
dates in the Trial Judgement and those in the Indictment […] go to prove […] that the events charged in the Indictment did not occur.”
303.
Such
doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a)
and (b) of the Statute, and take into account the specific circumstances of
each case. Indeed, the Appeals Chamber is of the opinion that the right of
the accused to be informed of the nature of the charge against him and the
right to have adequate time for the preparation of his defence imply that an
accused must be able to identify the criminal acts and conduct alleged in the
indictment in all circumstances. Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment
and the evidence presented at trial, a Chamber must normally satisfy itself
that no prejudice shall, as a result, be caused to the accused. An example
of such prejudice is the existence of inaccuracies likely to mislead the accused
as to the nature of the charges against him. Depending on the specific circumstances
of each case, the question to be to determined is whether an accused was reasonably
able to identify the crime and criminal conduct alleged in each of the paragraphs
of the Indictment.
304.
In
the present case, the Appeals Chamber finds that paragraph 10 of the Indictment
is a sufficiently concise description of the criminal conduct with which the
accused was charged, pursuant to Article 17(4) of the Statute and Rule 47(C)
of the Rules. Though paragraph 10 of the Indictment alleged that the Appellant
had distributed weapons “on or about 6 April 1994”, the
Appeals Chamber notes that this paragraph cannot be read in isolation from
the rest of the document. Indeed, this paragraph must be read in the context
of the other paragraphs of the Indictment relating to genocide and extermination
as crime against humanity. Moreover, the
Appeals Chamber notes that the description of the events charged in paragraph
10 of the Indictment does not show that the Prosecution necessarily envisaged
only a single act of weapons distribution. On the contrary, the Prosecution
evidence presented at trial shows that the Prosecution had envisaged more than
a single act of weapons distribution. In any event, the trial record does not
show that the Appellant indicated to the Trial Chamber that the evidence at
trial fell outside the scope of the Indictment. Nor does it show that the Appellant
requested additional time to prepare his defence. The Appeals Chamber therefore
finds that the Trial Chamber did not commit an error of law in considering
the evidence presented at trial, which evidence tended to show that the Appellant
had distributed weapons on three occasions in April 1994.
305.As
to whether the Appellant suffered prejudice as a result of the Trial Chamber’s
finding that the specific date was not material, the Appeals Chamber observes
that, according to the trial record, the Appellant submitted an alibi notice
for 6 and 12 April 1994. The Appeals Chamber notes, nonetheless,
that paragraph 196 of the Trial Judgement clearly shows that the Appellant
presented evidence – including his own testimony, and that of Witness
DDD – in support of an alibi for 8, 15 and 24 April 1994. The Appellant’s contention that
he suffered prejudice as to the presentation of his alibi therefore appears
clearly unfounded in this instance.
306.It
is the opinion of the Appeals Chamber that the alleged variance between the
evidence presented at trial and the Indictment in relation to the date of the
commission of the offence cannot lead to invalidation of the Trial Chamber’s
findings unless the said date is actually an essential part of the Appellant’s
alleged offence. However, such is not the case in this instance. The Appeals
Chamber notes, moreover, that according to the evidence presented at trial,
the weapons distributions occurred during a period that was reasonably close
to the date referred to in the Indictment and that, therefore, the Appellant
was not misled as to the charges brought against him. For these reasons, the
Appeals Chamber dismisses this sub-ground of appeal and finds that the Trial
Chamber did not commit the alleged error of law in this instance.
B. Assessment
of the evidence presented at trial
307.In
this section, the Appeals Chamber will examine the Appellant’s arguments
in respect of the Trial Chamber’s assessment of the evidence of Witnesses
Q, T, U and J.
1.Witness
Q
308.The
Trial Judgement reveals that the Trial Chamber found Witness Q to be a credible
witness. In the summary of Witness Q’s testimony, the Trial
Chamber noted that he testified that the Appellant had distributed firearms,
and that he was a “leader of the Interahamwe” and
that “everyone said that the Appellant was distributing weapons at the commune level”. The Trial Chamber also noted that Witness
Q was not cross-examined on this statement. Under this ground of appeal, the
Appellant challenges the Trial Chamber’s conclusion that Witness Q was
reliable, and, more specifically, that the Trial Chamber committed the following
errors of law and fact:
- error
of law in drawing inferences from the Appellant’s failure to cross-examine
Witness Q on the weapons distribution at the commune level, whereas the Trial Chamber elicited this statement
after cross-examination had ended;
- error
of law in admitting and relying on hearsay evidence;
- error
of law in discounting inconsistencies in the testimony of Witness Q based
on his trauma, as well as errors of transcription and/or interpretation in
the said testimony;
- errors
of law and fact in relying on the testimony of Witness Q despite its being
confused and contradictory; and
- Error
of fact in crediting the witness’s testimony whereas the answers
were elicited from questions that invited the witness to speculate.
309.The
Prosecution argues, inter alia, that
the Appellant has failed to show that the Trial Chamber drew improper inferences
from the Appellant’s failure to cross-examine the witness. The Prosecution submits that to the extent the Trial Chamber
summarised Witness Q’s testimony, it did not indicate whether the testimony
was material to the weapons distribution findings. Nor did the Trial Chamber
state that it relied upon the alleged hearsay evidence given by Witness Q.
Moreover, the Prosecution contends that Witness Q did not provide inconsistent
evidence as to who ordered the weapons distribution. The Prosecution explains
that Witness Q testified that weapons were distributed on two separate occasions,
namely the day the President’s plane was shot down, on 6 April 1994, and the day the Appellant gave orders
for distribution of weapons in the Witness’s presence. Lastly, the Prosecution
challenges the Appellant’s suggestion that the Bench improperly extracted
evidence from the witness.
310.The
Appeals Chamber considers that a party who fails to cross-examine a witness
upon a particular statement tacitly accepts the truth of the witness’s
evidence on the matter. Therefore the Trial Chamber did not commit an error
of law in the case at bar, in inferring that the Appellant’s failure
to cross-examine Witness Q on the weapons distribution meant that he did not
challenge the truth of the witness’s evidence on the matter. That being
said, it is unclear from the Trial Judgement whether the Trial Chamber drew
inferences from this failure. Rather, it appears that it only noted that the
Appellant failed to cross-examine Witness Q regarding the specific statement,
without making any inferences in its factual conclusions. It is the opinion of the Appeals Chamber that this argument
is without foundation.
311.
With
respect to the Appellant’s contention that the Trial Chamber erred in
admitting and relying on Witness Q’s hearsay evidence, the Appeals Chamber
notes that a priori, the Trial Judgement reveals
that the Trial Chamber did not rely on this evidence in finding that the Appellant
had distributed weapons. Moreover, the Appellant did not present any arguments
to show that the Trial Chamber actually relied on the hearsay evidence in its
factual conclusions. In any event, the Appeals Chamber recalls that hearsay
evidence, per se, is not inadmissible
before the International Tribunal. The Appeals Chamber therefore considers
that this argument must also fail.
312.With
respect to the Appellant’s contention that the Trial Chamber erred in
law in considering the impact of trauma, as well as the transcription and/or
interpretation errors in discounting Witness Q inconsistencies, the Appeals
Chamber once again notes that the Appellant made this claim in support of his
ground of appeal regarding the crimes committed at the Amgar garage. The Appeals
Chamber notes that the same applies to the allegation of error in respect of
the contradictions between the account of Witness Q and that of Witness Haglund.
The Appeals Chamber therefore refers the Appellant to its findings on these
arguments, under the grounds of appeal on the crimes committed at the Amgar
garage, infra.
313.With
regard to the allegations of errors of law and fact regarding inconsistencies
in the testimony of Witness Q, the Appeals Chamber holds that the alleged inconsistencies
in the evidence of the said witness – in regard to which the Appellant
refers to his allegations relating to the crimes committed at Amgar garage – are immaterial as to whether the Appellant had distributed
weapons to members of the Interahamwe in
April 1994. When the alleged inconsistencies are placed in the context of this
issue, the Trial record reveals that Witness Q did not contradict himself as
to who distributed weapons. This witness testified that weapons
were distributed on two separate occasions, and that the Appellant was present
on one of the occasions. As such, the fact that Witness Q did not identify
the Appellant on the first occasion does not render his entire testimony unreliable.
In any case, it is apparent from the Trial Chamber’s factual findings
that more weight was placed upon the testimony of other witnesses who provided
specific dates on which the Appellant had distributed weapons (namely, Witness
J in relation to 15 April 1994, Witness T in relation to 24
April 1994, and
Witness U in relation to 8 April 1994). Even if the Appellant’s arguments
were founded in this instance – which, indeed, is not the case – the
allegation of error of fact and law neither invalidates the Judgement nor occasions
a miscarriage of justice.
314.Lastly,
contrary to the Appellant’s assertion that the Trial Judges improperly
extracted evidence from the witness, the trial record shows that the Trial
Chamber acted within its discretion when examining the witness on certain aspects
of his testimony.
315.For
these reasons, the Appeals Chamber dismisses all of the Appellant’s arguments
in relation to the Trial Chamber’s assessment of the evidence of Witness
Q.
2.Witness
T
316.Under
this ground of appeal, the Appellant contends that the Trial Chamber erred
in law in relying on the evidence of Witness T, and puts forward several arguments
relating to possible bias on the part of the witness, Witness T’s insufficient
knowledge of the Appellant, and his inability to identify the Appellant satisfactorily
in court, as well as the existence of several inherent contradictions in his
testimony.
317.The
Appeals Chamber notes, first of all, that contrary to the Appellant’s
assertions, the Trial Chamber relied on Witness T’s evidence in
establishing the Appellant’s involvement in weapons distribution on 24
and not on 8 April
1994. Indeed,
Witness T’s evidence, summarised in paragraph 193 of the Trial Judgement,
relates to the Appellant’s presence during the attack by the Interahamwe on the Abakombozi and the fact that when he arrived at
the wheel of a red pick-up truck in which he brought Uzzi guns, he distributed
some of the weapons (while the rest remained in the pick-up) with the assistance
of the Interahamwe leader for the
area and of one François, president of the Interahamwe for Cyahafi. According to Witness T, the Appellant gave
the weapons to François who, in turn, distributed them. Thus, the Interahamwe distributed weapons to those
in the neighbourhood who did not have any. The witness further testified that
the Tutsis were separated from the Hutus while the Appellant was standing in
the back of the vehicle in which he had brought the weapons, and that when
the massacres started, the Appellant was seated in the vehicle. The Appeals
Chamber affirms that the Trial Chamber’s factual findings on this matter
are found in paragraph 199 of the Trial Judgement, which reads as follows:
The
Chamber finds that on or about 24 April in Cyahafi sector, the Accused distributed Uzzi guns
to the president of the Interahamwe of
Cyahafi during an attack by the Interahamwe on
the Abakombozi.
318.The
Appeals Chamber will now examine in detail the Appellant’s arguments
which, he contends, should have led the Trial Chamber to disqualify Witness
T’s evidence. First of all, the Appellant alleges that the Trial Chamber
failed to take account of a possible cause of bias, namely the fact that Witness
T was an RPF soldier until shortly prior to his testimony. On this point, the Prosecution responds that the courts
are not obliged to give a detailed answer to every argument. The Appeals Chamber notes that the Appellant is not unaware
that this argument per se cannot invalidate Witness T’s
testimony, and that he has not put forward any arguments to show any bias on
the part of this witness. The Appeals Chamber also notes that the Trial Chamber
had two serious indicia of the absence of any animus on the part of the witness
against the Appellant. Indeed, as regards the murder of his brother, Witness
T explicitly stated that the Appellant was not present. Furthermore, as regards the meeting, which, the Appellant
states, took place in the Appellant’s compound and during which the massacres
were planned (according to what the witness was told by a third party who had
since passed away), the witness testified that the person in question never
indicated whether the Appellant was present at the meeting.
319.The
Appellant also contends that when asked to identify him in the courtroom, Witness
T initially pointed to someone in the interpretation booth, before identifying
him. The Prosecution stresses that this point should not be exaggerated,
insofar as Witness T did provide a satisfactory explanation as to his mistake
and finally identified the Appellant unequivocally. The Appeals Chamber has taken into account the two relevant
passages of the trial transcript regarding the witness’s identification
of the Appellant. The Appeals Chamber notes that although the transcripts
of the early part of the proceedings do not specifically mention the incident
referred to by the Appellant, the said incident is not disputed by the parties.
It further notes that immediately after his initial mistake, the witness was
asked by President Kama to look around the room and try to identify the Appellant,
whereupon the witness identified the Appellant without difficulty. The Appeals
Chamber notes that the witness clearly explained the reasons for the initial
confusion, which, he testified, was due to the change in the appearance of
the Appellant, who had lost weight and aged since the time when they were neighbours.
Accordingly, the Appeals Chamber considers that it was not unreasonable not
to disqualify the witness’s evidence as unreliable due to his initial
confusion. The Appellant also indicates that the witness did not know him well
and gives several examples to support the assertion. The Prosecution responds that the examples in question are
irrelevant in as much, as not knowing certain details about the professional
or social status of a neighbour does not in any way impair one’s ability
to give truthful evidence as to what one witnessed. The Appeals Chamber concurs with this analysis.
320.Lastly,
the Appellant alleges that there are a number of inherent contradictions in
Witness T’s account relating to the following points: (1) the issue as
to whether Rutaganda
brought one or more vehicles containing weapons to the place of the attack; (2) the presence of the Appellant
during the attack; (3) the time when the Interahamwe from
the area actually attacked; (4) whether the person the witness was hiding with
was of Hutu or Tutsi origin; (5) the witness being compelled to bury his brother
and his friend; and (6) the witness witnessing the killing of his brother. The Prosecution challenges the existence of several of the
alleged inconsistencies and submits that the other discrepancies are immaterial
to the credibility of Witness T’s evidence regarding the weapons distribution
by the Appellant. Having examined the relevant trial transcripts, the Appeals
Chamber considers that the discrepancies alleged in points (1), (2), (3), 4)
and (5) have not been established.
321.However,
the Appeals Chamber notes that Witness T’s account of the circumstances
surrounding the killing of his brother conflicts with the forensic evidence
presented at trial. The Trial Chamber notes that the forensic evidence shows
that the body of the witness’s brother bore three gunshot wounds to the
head from back to front. However, the witness initially testified that:
My
elder brother was compelled to lie on the ground and a bullet was shot at
him. He was asked to sleep on
his stomach, he was shot at with a pistol, a shotgun and the bullet went
through his heart.
When asked, in cross-examination,
to point to the place where his brother was shot, Witness T pointed to the
area between the two shoulder blades. He testified that the bullet exited
through the heart and that entry of the bullet was visible on the undershirt
his brother was wearing. The Appellant contends, without any showing, that Witness
T did not witness the killing of his brother and that his testimony is not
sufficiently credible to support a finding that he actually saw the Appellant
distributing weapons. The Appeals Chamber considers that the contradictions
in question can be explained otherwise than by holding that he was not present
when his brother was killed. It notes in this regard that he was not asked
to specify how far he was from his brother when the killing occurred or his
angle of vision. The Appeals Chamber further notes that
it has no information on the condition of the undershirt the victim wore.
If the issue was to establish the circumstances surrounding the killing of
Witness T’s brother, the aforesaid discrepancies would certainly call into question
the probative value of the witness’ evidence on this point. However, considering the overall available
evidence used by the Trial Chamber to assess the credibility of Witness T,
the Appeals Chamber finds that the Appellant has failed to show that a reasonable
tribunal could have, owing to the discrepancies alone, set aside the testimony
of Witness T in respect of the alleged distribution of weapons by the Appellant
on 24 April 1994.
3. Witness
U
322.Under
this ground of appeal, the Appellant contends that the Trial Chamber erred
in law in disregarding what he qualifies as fundamental inconsistencies between
Witness U’s previous statement and his in-court testimony, because the
statement had not been signed. He further submits that the Trial Chamber erred in fact
in crediting the testimony of Witness U notwithstanding the inherent implausibility
and contradictions identified by the Appellant.
323.On
the other hand, the Prosecution submits that the Trial Chamber’s decision
to disallow the tendering of the unsigned statement was appropriate. As regards the alleged error of fact, the Prosecution argues
that it appears from the record that Witness U’s testimony contains no
inconsistency and that it was therefore reasonable for the Trial Chamber to
find the witness credible.
324.The
Appeals Chamber will begin by examining the ground of appeal according to which
the Trial Chamber committed an error of law by disregarding the inconsistencies
between the earlier statement of Witness U and his in-court testimony, because
the said statement had not been signed.
325.The
Appeals Chamber recalls that it falls to the Trial Chamber to determine if
an inconsistency and/or discrepancy between two testimonies of the same witness
substantially casts doubt on the witness’s overall credibility. In this instance, the Appeals Chamber reiterates the principle
articulated in the Akayesu Trial
Judgement that:
The
Chamber has considered inconsistencies and contradictions between
these statements and testimony at trial with caution […], and in the
light of the time lapse between the statements and the presentation of evidence
at trial, the difficulties of recollecting precise details several years
after the occurrence of the events, the difficulties of translation, and
the fact that several witnesses were illiterate and stated that they had
not read their written statements.
The Appeals Chamber therefore
recognises that the Trial Chamber had the discretion to determine whether
the alleged inconsistencies directly concerned the crucial issue as to whether
the Appellant distributed weapons to the Interahamwe.
326.The
Appellant contends that the Trial Chamber erred in limiting use of the statement
of Witness U. In support of his contention, the Appellant
suggests that the Presiding Judge’s statement (that “according
to a general principle of law, such an unsigned statement by a witness cannot
be used against the witness, unless he recognises having made the statement”) testified to an overly restrictive
procedure which led the Trial Chamber’s failure to carefully assess the
credibility and reliability of Witness U.
327.
However,
the Appeals Chamber notes that despite the aforementioned statement by the
Presiding Judge, the Trial Chamber, in its Judgement, mentioned and considered
the said pre-trial statement of Witness U. The Appeals Chamber further notes that during the cross-examination
of this witness, the Presiding Judge himself intervened with regard to a contradiction
pointed out by the Appellant between the pre-trial statement and the testimony
of Witness U. In this regard, although the Judge implied that the unsigned
statement could not be used in examining the witness, the Appeals Chamber considers
that, as revealed by the trial record, the
Trial Chamber did not do so during its examination of Witness U.
328.Accordingly,
the Appeals Chamber accords no weight to the Appellant’s contention that
the Trial Chamber erred in law by disregarding the pre-trial statement of Witness
U on account of the fact that it was not signed.
329.With
respect to the allegation of an error of fact, the Appellant points to a number
of inconsistencies and contradictions identified by him, which, he contends,
vitiate Witness U’s testimony, in order to highlight the apparent implausibility
of the witness’s evidence. The said inconsistencies and contradictions
relate to the signing of this witness’s pre-trial statement, the Appellant’s
political status, the role the Appellant played in the weapons distribution
and his account thereof, the account regarding the Interahamwe, the fact that he hid in a
bush near a garage and his subsequent flight, and the exact place he claimed
that the victims were buried.
330.
The
Appeals Chamber recalls that, in examining an allegation of an error of fact,
it must defer to the factual findings of the Trial Chamber, as the Trial Chamber
is primarily responsible for evaluating
the evidence presented at trial, assessing it and deciding what weight to accord
it. Therefore, having examined Witness U’s evidence, the Appeals Chamber
finds that the Appellant’s arguments are unfounded. Indeed, the Trial
Chamber thoroughly examined the questions raised in the examination-in-chief
and cross-examination. Moreover, having examined Witness U’s
testimony, the Appeals Chamber notes that the Trial Chamber intervened many
times during the examination-in-chief and cross-examination of the witness
on the inconsistencies invoked by the Appellant in support of his contention
that the witness was not reliable. Likewise, the Appeals Chamber finds that
the contention that Witness U was ready to draw incriminating conclusions is
unfounded.
331.It
is the opinion of the Appeals Chamber that the Appellant has failed to demonstrate
that no reasonable tribunal could have accepted the evidence upon which the
Trial Chamber relied. Consequently, the Appeals Chamber holds that the Appellant
has not established the alleged error of fact.
4. Witness J
332.The
Appellant contends that the Trial Chamber erred in fact by finding, in reliance
upon Witness J’s testimony, that the Appellant had distributed weapons
on 15
April 1994. Indeed,
the witness testified at trial that the distribution occurred on 15 or 16
April 1994, whereas
in his pre-trial statements to the Investigators from the Office of the Prosecutor
he had stated that the distribution occurred on 6 or 7 April
1994. Moreover, the Appellant submits that the
Trial Chamber erred in finding Witness J to be a credible witness and in discounting contradictions between the witness’s
testimony and his pre-trial statements. According to the Appellant, the contradictions concern the
following points: (1) the question as to whether the conseiller of
Cyahafi was killed before or after the weapons distribution; (2) the issue as to who distributed weapons on that date
(the Appellant himself or the two passengers in his vehicle); (3) Witness J’s reaction when the shooting started
(whether he fled immediately or only after having seen Rusagara shot dead). The Appellant challenges the Trial Chamber’s factual
findings that Witness J “provided reasonable answers to the
questions raised on cross-examination with regard to inconsistencies between
his testimony and his pre-trial statements”.
333.
In
response, the Prosecution argues first of all that the alleged contradictions
have not all been established and that, in any event, the Trial Chamber did
not err in finding Witness J to be a credible witness, as such minor discrepancies
cannot undermine the entirety of his evidence. The Prosecution contends that the reasons put forward by
Witness J to explain some of the discrepancies were more than reasonable in
the circumstances, and that the Appellant’s arguments are, therefore,
without merit.
334.The
Appeals Chamber reaffirms that the Trial Chamber is primarily responsible for
assessing and weighing the evidence presented at trial. Prior statements of witnesses who appear in court are relevant
only insofar as they are necessary to a Trial Chamber in its assessment of
the credibility of a witness, and the Trial Chamber generally accepts
live testimony as being the most persuasive evidence before a court. As the Appeals Chamber has recalled in the present Judgement,
it is incumbent upon a Trial Chamber to assess whether any contradictions and/or
inconsistencies raised in a witness’s testimony substantially cast doubt
on the overall credibility of the witness.
335.
With
respect to the Appellant’s first contention that the Trial Chamber committed
an error of fact by relying on Witness’s J evidence in concluding that
the Appellant distributed weapons on 15 April 1994, whereas his pre-trial statements
mentioned 6 or 7 April 1994, the Appeals Chamber notes, first of all, that
the Trial Chamber took due notice of the contradictions both during Witness
J’s cross-examination and very clearly in the Trial Judgement per
se. Having examined the trial transcripts, the Appeals Chamber
finds that the explanation given by Witness J regarding the contradictions
during his cross-examination were persuasive; the Appellant has failed to show how
it was unreasonable for the Trial Chamber to accept those explanations. The
Trial Chamber duly assessed and weighed the evidence before it, and the Appellant
has failed to demonstrate that no reasonable trier of fact would have reached
such a conclusion. The Appeals Chamber therefore dismisses the Appellant’s
allegation of an error of fact.
336.
The
Appellant submits in his second sub-ground that Witness J’s testimony
suffers from such material discrepancies as would prevent a reasonable trier
of fact from affirming that Witness J provided pertinent answers to explain
these discrepancies and, therefore, from finding that Witness J’s testimony
is credible. Having examined the trial record, the Appeals Chamber finds the
discrepancy alleged by the Appellant in paragraph 332, point 3, has not been
demonstrated. The Appeals Chamber considers that the clarifications provided
by Witness J regarding the circumstances surrounding his flight do not show any contradictions with his initial statement
that “as soon as I heard the shooting, I did not look up. I just immediately
fled.” Even assuming that the Appellant’s allegation is founded,
such a minor discrepancy cannot undermine Witness J’s credibility.
337.
As
to the contradictions alleged by the Appellant in paragraph 332, points 1 and
2, the Appeals Chamber notes that the Trial Chamber took note of those contradictions
during Witness J’s cross-examination and explained them in its Judgement. Having examined the trial record, the Appeals Chamber holds
that it was entirely reasonable for the Trial Chamber, which is primarily responsible
for evaluating and weighing evidence, to find that Witness J had sufficiently
articulated his initial statements and provided “reasonable responses
to the questions raised on cross-examination with regard to inconsistencies
between his testimony and his pre-trial statement”. The Appeals Chamber considers that the Trial Chamber duly
weighed the evidence before it and assessed Witness J’s credibility in
the light of the alleged inconsistencies. The Appellant has failed to show
that no reasonable trier of facts would have, based solely on the contradictions,
discredited Witness J’s evidence and found the Appellant not guilty of
the weapons distribution on 15 April 1994.
338.For
these reasons, the Appeals Chamber finds that the Trial Chamber did not commit
an error of fact that occasioned a miscarriage of justice by finding the Appellant
responsible for the weapons distribution which occurred on 15
April 1994.
5. Contradictions
between the testimonies of Witnesses J, T and U
339.Under
this ground of appeal, the Appellant contends that Witnesses J, T and U contradicted
one another, and that the Trial Chamber committed an error of fact in
not finding that there was reasonable doubt regarding the facts alleged in
paragraph 10 of the Indictment. The Appellant’s main argument is that no reasonable trier of fact could have found that the evidence of Witnesses
J, T and U established beyond a reasonable doubt that he was responsible for
a single act of weapons distribution.
340.
The
Appeals Chamber recalls that it dismissed, supra,
the Appellant’s arguments on the interpretation of the Indictment and
held that the Trial Chamber did not err in finding that the Appellant had participated
in three acts of weapons distribution during the month of April 1994. The Appeals
Chamber also dismissed the Appellant’s allegation that the Trial Chamber
erred in finding Witnesses J, T and U to be credible witnesses. It therefore
appears unnecessary to examine the discrepancies alleged by the Appellant under
this sub-ground, as the arguments are clearly unfounded. Indeed, to the extent
that the Appellant distributed weapons on different dates in April 1994, it
does not seem abnormal for the testimonies of Witnesses J, T and U not to be
mutually corroborative on all the points.
341.
For
all these reasons, the Appeals Chamber dismisses the ground of appeal on the
weapons distribution.
Supplemental Document, para. 14.
Trial Judgement, paras. 386 and 416.
Ibid.,
paras. 195 to 201 and 416.
Supplemental Document, paras. 14(4)
to (7) and
15(1) to 18(8). The Appeals Chamber notes that the allegation at paragraph
15(1) is entirely unfounded, and therefore rejects it.
Ibid.,
paras. 15(9) to (14).
Ibid,
paras. 14(1) to (7).
Ibid,
paras. 11(e) and (f).
Ibid,
paras. 15(1) and (14).
The paragraph reads as follows: “[O]n or about 6 April 1994, Georges RUTAGANDA
distributed guns and other weapons to Interahamwe members in Nyarugenge commune, Kigali.”
In his written submissions, the Appellant
put forward four main arguments in support of this allegation (Supplemental
Document, paras. 14(4) to (7); Rutaganda’s Brief, para. 236 to 276).
The Appeals Chamber finds that these arguments relate to one sub-ground of
appeal.
Supplemental Document, para. 14(4); Ibid., paras. 252 to 265.
Ibid., para.
14(4).
Idem.
In its Trial Judgement, the Trial
Chamber explained that the phrase “on or about” indicates an
approximate time frame within the month of April. See Trial Judgement, paras.
201 and 255.
Supplemental Document, paras. 14
(6) and (7); Rutaganda’s Brief, para. 269.
Supplemental Document, para. 11(e)(1)
and (2), and (3) to (5). The Appeals Chamber hereby dismisses the allegation
made in para. 11(e)(6) on the ground that it is entirely unfounded. In his
arguments, the Appellant also contends that the Trial Chamber shifted the
burden of proof by holding that he had failed to adduce sufficient evidence
to refute the evidence presented by the Prosecution. (Supplemental Document,
para. 15(8). The Appeals Chamber recalls that it dismissed this argument
in Part IV of this Judgement.
Rutaganda’s Brief, para. 268
(citing Trial Judgement, para. 14).
Ibid.
Prosecution’s Response, para.
5.9.
Ibid.,
para. 5.19.
Ibid.,
paras. 5.26 and 5. 28.
The Appeals Chamber notes that the
Appellant’s written submissions do no specify which passages of the
Trial Judgement he challenges under this ground of appeal.
Trial Judgement, para. 196.
Trial Judgement, para. 201 (Footnotes
omitted).
Kupreskic Appeal
Judgement, para. 95; see also para. 88, and the Furundzija Appeal Judgement, para. 61.
Kupreskic Appeal
Judgement, para. 89.
Kunarac Appeal
Judgement, para. 217.
Non-material facts are, by nature,
superfluous; in other words, it is not, in principle, necessary to prove
them in order to establish the culpability of an accused for a given crime.
Moreover, it goes without saying
that where an accused considers that the evidence at trial falls outside
the scope of the indictment, he may raise an objection as to lack of fair
notice and/or seek appropriate remedy from the Trial Chamber, either by way
of an adjournment of the proceedings or by excluding the challenged evidence. (Furundzija Appeal
Judgement, para. 61).
See Avis
en vertu de l’article 67(A)ii) du Règlement de procédure
et de preuve – Défense d’alibi, that Counsel
for Appellant appears to have filed on 15 February 1997. See Appeals Chamber’s findings under Part
V of this Judgement.
See Dossi (1918) 13 Cr App R 158.
Trial Judgement, para. 195.
Ibid.,
para. 194.
Rutaganda’s Brief, paras. 282
to 287.
Supplemental Document, paras. 15(1)
and 15 (2).
Ibid.,
para. 15(3).
Ibid.,
para. 15(4).
Ibid.,
paras. 15(5) and 15(10).
Ibid.,
para. 15(10).
Prosecution’s Response, para.
5.46.
Rutaganda’s Brief, paras. 282
to 287.
Trial Judgement, para. 194.
See Part VII of this Judgement.
For example, the time lapse between
the presidential plane crash and the start of the killings in Kigali, the
witness’s escapes, the events at a roadblock outside Amgar garage and
the events at Amgar garage.
T, 9 October
1997,
pp. 10 and 19 to 25.
Supplemental Document, para. 15(11); Rutaganda’s
Brief, paras. 288 to 290.
Supplemental Document, para. 15(11).
That is, youths of the Parti Social Démocrate, who were
defending Cyahafi secteur against Interahamwe from nearby secteurs.
Rutaganda’s Brief, para. 289(1).
Prosecution’s Response, paras.
5.62 and 5.63.
T, 11 March
1998,
p. 114 to 115.
Ibid., p.
23.
Rutaganda’s Brief, para. 289(2).
Prosecution’s Response, para.
5.65.
T, 11 March
1998,
pp. 6, 112 and 113.
Rutaganda’s Brief, para. 289(3).
Prosecution’s Response, para.
5.67.
Rutaganda’s Brief, para. 289(4).
Ibid.,
para. 289(5).
Ibid,
para. 289(6).
Ibid., para.
289(7).
Ibid,
para. 289(8).
Ibid,
para. 289(9).
Prosecution’s Response, paras.
5.68 to 5.78.
As regards point (1), see French
Transcript, 11 March 1998, p. 118; unlike the English transcript
(T, 11 March 1998 p. 114), it refers to only one vehicle; regarding point
(2), see id. (French) pp. 115 to
116; regarding point (3), see T, 11 March 1998, pp. 14 to
15. It should be noted that T’s testimony mentions three separate events:
a first attack that coincided with the weapons distribution, and led by the Interahamwe from Kimisagara and Gasyata
on Cyahafi secteur, then defended
by the Abakombozi around 24 April
(pp. 13 to 14); a second attack the next day with the participation of the Interahamwe from the area joined by Hutu Abakombozi after
they were told that the Tutsis were the people to be killed and that they
were to forget about party differences (pp. 17 to 18); lastly, the killing
of his elder brother, his friend and the driver, which, according to him,
occurred at the end of May (p. 31); regarding point (4), see id.,
pp. 19 and 23 to 25; regarding point (5), see id., pp. 34 to 35 and 112.
Annex D, Prosecution Exhibit 254.
T, 11 March
1998,
p. 31.
Ibid, p. 108.
Supplemental Document, para. 15(6).
Supplemental Document, para. 15(12).
Prosecutions’s Response, paras. 5.79 to 5.81.
Ibid.,
paras. 5.82 to 5.102.
Musema Appeal
Judgement, para. 89; Čelebići Appeal Judgement, para.
497; Kupreškić Appeal
Judgement, para. 156.
Trial Judgement, para. 19.
T, 10 October
1997 p.
76.* [English translation differs from French version.]
The record shows that at the beginning
of his cross-examination, Witness U confirmed having previously given a statement
to the Prosecution. The witness also confirmed having signed the statement,
but did not know exactly when he signed it. At that moment, the Appellant
stated that the statement he had in his possession was not signed, and requested
the Tribunal’s indulgence to allow him to obtain a signed copy from
the Prosecution. The Prosecution confirmed that the statement, recorded as
Exhibit 189, was not signed in either English or French. After being questioned
further by the Appellant, the witness confirmed having signed the statement
below a text in Kinyarwanda acknowledging that he had read the statement
or had it read to him. Thereafter, during his cross-examination, the Appelant
submitted an attestation in Kinyarwanda bearing his thumbprint. The witness
reaffirmed having signed the statement with a pen. (T, 10 October
1997 pp. 29 to 34, and 50 to 53).
Trial Judgement, para. 191.
T, 10 October
1997 pp.
69 and 70.
Trial Judgement, paras. 188 to 192.
See, inter alia, T, 10 October 1997 pp. 13 to 18, 20 to 28, 36 to 38, 60 to 67, 72 to 75.
Ibid. See, inter
alia, pp. 10 and 35 to 40.
Rutaganda’s Brief, para. 303(1),
Supplemental Document para. 15(13) and Rutaganda’s Reply, para. 5.54.
Trial Judgement, para.195.
Rutaganda’s Brief, paras. 303 to
308, Supplemental Document para.15 (14) et Rutaganda’s Reply, paras. 5.56 to 5.61.
Rutaganda’s Brief, para. 303(2);
Rutaganda’s Reply, para. 5.56.
Rutaganda’s Brief, para. 303(3);
Rutaganda’s Reply, para. 5.57.
Rutaganda’s Brief, para. 303(4); Rutaganda’s Reply, para. 5.58.
Supplemental Document para. 15(14), Rutaganda’s Brief, paras.
305 to 307.
Trial Judgement, para.195.
Prosecution’s Response, paras.
5.103 to 5.115.
Prosecution’s Response, para.
5.113.
Akayesu Appeal
Judgement, para.132.
Ibid,
para.134.
Ibid.
The President stated: “So obviously
his statement today is different from the one he gave earlier”. T, 13
June 1997,
p. 105. See also T, 13 June 1997 pp.88 to 93 and 102 to 105.
Trial Judgement, para.178.
T, 13 June 1997,
pp. 90 to 91 and 101 to 106.
Ibid.,
pp. 76, 92 and 107 to 111.
Ibid.,
pp. 92, 107 to 111.
Ibid.,
p. 76.
As to who distributed the weapons,
see T, 13 June 1997, pp. 55-56, 61 and 100. As
to whether the conseiller of
the commune was killed before or after the
weapons distribution, see T, 13 June 1997, pp. 95 to 99.
Trial Judgement paras.177,179 and
180.
Ibid.,
para.195.
Supplemental Document, para. 15(9); Rutaganda’s
Brief, paras. 276 to 279; Rutaganda’s Reply, paras. 5.16 and 5.17.
Rutaganda’s Brief, paras. 278
and 279.
Rutaganda’s Brief, para. 276.
Rutaganda’s Brief, para. 279.
The Appellant submits tht the testimonies of Witnesses J, T and U were contradictory
as regards the following: what day the weapons distribution occurred; the
time the distribution occurred; in what context the distribution occurred;
where the Appellant was in the vehicle; the kind of vehicle; the type of
weapons disributed; who received the weapons; what role each person played
in the distribution; whether persons from Cyahafi were involved in killings
at the distribution site (Rutaganda’s Brief, paras. 278(i) to 278(ix)).